In the March 2012 edition of Insurance Update we
reported on the judgment of the Federal Court in the appeal of the
representative (class) action brought on behalf of certain
consumers of the arthritic drug, Vioxx. Vioxx was alleged to have
caused adverse cardiovascular side-effects in several arthritis
patients. In October 2011, the Full Court of the Federal Court
allowed the appeal against the earlier damages award against the
supplier of Vioxx. See our article on the Federal Court appeal
In the wake of the Federal Court appeal judgment, the lead
applicant in the class action, Graham Peterson (a consumer of
Vioxx), applied for special leave to appeal to the High Court. On
11 May 2012 the High Court (comprising French CJ and Crennan J)
refused special leave to appeal. Given it was a special leave
application, no reasons were given by the High Court, other than a
statement from French CJ that "the applications are not
suitable vehicles for the consideration of the questions of
principle which would warrant the grant of special
The transcript of the argument of the special leave application
indicates that the determination centred on the issue of causation.
Comments from the bench during the argument suggest that the High
Court may have accepted submissions to the effect that it was
simply not open to the trial judge to be satisfied on the facts
that Vioxx had caused Mr Peterson's heart attack, having regard
to the evidence of other possible causes, in particular age,
gender, hypertension, hyperlipidemia, obesity, left ventricular
hypertrophy and a history of smoking.
As discussed in our earlier article, the High Court's recent
treatment of causation cases (e.g. Adeels Palace Pty Limited v
Moubarak1, Amaca Pty Limited v
Ellis2, and Tabet v Gett3)
meant that a successful appeal was always going to be difficult for
Peterson. The brief comment of French CJ in refusing special leave
suggests that the High Court did not consider that Peterson could
establish causation, regardless of how the causation test was
framed, so did not see any merit in granting special leave.
However, the comment, together with the forthcoming changes to the
High Court leaves it open to the suggestion that the High Court may
be prepared to again revisit causation in the near future if the
appropriate case comes before it.
The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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