Cross border litigation is increasingly common as the world gets smaller. Globalisation has blurred the boundaries between countries. Products can be produced and consumed from anywhere in the world. With more products being bought online, we are beginning to see product liability claims involving UK products being purchased and used in non European Economic Area countries (non EEA).
The case Allen and others v Depuy International Ltd  EWHC 753 QB has interesting implications for non-EEA claimants who suffer personal injuries abroad as a result of alleged defective products, but wish to sue a UK manufacturer in England or Wales.
Issues of the case
The claimants in this case had all been fitted with prosthetic hip implants manufactured by an English registered company, DePuy International Ltd. The operations took place abroad (Australia, New Zealand and South Africa) where the claimants live. The claimants suffered adverse reaction to metal debris, as a result of the prostheses that were subsequently found to be defective. The court had to decide, at the preliminary issue hearing, what was the applicable law. The issue of the applicable law is important in this case, as the claimants wished to rely upon the Consumer Protection Act 1987 (CPA) and therefore argued that English Law should apply.
The principle of strict liability contained in section 2(1) of the CPA means that the person who suffered injury does not have to prove negligence. Nor does he need to have entered into a contract with the manufacturer or supplier. The manufacturer or supplier is liable to anyone who suffers damage due to a defect in his product. Thus the benefits of being able to rely on CPA are twofold: firstly, it enables claimants to sue manufacturers or suppliers without proving negligence. Secondly, victims of defective products have the benefit of strict liability even though they are not privy to any contract.
Rome II or PILA
In order to decide which country’s law is applicable in this case, the court had to first of all decide whether the event giving rise to damages to the claimants arose before or after 11 January 2009. If after, Rome II regulations apply in determining the applicable law. If before, the determining factors are governed by the Private International Law (Miscellaneous Provisions) Act 1995 (PILA).
The judge considered the date of the event giving rise to damage as the date the product (in this case the prosthesis) was despatched from DePuy’s warehouse. Alternatively, it was the date of the individual claimant’s implant operation. Either way, it was before 11 January 2009 and so Mr Justice Stewart ruled that PILA applied.
The general rule of PILA provides that the applicable law is that of the country where the claimant sustained the injury. This is not necessarily the country where the operation took place. Indeed the date on which the claimant suffered injury may not be determinable as it might occur at or within a short time of implantation, or many years later. There is an exception to this general rule: some other law can apply if that is “substantially” more appropriate when considering the parties, the event, the circumstances and the consequences.
Taking relevant factors into consideration, the judge found that for some claimants, South African law applied and for others New Zealand law applied.
Whether Claimants outside EEA are covered by CPA 1987 – obiter
The judge was asked as obiter dictum, whether, had English law been found to apply, the Consumer Protection Act 1987 would cover injuries caused outside the EEA. Stewart J held that the act applies only to injuries or damage suffered by consumers when in the UK. Injuries that occur within EEA would benefit from the CPA as a result of Product Liability Directive (Council Directive 85/374/EEC) which harmonises redress within EEA. Neither the Product Liability Directive nor the CPA were intended to harmonise redress worldwide in respect of products manufactured in the EEA.
So the position is that for injuries caused by UK products suffered outside the UK or EEA, even though claimants may be able to bring an action in England against a UK manufacturer, their claims will not usually be governed by UK law, nor can they benefit from strict liability under the Consumer Protection Act 1987. The vast majority of claimants would have to prove their claim under the law applicable to the country in which they first suffered their injury. The decision goes one step further in that even if English Law would apply (if a claimant can show exception under PILA or Rome II), the CPA 1987 would not apply or cover injury outside of EEA.
For claimants who sustained injuries after 11 January 2009, Rome II provisions would apply. It is submitted that it would make little difference to the outcome of this case. Under Art 4 (1), the general rule is that the applicable law will be the law of the country “in which the damage occurs”. There is one notable exception, which is under Art 4 (2) – if the claimant and defendant habitually reside in the same country, applicable law will be the law of their common residence. That same law will also govern substantive issues of liability, causation, contributory negligence, legal presumptions and burdens of proof. The exception is that Rome II does not require a domestic court to apply the foreign rules of evidence and procedure. Therefore rules as to the number of experts are all maters of procedure and are governed by the local court.