The High Court has ruled for DePuy International Limited on a preliminary objection to a personal injuries action brought by Joseph Creedon over allegedly defective hip implants. The court held that an Injuries Board authorisation was required before an action of this type was initiated, following an earlier High Court decision involving the same manufacturer.
Creedon received right and left hip replacements in May and June 2007 using the manufacturer’s ASR metal-on-metal prosthetic. DePuy recalled the product worldwide in August 2010. The judgment records that Creedon’s surgeon alerted him to the defect in October 2010 and that he began proceedings the following month. He alleges the implants have caused significant pain and discomfort and that he will need revision surgery and further medical monitoring. Those claims were not decided in this preliminary ruling.
The issue was whether his claim fell within an exception in section 3(d) of the Personal Injuries Assessment Board Act 2003 for actions arising from the provision of a health service, a medical or surgical procedure, or medical advice or treatment. DePuy argued the claim concerned the manufacture and supply of a product and required prior authorisation. Its defence, filed in June 2013, raised the absence of authorisation as a preliminary objection.
Creedon argued that the case differed from an earlier ruling, Murphy v DePuy, because his particulars alleged failures to warn patients and health professionals, respond to complaints and warnings, and act on information about revision rates. He also argued that DePuy was prevented from relying on the authorisation issue after extended correspondence before filing its defence.
The court rejected both arguments. It found that the particulars were substantially similar in substance to those in Murphy and did not bring the claim within the health-service exception. It also found no representation in the correspondence that DePuy would not rely on the lack of authorisation, and therefore no basis to prevent it from pleading the objection.
The judgment considered a later Supreme Court ruling which clarified that the absence of PIAB authorisation is procedural rather than jurisdictional. The court said that did not displace Murphy: the objection could still be raised if included in the defence, as it had been here. It accordingly followed Murphy and found in DePuy’s favour on the preliminary objection. The judgment does not set out a final order dismissing the proceedings or determine the underlying injury and liability claims.