Children able to sue tobacco company

The children of an Invercargill woman who died of lung cancer can sue a tobacco manufacturer after their right to claim compensation was reinstated by the Court of Appeal today.

Brandon and Kasey Pou can seek damages from British American Tobacco (New Zealand) and WD & HO Wills for financial loss incurred by their mother's death and for assistance raising her grandchild, the five-bench judge court said in its reserved decision.

The siblings, aged in their twenties, filed their own claim for $110,000 compensation after their mother Janice Pou -- a former fish and chip shop worker who smoked 30 cigarettes a day since she was 17 -- died in September 2002 at the age of 51.

Mrs Pou had sued the tobacco company for $310,000 three months before she died, claiming she believed advertisements showing smoking was glamorous and became addicted before health warnings were put on cigarette packets in the 1970s.

The siblings initially claimed $100,000 compensation for anxiety, trauma and emotional distress suffered by their mother's death, plus nominal damages of $10,000 based on their partial dependency on her under the Deaths by Accidents Compensation Act 1952.

The High Court ruled there was no claim for non-pecuniary losses under the 1952 Act and struck out the Pou family's claim.

Their lawyer David Collins, QC, argued the concept of pecuniary advantage had a wide ambit and could embrace the loss of a mother's guidance, care and companionship.

"The reality, however, is that Brandon and Kasey Pou are adults," the court ruled. "If this were a claim on behalf of young children, we would be inclined to allow the pleading to stand."

The court ruled the siblings could claim for pecuniary loss associated with assistance in bringing up Kasey Pou's child; financial assistance in the form of money gifts; and assistance in providing the essentials of life such as food and clothing.

However, it warned there "is little prospect of a substantial award being made under the 1952 Act".

Running alongside the Pous' damages claim was a bid by British American Tobacco to deny them legal aid granted to their mother which a separate High Court judge found did not stop automatically because she had died.

The tobacco manufacturer appealed the decision.

The Court of Appeal today dismissed the appeal and ordered British American Tobacco to pay $12,000 in costs: $6000 to the Legal Services Agency and $6000 to the Pous.

- NZPA