The plaintiff was an unrepresented litigant, allegedly suffering from lung disease. He brought this claim against Philip Morris alleging that it failed to warn him of the risks inherent in smoking its cigarettes and thereby engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s52 of the Trade Practices Act, causing him loss and damage. In this case the defendant sought summary dismissal of the claim against it on the basis that the plaintiff's pleading disclosed no cause of action, was frivolous and vexatious and was an abuse of process.
Mr Lindsay, the plaintiff, had a long history of bringing legal proceedings against several different defendants, including Philip Morris. He had brought several claims similar to this one against Philip Morris in the Supreme Court of Victoria, all of which had been struck out (see: Re Sjostrom-Clemens-Lindsay [2003] VSC 94; Sjostrom-Clemens-Lindsay v Attorney General for the State of Victoria [2003] VSC 132; Attorney-General v Lindsay [2003] VSC 176). The Supreme Court of Victoria had earlier declared him to be a vexatious litigant, with the result that he was unable to institute proceedings in the state of Victoria without leave of the Court.
In this case, Judge Kenny agreed with the defendant that Mr Lindsay's pleading was so flawed that it was incapable of being turned into a tenable one. Judge Kenny placed particular emphasis on the mandatory health warnings required by State and Federal governments which, in his view, rendered Mr Lindsay's claim of a failure to warn hopeless. Further, Mr Lindsay complained about conduct in 1972 and 1973, prior to the Trade Practices Act commencing. Further still, Mr Lindsay failed to allege any causal link between the conduct complained of and the damage he allegedly suffered. Judge Kenny therefore summarily dismissed Mr Lindsay's claim.
Mr Lindsay unsuccessfully appealed this decision to the Full Court of the Federal Court: Lindsey v Philip Morris Limited [2004] FCAFC 40.
Lindsey v Philip Morris Limited [2004] FCA 9 (21 January 2004)
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
A plaintiff’s liability may be limited where she has accepted the risks and consequences of her behavior. The tobacco industry may argue that the dangers of smoking are well known, so liability should be limited.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"The gist of Mr Lindsey’s claim in this Court is that, by reason of the failure by Philip Morris to warn Mr Lindsey, in 1972 or 1973, of the risk of injury inherent in smoking its cigarettes, Philip Morris engaged, in trade and commerce, in misleading and deceptive conduct or conduct that was likely to mislead or deceive. His claim is that he suffered loss and damage by reason of this conduct. In order to make out his case under s 52 and be compensated for any loss and damage under s 82(1) of the TPA, Mr Lindsey would need to establish (1) that Philip Morris did the thing complained of; (2) that, viewed objectively, this conduct was misleading or deceptive or likely to mislead or deceive; and (3) that there is a causal connection between this conduct and the loss and damage for which he seeks compensation: see, e.g., Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, at 525-526 per Mason CJ, Dawson, Gaudron and McHugh JJ. Mr Lindsey’s claim must, so it seems to me, fail at the outset. First, it would not be open to a court to find that Philip Morris did the thing of which he complains. That is, it would not be open to a court to find that Philip Morris failed to warn potential smokers that smoking the cigarettes manufactured by it was hazardous to health. It is a notorious fact, of which judicial notice may be taken, that from 1973 all cigarette packets that Philip Morris manufactured and distributed in Australia carried a health warning in conformity with State and Territory legislation. Regarding judicial notice, see Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457 at 469 per Dixon J; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 141-142 per Brennan J; Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 153 per Isaacs J; Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191 at 212 per Lord Sumner (which was approved in All States Frozen Foods Pty Ltd v Commissioner of Taxation (1990) 21 FCR 457 at 465-466 per Bowen CJ, Lockhart and Gummow JJ). See further J D Heydon, Cross on Evidence, (6th edition, Butterworths, Sydney, 2000) at [3005]-[3015]; and Australian Oil Refining Pty Ltd v Bourne (1980) 28 ALR 529 at 532-533 per Stephen, Mason, Aickin and Wilson JJ."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
The plaintiff was an unrepresented litigant, allegedly suffering from lung disease. He brought this claim against Philip Morris alleging that it failed to warn him of the risks inherent in smoking its cigarettes and thereby engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s52 of the Trade Practices Act, causing him loss and damage. In this case the defendant sought summary dismissal of the claim against it on the basis that the plaintiff's pleading disclosed no cause of action, was frivolous and vexatious and was an abuse of process.
Mr Lindsay, the plaintiff, had a long history of bringing legal proceedings against several different defendants, including Philip Morris. He had brought several claims similar to this one against Philip Morris in the Supreme Court of Victoria, all of which had been struck out (see: Re Sjostrom-Clemens-Lindsay [2003] VSC 94; Sjostrom-Clemens-Lindsay v Attorney General for the State of Victoria [2003] VSC 132; Attorney-General v Lindsay [2003] VSC 176). The Supreme Court of Victoria had earlier declared him to be a vexatious litigant, with the result that he was unable to institute proceedings in the state of Victoria without leave of the Court.
In this case, Judge Kenny agreed with the defendant that Mr Lindsay's pleading was so flawed that it was incapable of being turned into a tenable one. Judge Kenny placed particular emphasis on the mandatory health warnings required by State and Federal governments which, in his view, rendered Mr Lindsay's claim of a failure to warn hopeless. Further, Mr Lindsay complained about conduct in 1972 and 1973, prior to the Trade Practices Act commencing. Further still, Mr Lindsay failed to allege any causal link between the conduct complained of and the damage he allegedly suffered. Judge Kenny therefore summarily dismissed Mr Lindsay's claim.
Mr Lindsay unsuccessfully appealed this decision to the Full Court of the Federal Court: Lindsey v Philip Morris Limited [2004] FCAFC 40.