Meaning of “defective” in product liability law

The Supreme Court judgment in Hastings v Finsbury Orthopaedics Ltd and Another [2022] UKSC 19; [2022] Med LR 441, a Scottish appeal, indicates the difficulties involved in establishing that a product is defective for the purposes of the Consumer Protection Act (CPA) 1987. In this instance, the alleged defect was in a metal-on-metal prosthetic hip, called the MITCH-Accolade hip, which had shed metal after four years, well within the expected 10-year period, meaning that the pursuer (claimant) needed a hip replacement much earlier than expected. Although there had been concerns about metal hips generally, no specific concern had been expressed about the MITCH-Accolade hip. This case reiterates the basic principle that consumers are not entitled to “an absolute level of safety”. In the case of metal-on-metal hips, which do have a propensity to shed debris that could result in injury, it does not mean that such shedding amounts to a defect. The correct test was whether the product had an abnormal tendency to result in damage or harm compared with appropriate comparator products.