Australia

This is the first of three cases relating to Ruth Scanlon's claim against the American Cigarette Company.

Ms Scanlon smoked the defendants' cigarettes for about 20 years. She alleged that throughout that period the defendants knew or ought to have known of the carcinogenic qualities of its cigarettes. She further alleged that notwithstanding their knowledge, the defendants continued to manufacture and advertise their cigarettes and failed to warn purchasers that cigarettes were addictive and that there was a real risk that smoking would cause illness, including lung cancer and premature death. Ms Scanlon alleged that warnings that were given were inadequate and too late; further, that even after warnings were placed on packs, the defendants reassured the public that smoking would not cause grave consequences to health.

This was the hearing of the plaintiff's application for an extension of time to bring her case pursuant to s23A of the Limitations of Actions Act 1958. To succeed, it was necessary for the plaintiff to establish that a material fact of her claim (i.e. the fact that she had lung cancer) was not known to her for more than two years after her cause of action accrued; and that it would not have been known to her if she had taken all reasonable steps to ascertain the material fact. Further, that there was evidence to support her cause of action.

Nicholson J found that the plaintiff was not aware of her lung cancer until 1986, and that the lung cancer developed at least two years (probably many years) before that. Nicholson J further found that there was evidence to establish the plaintiff's cause of action.

The defendants had applied for leave to cross-examine the plaintiff's medical witnesses on their affidavits. Nicholson J refused the application because it was unnecessary for the defendants to do so at the interlocutory stage of proceedings. In rejecting the application, Nicholson J found that the defendants' application was not made bona fide for the purposes of contesting the plaintiff's application. He also found that the issue by the defendant of various subpoenae was oppressive and an abuse of the process of the Court.

See further: Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 2) [1987] VR 281].