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When is a product “defective” for the purposes of the Consumer Protection Act 1997?

This question was recently considered by the Supreme Court in London.  


In 2009, the Appellant underwent a metal-on-metal total hip replacement. The prosthetic used was manufactured by the respondents. In 2012, he had to undergo a revision of the implanted hip.

It was claimed that the particular combination of components used in 2009 was “defective” under the Consumer Protection Act 1987


The 1997 Act introduced no-fault liability following on from a European Directive on liability for defective products. The burden of proof rests with the consumer to establish “…a defect and a causal link to the injury”.

It was conceded by the Appellant that the statistical evidence presented relating to the ‘revision rate’ was not, in itself, sufficient to establish that the product was defective.

In this case the nature of the product is such that there can be no entitlement to an absolute level of safety. It is natural for a prosthesis of this sort to wear and to shed metal debris that can cause soft tissue damage, so this of itself cannot be a defect

Per Lord Lloyd-Jones at [19]

The Appellant contended that the apparent design flaws coupled with:

  • “…expressions of professional concern by the orthopaedic community” 
  • the withdrawal of the product from the market and 
  • alerts issued by regulators and the respondents, established that the product was defective for the purpose of the 1997 Act  

evidenced a defective product.

The Supreme Court found that:

  • “expressions of professional concern” did not establish that the product was defective
  • the lower court was entitled to find that the withdrawal was due to commercial considerations
  • alerts cannot of themselves be determinative of product defect


Ultimately, this appeal is no more than an attempt to appeal against the… findings of fact.

Per Lord Lloyd-Jones at [65]

The appeal was dismissed.

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