Dineen v Depuy International Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 01 December 2017
• Neutral Citation: [2017] IEHC 723
• Docket Number: [2015 No. 7340 P.],[2015 No. 7340 P]
• Court: High Court
• Date: 01 December 2017

[2017] IEHC 723

THE HIGH COURT

Cross J.

[2015 No. 7340 P.]

BETWEEN

JOAN DINEEN

PLAINTIFF

AND

DEPUY INTERNATIONAL LIMITED

DEFENDANT

Personal injury – Special damages – General damages – Plaintiff seeking damages for alleged personal injury – Whether the threshold for aggravated damages had been met

Facts: The plaintiff, Ms Dineen, applied to the High Court seeking damages for alleged personal injury as a result of the alleged failure of an ASR/XL replacement hip manufactured and supplied by the defendant, Depuy International Ltd, which was inserted on 6th February, 2009, as a replacement for her right hip. The plaintiff claimed special damages being her future and past care needs, general damages for pain and suffering and aggravated damages. The plaintiff claimed that the defendant supplied a defective product within the meaning of s. 2 of the Liability for Defective Products Act 1991.

Held by Cross J that the threshold for aggravated damages had not been met. Cross J assessed special damages as follows: Orthopaedic review €1,000; Past care €15,000; Future Care €150,000; Aids and Appliances €35,000. Cross J assessed general damages as follows: General damages to date €85,000; General damages into the future €35,000.

Cross J held that the total sum of €321,000 was fair and reasonable in all the circumstances and that the plaintiff was entitled to award in that amount.

Application granted.

JUDGMENT of Mr. Justice Cross delivered on the 1st day of December, 2017

1. Introduction

1.1 The plaintiff is a married lady with five surviving children who was born on 9th January, 1936, and lives at her home near Blarney, Co. Cork, with her husband and one of her daughters

1.2 The plaintiff claims damages for alleged personal injury as a result of the alleged failure of a ASR/XL replacement hip manufactured and supplied by the defendant which was inserted on 6th February, 2009, as a replacement for her right hip.

1.3 It is a matter of fact that there are, in excess, one thousand claims in respect of alleged injury allegedly caused by the defendant's ASR hip.

1.4 In respect of these claims, the court has approved of a Alternative Dispute Resolution Scheme whereby certain of these claims can be assessed by a panel of senior counsel and retired members of the judiciary on a without prejudice basis without admission of liability. The ADR Scheme does not allow for any award of aggravated damages.

1.5 Certain potential claimants do not come within the Alternative Dispute Resolution Scheme and, of course, there is ultimately no obligation on any plaintiff to confine themselves to the scheme and any award made therein can be rejected by either party.

1.6 While a significant number of claims against DePuy have come before the courts for a judicial determination, all of these claims, bar one, have up to the present being compromised prior to any judicial decision.

1.7 In the only case that has so far resulted in a determination, Gillian O'Sullivan v. DePuy International Limited (judgment of this Court delivered 29th November, 2016), the issues were limited as the defendant by open letter stated:-

'Our client's position is that they have no liability to your client in relation to the claims made by her in these proceedings. Nevertheless, in order to avoid the substantial costs likely to arise during a full trial of the action, our client hereby agrees to the trial proceeding on the basis that your client will not be required to establish that the DePuy product supplied to her were defective, leading to the necessity for early revision, which offer is made without admission of liability. The claims can therefore proceed as an assessment of compensatory damages only without any admission of liability.

In these circumstances, the only issue required to be dealt with by the court is the issue of the quantification of damages along with any issues of causation in relation to the quantification of damages...'

1.8 In the instant case, the defendant issued an open letter offering a similar concession as in the Gillian O'Sullivan case (above) subject to the plaintiff waiving any claim for aggravated damages. It should be noted that in the O'Sullivan case, the plaintiff did maintain a claim for aggravated damages which was unsuccessful.

1.9 The plaintiff in this case is claiming special damages being the future and past care needs of the plaintiff, general damages for pain and suffering and aggravated damages.

1.10 Notwithstanding the fact as pointed out to the parties by the court that it was open to the defendant to make the same concession as in the Gillian O'Sullivan case (above) and at the same time to put in issue the claim for aggravated damages, the defendant declined to make that concession unless the plaintiff waived any right to aggravated damages.

1.11 It is, of course, entirely within the rights of the plaintiff to seek to establish her claim in law and to seek aggravated as well as compensatory damages and it is entirely within the rights of the defendant to test the plaintiff's claim to obtain in the circumstances a determination on liability.

1.12 The case commenced hearing on 30th June, 2017, and proceeded until Tuesday, 7th November, 2017, though due to difficulty in securing the attendance of expert witnesses, there were only 20 hearing days in that period.

2 The Pleadings

2.1 By personal injury summons, the plaintiff claimed that the defendants were producers, manufacturers or suppliers of a defective product within the meaning of the Liability for Defective Products Act 1991 which were implanted in the plaintiff causing her personal injury loss and damage.

2.2 The plaintiff underwent a right hip replacement surgery on 6th February, 2009, due to the plaintiff's pain and disability. This procedure was carried out by the well known orthopaedic surgeon Mr. KML at the Bon Secours Hospital, Tralee, Co. Kerry. The implant was the product known as the ASR/XL involving total acetabular implant, a femoral implant and a taper sleeve adaptor. It is agreed that the ASR/XL was inserted by Mr. KML at the ideal angle as recommended by the defendants.

2.3 Section 2(1) of the liability for defective products Act 1991 provides:

'The producer should be liable in damages in tort for damage caused wholly or partly by a defect in his product'

2.4 Section 4 of the 1991 Act provides that the onus is on the injured person, in this case the plaintiff, to prove the damage the defect and the causal relationship between the defect and the damage.

2.5 Section 5 of the 1991 Act provides:

'(i) for the purpose of this Act a product is defective if it fails to provide the safety which a person is entitled to expect taking all circumstances into account including:

(a) the presentation of the product;

(b) the use to which it could reasonable be expected that the product would be put, and

(c) the time when the product was put into circulation.

(ii) a product shall not be considered defective for the sole reason that a better product is subsequently put into circulation'.

2.6 The plaintiff claims that the defendants supplied a defective product within the meaning of s. 2 of the Liability for Defective Products Act 1991.

2.7 The plaintiff claims that as a result of the personal injuries sustained that she is entitled to damages including aggravated damages. The plaintiff also claims in negligence.

2.8 The defence is, in essence, a full defence of all matters, denial of negligence or statutory duty and in particular, a denial of breach of s. 2 of the Liability for Defective Products Act 1991, and a further plea that if the product was defective within the meaning of the 1991 Act, the defendants will rely upon s. 6(e) of the Liability for Defective Products Act 1991. It is further denied that the plaintiff sustained any injuries as a result of the defendant's products. The claim for aggravated damages is also denied.

2.9 Section 6(e) of the 1991 Act provides:

'6. A producer shall not be liable under this Act if he proves - ...

(e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered ...'.

It is of course incumbent upon the producer (the defendant in this case to establish a s. 6(e) defence).

3 Mrs. Dineen

3.1 The plaintiff is a most pleasant lady who was present only on the first day of the trial to give evidence and sometimes it appeared that the trial proceeded on issues of principal without taking much account of Mrs. Dineen's individual position.

3.2 The plaintiff who is now 81 does, it is agreed, suffer from a wide range of what are described as ' co-morbidities'. Apart from the hip replacement issues, she had a diastolic heart failure with preserved ejection fraction, pulmonary hypertension, atrial fibrillation, permanent pacemaker insertion, venous insufficiency, hypercholesterolaemia, left hydronephrosis with left pelvic-ureteric junction obstruction, choledocholithiasis, lower limb oedema, cellulitis, hypothyroidism, bilateral knee replacement and pre-history of falls.

3.3 When the plaintiff was provided with her hip replacement in 2009, she received a 54mm cup, a 47mm head and size 11 stem. The ASR/XL is a total hip replacement with a stem going down into the femoral bone. The ASR product is what is known as a ' metal on metal' hip replacement.

3.4 The ASR metal on metal hips were originally designed with a preference for younger and more active recipients but, in any event, no one has criticised Mr. KML for his decision to utilise the defendant's hip replacement product on the plaintiff.

3.5 As stated above, the plaintiff also had a left total knee replacement in March 2011 and a right total knee replacement in June 2013. Her knees have not given any problems since the operations.

3.6 Due to...