Date: Thu, 4 May 2006 08:47:07 +1200

From: Geoff McLay

Subject: A Change of Topic

List participants may be interested in the trial decision of the New Zealand High Court denying the liability of tobacco companies for the death of a smoker who took up smoking before there were any warnings on NZ packets.

The case is the second substantive determination of a Commonwealth court on this issue.

The decision can be found at

http://www.justice.govt.nz/judgments/

Geoff

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From: John Swan
Sent: Thursday, 4 May 2006 8:17 AM
Subject: ODG: A Change of Topic

If the fascinating exchanges on Childs v. Desormeaux have run their course - and I don't want to interrupt then if they have not - may I suggest that members look at the decision of Cullity J. in Serhan v. Johnson & Johnson? The judgment is fairly recent but is now before the Divisional Court whose judgment is expected any day.

While the case only involves the question whether the plaintiffs in a proposed class proceeding have stated a cause of action, the justification for the trial judge's conclusion that they have are interesting - one might even say startling.

The case has parallels with Borders (U.K.) Ltd. v. Commissioner of Police of the Metropolis, [2005] EWCA Civ 197, [2005] All E.R. (D.) 60 (March), the comment on which by David Campbell and James Devenney in the Cambridge Law Journal, 65(1), March 2006, pp. 208–225, I have just read (and enjoyed).

I would be very interested to have the opinions of members of the ODG imagine what the Divisional Court might or should do, bearing in mind that the question before the court is a preliminary one, viz., whether the plaintiffs have stated a cause of action.

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