Piper v JRI (Manufacturing) Ltd

Under the Consumer Protection Act 1987, a producer may rely on section 4(1)(d) by proving that the defect did not exist when the product was supplied. The court may draw that conclusion from a reliable manufacturing and inspection system capable of detecting the kind of defect that caused the failure, even without finding when the defect arose. A product may also be defective at supply if it was not designed or manufactured to withstand procedures and forces ordinarily expected during implantation. That alternative issue must, however, be identified and pursued at trial. An abandoned issue does not become part of the producer’s burden, and the Court of Appeal will not determine it for the first time on appeal.

The claimant’s hip prosthesis fractured after implantation, causing loss of movement and mobility. He claimed damages against its producer under the Consumer Protection Act 1987, alleging a manufacturing defect. The trial judge dismissed the claim, finding that the prosthesis was not defective when supplied to the hospital and that the statutory defence was established. The claimant appealed, arguing that the judge had misunderstood the metallurgical evidence and should have considered an alternative case based on the prosthesis’s inability to withstand ordinary implantation forces. That alternative case had been pleaded but abandoned at trial. The central issues were whether the evidence supported the finding of no defect at supply and whether the abandoned issue could be pursued on appeal.

Lord Justice Thomas gave the judgment, with Lord Justice Mummery and Lord Justice Maurice Kay agreeing.

1. Disposition. The appeal was dismissed. The respondent’s cross-appeal concerning the conditional assessment of damages did not require determination.
2. Statutory defence. Under the Consumer Protection Act 1987, the relevant time for the section 4(1)(d) defence was when the prosthesis was supplied to the hospital. The trial judge was entitled to find that it left the defendants’ factory without the relevant defect.
3. Evidence and inference. The surface point defect which initiated the fatigue failure was on a polished area. The inspection system used visual inspection of each product, with magnification where an imperfection was identified. The evidence showed that a defect capable of initiating the failure would have been visible, and there was no evidence that the relevant defect was below the 35-micron detection threshold. Given the experience and conscientiousness of the inspectors, it was open to the judge to infer that such a defect would have been detected if present before delivery. It was therefore unnecessary to decide when or how the defect arose.
4. Alternative design case. The court stated that, under section 3, a prosthesis could be defective at supply if it was not designed and manufactured to withstand the procedures and forces ordinarily used during implantation. If that issue had remained live, the burden would have been on the defendants to address it. The claimant had abandoned the case, however, and the trial judge had made no finding on it.
5. Issues on appeal. Parties must identify the issues to which evidence will be directed. Once the alternative case ceased to be in issue, the defendants were not required to disprove it, and the Court of Appeal could not determine it for the first time.

• Court of Appeal (Civil Division): The appeal from the Derby County Court was dismissed: [2006] EWCA Civ 1344.
• Derby County Court: His Honour Judge Waine dismissed the claim on 30 September 2005 and conditionally assessed damages at £52,583.93, together with interest, if the primary decision were reversed. Permission to appeal was refused by the trial judge and granted by the Court of Appeal.