Pair take up late mother's tobacco fight

By MARTIN JOHNSTON health reporter

Janice Pou died nearly two years ago of lung cancer, but her battle for compensation from the tobacco industry has been picked up by her adult children.

Brandon and Kasey Pou's lawyer was in the High Court in Auckland yesterday arguing they should be allowed to pursue their own claim for compensation, of about $110,000, for their mother's death.

This is in addition to the compensation of around $430,000 being sought by Mrs Pou's estate, of which the Invercargill-based children are the executors.

British American Tobacco NZ and WD & HO Wills argue that her children have no legal basis for their own compensation claim and that it should be struck out.

In a separate case in the High Court in Wellington, the companies are challenging the granting of legal aid to Mrs Pou's estate to continue its claim. They argue that the beneficiaries are adults not financially dependent on her.

Brandon Pou, aged 27, and Kasey Pou, 23, initially wanted compensation for the anxiety, trauma and emotional distress they claim to have suffered as a result their mother's death, plus nominal damages based on their partial dependency on her.

Their lawyer, David Collins QC, yesterday added as an alternative claim "lost pecuniary benefits" including the loss of their mother's companionship.

"The plaintiffs say in their amendment that they are claiming, under the head of pecuniary loss, payments that Mrs Pou would have made [for them].

"Also her loss of companionship. Kasey Pou was living with her; her mother was helping her bring up her child."

Mrs Pou, of Invercargill, gave evidence for her case before she died in September 2002 aged 51. She had filed a claim, three months before her death, seeking compensation for pain and suffering, loss of enjoyment of life and expectation of life, medical expenses and lost earnings.

She started smoking Capstan cigarettes in 1968 aged 17 and became addicted, smoking 30 a day.

Her Invercargill lawyer, John French, has said the defendant companies' conduct led to her addiction and contracting lung cancer was a result. "They promoted smoking cigarettes as a glamorous activity, and as a teenager she hooked onto that. It was addictive from day one."

It was the first smoker's law suit against tobacco companies in New Zealand.


The tobacco companies' lawyers, Mike Camp QC and Iain Thain argued yesterday that loss of guidance, care and companionship were not pecuniary loss for which damages were available under the Deaths by Accidents Compensation Act. The Court of Appeal rejected an earlier claimant's bid to establish similar grounds in 1957.

Justice Harrison reserved his decision.


The case so far

Janice Pou began a law suit against two tobacco companies in 2002, three months before she died.

Her two adult children, the executors of her estate, are continuing the court claim for compensation of about $430,000.

They have also made their own claim for compensation of around $110,000 arising from the loss of their mother.

The companies want the children's claim struck out, and this went before a judge yesterday.

They are also challenging the granting of legal aid for her estate's claim.