This maintains the finding of the lower courts that the appellant failed to prove that the Mitch TRH/Accolade product, a metal on metal (MoM) total hip replacement, is defective under the Consumer Protection Act 1987. At first instance, the lord ordinary held that the nature of the product meant there could be no entitlement to an absolute level of safety.

The decision reinforces the approach to the question of defect under the 1987 Act, as previously determined by the English High Court in the landmark product liability cases of Wilkes v DePuy International Limited [2016] and Colin Gee & Others v DePuy International Limited [2018], in which Kennedys also represented the successful defendant manufacturer.

In his judgment, Lord Lloyd-Jones, with whom the other four justices agreed, said that the appeal was “no more than an attempt to appeal against the … findings of fact”. In the circumstances, the Supreme Court declined the appellant’s invitation to overturn the factual findings made by the judge at first instance as they were findings the lower court had been entitled to make on the evidence. The appellant had suggested that the Supreme Court examine such findings through a different prism that introduced principles such as a benevolent approach to the application of the 1987 Act.

The appellant further argued that the lower court was not entitled to find against him on defect because the evidence before the court raised a presumption of defect that was not capable of being rebutted by the manufacturers. The Supreme Court rejected this argument, holding that:

• expressions of professional concern in the surgical community regarding MoM prostheses generally did not help to establish that the specific product was defective, given that revision rates for the MoM class of prostheses varied from product to product.
  The lower court was entitled to find that the product was withdrawn from the market based on commercial considerations, and therefore the fact of the withdrawal did not assist a case on defect.
• Product safety alerts and notices issued by a regulator and/or manufacturer cannot of themselves be determinative of product defect. In the appellant’s case, his reliance on the issued medical device alert and field safety notices was undermined by the accepted evidence on the unreliability of the underlying statistics on which the alert/notices were based.

Samantha Silver, the partner at Kennedys who led the case for the respondent manufacturers, said: “This judgment is the final chapter in a body of judicial opinion in the UK which has considered the approach to defect in the context of medical devices and medicinal products but which will be binding on all future product liability actions brought in the UK courts.

“With new products developing at pace across all sectors, the landmark cases of Wilkes, Gee and now Hastings, recognise the need to balance consumer protection with safeguarding innovation.

“The Supreme Court’s detailed and authoritative ruling will provide particular assurance to manufacturers in the life sciences and healthcare sectors where medical innovation continues to break new ground”.