Seminars

Allen & Others v Depuy International Limited [2014] EWHC 753 (QB)

Date: 18/03/2014

Product Liability: Important new case on applicable law and the territorial scope of the Consumer Protection Act 1987.

On 18th March 2014 the High Court handed down judgment in Allen & Others v Depuy International Limited [2014] EWHC 753 (QB) on a number of preliminary issues.

The Claimants alleged that they had suffered injury as result of defective metal-on-metal hip prostheses manufactured by the Defendant in England. None of the Claimants was domiciled in England; and none had their operation or suffered their alleged injury in England. Most of the Claimants were domiciled in New Zealand or South Africa, where they had also had their operations and suffered their alleged symptoms. The Claimants relied on the Consumer Protection Act 1987 (“CPA”) and sought to argue that English law applied to their claims, under section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (“1995 Act”), primarily on the basis that this was where the prostheses were all designed and manufactured and where the Defendant was registered. The Defendant argued that some of the claims might fall under the scope of the Rome II regulation rather than the 1995 Act on the basis that the relevant ‘events giving rise to damage’ was not simply the manufacture or supply of the goods, but rather in the present case when any biological reaction to the implants led to the damage. Insofar, as the 1995 Act applied, the Defendant argued that there was no case for disapplying the usual rule that the law of the place where the injury was suffered should apply – save in one case where it was appropriate to apply the law of the place where the operation and revision surgery took place rather than the place where that Claimant happened to be when he first suffered symptoms, namely Fiji. In no case was it appropriate to apply English law. Even if English law did apply, the Defendant’s case was that the CPA, and the European Products Liability directive (85/374/EEC) upon which the CPA is based, do not extend to damage suffered outside the EEA. The Claimants would therefore have to prove negligence.

Stewart J held that:

(1)  For the purposes of Rome II, and its temporal application, the date of the relevant ‘event giving rise to damage’ in a product liability case is the date of manufacture/ circulation. Accordingly the 1995 Act applied to all the claims. (2)   The applicable law of each claim under the 1995 Act was where the injury was sustained, save in one case where it was significantly more appropriate to apply the law of New Zealand, where the operation and revision operation took place rather than Fiji, where that Claimant had been when the injury had first been suffered. In no case, was the appropriate law English law. It was not relevant to take into account, in deciding whether English law was appropriate, that there were multiple claims (involving Claimants from different countries) relating to the same or ‘generic’ liability allegations. (3)   Even if English law had applied, the Claimants would not have had the benefit of the CPA. Here the Claimants were all non- EEA consumers who suffered damage outside the EEA, in relation to products which had been marketed and supplied outside the EEA. The claims fell outside the territorial scope of the CPA.

This is an important decision. It is the first case to consider (1) the temporal application of Rome II to product liability cases, (2) the application of the 1995 Act to  product liability claims and (3) the territorial scope of the CPA. The judge did not need to decide, and did not decide, the difficult question of  whether the CPA is limited only to damage in the UK or also extends to damage within the EEA. He also did not need to decide whether it was necessary in order to fall beyond the scope of the CPA that the goods were marketed outside the EEA, or simply that damage was sustained outside the EEA.

Please click on the link for a copy of the judgment  /assets/docs/general/Final_Judgment.pdf

Charles Dougherty QC of 2 Temple Gardens, leading Alexander Antelme, appeared for the Defendant, Depuy International Limited, instructed by Kennedys. Research assistance was provided by Isabel Barter of 2 Temple Gardens. Hugh Preston QC, leading Conor Dufficy, appeared for the Claimants, instructed by PLI Legal Services.

If you have any queries about the 2TG Product Liability Group, please contact Lee Tyler, senior clerk, by telephone on 020 7822 1203 or by email at ltyler@2tg.co.uk.

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