McCabe v. British American Tobacco Australia Services Limited
The plaintiff, seriously ill with lung cancer, starting smoking the defendant's tobacco products at the age of 12. She alleged that British American Tobacco (BAT) breached its duty of care to her by, amongst other things, failing to take steps to reduce or eliminate the risk of addiction in its tobacco products and by ignoring or publicly disparaging research results which indicated the health risks of cigarettes. The plaintiff brought an application to strike out the defense on the basis that BAT and its predecessor companies had destroyed relevant documents which rendered it impossible for the plaintiff to have a fair trial; BAT had misled the Court and the plaintiff as to the true situation concerning discoverable documents; and BAT had failed to comply with an order for discovery.
The trial judge found that in 1985 a "Document Retention Policy" had been created in anticipation that litigation would be brought against BAT's predecessor, WD & HO Wills, with respect to smoking and health issues. The primary purpose of that policy was to ensure the destruction of material which would be harmful to the defense of litigation. Further, words were inserted into the "Document Retention Policy" to assert innocent intention and to disguise the true purpose of the policy. The trial judge found that in 1990, after BAT took over the company, the policy was reviewed out of concern that litigation in Australia might lead to discovery of research reports that would be harmful to BATCO worldwide. BAT was subsequently provided with legal advice from the law firm Clayton Utz that it should destroy any damaging documents which were not in the public domain. Further, all sensitive documents should be held "off shore", or by other bodies and organizations, so that they could not be said to be under the possession, custody or power of BAT and therefore not discoverable. BAT complied with this policy. Subsequently, following the discontinuance of a tort case against it in 1998 (the Cremorna litigation), BAT destroyed thousands of documents which had been discovered as relevant in those proceedings, including a database and CD-ROM on which 30,000 documents had been imaged. The trial judge concluded that BAT intended by destroying documents that any plaintiff would be prejudiced in the conduct of their action and would be denied a fair trial.
The trial judge further concluded that the process of discovery was subverted by BAT and its solicitor, Clayton Utz, with the deliberate intention of denying a fair trial to the plaintiff, and that their strategy had been successful in doing so. The defense was therefore struck out and judgment entered for the plaintiff, with damages to be assessed.
Damages were subsequently assessed for the plaintiff in the sum of $700,000. However, this decision was overturned in the Court of Appeal: British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197.
McCabe v British American Tobacco Australia Services Limited [2002] VSC 73
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
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.
Courts may sanction or reprimand parties for especially egregious behavior during court proceedings.
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.
"In my opinion, the process of discovery in this case was subverted by the defendant and its solicitor Clayton Utz, with the deliberate intention of denying a fair trial to the plaintiff, and the strategy to achieve that outcome was successful. It is not a strategy which the court should countenance, and it is not an outcome which, in the circumstances of this case, can now be cured so as to permit the trial to proceed on the question of liability. In my opinion, the only appropriate order is that the defence should be struck out and judgment be entered for the plaintiff, with damages to be assessed."
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, seriously ill with lung cancer, starting smoking the defendant's tobacco products at the age of 12. She alleged that British American Tobacco (BAT) breached its duty of care to her by, amongst other things, failing to take steps to reduce or eliminate the risk of addiction in its tobacco products and by ignoring or publicly disparaging research results which indicated the health risks of cigarettes. The plaintiff brought an application to strike out the defense on the basis that BAT and its predecessor companies had destroyed relevant documents which rendered it impossible for the plaintiff to have a fair trial; BAT had misled the Court and the plaintiff as to the true situation concerning discoverable documents; and BAT had failed to comply with an order for discovery.
The trial judge found that in 1985 a "Document Retention Policy" had been created in anticipation that litigation would be brought against BAT's predecessor, WD & HO Wills, with respect to smoking and health issues. The primary purpose of that policy was to ensure the destruction of material which would be harmful to the defense of litigation. Further, words were inserted into the "Document Retention Policy" to assert innocent intention and to disguise the true purpose of the policy. The trial judge found that in 1990, after BAT took over the company, the policy was reviewed out of concern that litigation in Australia might lead to discovery of research reports that would be harmful to BATCO worldwide. BAT was subsequently provided with legal advice from the law firm Clayton Utz that it should destroy any damaging documents which were not in the public domain. Further, all sensitive documents should be held "off shore", or by other bodies and organizations, so that they could not be said to be under the possession, custody or power of BAT and therefore not discoverable. BAT complied with this policy. Subsequently, following the discontinuance of a tort case against it in 1998 (the Cremorna litigation), BAT destroyed thousands of documents which had been discovered as relevant in those proceedings, including a database and CD-ROM on which 30,000 documents had been imaged. The trial judge concluded that BAT intended by destroying documents that any plaintiff would be prejudiced in the conduct of their action and would be denied a fair trial.
The trial judge further concluded that the process of discovery was subverted by BAT and its solicitor, Clayton Utz, with the deliberate intention of denying a fair trial to the plaintiff, and that their strategy had been successful in doing so. The defense was therefore struck out and judgment entered for the plaintiff, with damages to be assessed.
Damages were subsequently assessed for the plaintiff in the sum of $700,000. However, this decision was overturned in the Court of Appeal: British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197.