This is the second 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 a hearing of the defendants' application to strike out parts of the plaintiff's statement of claim on the basis that they were irrelevant and disclosed no cause of action. Nicholson J found that the plaintiff's claim was not so obviously untenable as to warrant striking it out. His Honour found that there was a clearly defined duty of care on the part of the defendants to take reasonable care to prevent the plaintiff suffering physical injury by the consumption of their products. Further, if the defendants' products produced noxious effects which were known or ought to have been known to them, then it was at least open to the plaintiff to say that advertising of those products constituted a breach of duty.

Although His Honour rejected the defendants' application, he observed that the statement of claim was clumsily pleaded, and gave leave to the plaintiff to make appropriate amendments.

See further: Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289.