Defendants to product liability claims brought under the EU’s Product Liability Directive 85/374/EEC, especially defendants in group litigation with crossborder claims, should take note of the March 2014 judgment by the English 1st instance court in Allen & Others v Depuy International Limited1 in the context of non-contractual compensation claims relating to allegedly defective medical device hip implants. This judgment is relevant to identifying the applicable law for long-tail, latent damage claims as well as whether claims are available under the Product Liability Directive for claimants who suffer damage outside of the EEA.

Since 11 January 2009, when Rome II2 took effect, the applicable law of a claim governs various key defence issues such as liability, limitation, burden of proof, contributory negligence as well as the available heads of damage and their quantiication. Rome II also sets out the rules for determining what is the applicable law in cross border personal injury claims but, for events giving rise to the damage (EGRD) before 11 January 2009, national rules3 apply to determine applicable law. For defendants facing allegations concerning long-tail, latent damage it is therefore important to understand what are the EGRD. Largely for reasons of consistency with European Court case law, the English court decided that EGRD were the manufacture and despatch from the factory of the implants, or failing that, the date of implantation as this aligns with another 2014 European Court ruling identifying the place of manufacture of a product as the place giving rise to the damage for purposes of establishing jurisdiction for tort claims under Regulation (EC) 44/2001.4 In any event, EGRD were NOT the date of damage in the form of onset of each individual claimant’s own biological reaction leading to symptoms and revision surgery.

For EGRD pre-dating Rome II, where the events constituting the tort did not all arise in one country, the court decided the general rule should apply in all cases but one, namely that the applicable law should be the law of the country where the injury was sustained and that it was not relevant to consider that the non-UK domiciled claimants were claiming as part of a much larger group of UK-domiciled claimants.

Additionally, the English court decided that the focus of the EU Product Liability Directive is the liability of producers for defective products within the EEA causing damage to consumers within the EEA. Consequently the English court decided that consumers who suffer damage outside the EEA, with no connection with the EEA, in circumstances where marketing and supply of the allegedly defective product were also outside of the EEA, are not within the scope of the Directive though it acknowledged that drawing the line in dificult cases will be very fact-sensitive.