The applicant contracted emphysema as a result of exposure to second-hand cigarette smoke in her workplace. In an earlier decision, she was refused leave to bring proceedings for damages under the Accident Compensation Act because she was out of time. (See: Pattison v Herald & Weekly Times Limited [2012] VCC 2014 (19 December 2012)).
This was the hearing of the appeal against that decision. The applicant appealed on the grounds that the lower Court had failed to properly identify the compensable injury as emphysema rather than chronic obstructive airway disease, with the result that it erred in determining the date her injury was known.
The Court upheld the applicant's appeal, granting leave for her to bring proceedings for damages.
Note: the respondent unsuccessfully applied to the High Court for special leave to appeal. The transcript of the High Court's hearing and decision in that application is uploaded here under "Related Documents".
Pattison v. Herald & Weekly Times Ltd [2013] VSCA 121 (23 May 2013)
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.
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.
"It follows, as we see it, that it was not until January 2008 that the applicant knew of facts sufficient from which objectively to discern that, in addition to chronic asthma or chronic bronchitis or both, she had also been caused to suffer a further and significantly different physiological change to her respiratory system, in the form of emphysema, which was productive of different and irreversible disabling consequences of profoundly greater order than might be caused by asthma or bronchitis. Hence, the applicant did not know until January 2008 of facts which, objectively discerned, disclosed that she had suffered the serious injury which was the subject of her claim. While she may well have decided not to initiate proceedings in respect of her chronic asthma because she was informed that her prognosis for recovery was ‘excellent’ by Dr Sasse, once she was informed of the more serious diagnosis of emphysema, she commenced these proceedings.
"Most importantly, however, to treat emphysema as if it were essentially the same injury as chronic asthma was to overlook the apparently critical difference in ætiology and symptomatology as between emphysema and chronic asthma or chronic bronchitis that, because emphysema alone is destructive of lung tissue, emphysema alone is productive of an irreversibly worsening reduction in lung gas transfer capacity."
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 applicant contracted emphysema as a result of exposure to second-hand cigarette smoke in her workplace. In an earlier decision, she was refused leave to bring proceedings for damages under the Accident Compensation Act because she was out of time. (See: Pattison v Herald & Weekly Times Limited [2012] VCC 2014 (19 December 2012)).
This was the hearing of the appeal against that decision. The applicant appealed on the grounds that the lower Court had failed to properly identify the compensable injury as emphysema rather than chronic obstructive airway disease, with the result that it erred in determining the date her injury was known.
The Court upheld the applicant's appeal, granting leave for her to bring proceedings for damages.
Note: the respondent unsuccessfully applied to the High Court for special leave to appeal. The transcript of the High Court's hearing and decision in that application is uploaded here under "Related Documents".