On appeal from [2021] CSIH 6

This appeal is unusual in that the legal issues concerning the application of the CPA are largely agreed. The basic principles may be summarised as follows. The CPA (and the EU directive which it implemented) have introduced a system of no–fault liability in respect of defective products. The test of whether a product is defective is whether the safety of the product is not such as persons generally are entitled to expect. The burden of proof is on the consumer to establish a defect and a causal link to the injury.

The nature of the MITCH–Accolade product is such that there can be no entitlement to an absolute level of safety. The test of entitled expectation is whether the level of safety of the MITCH–Accolade product would not be worse, when measured by appropriate criteria, than existing non–MoM products that would otherwise have been used. On appeal, the sole criterion of entitled expectation relied upon is the revision rate.

The appellant failed to establish his case on a statistical basis. The question which now arises for consideration is whether the rejection of the statistical evidence nevertheless leaves prima facie evidence on which the appellant can rely to prove his case.

HELD – appeal dismissed.

The generalised expressions of professional concern do not assist the appellant in establishing that the MITCH–Accolade product was defective because they related to the performance of MoM prostheses in general. The first instance judge found that the withdrawal of the MITCH–Accolade product from the market was brought about by commercial considerations. As a result, the withdrawal does not provide any support for the appellant’s case that the product was defective. Nor do the notices and alerts issued by regulators and the respondents assist the appellant. The evidence on which these notices and alerts were based appears to support a failure to meet the applicable standard of entitled expectation. However, Professor Platt’s reasons for considering that the appellant’s case of a breach of entitled expectation was not made out on a statistical basis apply equally to this category of prima facie evidence. Professor Platt’s evidence contradicts the information which formed the basis of the alerts and safety notices. The appellant submits that because there is limited available data on revisions in respect of the MITCH-Accolade product the true revision rate could be considerably different from the estimates based on the available data. However, the first instance judge rejected the appellant’s arguments regarding the limited available data. The judge held that the appellant had failed to prove the existence of a defect. Ultimately, this appeal is no more than an attempt to appeal against the judge’s findings of fact which supported that conclusion. The appellant failed to provide any basis for the Supreme Court to interfere with those findings.

Watch hearing
28 Apr 2022 Morning session Afternoon session