Peterson v Merck Sharp & Dohme (Australia) Pty Ltd [2012] HCATrans 105

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 judgment here.

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 leave”.

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.