Plaintiff v Defendant

2 Section 21(4) provides that leave must not be given unless the Court is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.

3 The applicant now applies for leave to commence a civil proceeding for damages against Phillip Morris (Australia) Limited ("Phillip Morris") in the County Court at Melbourne. He has made seven prior applications for leave to bring a proceeding against Phillip Morris, each having been refused by other judges of the Court. As his applications have been renewed he has reformulated his claim but to no avail thus far. I now have a further reformulation in the form of a proposed writ and statement of claim.

4 From the outset the proposed claim has been that he suffers a lung disease, first noticed in October 2002, contracted as a result of smoking cigarettes imported, manufactured and distributed in Victoria by Phillip Morris.

5 The first application was refused by Bongiorno J on 17 March 2003. The last refusal was by Whelan J as recently as 1 December 2004. In between were the following refusals: by Smith J on 1 May 2003, Coldrey J on 21 May 2003, Hollingworth J on 30 June 2004, Smith J on 8 October 2004, and Morris J on 19 October 2004. I have perused the file and read the affidavits and associated materials of the applicant and the reasons of the judges in refusing the applications.

6 The materials in support of the application before Bongiorno J included reports of specialist medical practitioners, Mr J Streeton a respiratory physician and Mr R Strangward a general surgeon, dated 18 and 20 November 2002 respectively. The latest medical reports provided by the applicant are a report of Mr Strangward dated 2 November 2004 following a consultation on 26 October 2004 for the purpose of an update, and a report of Victorian Medical Imaging dated 12 November 2004. Those reports were part of the materials in the application considered by Whelan J. No additional medical report has been placed before me on this latest application.

7 It is to be noted that the applicant filed the affidavit, to which the latest proposed statement of claim is an exhibit, on 9 December 2004, only eight days after the refusal of the seventh application.

8 Leave has thus far been denied to the applicant because he has not produced a statement of claim that discloses a case of substance. In particular he has founded on the issue of causation in the sense of linking any and what smoking of product of Phillip Morris to the suffering of lung disease or otherwise the condition from which he suffers. In addition the proposed statements of claim have been deficient or contained unnecessary or embarrassing material such that judges have suggested the applicant obtain legal assistance in the drafting of the claim. It is a suggestion I would repeat.

9 In his reasons given on 19 October 2004 Morris J considered that the applicant would be able to produce medical evidence which linked his current health condition to smoking, and thought it likely that his condition is linked to the fact that he has smoked for over 30 years. He also considered, and I agree, that it is important to have regard to the substance of the matter and not the mere form of the proposed proceeding in deciding whether to grant leave.

10 The applicant pointed to observations in the decision of the English Court of Appeal in Becker v Teale[1] as indicating the approach to be taken on the present application. Morris J had referred to this case in his judgment. The case concerned an appeal by a plaintiff who, as a declared vexatious litigant, appealed from an adverse judgment. He had been given leave to appeal. The appeal, which was described by Edmund Davies LJ as "hopeless", was dismissed. In his judgment, Davies LJ observed that it was unfortunate the plaintiff had been given leave to pursue the appeal. He then made some observations on the jurisdiction to grant leave to a vexatious litigant to institute proceedings. The jurisdiction "should be very carefully and indeed almost sparingly exercised, and the court should be satisfied, before giving leave, that there is really a case of some substance, or an appeal of some substance, to be argued".[2] The third member of the Court, Stephenson LJ, agreed with Davies LJ.

11 In the now proposed statement of claim the following allegations, among others, are made:

(a) Phillip Morris imported, manufactured and distributed tobacco products in Victoria.

(b) Prior to late 1971/early 1972 Phillip Morris knew that its tobacco products contained a poisonous and dangerous drug of addiction which as a result of the inhalation of tobacco smoke caused disease, addiction and dependency upon tobacco.

(d) In late 1971/early 1972 the applicant commenced to smoke Marlboro cigarettes, a product of Phillip Morris.

(e) The plaintiff was then about 13 and/or 13½ years and did not know that the cigarettes caused disease, addiction and dependency.

(f) Believing the cigarettes were safe to use, the applicant began to smoke Marlboro on a daily basis.

(g) As a result of smoking Phillip Morris cigarettes, and inhaling tobacco smoke, on 11 October 2002 the applicant suffered disease, namely emphysema and pulmonary disorder.

(h) The disease was caused by the negligence of Phillip Morris in late 1971/early 1972. Particulars of negligence are provided which relate to the failure to ensure that the tobacco product was safe for use and did not cause disease, addiction and dependency upon tobacco.

(i) In further particulars it is stated that Phillip Morris knew that nicotine was a poisonous and addictive drug, and that users had no way of determining its addictive nature or the hidden dangers in smoking Marlboro. Finally there is an allegation that in continuing to smoke Marlboro cigarettes, although there may have been health warnings implemented from 1 January 1971, the applicant was not acting voluntarily. That was because nicotine in the cigarettes was an addictive drug and he became addicted. Hence he had no freedom of choice or freedom to elect to stop smoking. Thus Phillip Morris took away his right to stop using and smoking Marlboro early in time and thereby avoiding addiction and dependency upon tobacco and consequent disease; alternatively Phillip Morris's conduct was a cause of the plaintiff's addiction and dependency upon tobacco and his disease. Finally, the applicant alleges that he will continue to suffer addiction and dependency upon tobacco, and disease, well into the future as a result of the introduction of nicotine into Marlboro cigarettes.

12 It is thus seen that the proposed case turns on events that occurred when the applicant was aged 13 years or so in late 1971/early 1972. It is concerned with the knowledge of Phillip Morris prior to that time of the addictive nature of Marlboro cigarettes, the plaintiff's awareness of the risk of addiction and his belief it was safe to smoke, and that as a result of smoking Marlboro cigarettes he suffered disease on 11 October 2002. It is alleged that he continued to smoke Marlboro even though there may have been government health warnings from 1 January 1971. But he says that was not a voluntary act as the cigarettes were addictive and his continued smoking resulted from his having become addicted. It may be that the year 1971 should read 1973 as the year referred to in the judgment of Morris J and the statement of claim then before his Honour, and I would so read it for present purposes. It seems to me, as it did to Morris J,[3] that although the damage suffered by the applicant from smoking is likely to have been caused, or contributed to, by the fact that he smoked cigarettes over a long period of 30 years, it seems improbable, and there is no evidence to establish it, that the damage to his health is the result of the smoking that took place before the introduction of government health warnings in early 1973. This goes to the critical issue of causation and to this there is the related and fundamental allegation that the plaintiff became addicted and was not able to exercise a choice to not smoke. There is no evidence as to when the alleged state of addiction commenced and there is no allegation that relates that time to the commencement of government health warnings which are said to have been implemented effectively from 1 January 1971 (which I read as 1973). Towards the very end of the statement of claim it is alleged that Phillip Morris took away the right to stop using and smoking Marlboro "early in time" so that the applicant was not able to avoid addiction and dependency upon tobacco and the disease and damage was suffered. The expression "early in time" is not clarified in the sense of the time referred to. However it is reasonably apparent that the allegation is intended to defeat an argument by Phillip Morris that when the applicant smoked Marlboro following the introduction of government health warnings on cigarette packets in early 1973, he did so voluntarily undertaking the risk of harm to his health or at least with an awareness of that risk. That would indicate that the case proposed to be made by the applicant is that by the time of that introduction, and following his commencement to smoke Marlboro in late 1971/early 1972 he had become addicted to the cigarettes of Phillip Morris to the point that by 1 January 1973 his continued smoking was not voluntary. While evidence to that effect by the plaintiff may be understood, it would yet raise an issue as to addiction in the time mentioned and, furthermore, as to whether the health warnings would have made any difference to whether the applicant was so addicted at that time as not to have a free mind to have regard to the significance of the health warnings. This is a matter that Morris J referred to in his judgment,[4] although I note that in the statement of claim Morris J was considering the applicant proposed to allege that he used Marlboro cigarettes from late 1972/early 1973 through to 1987 and then a different brand from 1987 to 1999. In the present proposed statement of claim the applicant has wound back the period when he commenced to smoke Marlboro by one year, to late 1971/early 1972. It is reasonably apparent that the purpose of doing so is to seek to establish a case of addiction prior to the introduction of government health warnings on cigarette packets. This suggests a refashioning of the case to meet a point discussed by Morris J in his judgment. Morris J said that he was troubled by the prospect of the applicant being able to establish a causal connection between his smoking before 1973 and the alleged tortious conduct of Phillip Morris.

13 The question is whether leave should be granted to institute the proposed proceeding. In addition to the matters to which I have referred there are aspects of the proposed statement of claim that are less than satisfactory. There is a lack of particularity, a breadth of reference and allegation including the allegation of knowledge on the part of Phillip Morris. The case raises many issues including the issue of causation which has so troubled judges previously. In my view, regarding the matter overall, the probability is not merely that the case would fail but that it would never really get off the ground because of procedural, factual, legal and evidentiary difficulties. It is likely that it would require a substantial devotion of time and resources of the proposed defendant and the court. In the circumstances I am unable to be satisfied that the proceeding is not or would not be an abuse of the process of the court. That being the case the application for leave to institute the proceeding must be refused. In addition to refusing the application I will direct that Exhibit DSCL.000.9 to the applicant's affidavit sworn on 9 December 2004, which includes the proposed statement of claim, be placed on and remain on the file.

[1] [1971] 3 All ER 715.

[3] Attorney-General v Lindsey [2004] VSC 432 at [9].