What is the guidance on Product Liability for manufacturers?

21 December 2022 | Raj Laxman

The Supreme Court has made a major decision in the case of Hastings v. Finsbury Orthopaedics Ltd. [2022]. For the time it assessed the meaning of a defective product under the Consumer Protection Act of 1987. The product in question was a hip prosthesis.

The Supreme Court upheld the findings of the lesser courts and held that the applicant had failed to set up the Mitch-Accolade hip replacement, which breached the legislation as a defective product. The Supreme Court preferred to look at the evidence in its wider context rather than in isolation.

The Supreme Court approved the statutory test for proving a defect as set out in the judgements in the cases of Wilkes and Gee v. DePuy. Andrew J. directed in relation to medical devices that there was no right to a comprehensive level of safety where there was a possibility of risk that was not decisive of a defect. This will prove valuable to manufacturers who undertake a risk assessment following a complaint about safety and evaluate the need for remedial action.

The Supreme Court upheld the decision of the High Court and its application of the objective test to the concept of defect under the Consumer Protection Act 1987 in the cases of Wilkes v. DePuy International Ltd. [2016] and Gee v. DePuy International Ltd. [2018] and in the Court of Justice of the European Union case of W v. Sanofi Pasteur MSD SNC.

Under the Consumer Protection Act of 1987, a product is defective when it does not meet the standard of safety that the public expected when the product was introduced to the marketplace. The manufacturer must assess safety and take into consideration the risk of death, injury, and damage to property. The court must assess several main facts. Firstly, the purpose and expected use of the product and its degree of safety If the product came with instructions and a warning, the time the product went into the marketplace.

The Consumer Protection Act of 1987 creates liability without fault. This means the court will disregard the fact that the manufacturer is or is not at fault. The claimant must demonstrate that the product was defective and that it suffered damages as a result.

The judgement in Hastings v. Finsbury Orthopaedics Ltd. [2022] will help manufacturers of both medical and general products. The Supreme Court applied an approach that balanced the need to protect the consumer with the need to promote innovation in production.

This article is only for guidance. If you need legal advice, please contact the Quest legal helpline for help with legislative and contractual matters.

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