The Court of Appeal has allowed Joseph Creedon’s appeal in a dispute over whether he needed authorisation from the Personal Injuries Assessment Board (PIAB) before suing hip implant manufacturer DePuy International Limited.
Creedon received DePuy ASR hip implants during right hip replacement surgery in May 2007 and left hip replacement surgery in June 2007. He began personal injury proceedings in 2011, alleging negligence, breach of duty and statutory duty, including under the Liability for Defective Products Act 1991. He claimed the implants were defective and that he had not been properly warned about their risks.
DePuy objected that the proceedings could not continue because Creedon had not obtained PIAB authorisation before filing them. The High Court tried that issue as a preliminary question and dismissed the claim in 2018, following an earlier High Court ruling in a separate DePuy case. Creedon appealed.
In a judgment delivered by Ms Justice Donnelly, the Court of Appeal considered whether the claim fell within an exclusion in section 3(d) of the PIAB Act for personal injury actions arising out of the provision of a health service, a medical or surgical procedure, or medical advice or treatment.
The court interpreted “arising out of” in its ordinary sense of being connected with the procedure. It held that Creedon’s claim arose out of the hip replacement surgery in which the allegedly defective implants were fitted. The court said the result was based on the facts of this case, including the direct connection between the surgery and the claimed injury, and that each claim must be assessed on its own facts.
The appeal was allowed. The court concluded that Creedon was not required to obtain PIAB authorisation before starting the proceedings. It did not need to decide whether the later PIAB authorisation could have saved the original proceedings, or whether the exclusion raised a constitutional issue about access to the courts.
On costs, the court indicated that Creedon should receive the costs of the appeal, subject to adjudication if the parties could not agree. DePuy was given 14 days to seek a short supplemental hearing on the form of the order, including costs. The judgment records that, absent such an application, the proposed order would be made.