(Re: Mowbray) Brambles Holdings Ltd v. British American Tobacco Services Ltd

The plaintiff sued Brambles Holdings Ltd (Brambles), his former employer, alleging that he contracted carcinoma from his exposure to asbestos in the course of his work. Brambles settled with the plaintiff; however, Johns J gave Brambles leave to issue a cross claim against British American Tobacco (BAT) for contributing to the plaintiff's damage because the plaintiff had smoked BAT's cigarettes since the age of 14.

Prior to the cross claim being issued against BAT the plaintiff died. BAT appealed against the decision to allow Brambles to file the cross-claim against it on the basis that Brambles had delayed in doing so. BAT said that it had suffered prejudice as a result because it was no longer able to cross-examine the plaintiff. BAT said that Brambles had intentionally shut it out from obtaining that evidence.

The Court dismissed BAT's appeal on the basis that there was no requirement that BAT be notified of the cross claim or that it be issued by a particular time.

(Re: Mowbray) Brambles Holdings Ltd v British American Tobacco Services Ltd [2002] NSWDDT 16 (17 September 2002)

  • Australia
  • Sep 17, 2002
  • New South Wales Dust Diseases Tribunal
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Parties

Plaintiff Brambles Holdings Ltd

Defendant British American Tobacco Services Ltd

Legislation Cited

Dust Diseases Tribunal Act

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"It is true that Brambles gave BAT no notice of the cross-claim until after it had settled its differences with the plaintiff and after he had died. It was open to Brambles to identify the producer of the two tobacco brands identified by the plaintiff before he died, but this does not mean it deliberately shut BAT out of the proceedings in order to deny it the opportunity of cross-examining the plaintiff. No condition that BAT be notified of the cross-claim or that it be served within a specified time was imposed by Johns J; neither is it the usual practice of the Tribunal to impose conditions when granting leave to issue cross-claims. Were it the case that BAT had been served before the plaintiff’s death it is by no means certain that it would have been given leave to question him, nor is it clear that his health would have justified or permitted such a course. The manner in which the case progressed after the plaintiff’s evidence was taken, that is with further interlocutory steps directed, suggests it was brought on with some urgency. The fact that evidence was taken from him at his home indicates his health was poor."