The new approach adopted in Wilkes constitutes a practical & welcome way forward, says Alison McAdams
- Manufacturer’s product was not defective.
- A product’s safety was a relative concept.
- Potential benefits had to be weighed against risks.
Judicial consideration of what it means for a product to be considered defective, pursuant to the European Product Liability Directive (PLD) (85/374/EEC), has been surprisingly rare. This makes the decision of Mr Justice Hickinbottom in Wilkes v DePuy International Limited [2016] EWHC 3096 (QB), [2016] All ER (D) 121 (Dec), whereby an artificial hip component that fractured was not found to be defective and the defendant manufacturer was not liable, of great significance.
The introduction of the PLD & the Hepatitis C litigation
When the PLD was implemented in the UK by the Consumer Protection Act 1987 (CPA) in 1988, it was anticipated that a compensation system based on liability without fault would prove a popular remedy for claimants.
The PLD was, after all, the legislative response to the thalidomide tragedy, along with the creation of the safety framework introduced by the Medicines Act 1968 and European medicines legislation.
