A patient will be paid damages after a faulty hip replacement surgery. Since the operation, the manufacturer had recalled the product for latent defects. Picture: File
A veterinary nurse who had a hip replacement more than a decade ago was in part victorious in the Western Cape High Court for expenses relating to her product liability claim after experiencing side effects from the system she was fitted with.
The international company which manufactures orthopaedic trauma devices, will pay certain expenses to the patient that arises during ongoing litigation as the courts are yet to make a ruling on jurisdiction.
The patient - who may be forced to take early retirement as a result of the damages suffered - had a hip replacement surgery more than a decade ago, and during this process, a specified hip replacement system was implanted into her right hip, but since then the manufacturer had recalled the product for latent defects.
In the main application, the patient averred that the company was negligent by ignoring specific warnings about the alleged latent defects in the system and failing to withdraw the system from the marketplace before the hip replacement surgery was performed on her.
According to the patient, she continues to suffer damages, in a significant amount after it was found that post-operation, and through a blood sample, results indicated “a high level of microscopic metal particles in the vicinity of her right hip”.
Since then, the hip replacement system was replaced with a ‘non-metal bearing and a stemmed’ prosthesis whereafter the prosthesis dislocated while the plaintiff was in bed at home.
The judgment read: “It is alleged that as a consequence of the plaintiff’s hip implant/s, the subsequent hip revision and the subsequent insertion of the dual mobility cup, the plaintiff: - (a) suffered (and will suffer) shock, pain and discomfort; (b) has incurred and will in the future incur medical and psychological expenses and, (c) has and will suffer a loss of earning capacity because of enforced early retirement.”
In response to the claim made, the company averred that, among other reasons, they are not registered as an external company, nor does it meet the requirements to be so registered and they did not carry on or conduct business for profit within this Court’s jurisdiction.
It further averred that none of the companies listed by the patient are or were the company’s agents in the Republic of South Africa.
Western Cape High Court Judge Derek Wille said: “In connection with these interests in the registered patents, the defendant nominated local addresses for the two patents to be registered in its name. Thus, the defendant undoubtedly had a physical presence locally through its agents. Even if I am wrong in my interpretation and analysis of our current jurisprudence on this issue, the peculiar facts of this case dictate that the common law regarding jurisdiction needs to be developed. We live in a technology-driven society, and more global international businesses with no boundaries are being developed.
“Thus, as a matter of pure logic, the common law should be adopted and adapted to modern customs and practices of international trade. In developing the common law, considerations of appropriateness and convenience may sufficiently dilute and erode the doctrine of effectiveness as pre-eminent in questions relating to jurisdiction over foreign defendants,” said Wille.
chevon.booysen@inl.co.za