The Consumer Protection Act 1987 (“the Act”) states that a “defect” in a product exists if the safety of a product is “not such as persons are generally entitled to expect”, taking into account “all of the circumstances”.

The meaning of a “defect” was considered by the High Court in the case of Wilkes v DePuy when the Judge departed from previous decisions and used an objective test when considering what consumers are entitled to expect.

The case involved an artificial hip replacement which Wilkes argued was defective and a claim was brought against DePuy, the manufacturer, under the Act and in negligence. The Judge held that there was no defect in the product because it complied with regulatory requirements and that the failure was “rare, unpredicted and unpredictable” and, as such, a claim could not be brought under the Act.

The decision emphasises that the Courts can take a flexible approach when determining what constitutes a defect under the Act and that each case should be considered on its own merits.