David Hertzell & Colin Moore assess the legal challenges facing the providers of PIP breast implants
The stand-off over Poly Implant Prothèse (PIP) implants between the government and private medical clinics, such as Harley Medical Group, is reminiscent of the defiant pronouncements of Ryanair boss Michael O’Leary during the disruption caused by the eruption of the Eyjafjallajokull volcano. Both companies aggressively marketed low cost products and were, without fault, suddenly left with thousands of claims for sums in excess of that originally paid. As history shows, Ryanair’s was a fruitless battle—is the same true of this dispute?
While it is arguable that PIP implants are defective within the meaning of the Consumer Protection Act 1987, a claim for breach of contract would be easier to prove and potentially offer more generous remedies than other types of claim.
Breast augmentation surgery is classified as a works and materials contract because the service (the surgeon’s skill and the operation) is so substantial that it is in effect the substance of the contract: the goods (the implants) are ancillary (Robinson v Graves [1935] 1
