A man who claimed he had been fitted with a defective prosthetic hip has failed in an appeal before the UK Supreme Court with a case based on the Consumer Protection Act 1989.

John Hastings underwent a total hip replacement in 2009 using the MITCH-Accolade type, a metal-on-metal product manufactured by the respondents, Finsbury Orthopaedics Ltd and Stryker UK Ltd.

At preliminary proof Mr Hastings sought to establish that the MITCH-Accolade product was defective by demonstrating certain design flaws, and by relying on matters which were said to constitute prima facie evidence that the product was defective, including (1) expressions of professional concern by the orthopaedic community; (2) the respondents' conduct in withdrawing the product from the market; and (3) certain notices and alerts issued by regulators and by the respondents. The parties were agreed that expert evidence demonstrated there was no reliable statistical evidence that the revision rate of the MITCH-Accolade product – the percentage chance that replacement surgery would be required in a given time period – was out of line with the relevant benchmarks.

The Lord Ordinary, and on a reclaiming motion the Inner House, held that Mr Hastings had failed to prove that the product was defective for the purposes of the Act. On further appeal it was argued for Mr Hastings that despite his acceptance of the expert evidence, it was open to him to prove his case by reference to the other evidence said to establish a prima facie case that the product was defective.

Dismissing the appeal, Lord Lloyd-Jones, with whom Lord Reed, Lord Kitchin, Lord Stephens and Lady Rose agreed, said the appeal was unusual in that the legal issues concerning the application of the Act were largely agreed. The Act (and the EU directive which it implemented) introduced a system of no fault liability under which the test of whether a product was defective was whether its safety was not such as persons generally were entitled to expect.

The nature of the MITCH-Accolade product was such that there could be no entitlement to an absolute level of safety. The test of entitled expectation was whether the level of safety of the product would not be worse, when measured by appropriate criteria, than existing non-metal-on-metal products that would otherwise have been used. On appeal, the sole criterion of entitled expectation relied upon was the revision rate.

Rejection of the statistical evidence did not leave prima facie evidence on which the appellant could rely to prove his case. Of the three matters principally founded on: (1) the generalised expressions of professional concern did not assist, because they related to the performance of metal-on-metal prostheses in general; (2) the Lord Ordinary found that the withdrawal of the MITCH-Accolade product from the market was brought about by commercial considerations, therefore it did not provide any support for the appellant’s case that the product was defective; (3) the evidence on which the regulators' notices and alerts were based appeared to support a failure to meet the applicable standard of entitled expectation, but the expert's reasons for considering that the appellant’s case was not made out on a statistical basis applied equally to this evidence.

The Lord Ordinary held that the appellant had failed to prove the existence of a defect. Ultimately, this appeal was no more than an attempt to appeal against the findings of fact which supported that conclusion. The appellant had failed to provide any basis for the Supreme Court to interfere with those findings. 

Access the judgment here.