Product liability in prosthetics: Changes in the law 2016

Abstract

The Consumer Protection Act (1987) (CPA) makes a producer strictly liable for personal injury, death or damage caused by a defective product. Although fault is not a requirement, the consumer (patient) must prove the defect, the injury and a causal link between them. This was tested in the medical field in the case of A vs National Blood Authority (NBA) in 2001.1 A total of 117 claimants brought an action for damages under the Act arising from their infection with hepatitis C as a result of blood transfusions received after March 1988. It was claimed that the infected blood was a “defective” product within the meaning of the Act and that they were entitled to receive blood that was free from infection. The NBA argued that as there was no test for hepatitis C until April 1991, the presence of the virus in the blood could not have been expected to be detected before that time. The court found in favour of the claimants in what was perceived to be a harsh decision at the time. In an 82-page judgement, it was argued under the Act and the European Union product liability safety directive, that the blood products were defective and that the public was entitled to expect that transfused blood should be free of infection, even though there was no reasonable means that the NBA could have used to identify the infection. After this case, it was generally accepted that it was much easier for patients to prove that a product was defective, and more difficult for manufacturers to escape liability by showing that they had done all that could be expected of them. This brings us on to consideration of the case of Wilkes vs DePuy International Ltd,2 a matter in the field of orthopaedics that …