Pou v British American Tobacco (New Zealand) Ltd CA199/04 [2005] NZCA 381; [2006] 1 NZLR 661 (4 October 2005)

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IN THE COURT OF APPEAL OF NEW ZEALAND

_CA199/04

BETWEEN BRANDON HAMIORA PARAIKI POU AND KASEY HERENA APORO WAIRAU POU

Appellants

AND BRITISH AMERICAN TOBACCO (NEW ZEALAND) LIMITED AND WD & HO WILLS (NEW ZEALAND LIMITED) Respondents

Hearing: 1 September 2005

Court: Glazebrook, Hammond, William Young, O'Regan and Robertson JJ Counsel: D B Collins QC and J Herschell for Appellants

M R Camp QC and I J Thain for Respondents

Judgment: 4 October 2005

_{JUDGMENT OF THE COURT}

A The appeal is allowed but only to the extent that the claims under the Deaths by Accidents Compensation Act 1952 are reinstated so as to permit the appellants to claim for pecuniary losses associated with:

(a) Assistance in caring for and the bringing up of Kasey Pou’s child;

(b) Financial assistance in the form of gratuitous payments of money;

and

(c) Assistance in the form of provision of exigencies of life such as food and clothing.

B Given the mixed success of the parties there will be no order for costs in this Court. Costs in relation to the High Court proceedings, if sought,

_{are to be fixed in that Court.}

POU & ANOR V BRITISH AMERICAN TOBACCO (NZ) LTD & ANOR CA CA199/04 4 October 2005

REASONS

_{(Given by William Young J)}

Table of Contents

_{Para No}

Introduction [1]

Legal background

Overview [6]

The Fatal Accidents Act 1846 [7] Recovery confined to pecuniary losses [9] The New Zealand legislation and cases [10] Loss of services which had been provided by the deceased [15] Is loss of parental care and guidance a pecuniary loss? [19] Reciprocity [24] Allowance for benefits associated with the death of the [25] deceased

Brandon and Kasey Pou’s claims under the 1952 Act [27] Overview of the issues on appeal [33] Are claims under the 1952 Act confined to pecuniary [34] losses?

Is the claim in relation to loss of maternal care and guidance [39]

a claim for pecuniary losses?

Was Harrison J right to strike out the claims for damages [43]

under s 7(1)(b) of the Deaths by Accident Compensation Act? Result [48]

Introduction

[1] In June 2002, the late Janice Pou commenced proceedings against British American Tobacco (New Zealand) Ltd and W D & H O Wills (New Zealand) Ltd (“the tobacco companies”). She claimed that she had developed lung cancer as a result of smoking cigarettes produced or sold by the tobacco companies and sought damages against them alleging negligence.

[2] Janice Pou died on 24 September 2002 of lung cancer.

[3] Her two children, Brandon and Kasey Pou, are her executors and they, on behalf of her estate (although in effect for themselves as they are the only relevant beneficiaries), have continued the proceedings against the tobacco companies. This is provided for by s 3 of the Law Reform Act 1936. As well, and importantly for the

present appeal, they also seek damages in their own right under the Deaths by

Accidents Compensation Act 1952 (“the 1952 Act”).

[4] The tobacco companies applied to have the claims under the 1952 Act struck out. This application was heard on 26 July 2004 by Harrison J who, in a judgment delivered on 27 August 2004, found in favour of the tobacco companies. Brandon and Kasey Pou now appeal against that decision.

[5] We heard this appeal in conjunction with an appeal by the tobacco companies against the dismissal by Gendall J of application for review proceedings in which they challenged a decision by the Legal Services Agency to continue, in favour of Brandon and Kasey Pou, legal aid which was initially granted to Janice Pou. Both sides (ie Brandon and Kasey Pou and the tobacco companies) have taken the view that the case for continuing the grant of legal aid is much stronger if Brandon and Kasey Pou are entitled to pursue personal claims under the 1952 Act as well the estate claim. As is apparent from our judgment in the other proceedings (British American Tobacco and Another v The Legal Services Agency and Others CA40/05

4 October 2005) we do not share that view and indeed consider that the grant of legal aid is sustainable independently of Brandon and Kasey Pou having a claim under the 1952 Act. But the legal aid context explains why the current issue (ie the entitlement of Brandon and Kasey Pou to claim under the 1952 Act) has absorbed so much time and effort.

Legal background

Overview

[6] Because resort to the 1952 Act is now very rare, the principles of law which govern claims under that Act are no longer well known. In those circumstances, we think it best to start with a brief summary of those principles.

[7] Prior to 1846, the common law did not permit an action for damages to be brought by or on behalf of the estate or family of a person who had been wrongly killed. This was altered by the Fatal Accidents Act 1846 (sometimes referred to as “Lord Campbell’s Act”) which permitted claims to be brought on behalf of the spouse, parents or children of a deceased person. Very similar legislation has been enacted in many common law jurisdictions and it is customary to refer to proceedings under such legislation as “wrongful death” claims.

[8] The Fatal Accidents Act 1846 was, relevantly, in these terms:

1 Whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

2 Every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefits such action shall be brought. ...

Recovery confined to pecuniary losses

[9] From a very early stage the English courts took the view that the Act provided only for compensation for pecuniary losses, see for instance Gillard v Lancashire and Yorkshire Railway (1849) 12 LT 356 and Blake v Midland Railway Co [1852] EngR 10; (1852) 18 QB 93; 118 ER 35. This approach has become thoroughly entrenched in the English authorities, see for instance the discussion in Charlesworth and Percy On Negligence (10ed 2001) at [15.28].

[10] The Fatal Accidents Act 1846 was incorporated into the law of New Zealand by the English Acts Act 1854. It was then replaced by the Deaths by Accidents Compensation Act 1880. Further legislation, with the same short title, was enacted in 1908. The 1880 and 1908 statutes were in substantially the same terms as the Fatal Accidents Act 1846. Unsurprisingly, New Zealand courts took the same limited approach to the damages as was taken under the English legislation, see for instance Shaw v Hill [1935] NZLR 914 at 920 per Reed J.

[11] In 1937, s 7(1) of the Statutes Amendment Act of that year provided that in actions under the Deaths by Accidents Compensation Act 1908 damages might be awarded:

... in respect of the amount of actual pecuniary benefit which the person or persons for whose benefit the action is brought might reasonably have expected to enjoy if the deceased person had not been killed, notwithstanding that such person or persons may not have been either wholly or partially dependent upon the deceased person before his death

The purpose of this provision presumably was to make it clear that actual dependency was not a prerequisite to a successful wrongful death claim. The amendment was certainly not seen at the time as warranting a departure from the traditional approach that only pecuniary losses could be the subject of an award of damages, see Marsh v Absolum [1940] NZGazLawRp 39; [1940] NZLR 448.

[12] The 1908 Act was repealed and replaced by the Deaths by Accidents

Compensation Act 1952 which now provides:

4 Right of action when death is caused by negligence, etc.

(1) Where the death of a person is caused by any wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to a crime.

...

5 Action to be for benefit of family

Every such action shall be for the benefit of the spouse or civil union partner and the parents and children of the person whose death has been so caused.

6 Persons who may bring action

(1) Every such action shall be brought by and in the name of the executor or administrator of the deceased person:

Provided that, where no action is so brought within 6 months after the date of the death of the deceased person, or where within 6 months after the date of the death of the deceased person the executor or administrator declares in writing his desire not to bring the action, or where there is for the time being no executor or administrator of the deceased person, the action may be brought by and in the name of the person, or (if there are more than one) the names of all or of any of the persons, for whose benefit the action would have been if it had been brought by and in the name of the executor or administrator.

(2) Where any such action is brought by and in the name of any person or persons other than the executor or administrator of the deceased person, the action shall be for the benefit of the same person or persons, and shall be subject to the same procedure, as nearly as may be, as if it were brought by and in the name of the executor or administrator.

7 Amount of damages

(1) In every such action the Court may award—

(a) Such damages as it may think proportioned to the injury resulting from the death to the person or persons for whose benefit the action is brought; and

(b) Damages in respect of the amount of actual pecuniary benefit which the person or persons for whose benefit the action is brought might reasonably have expected to enjoy if the death had not occurred, whether or not the person or persons have been either wholly or partially dependent upon the deceased person before his death; and

(c) Damages in respect of the medical and funeral expenses of the deceased person if the expenses have been incurred by the person or any of the persons by whom or for whose benefit the action is brought.

(2) In awarding damages in any such action the Court shall not take into account any gain, whether to the estate of the deceased person or to any dependant, that is consequent on the death of the deceased person.

...

[13] Section 7(1)(a) of the 1952 Act is to the same effect as the Fatal Accidents

Act 1846 and the 1880 and 1908 New Zealand legislation. Section 7(1)(b) was

adopted (albeit with some variation in language) from the Statutes Amendment Act

1937. That being so, it was logical to assume that the approach to damages taken prior to the 1952 Act would continue to apply.

[14] This assumption was challenged in McCarthy v Palmer [1957] NZLR 442. In that case, a widow sought damages under s 7 for herself and her three children. She claimed £20,000 for the pecuniary benefit that they might reasonably have expected to enjoy had her husband not been killed and £5,000 for deprivation of her husband’s society, care, guidance and affection. The defendant moved to strike out the claim for £5,000 as legally untenable. Counsel for the plaintiff sought to defend this claim by relying on the structure of s 7 of the 1952 Act and in particular the use of the word “and” to link the various subsections. On his argument, the degree of overlap between s 7(1)(a) and (b) was inconsistent with a pecuniary loss only approach to the section as a whole. This argument was unsuccessful in both the Supreme Court (before McGregor J) and in this Court. For present purposes it is sufficient to refer to the judgment in this Court which was given by FB Adams J (at 620):

Mr Harding pressed upon us the view that the Court must accept the literal meaning of the words of the Act as they now stand. But subs. (1) (a) of s. 7 of the Deaths by Accidents Compensation Act 1952 is expressed in words that have received a time-honoured interpretation which must be assumed to have been well known to the Legislature, and from which, in our opinion, it is neither permissible nor desirable to depart. Even if one treats the opening words of subs. (1) (b) of s. 7 as a redundant duplication of subs. (1) (a), we do not think it follows as a necessary or proper inference that Parliament must have intended to widen the scope of the words in subs. (1) (a).

We think it desirable to add that we do not approve the suggestion of counsel for the appellant that the law ought to be in such a form as would enable damages to be awarded under the Act otherwise than for pecuniary loss. This basis of damages has been uniformly observed both in England, and in New Zealand for more than a century; and damages should, in our view, continue to be limited to compensation in respect of pecuniary benefits which the claimants might reasonably have expected to enjoy. The expression “pecuniary benefits” is, of course, used in the wide sense which has long been attributed to those words in this connection.

Loss of services which had been provided by the deceased

[15] The concept of pecuniary losses extends to the loss of services which had been rendered gratuitously by the deceased.

[16] That such a loss is pecuniary is obvious where replacement services have been acquired at a cost, as in Berry v Humm & Co [1915] 1 KB 627 or where the surviving spouse gives up employment (and thus suffers economic loss) to look after children who had previously been primarily cared for by the deceased, as in Mehmet v Perry [1977] 2 All ER 529 and Hayden v Hayden [1992] EWCA Civ 13; [1992] 1 WLR 986. In recent years the English courts have recognised that there is such a loss even if some other family member (for instance a grandparent) steps in to provide gratuitously the services once provided by the deceased, see Hay v Hughes [1975] 2 WLR 34. Indeed given that the loss which is to be compensated is the loss of the deceased’s services rather than the cost of replacing them, an actual replacement of the services in question is not fundamental to an entitlement to damages, see Nguyen v Nguyen (1990) 91 ALR 161.

[17] Where the services which have been lost are those of a parent, the English courts have, over the last 30 years, come to recognise that there may be a qualitative difference between the replacement services, provided perhaps by a nanny or housekeeper, and those of a full-time parent and that this qualitative difference may properly be reflected in damages, see Hay v Hughes, Regan v Williamson [1976] 1 WLR 305 at 309 per Watkins J, Spittle v Bunney [1988]

1 WLR 847 and Cresswell v Eaton [1991] 1 WLR 1113 at 1122 per Simon Brown J. There have been similar developments in Australia, see Trindade and Cane The Law of Torts in Australia (3ed 2001) at 545.

[18] Dependency, in a strict sense, has never been a prerequisite for a successful wrongful death claim. So damages might be recoverable where the deceased was in the habit of providing benefits for family members which lay outside the reciprocal ebb and flow of everyday family life. A parent who regularly gives his or her children substantial sums of money may provide such an example. Another example, of possible relevance to this case, involves the provision of child minding services.

Is loss of parental care and guidance a pecuniary loss?

[19] In St Lawrence and Ottawa Railway Co v Lett (1885) 11 SCR 422 the Supreme Court of Canada held that the loss of a mother’s care and guidance was a pecuniary loss for the affected children and properly the subject of an award of damages in a wrongful death claim.

[20] This approach was discussed in Marsh v Absolum [1940] NZGazLawRp 39; [1940] NZLR 448 where Myers CJ (at 462 - 463) reviewed and rejected the reasoning in St Lawrence and Ottawa Railway Co. The Chief Justice held that the children who were claimants in Marsh v Absolum had not suffered a pecuniary loss on their mother’s death given that they were financially dependent on their father who was responsible for their maintenance, support and education. In the same case, Kennedy J observed (at 475):

... I think that the lack of a mother’s care and moral training is a great loss to a child, but it is not a pecuniary loss. The husband may suffer a pecuniary loss represented by the additional cost to him of providing substituted care and training for the children. ...

[21] A similar approach was taken at first instance in McCarthy where

McGregor J expressly held (at 447):

The loss of the society, care, guidance, and affection of a husband or father is not, in general, the loss of a future pecuniary advantage. It may, in one sense, have a pecuniary effect in regard to such matters as requirements of expenditure for additional educational assistance or the necessity of additional assistance in the home. In so far as such matters might call for consideration, they would be equally matters for consideration in the alternative claim for loss of pecuniary benefits. It seems to me, therefore, that the claim for damages in respect of the loss of the society, care, guidance, and affection of the husband and father cannot in law be sustained.

[22] That the Canadian approach differed from the way such claims were addressed in Australia and New Zealand was recognised by the Supreme Court of Canada in Vana v Tosta [1968] SCR 71 when it upheld the continuing applicability in Canada of St Lawrence and Ottawa Railway Co. It is, however, open to question whether there is a material difference between the Canadian willingness to award damages in relation to lost “care and guidance” and the modern English approach which allows for the qualitative difference between parental care and the replacement care which becomes necessary when a parent is killed. We think it

likely that New Zealand courts would have adopted the English qualitative difference approach if personal injury litigation had not largely come to an end as a result of the adoption of the no fault accident compensation scheme in 1974, cf Trindade and Cane at 545.

[23] It is important to recognise there are no decided cases in which lost companionship and society have been the subject of compensation. On this point the law is undoubtedly as stated by McGregor J in McCarthy, see [21] above. Further, there are no decided cases in which care and guidance awards have been made in favour of adult and independent children, see for instance the remarks of Sir David Croom-Johnson in Spittle v Bunney at 858.

Reciprocity

[24] As between adult family members, considerations of reciprocity are important. This point was made clearly in Nguyen, supra, by Brennan J at 162:

A loss of domestic services is a material loss. However, to identify lost domestic services or the loss of a reasonable prospect of domestic services as a material loss sounding in damages is to solve but part of the problem; next, it is necessary to assess the compensation to be awarded for that loss.

When a claim is made for the loss of the services which would or might have been provided by a deceased spouse, the entire family situation before the death must be compared with the entire family situation after the death. By that comparison, it is possible to ascertain the “balance of the loss” —on the one hand, the savings made by the plaintiffs in consequence of the death and their exemption from providing services to the deceased spouse; on the other, the benefits conferred on the plaintiffs by the deceased spouse — and the true nature and extent of the “injury resulting from [the] death to the parties”. When that comparison is made and the “balance of the loss” is ascertained, evaluation of the loss can proceed.

Allowance for benefits associated with the death of the deceased

[25] Benefits received by the claimants as a result of the death of the deceased may have to be brought into account on a claim under the 1952 Act, see s 7(2).

[26] The rules as to this are reasonably complex and there is no point in discussing them in detail here. It is sufficient for present purposes to note that benefits which

Brandon and Kasey Pou receive in connection with the estate’s claim against the tobacco companies (ie as beneficiaries of Janice Pou’s estate) are required to be taken into account, see for instance Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601. Accordingly, any recovery made by the estate in the claim against the tobacco companies would have to be allowed for in any assessment of what Brandon and Kasey Pou may be entitled to recover under the 1952 Act.

Brandon and Kasey Pou’s claims under the 1952 Act

[27] In the first amended statement of claim (which was the first pleading in which the 1952 Act was relied on), Brandon and Kasey Pou’s primary claim was for general damages of $100,000 for anxiety, trauma and emotional stress in (a) coping with their late mother’s illness; (b) caring for her during her illness; and (c) dealing with her death. Additionally they claimed “partial dependence” upon Mrs Pou prior to her death, for which each sought “nominal damages” of $10,000.

[28] Overall, the structure of the claim was unconventional, to say the least. Anxiety, trauma and emotional stress have never been recognised heads of loss in such a claim. Assistance which Brandon and Kasey Pou provided to their mother when she was dying might be the subject of an award in favour of the estate but it does not fall under any recognised head of claim for the purposes of the 1952 Act. Further, it is elementary that where dependence is alleged, proper particulars are required (see s 8 of the 1952 Act) and that nominal damages are not recoverable (as “injury” to the claimants is a necessary element in a s 7(1)(a) claim and loss of “pecuniary benefit” is essential to a claim under s 7(1)(b)).

[29] On 19 July 2004 (ie seven days before the hearing before Harrison J), the plaintiffs lodged a memorandum indicating that if the claims as then formulated were held not to be sustainable, they would substitute differently expressed claims in these terms:

35. The plaintiffs have lost pecuniary benefits which they might reasonably have expected to enjoy if their mother had not died.

36. The pecuniary benefits which the plaintiffs have lost include, but are not limited to the loss of guidance, care and companionship which

they could reasonably have expected to receive had their mother continued to live;

37. The plaintiffs seek damages in the sum of $110,000 pursuant to s. 7(1)(a) and 7(1)(b) Deaths by Accidents Compensation Act 1952.

[30] This resulted in a letter of 22 July 2004 from the solicitors for the tobacco companies seeking particulars of:

1. the precise elements, components or aspects of alleged ‘guidance, care and companionship’ which the plaintiffs say are lost pecuniary benefits; and

2. the other alleged loss [sic] pecuniary benefits which the plaintiffs intend to refer to by use of the words ‘include, but not limited to’.

[31] Brandon and Kasey Pou’s solicitors provided, as requested, further particulars in a letter of 26 July 2004 (ie on the day of the hearing of the strike out application) to the solicitors for the tobacco companies:

1. We refer to your letter of 22 July.

2. The guidance, care and companionship which the plaintiffs say are lost pecuniary benefits are:

(a) In the case of Kasey Pou:

(i) Moral support, encouragement and assistance in caring for the bringing up of Kasey Pou’s child;

(b) In the case of Brandon Pou:

(i) Moral support and encouragement in pursuing his studies and career.

3. Other pecuniary benefits which the plaintiffs refer to in the proposed amendment to the statement of claim are:

(a) Kasey Pou:

(i) Financial assistance in the form of gratuitous payments of money;

(ii) Assistance in the form of provision of exigencies of life such as food and clothing;

(iii) Assistance in caring for and bringing up the child of

Kasey Pou;

(b) Brandon Pou:

(i) Financial assistance in the form of gratuitous payments of money;

(ii) Assistance in the provision of exigencies of life such as food and clothing.

[32] A second amended statement of claim was filed on 28 July 2004 (two days after the hearing before Harrison J but on his invitation). This document repeats the original pleading (as referred to in [27] above but then adds additional pleadings as foreshadowed in the memorandum of 19 July 2004.

ALTERNATIVE PLEADING IN RELATION TO S. 7(1) DEATHS BY ACCIDENTS COMPENSATION ACT 1952

37 Alternatively to the matters pleaded in paragraphs 35 and 36 above the plaintiffs state:

37.1 They have lost pecuniary benefits which they might reasonably have expected to enjoy if their mother had not died;

37.2 The pecuniary benefits which the plaintiffs have lost include, but are not limited to loss of guidance, care and companionship which they could reasonably have expected to receive had their mother continued to live;

37.3 The plaintiffs seek damages in the sum of $110,000 pursuant to s. 7(1)(a) and 7(1)(b) Deaths by Accidents Compensation Act 1952.

Overview of the issues on appeal

[33] We consider that there are three issues which arise on this appeal:

(a) Are claims under the 1952 Act confined to pecuniary losses?

(b) Is the claim in relation to loss of maternal care and guidance a claim for pecuniary losses?

(c) Can Brandon and Kasey Pou claim for pecuniary losses associated with loss of benefits which their mother would have provided but for her death?

Are claims under the 1952 Act confined to pecuniary losses?

[34] In the High Court, Harrison J rightly concluded that he was bound by McCarthy v Palmer to hold that there is no claim under the 1952 Act for non-pecuniary losses.

[35] In this Court, Mr Collins QC for Brandon and Kasey Pou sought to persuade us to overrule McCarthy v Palmer. He maintained that the English courts took a wrong turn in the late 1840s and early 1850s when they construed the Fatal Accidents Act 1846 as permitting compensation for pecuniary losses only and that it was appropriate for us to correct that error. This resulted in us receiving submissions as to the approach we should take when earlier decisions of this Court are challenged.

[36] It may be that 155 years ago the English courts took too narrow an approach to the Fatal Accidents Act and the losses for which compensation might be awarded under it. This approach, however, was already well-settled when the Fatal Accidents Act was first incorporated into our law in 1854. When Parliament enacted the 1952

Act (and indeed its 1880 and 1908 precursors) using language which was largely borrowed from the Fatal Accidents Act 1846, it must have intended that that language would continue to receive the same interpretation as previously. In his judgment Harrison J cited the speech of the Attorney-General on 18 September 1952 on the introduction of the Bill which became the 1952 Act. The Attorney was plainly of the view that the new legislation would continue to provide compensation only for pecuniary losses. In light of all of this, we have no doubt that McCarthy v Palmer was correctly decided.

[37] This view is confirmed by the way the law has developed in similar jurisdictions. In England and Wales and Australia wrongful death claims are still confined to pecuniary losses except to the limited extent that this approach has been modified by statute, see Charlesworth and Percy on Negligence, supra and Fleming, Law of Torts, (9ed 1998) at 734. The position is broadly similar in Canada, save for the impact of the St Lawrence and Ottawa Railway Co case. Again, there have been

some statutory amendments which broaden rights of recovery (and in particular in

Ontario), see Fridman The Law of Torts in Canada (1989) at 413 - 419.

[38] In this context, we are simply not persuaded that it would be appropriate for us to change the law as expressed in McCarthy v Palmer and as it is applied (in the absence of legislative intervention) in similar jurisdictions.

Is the claim in relation to loss of maternal care and guidance a claim for pecuniary losses?

[39] Mr Collins asserted that, even if McCarthy is still good law, the concept of pecuniary advantage has a wide ambit and can embrace the loss of a mother’s guidance, care and companionship.

[40] Harrison J dealt with this aspect of the case in this way:

[40] In summary, in my judgment, the Pous’ claim for the lost care, guidance and companionship of their late mother under s 7 Deaths by Accidents Compensation Act 1952 is legally untenable for these reasons:

a) The law of New Zealand does not recognise a right of claim by a dependant child (and a fortiori by an adult child) for the deprivation of a mother's society, care, guidance and affection as an element or head of pecuniary loss (Marsh, McCarthy). The law of Australia appears to be the same;

b) The law of England recognises that a claim by dependant children for the loss of a mother’s services, which is itself a head of actual or prospective pecuniary benefit, may include what is described as a special qualitative factor to compensate for the loss of a mother's attention to her children's upbringing, morals, education and psychology in addition to the computation of the cost of a replacement housekeeper (Hay, Regan, Cresswell). However, English law has not recognised a right of claim by adult independent children for these services including a special qualitative factor;

c) The law of Canada also recognises the right of a dependant child to claim as an actual pecuniary loss the cost of services which include an allowance for loss of a mother's care and moral training (St Lawrence and Ottawa Railway Co; Vana), provided that evidence is adduced that the children have suffered or will actually suffer a pecuniary loss as a result of their mother's death. Also, since

1978 the law of Ontario has by statute allowed children, whether dependant or not, to include within a claim for pecuniary loss an

amount 'to compensate for the loss of guidance, care and

companionship'.

[41] As is apparent, we think it likely if personal injury litigation had remained a significant feature of the New Zealand legal landscape, our courts would have followed the English cases on the weight to be attached to qualitative aspects of parental care. This means that some of the absolute statements made in Marsh v Absolum and perhaps McCarthy v Palmer can no longer be regarded as authoritative. As well, we consider that there is not a great deal of difference between allowing compensation on a basis which allows for the qualitative aspects of parental care (as English courts do) and the Canadian care and guidance principles as applied in Vana v Tosta. So if this were a claim on behalf of young children, we would be inclined to allow the pleading to stand.

[42] The reality, however, is that Brandon and Kasey Pou are adults. There is no authority for the proposition that, in the absence of particular statutory authorisation, a parental care and guidance claim is available at the suit of an adult child. Given that such claims are not recognised in jurisdictions in which personal injury litigation is a staple part of the judicial diet, there is no obvious reason why we should allow such claims in New Zealand.

Was Harrison J right to strike out the claims for damages under s 7(1)(b) of the

Deaths by Accidents Compensation Act?

[43] The second amended statement of claim when read with the letter of

26 July 2004 pleads a good (if very limited) claim under the 1952 Act.

[44] Harrison J did not grapple with this aspect of the case, essentially because of his dissatisfaction with the way in which this line of argument surfaced with the claim first being notified a week before the hearing of the strike out application and the second amended statement of claim not being filed until two days after the hearing:

[41] The Pous cannot escape the consequences of these settled principles by pleading that their loses “include, but are not limited to” loss of guidance, care and companionship in an attempt to reserve the prospect of identifying new pecuniary losses additional to those particularised (para 37.2). They have had ample time to formulate a legally tenable pleading. By recasting their claim on the eve of determination of BAT and Wills’ application to strike out, of which they had eight months prior notice, the Pous might have

frustrated the whole exercise. They cannot be allowed to shift the ground of their claim again. I am treating the material pleadings as closed.

[42] Nor are the Pous saved by pleading without particularity a “partial dependency” upon their late mother to support a claim for nominal damages of $10,000. I infer that this allegation is designed to provide an opportunity to extend the English and Canadian jurisprudence in favour of dependant school children to dependant adult children. A partial dependence, which in this context has to mean financial reliance, must be capable of identification. Its quantification at $10,000 and its description as justifying nominal damages imply an artifice. As noted, the Canadian authorities require proof of actual loss. In law an award of nominal damages is designed to compensate a plaintiff who is unable to prove real damage but seeks recognition of an infringement or infraction of a legal right (The Mediana [1900] AC 113 per Lord Halsbury LC at 116). In this case its inclusion signals an acknowledgement that the Pous have not suffered and will not suffer any actual loss as a result of their mother's death.

[43] The Pous’ reformulation of their claim is no more than a replication of a material part of an alien statute, and an attempt to introduce it into the common law of New Zealand. Its quantification at $110,000, purportedly for loss of pecuniary benefits, is identical in quantum and content to the Pous’ existing claim for general and so-called nominal damages for the anxiety, trauma and emotional distress related to Mrs Pou’s illness and death. In truth it is a claim for general damages, for a solatium for mental anguish, which none of the Commonwealth jurisdictions allow under Lord Campbell’s Act or its successors. In my judgment it is legally untenable and must also be struck out.

[45] We have some sympathy with this approach. The reformulation of the claim on the eve of the hearing of the strike-out application understandably troubled the Judge. It was not satisfactory for purported particulars to be in the “include but not limited to” format. Indeed the generality of the particulars might be thought to indicate that Brandon and Kasey Pou’s advisors were experiencing difficulty in formulating a viable claim under the 1952 Act. As well, it was unfortunate that the same damages ($110,000) were sought in relation to the reformulated claim as the original claim, because it suggested that Brandon and Kasey Pou were, in substance, putting up a claim for mental anguish under the guise of merely seeking to recover lost pecuniary benefits.

[46] Further, when allowance is made for the reciprocity principles (see [24] above) and the necessity to bring to account the value of the estate’s claim (see [25] above), it becomes clear that there is little prospect of a substantial award being made under the 1952 Act.

[47] All of that said, we cannot discount altogether the possibility of Brandon and Kasey Pou having limited but genuine claims under the 1952 Act based on lost services and other benefits as identified in the letter of 26 July 2004. This is a strike-out application and we have to accept at face value the assertions of fact made in that letter. We cannot assume that the foregone benefits alleged would necessarily have been counteracted by Brandon and Kasey Pou reciprocating in favour of Janice Pou. That the damages recoverable in relation to a particular claim are likely to be small is not, in itself, a reason for striking out that claim. Further, in the absence of an acknowledgement by the tobacco companies that they must pay substantial damages to Janice Pou’s estate if found to be liable in relation to her death, we are not in a position to assume that any claim under the 1952 Act will necessarily be swallowed up by the estate’s claim. We record, however, that we expect the claims under the 1952 to be for quantified sums which reflect the realities of the claim.

Result

[48] The appeal is accordingly allowed but only to the extent that the claims under the Deaths by Accident Compensation Act 1952 are reinstated so as to permit the appellants to claim for pecuniary losses associated with:

(a) Assistance in caring for the bringing up of Kasey Pou’s child;

(b) Financial assistance in the form of gratuitous payments of money; and

(c) Assistance in the form of provision of exigencies of life such as food and clothing;

[49] Given the mixed success of the parties there will be no order for costs in this Court. Costs in relation to the High Court proceedings, if sought, are to be fixed in that Court.

Solicitors:

French Burt Partners, Invercargill for Appellants

Phillips Fox, Wellington for Respondents