Summary
Multiple claimants brought personal injuries claims arising out of defective hip implants manufactured by the defendant. The claimants had hips implanted in: New Zealand (C1, C2 and C4); Australia (C3); South Africa (C5-C10).
There was no claimant who was based in England.
The defendant was domiciled in England.
The English court had jurisdiction under Article 2 of Brussels I.
On 1st November 2013, Master Cook ordered a trial on preliminary issue of applicable law. One important preliminary issue which inter alia had to be addressed was whether the “event giving rise to damage” (EGRD) occurred prior to the entrance of Rome II into force. Mr Justice Stewart held:
“14 In my judgment, the EGRD should be the date of manufacture/distribution of the defective prostheses. If I am wrong about that, then EGRD should be the date of implantation. The latter date also substantially meets D's submissions set out in (vi) and (vii) as to Article 14/Recital 31 , connection with the ultimate victim and the fact that nothing more is required for Cs to suffer injury. There is no other intervening or proximate cause. It is in my judgment irrelevant that not all prostheses will fail.
15 Further:
(a) Articles 31 and 32 are more apt to control events which give rise to damage, which events occur after 11 January 2009. They are less apt to control events which have already occurred and which give rise to damage. To control the EGRD prospectively, in the case of product liability of manufacturers, leads to the natural construction of the EGRD as being the date of manufacture/putting into circulation of the defective products. Failing that, the date is the date when the product was implanted into each individual Claimant.
(b) Any date other than manufacture/supply (or implantation) would present very substantial practical problems. It is desirable that there is, if at all possible, clarity as to the EGRD and therefore the application of Rome II. It is undesirable that it should depend upon an individual's reaction, so that in the present case C1 is governed by the 1995 Act, but C2 – C10 may/may not be governed by Rome II. The desirability of legal certainty referred to in Recitals (6), (14) and (16) to Rome II are important aims. D's position would lead to considerable further evidence in each case so as to determine whether Rome II applied. That is not just choosing the facts of these individual cases. It is an approach which will generally (though not necessarily always) give a clear answer in product liability claims.
[…]
36 I therefore answer the questions set by the preliminary issues as follows:
(1) The 1995 Act and not Rome II applies to all ten Claimants' cases.
(2) The applicable law for C1 – C4 is that of New Zealand and C5 – C10 that of South Africa.
(3) If the applicable law was English law, no C would have the benefit of the provisions of the CPA .” [14-15 and 36]