Clemens v Attorney-General for the State of Victoria [2008] VSC 505

2 The proposed defendant is Philip Morris Ltd ("PML"), a manufacturer of cigarettes. It would be an abuse of process for Mr Clemens to bring against PML a proceeding an essential element of which has already been determined against him in another proceeding to which PML was also a defendant. The question before me is whether, if leave were given, the proposed proceeding would offend in this way.

3 Mr Clemens began smoking in late 1971. He claims that the proposed defendant's products were, to its knowledge, harmful to humans. They contained nicotine, which in his proposed statement of claim he describes as a "poison" that causes addition to and/or dependence upon, tobacco. PML's products also contain "toxic and carcinogenic chemicals". As a result of this and his own longstanding tobacco use, he contracted pulmonary disease, emphysema and bronchitis. This occurred, he alleges, on 11 October 2002.

4 Mr Clemens has already brought and lost a proceeding claiming damages from PML for the harm he has suffered as a smoker. Following leave granted on 12 January 2005, he commenced by writ an action in the County Court claiming that he was injured "as a result of continued smoking of the defendant's tobacco products". He alleged that the defendant failed to warn him of the dangers of smoking. Particulars of his injuries were given. They were pulmonary disorder or disease, emphysema and a degree of nicotine addition.

5 The trial was by judge and jury. On 21 May 2007, the jury found that there was no negligence on the part of the defendant that was a cause of injury to Mr Clemens. Judgment was accordingly entered for PML, with costs. Those costs have never been taxed and so never paid; they run into hundreds of thousands of dollars.

6 The plaintiff then brought an action before a judge of this court for leave to bring in the County Court a proceeding against Philip Morris Australia Ltd ("PMAL"). Again, the cause of action upon which he relied was for damages for personal injury resulting from a breach of a duty of care on the part of the defendant. Leave was granted on 13 May this year.

7 The same judge later revoked that leave. His Honour's principal reason for doing so was that he then had before him material, uncontested by Mr Clemens, that PMAL had sold its business to the present proposed defendant, PML, before Mr Clements took up smoking.

8 In the closing stages of the hearing which resulted in revocation, Mr Clemens sought leave to add PML as a defendant to the PMAL proceeding "on the basis that PML have failed to remove the toxic and carcinogenic chemicals and nicotine from cigarettes". This application was refused; but his Honour said that: "If Mr Clemens desires to bring another application he should do so afresh, on proper materials".

9 Mr Clemens accepted that invitation. The present application for leave is the result. It was made ex parte. It came before me in the Practice Court on 8 October. In the light of the history of the litigation, it seemed to me that PML ought to be given an opportunity, which it might or might not wish to take, to be heard. I adjourned the application accordingly. It returned to me on 17 November with PML being represented by counsel. I then had before me all the material filed by Mr Clemens on 1 October, together with his further submissions of 20 October, an affidavit sworn on 9 November by Ian Peter Scott O'Donahoo, PML's solicitor, and an outline of submissions prepared by counsel for PML.

10 I interpolate at this point to say that Mr Clemens opened his submissions this morning by objecting to the notice given to PML, and objecting to the opportunity which that notice gave to PML of its making submissions on the application for leave. Mr Clemens correctly pointed out that he is not required to serve the application for leave on a proposed defendant. I accept that that is so. On the other hand, it seemed to me that by the nature of this particular application, it would be appropriate for me to offer PML an opportunity to be heard if it wished. Two considerations were then in my mind. First, the judge who revoked the leave which he had previously given to bring proceedings against PMAL, did so on the basis that PMAL was not an appropriate defendant: it had sold the relevant business to PML before Mr Clemens took up smoking.

11 The other consideration which led me to think that it would be appropriate to invite, but not require, PML to intervene in this application for leave if it wished, was that the judge, in revoking the leave previously given, said to Mr Clemens that if he desired to bring another application he should do so afresh, on proper materials. His Honour must therefore have been of the view, at least tentatively, that there might be some basis for a fresh claim against PML despite the jury verdict.

12 The issue, as it seemed to me, was whether the fresh application raised questions of res judicata or issue estoppel. The parties best able to address that point, or those points, were the parties who were involved in the County Court proceeding which was heard last year. Given that I did not have any firsthand knowledge of the issues raised in that proceeding, I thought I might be assisted by both Mr Clemens and PML informing me of those matters which were litigated in the County Court, so that I could better assess whether or not the proposed proceeding would run into difficulties with the doctrine of res judicata and/or the doctrine of issue estoppel. It was for that reason, and that reason only, that the somewhat unusual step was taken to invite PML to put submissions to me if it wished. I remain of the view that that was a course appropriate to preserve the interests of all parties, and to provide the court with the information that the court might need in order properly to assess Mr Clemens' present application for leave.

13 As things have turned out, for the reasons which I am about to further articulate, I am now of the opinion that on Mr Clemens' material alone, without reference to any material submitted by PML, it is inappropriate to grant the leave which Mr Clemens seeks.

14 It is clear from Mr Clemens' own material that the cause of action he wishes to pursue against PML is essentially the same cause of action as that which, on 21 May last year, the jury rejected. In both, damages were or are sought, following Mr Clemens' use of the defendant's products. In both, the head of damage was or is personal injury; in both, the injury was or is the result of smoking tobacco; in both, pulmonary disease and emphysema were or are said to have been inflicted upon Mr Clemens; and nicotine addiction was or is also pleaded in both. In both, Mr Clemens alleged or alleges that the defendant knew that its cigarettes were harmful.

15 The differences between the proceeding in the County Court and the proposed proceeding are immaterial. In the proposed statement of claim, Mr Clemens claims that he would not have suffered from emphysema and pulmonary disease had the defendant extracted the nicotine and the toxic and carcinogenic chemicals from its products. In the jury case heard last year, Mr Clemens relied on a failure to warn against the dangers of tobacco smoking. The defendant, he then alleged, kept secret the many inherent dangers associated with smoking its cigarettes. In finding that there was no negligence on the part of PML that was a cause of injury to Mr Clemens, the jury must have found either that the defendant's cigarettes were not dangerous or that, if they were, the defendant did not fail to warn.

16 A finding then that the defendant's cigarettes were not dangerous, if that was the basis for the jury's decision, binds Mr Clemens now. The finding that if they were dangerous, Mr Clemens was warned against their use - and that for this reason there was no negligence on the part of PML that was a cause of injury to him - likewise binds him now.

17 It is of course notorious that many governments, basing their opinion on the great weight of medico-scientific evidence, recognise that cigarettes are harmful to health. For that reason, they require that all packets of cigarettes carry health warnings. It is therefore to be assumed that the County Court jury did not find that cigarettes are safe and that there was, for that reason, no negligence on the part of PML. The jury must have found that there was no negligence because, although cigarettes are harmful, Mr Clemens was warned, if not when he began to smoke (warnings on packaging became compulsory shortly after Mr Clemens became a smoker), then sufficiently soon afterwards, in such a way as to render the warning meaningful.

18 It therefore did not matter that cigarettes are dangerous. There was no negligence on the part of PML that was a cause of injury to him; and so the jury found.

19 This is a finding by which Mr Clemens is, as between himself and the other party to the County Court proceeding, PML, bound. It follows that it is a finding which binds Mr Clemens in relation to his present application. It also follows that it will avail him nothing to prove that PML failed to extract the harmful ingredients from its products. A jury has already found that, although its cigarettes are harmful, there was no negligence on the part of PML that was a cause of injury to him.

20 Mr Clemens, in his submissions of 20 October, quotes from the definition of the expression "res judicata" in the fifth edition of the Dictionary of Law. That expression is there defined as meaning: "Matter on which a judgment has been given, the principle that the same case cannot be tried again unless on appeal".

21 Accepting the accuracy of this definition, it reveals the insurmountable problem faced by Mr Clemens. The County Court jury found, in litigation brought by him against the very defendant he seeks to sue for a second time, either that the defendant's products were not harmful or, if they were harmful, that nevertheless (presumably because Mr Clemens was warned about that harm) no negligence of the defendant was a cause of injury to him.

22 The proposed litigation is based on the same cause of action. If allowed to proceed, it would therefore violate the principle that the same case cannot be tried again. The proposed cause of action involves allegations, made in the proposed statement of claim, that PML's cigarettes - because they contain nicotine and toxic and carcinogenic chemicals which PML failed to extract - were harmful, and that PML was accordingly in breach of its duty of care to Mr Clemens. In other words, PML's negligence in making this product available to Mr Clemens was a cause of injury to him. This is the case he wishes to bring; it is also the case on which a County Court jury has already given judgment against him.

23 Mr Clemens rightly draws a distinction between, on the one hand, evidentiary facts and, on the other, issues of fact or law which are necessary steps in reaching an ultimate legal conclusion. An issue in the County Court trial was whether the defendant's products were harmful. He had to prove that they were; otherwise, there would be no duty to warn. And, as he himself asserts, that case was a "failure to warn" case. If the jury decided that issue (that is, whether or not the defendant's products were harmful) against him, he cannot in another case against the same defendant assert that PML's cigarettes caused him harm. If, on the other hand, the jury found that the products were harmful but that nevertheless there was no negligence on the part of PML that was a cause of injury to Mr Clemens, then he cannot in a new proceeding against the same defendant assert that there was negligence on the part of PML which was a cause of his ill-health. As Mr Clemens correctly submits at page 4 of his submissions of 20 October: "An issue estoppel arises in respect of every issue of fact or law that is necessarily decided by the prior judgment".

24 A County Court jury decided that even if PML's cigarettes did contain the substances about which Mr Clemens complained, nevertheless there was no negligence on the part of PML that was a cause of injury to him. He seeks to re-litigate that issue in his proposed proceeding. It would be an abuse of process were he to do so. Leave to commence the proposed proceeding must therefore be refused.