Clemens v Phillip Morris Limited & Anor [2008] VSCA 48

2 On 7 January 2005, Mr Clemens applied to the Court pursuant to s 21(3) of the Act for leave to commence a proceeding against the respondent ('Phillip Morris'), claiming damages for injuries suffered as a result of smoking cigarettes manufactured by it. The application was made ex parte and Mr Clemens was granted leave to commence the proceeding in the County Court. An application by Phillip Morris to set aside the order granting leave was refused. An appeal by Phillip Morris to this Court against the grant of leave was dismissed.[1]

3 The damages claim came on for trial in the County Court in May 2007, before a judge and a jury of six. The action was dismissed, the jury having found that there had been no negligence on the part of Phillip Morris causative of any injury sustained by Mr Clemens.

4 By summons dated 28 May 2007, addressed both to Phillip Morris and to the Attorney General, Mr Clemens sought leave 'to commence an appeal' and to file a notice of appeal out of time. As in the last proceeding in this Court, the Attorney-General advised that he intended to take no part in the application. Counsel who appeared for Phillip Morris stated that his client neither consented to nor opposed the application for leave to commence an appeal.**

**5 Ordinarily, of course, no leave is required for an appeal from a final order in a County Court proceeding. In the present case, however, we consider that Mr Clemens does require leave, by reason of the prohibition imposed on him by the order declaring him to be a vexatious litigant.

6 The relevant parts of s 21 of the Supreme Court Act are in these terms:**

(1) The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.

(2) The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has -

instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.

(3) An order under sub-section (2) may provide that the vexatious litigant must not without leave of -

(c) a tribunal constituted or presided over by a person who is an Australian lawyer -

(d) continue any legal proceedings (whether civil or criminal) in the Court, inferior court or tribunal; or

(e) commence any legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal; or

(f) commence any specified type of legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal.

**7 As noted above, Kellam J ordered that Mr Clemens must not without leave of this Court 'continue or commence legal proceedings', whether in this Court or in any inferior court or tribunal. The ban imposed on Mr Clemens was in the widest terms permitted by s 21(3). His Honour drew on both paragraphs (d) ('continue') and (e) ('commence') and made the ban applicable to any legal proceedings (rather than limiting it to a specified type of legal proceedings), as contemplated by paragraph (f).

8 The commencement of an appeal to this Court from a decision of the County Court is, on any view, the commencement of a proceeding in the Court. Mr Clemens wishes to invoke the appellate jurisdiction of the Supreme Court as conferred by s 74 of the County Court Act,[2] and he wishes to do so by filing the requisite originating process, being a notice of appeal. The same view has been adopted in other jurisdictions in like contexts.[3]**

**9 The grant of leave in these circumstances is governed by s 21(4). The Court cannot grant leave unless satisfied that Mr Clemens' proposed appeal will not be 'an abuse of the process of the court.'

10 In our view, leave should be refused. For reasons which follow, the appeal has no prospects of success and is 'foredoomed to fail'. It would therefore be an abuse of process for it to proceed.[4]

11 In his proposed notice of appeal, Mr Clemens raises a single ground, expressed in these terms:**

By her Honour collaborating with the defendants council (sic) regarding the wording, phrasing and or construction of questions to be put before the jury to be answered in the negative against David James Clemens, David James Clemens was denied natural justice as well as judicial independence.

**12 In what he entitled his 'amended further amended amended statement of claim', Mr Clemens alleged that:

• 'in late 1971 or early 1972' he had begun smoking 'Marlboro' cigarettes produced by Phillip Morris;

• at that time he was unaware, and had not been warned by Phillip Morris, that smoking cigarettes caused 'disease, nicotine addiction and/or dependency upon it';

• he continued to smoke Marlboro cigarettes on a daily basis until 1987;

• as a result he now suffers from emphysema, pulmonary disease and smoker's bronchitis;

• his injuries are the result of negligence on the part of Phillip Morris, in failing to warn users of Marlboro cigarettes that the product was 'dangerous to use' and would cause 'serious long-term injury disease, disorder and/or diminished life expectancy.'

• since 1 January 1973 every packet of cigarettes sold in Victoria had carried a printed health warning;

• Mr Clemens at all relevant times knew that smoking cigarettes carried serious risks of disease, and made his decisions to smoke in that knowledge;

• in any case, the health risks from the use of tobacco products were a matter of common knowledge in the community.

14 At the conclusion of the evidence in the trial, the judge invited Mr Clemens and counsel for Phillip Morris to consider the form of questions which might be put to the jury to enable them to decide the issues in the proceeding. This is a conventional course where a civil proceeding is conducted by a judge sitting with a jury. A draft set of questions was prepared by counsel for Phillip Morris and another draft by Mr Clemens. The trial judge had already prepared her own draft. There was then discussion with counsel and Mr Clemens as to what the questions should be.

15 Making it clear that she wanted to hear from both sides about the form of the questions, her Honour proposed to hear first from senior counsel for Phillip Morris. Addressing Mr Clemens, her Honour said:**

I will certainly hear from you, but I am prepared to acknowledge, I'm not sure if you do, but that he has a lot of experience in this field, going back further than mine, and I am prepared to see what it is that the defendant proposes by way of questions, why they do, and then hear from you and consider your version. All right?

16 The questions proposed by Phillip Morris were as follows:

1. Was there negligence on the part of the defendant that was a cause of injury to the plaintiff?
2. If yes to Question 1, at what amount do you assess the plaintiff's total damages?
3. At any time before July 1987 did the plaintiff know and understand that there was a risk that smoking cigarettes could cause injury?
4. If yes to Question 3, did the plaintiff voluntarily assume that risk in continuing to smoke?

17 The draft questions prepared by her Honour were as follows:

Was there any negligence on the part of the Defendant, its servants or agents, which was a cause of injury to the Plaintiff?

At what amount do you assess the plaintiff's total damages?

When the plaintiff commenced to smoke cigarettes, did he know

(i) that smoking could cause emphysema or other lung or breathing disorder or disease?

(ii) that stopping smoking could be very difficult because cigarettes contain nicotine which is addictive.

Did the plaintiff at the time that he commenced to smoke Marlboro cigarettes know, understand and appreciate the extent of the risk:

(a) that smoking could cause emphysema or other lung or breathing disorder?

(b) that stopping smoking could be very difficult because cigarettes contained nicotine which is addictive?

Did the plaintiff know prior to October 2002 that he was suffering from emphysema or other lung disease or disorder:

If "Yes", when did the plaintiff first know that he suffered from such condition?

Did the plaintiff know prior to October 2002 that he was suffering from emphysema or other lung disease or disorder which was caused by his being a smoker of cigarettes?

If "Yes", when did the plaintiff first know that such disease or condition was caused by his smoking of cigarettes?

18 The draft questions submitted by Mr Clemens were as follow:

In late 1971, early 1972, did the defendant print on the outer faces of the packets containing its "Marlboro" cigarettes a manufacturers health warning to users, alerting them too (sic) the following:

(a) Thousands of chemicals carcinogenic in nature which would, resultant of exposure to through inhalation of tobacco smoke into the lungs, cause to the user:

(A) substance induced dependency such as is relevant, carbon monoxide [oversaturation]? Yes/No

(B) Foreseeable injury such as is relevant, emphysema? Yes/No

(C) Foreseeable injury such as is relevant, airways disease and/or pulmonary disease? Yes/No

(b) Tobacco smoke is toxic, and/or tobacco smoke could harm others? Yes/No.

(c) That the tobacco product contained "nicotine" a poisonous substance, addictive in nature, which would cause to the user, addiction to nicotine and/or a degree of dependency upon nicotine, and/or once commenced, ie; smoking, would be hard to quit? Yes/No.

In late 1971/early 1972, did the defendant, print in its advertisements, on television, and/or in newspapers, relating to its tobacco product, "Marlboro' cigarettes, a manufacturers health warning to users, alerting them to the following:

[The text thereafter was identical to question 1].

Was the plaintiffs injuries as outlined below, diagnosed, 11th October, 2007,

resultant of longstanding tobacco use caused by the failure of the defendant to warn users of "Marlboro' cigarettes in late 1971 early 1972 of the aforesaid as is relevant and outlined in:

(a) Question 1 (i), (a) (A) (B) (C) (D) (b) (c)? Yes/No.

(b) Question 2 (i) (a) (A) (B) (C) (D) (b) (c)? Yes/No.

If you answered yes to the above, then you have found in favour of the plaintiff, against the defendant, now proceed to question 4.

If you answered no then sign and date this form. The matter stands dismissed.

At what amount do you assess the plaintiffs damages? $_______________.

19 After discussing aspects of the Phillip Morris draft with senior counsel, the judge reviewed Mr Clemens' draft and then said to him:

... there's several aspects of this which simply aren't suitable and I won't be phrasing the questions this way to the jury.

Her Honour: A jury is asked much more global questions. They can be broken down to an extent but there is not going to be a breaking down of asking the jury one by one - this is not a question of interrogatories. You can't deliver interrogatories to a jury and require them to answer each and every question, like you can to the opposing party.

Her Honour: The questions that the jury have to decide are traditionally framed very globally to them, although there can be some breaking down, but it's just not going to be - it's up to them to decide, on the evidence along the way, whether they accept that there were any warnings before 1973, after 1973, what the warnings were of. That's all matters that they've heard some evidence on and they'll take into account in reaching their ultimate conclusions, but it's just not appropriate to ask for a breakdown on each and every one of them, the way you've done here.

20 Her Honour went on to explain how she proposed to approach the questions, as follows:

... [W]hat I would be telling the jury is if they answer "no" to the question of, "Was there negligence on the part of the defendant that was a cause of injury to the plaintiff?" which is the standard question that was number 1 on mine and I assume - yes, the defendant's draft just leaves out the "servants and agents" bit and I'll be explaining to them about that anyway.

That's the standard question on negligence and if it's answered no - it includes everything from what the standard of care - I will tell them there was a duty of a manufacturer and distributor, but they have to decide what the extent of the duty and the standard of care was, whether they think there was a breach of that standard, and whether, if they do, they're satisfied that it caused you injury and involved in that question is both whether you've suffered any injury from it but also whether they accept that you would have ceased smoking if you had known. You would have either not started smoking or ceased smoking if you had been adequately warned.

Now, that's all built into Question 1 and as inviting as it is for all of us who've been sitting here for almost two weeks to know what basis they might or might not decide on, that is not really proper for me to have the jury break down. It is for them to hopefully follow the directions that I give them of law and I'll summarise to them how both sides argue and which evidence is pointed to on that issue. They give a global answer to that and I agree with you, if the answer to that is "no", they go no further.

But the question that normally follows that is the question of assessing the plaintiff's total damages. If there had been contributory negligence alleged in this case, but it has not been pleaded, then that question would come next, but what has been pleaded is - so really this case, for you, is all or nothing, although it's up to the jury what they assess damages at if you win. I will come to the question of those damages in a moment. But it seems to me it's appropriate to leave the question of whether you voluntarily assumed the risk to come after the first two questions. It's how I've done it in the past and it's how I know a number of other judges do it and Mr Stanley certainly - on this, he certainly has a lot more experience than you and me put together on these sorts of cases and he says the question about going to voluntary assumption of risk normally comes after the other questions. So I'd be inclined to leave it in that order.[5]

21 There was further discussion between her Honour and Mr Clemens, and between her Honour and senior counsel for Phillip Morris, about the form of the questions. At one point, in answer to the judge's proposed re-formulation of one of the questions, senior counsel said:

Your Honour, the problem about that is, firstly, its not the defendant's case, as we're putting it to the jury. It's not for Mr Clemens to seek answers to questions that may be agreeable to him.

Her Honour: I agree with you there, but it has been run by the defendant that even back at the time he started to smoke...[6]

Mr Clemens takes objection to the passages highlighted in this and the preceding paragraph.

22 Following the discussion, her Honour put the following questions to the jury:

Was there negligence on the part of the defendant that was a cause of injury to the plaintiff:

At what amount do you assess the plaintiff's total damages?

At the time the plaintiff became a smoker, did the plaintiff know and understand that there was a risk that smoking cigarettes could cause lung disease or disorder?

At any time between his commencing to smoke and July 1987 and before he suffered any lung disease or disorder, did the plaintiff know and understand that there was a risk that smoking cigarettes could cause lung disease or disorder?

Did the plaintiff voluntarily accept or assume that risk in continuing to smoke?

23 Her Honour also provided to the jury a document entitled 'Guide for jury on issues in deciding Question 1'. The content of that document was as follows:

1. That the defendant owed a duty of care to him in the circumstances.

As a matter of law, the defendant as manufacturer and distributor of Marlboro cigarettes owed to potential users of its cigarettes a duty to take reasonable care to avoid foreseeable risk of injury from that product.

Consider: (i) scope or extent of duty - did it include duty to warn of risks of lung diseases or nicotine addiction?

(ii) standard of care - what was reasonable for the Defendant to do to adequately warn of foreseeable risks?

That that breach of duty was a cause of injury, loss and damage suffered by the Plaintiff.

(i) causation - are you satisfied that Mr Clemens would not have commenced smoking or continued to smoke up to 1987?

(ii) has he suffered any injury or injuries of which his smoking before 1987 was a cause?

24 The jury answered the first question in the negative. That being so, it was unnecessary for the jury to answer any of the other questions. Her Honour accordingly entered judgment for Phillip Morris.

**25 As noted earlier, the contention which Mr Clemens would wish to pursue on the appeal is that the trial judge 'collaborated' with senior counsel for Phillip Morris regarding the 'wording, phrasing and/or construction' of the jury questions. He complains in particular about her Honour's acknowledgement of senior counsel's greater experience in cases of this type and in formulating jury questions of this type.

26 The contention is without foundation. There was no 'collaboration' with one side or the other. What took place was a perfectly orthodox - and entirely proper - process of discussion with senior counsel and with Mr Clemens about the various drafts of the questions and possible reformulations of some of them. Far from involving a breach of natural justice, her Honour conducted this aspect of the hearing exactly as procedural fairness demanded. In addition to exposing her own draft of the questions to comment and discussion by the parties, she afforded each party the opportunity to prepare a draft of the questions. Those drafts were debated in open court, with each side having full opportunity to raise - and respond to - objections.

27 There was nothing inappropriate about her Honour's acknowledgement that - as was the fact - senior counsel for Phillip Morris was a senior barrister with extensive experience in personal injury litigation and jury trials. Her Honour was entitled to seek counsel's assistance. It is a commonplace of litigation for judges to do so. The position would have been quite different if her Honour had in any sense abdicated her function of deciding what the questions should be - for example, by seeming to delegate that task to the representatives of one side or another. But that is not what occurred.

28 The question which proved to be decisive - Question 1 - was put to the jury in almost exactly the terms in which it had appeared in the draft which her Honour had independently prepared. In other words, the question - and the fact that it was posed first - reflected the judge's own view, which was not in the event altered by the discussion which took place. Her Honour was, with respect, quite correct to pose the first question in the terms she did. Unless the jury were satisfied that there was causative negligence, no other question needed to be addressed.

29 The 'Guide' which her Honour provided made it clear to the jury, and to Mr Clemens, how the jury were expected to approach the task of answering the critical question. It was clearly expressed and can only have assisted the jury in their task of deciding whether the defendant was liable to the plaintiff. No fair-minded observer would have doubted for a moment that the judge was acting with complete impartiality.

30 In the course of the hearing of the application, Mr Clemens argued that Question 3(b) should not have been included, because it 'insinuated' contributory negligence on his part. The objection is without foundation. Questions 3 and 4 were directed to the defence of voluntary assumption of risk. In the event, the jury did not need to address those questions.

31 Accordingly, the application for leave should be refused.

[1] Phillip Morris Limited v Attorney General (Victoria) [2006] VSCA 21; (2006) 14 VR 538.

[2] Cf Braeside Bearing Pty Ltd v H J Brignell & Associates (Boronia) [1996] VicRp 3; [1996] 1 VR 17, 20 (Tadgell JA).

[3] Re Vernazza [1960] 1 QB 197, 209-210 (Ormerod LJ), 215 (Willmer LJ); Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, 488F (Yeldham J); Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810, 814 (Toohey J); Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378, 391 [59] (Sackville J); Tsekouras v Olsen [2007] NSWSC 556, [29] (Bryson AJ). See also Kay v Attorney-General [2000] VSCA 176; (2000) 2 VR 436, 446 [27] (Chernov JA); Attorney-General for the State of Victoria v Weston [2004] VSC 314, [13] (Whelan J).

[4] Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ).