Product Liability 2009 - Arnold & Porter LLP

New Zealand
246
Simpson Grierson New Zealand
8 Updates
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in New Zealand.
With one potential exception, recent developments point to a likely
increase over time in product liability litigation in New Zealand.
Factors pointing to a likely future increase in product liability
litigation include:
(a) the provisions of the Lawyers and Conveyancers Act 2006
(in force from 1 August 2008) that now permit conditional
fee agreements between lawyers and clients;
(b) increased concerns about access to justice - see Auckland
City Council as Assignee v Auckland City Council [2008] 1
NZLR 838 (HC);
Robert Gapes
Simpson Grierson
The Lumley Centre
88 Shortland Street, Auckland
New Zealand
Tel: +64 9 977 5076
Fax: +64 9 307 0331
Email: robert.gapes@simpsongrierson.com
URL: www.simpsongrierson.com
Robert Gapes is a litigation partner in the Auckland office of
Simpson Grierson and has over 25 years’ experience as an adviser
and advocate.
He has long-standing specialist expertise in product liability, and has
acted on numerous product liability matters involving a very diverse
range of products such as asbestos, building products, chemicals,
electronics, food and beverage products, medical equipment and
pharmaceuticals. He has also co-authored international books,
written articles for publication in New Zealand and overseas, and
presented conference and seminar papers (eg to the International
Bar Association and the Auckland District Law Society) on product
liability topics (see www.simpsongrierson.com).
The International Who’s Who of Product Liability Defence Lawyers
(2008) named Robert as the number one practitioner in New
Zealand for product liability expertise.
Robert’s advocacy work has included appearing in the Court of
Appeal and in the Supreme Court as lead counsel for Mrs Lai, one
of the successful parties in the landmark Lai v Chamberlains case.
In Lai, the long-recognised defence of barristers immunity was
abolished in New Zealand. The Supreme Court decision, released
in September 2006, was described by the leading New Zealand
commentator, Professor Todd, as the Supreme Court’s “first major
decision in the area of torts” (see [2006] NZ Law Review 793).
(c) influenced by increased concerns about access to justice,
increased acceptance of litigation funding as legitimate (as,
for example, in the Fostif litigation in Australia and in
Houghton v Saunders in New Zealand);
(d) increased recognition of the potential of the limited existing
mechanisms for class actions and representative actions (e.g.
Commerce Commission v Carter Holt [2008] 1 NZLR 387
(HC) on class actions, and Houghton v Saunders on
representative actions);
(e) the reluctance of the Supreme Court to strike out before trial
new types of claims in areas where the law is confused or
developing, that may prove to be arguable (see Couch v
Attorney-General [2008] 3 NZLR 725); and
(f) the Rules Committee is seeking to introduce new class action
rules in the High Court that would significantly expand the
potential for class actions beyond the limited mechanisms
currently in place.
The potential “exception”, which could perhaps lead to a decrease
in claims for exemplary damages, is the Couch v Attorney-General
litigation. In the second part of the appeal to the Supreme Court,
the Crown argued in March 2009 that the availability of exemplary
damages should be further reduced (as explained above). If the
Crown succeeds on this part of the appeal, this could significantly
limit the exemplary damages “exception” to the accident
compensation bar on most damages awards in personal injury
litigation.
Taken overall, recent developments indicate a likely future increase
in product liability litigation in New Zealand. The extent of the
likely increase, however, remains uncertain.
Sarah Devoy
Simpson Grierson
The Lumley Centre
88 Shortland Street, Auckland
New Zealand
Tel: +64 9 977 5403
Fax: +64 9 307 0331
Email: sarah.devoy@simpsongrierson.com
URL: www.simpsongrierson.com
Sarah Devoy is a litigation senior associate in the Auckland office of
Simpson Grierson. Her practice areas include product liability,
commercial leasing and other contract disputes, and insolvency.
She has acted for major national and multinational companies on
product liability matters such as asbestos, building products and
children’s equipment issues.
Simpson Grierson is one of New Zealand’s leading commercial law firms, delivering comprehensive advice across every
commercial practice area. A national firm with more than 420 staff, including more than 200 legal staff and partners,
Simpson Grierson combines leadership, innovation, technical expertise and good business sense to ensure clients
receive the best legal service available.
With a list of high-profile clients and a strong track record on some of New Zealand’s biggest deals and disputes, the
firm was named New Zealand winner of the International Law Office’s annual Client Choice Awards, for the second year
running, in 2009. Based on independent research of over 1,000 corporate counsel in 42 jurisdictions, the award
recognises the firm’s ability to add value for its clients.
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