Kiwi claimants injured by faulty hip implants vow to fight on after ACC law bars compensation

James Elliott says the claimants will continue with their legal case over metal hip joints despite the set back in the High Court. Photo / Natalie Slade

Kiwis injured by faulty hip implants have hit another legal roadblock in their bid to hold the manufacturer to account, but say they are not giving up.

In the High Court at Wellington, Justice David Collins ruled that New Zealand's accident compensation scheme prevents the three plaintiffs, representing a group of 38 claimants, bringing a claim for compensatory damages against DePuy International, which made the implants mainly in Leeds, England.

But one of the claimants, James Elliott, said the group would press on.

"Our claim includes claims for compensatory damages and separately for exemplary damages. Therefore, at this stage, we will be pursuing the claim for exemplary damages."

"The claim for exemplary damages remains on foot. It is a more difficult road."

He said the group would also consider whether to appeal against Justice Collins' verdict.

To succeed, a claim for exemplary damages, which is designed to punish, must prove outrageous conduct.

All but one of the claimants had their treatment injury claims covered by the Accident Compensation Corporation, including, in some cases, weekly compensation and rehabilitation benefits.

They had the hips, supplied in this country by DePuy NZ and Johnson & Johnson, implanted between 2006 and 2009. DePuy recalled its hip implants in August 2010 and the plaintiffs had theirs replaced in revision surgery in 2011 and 2012.

Collins said: "The statement of claim alleges the DePuy hip implants were designed and or manufactured with defects which led to the breakdown of part of the implant which in turn led to the release of cobalt and chromium into patients. This is said to have led to metal poisoning and tissue damage.

"The plaintiffs plead that DePuy failed to undertake a proper risk assessment and testing of the implants before they were distributed. It is also alleged DePuy failed to adequately monitor the implants after they were placed into patients."

Many of the New Zealand claimants joined proceedings against DePuy in an English court, which ruled in favour of the company's assertion that the Kiwis' claims in England were precluded by the New Zealand ACC legislation.