Cosmetic surgery has been hitting the headlines for the last few years, in particular breast implant surgery. You may recall the Government reviewing the UK’s use of French PIP implants, made using industrial grade silicone (for my previous article please click here: ‘Keeping Abreast of Implants’) in 2012. Sadly it appears that more recently we have moved from defective PIPS to defective HIPS…
The High Court (Stewart J) has determined that in personal injury claims by non-EU Cs arising out of allegedly defective prosthetic hip implants manufactured by an English company, the applicable law, under the Private International Law (Miscellaneous Provisions) Act 1995 s.11, was that of the country where the C sustained injury. Had English law been applicable, the Consumer Protection Act 1987 would not have in fact benefited the Cs since it did not extend to damage caused outside the United Kingdom or European Economic Area.
D manufactured the implants in England. The Cs represented a cross section of a much larger group of a few hundred overseas residents from a wide variety of countries who had each been implanted with the devices. All the other claims had been stayed pending the ruling on preliminary issues in the 10 sample claims. The first to fourth Cs (C1-C4) had their implants in New Zealand or Australia, and the remaining Cs (C5-C10) had theirs in South Africa. After experiencing problems with the implants from an adverse reaction to metal debris, the claimants issued proceedings in England, as D’s country of domicile, alleging that the devices were defective. It was common ground that the Cs had sustained injury in the country in which they first suffered the alleged symptoms.
The Questions To Be Determined
It fell to be determined whether:
(i) the event giving rise to damage (EGRD), for the purposes of Regulation 864/2007 art.31, was prior to January 11, 2009, by which time all the prostheses had been manufactured, distributed and implanted, or after that date;
(ii) if the EGRD was before January 2009, which law was applicable to the claims;
(iii) if English law applied to any of the claims, whether the Consumer Protection Act 1987 applied.
The Conclusions That Were Reached
(i) Where a manufacturer faced a claim of liability for a defective product, the place of the EGRD was that where the product in question was manufactured. The EGRD should therefore be the date of the manufacture or distribution of the defective prostheses or, if that was incorrect, the date of implantation. There was no other intervening or proximate cause of the Cs’ injuries. Any date other than that of the manufacture/supply (or implantation) would present substantial practical problems. It was undesirable for the EGRD to depend upon an individual’s reaction to an implant: that would be contrary to the desirability of legal certainty contained in the recitals to the Regulation (see paras 11, 14-15 of judgment).
(ii) Under the 1995 Act, the general rule was that the applicable law was the law of the country where the individual was when he sustained the injury. There was no reason to displace that rule under s.12 of the Act (comparing the significance of the factors which connect the tort with the country whose law would be applicable under the general rule and those which connect the tort with another country). English law was not, therefore, applicable. The applicable law for C1-C4 was that of New Zealand, and C5-C10 that of South Africa (paras 17, 27, 33).
(iii) Even if English law had been applicable to the claims, the 1987 Act would not apply to them. The Act had no territorial effect beyond the United Kingdom, European Union or European Economic Area. Consumers who suffered damage outside the EEA and who had no connection with it, and defective products whose marketing and supply was outside the EEA, were not within the scope of the Act (para.32).