Allen & Ors v Depuy International Ltd

For product liability claims under the Rome II transitional provisions, the event giving rise to damage is ordinarily the manufacture and putting into circulation of the defective product. If that date is unavailable, the implantation date may provide the relevant alternative. The fact that not every product causes injury does not defer the event giving rise to damage until a biological reaction or symptoms occur.

Under section 12 of the Private International Law (Miscellaneous Provisions) Act 1995, the general law applicable to personal injury sustained abroad is displaced only where comparison of the statutory connecting factors makes another law substantially more appropriate. The threshold is high. The Consumer Protection Act 1987 does not extend to consumers suffering damage outside the UK or EEA who have no relevant EEA connection merely because the product was manufactured in the UK.

Ten overseas residents brought personal injury claims against an English manufacturer of prosthetic hip implants. The implants were manufactured in England but implanted in New Zealand, Australia or South Africa. The claims concerned the date of the event giving rise to damage for the purposes of the transitional provisions of Rome II, the applicable law under the Private International Law (Miscellaneous Provisions) Act 1995, and the territorial scope of the Consumer Protection Act 1987.

The court determined preliminary issues on sample claims. It considered whether the relevant event was manufacture, implantation, or the later biological reaction and symptoms, whether the section 11 general rule should be displaced, and whether the CPA would apply if English law governed.

1. Rome II. The 1995 Act, rather than Rome II, applied to all ten claims. For product liability, the event giving rise to damage was the manufacture and despatch from the defendant’s factory of the defective prostheses. If that conclusion were wrong, the relevant date would be implantation. The court rejected the contention that the event was the biological reaction or the date of injury. It was irrelevant that not every implant would fail. A manufacture or implantation date also promoted legal certainty and avoided claim-by-claim evidence about when symptoms began (paras [8]–[15]).

2. Applicable law under the 1995 Act. The court applied the three-stage approach: identify the section 11 general law; identify the issue for which displacement is proposed; and compare the significance of the statutory connecting factors under section 12. The general rule is not displaced easily and requires a clear preponderance of relevant factors. Manufacture and the defendant’s residence in England were outweighed by the claimants’ residence, implantation, supply, injury, treatment and expectations abroad. The general rule therefore governed liability and quantum for C1 and C3–C10: New Zealand law applied to C1–C4 and South African law to C5–C10. For C2, the general rule initially selected Fijian law, but the factors cumulatively made New Zealand law substantially more appropriate. The court noted that, if that conclusion was wrong, Fijian law would apply (paras [16]–[29]).

3. CPA territorial scope. Even if English law applied, the CPA did not cover the claims. The statute had no express extra-territorial wording, and the Product Liability Directive was directed to liability and consumer protection within the EU internal market. UK manufacture and defendant residence were insufficient where the consumers suffered damage outside the EEA, had no EEA connection, and marketing and supply occurred outside the EEA. The court left the territorial boundary in difficult cases to be determined on their facts (paras [30]–[32]).

4. The preliminary questions were answered accordingly: the 1995 Act applied to all claims; New Zealand law applied to C1–C4; South African law applied to C5–C10; and no claimant would benefit from the CPA if English law applied (para [33]).