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URL: http://www.bailii.org/ie/cases/IESC/2006/S21.html
Cite as: [2006] IESC 21, [2006] 1 IR 304

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Judgment Title: Delahunty -v- Player & Wills (Ireland) Ltd. & anor

Neutral Citation: [2006] IESC 21

Supreme Court Record Number: 472/04

High Court Record Number: 199811093 P

Date of Delivery: 05/04/2006

Court: Supreme Court

Composition of Court: Fennelly J., McCracken J., Macken J.

Judgment by: Fennelly J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Fennelly J.	Appeal dismissed - affirm High Court Order	McCracken J., Macken J.

Outcome: Dismiss

THE SUPREME COURT

Appeal No. 472/2004

Fennelly J.
McCracken J.
Macken J.

BETWEEN

MARGARET DELAHUNTY

Respondent/Plaintiff

and
PLAYER & WILLS (IRELAND) LIMITED

First Named Defendant

GALLAHER (DUBLIN) LIMITED

Appellant/Second Named Defendant

THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL

Third, Fourth and Fifth Named Defendants

JUDGMENT of MR JUSTICE FENNELLY delivered on the 5th day of April, 2006.

This is an appeal from the decision of the High Court (O’Leary J) refusing to dismiss the plaintiff’s claim against the second-named defendant (hereinafter the appellant) on the grounds that the pleadings disclose no reasonable cause of action or, alternatively, under the inherent jurisdiction of the court.
The plaintiff, a life-long smoker, has sued the first two defendants, both well-known tobacco manufacturers, for personal injuries allegedly caused by the cigarettes she smoked over many years. The third, fourth and fifth named defendants were joined in the action so that the plaintiff could claim failure on the part of the state effectively to regulate the sale of tobacco products. Neither that claim nor the claim against the first-named defendant has anything to do with the present appeal.
The appellant issued a notice of motion in the High Court seeking:

(a) An order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts dismissing the plaintiff's claim against the appellant as disclosing no reasonable cause of action.
(b) Further or in the alternative, an order pursuant to the inherent jurisdiction of that Court dismissing the plaintiff's claim against the appellant on the grounds that it has no reasonable prospects of success or, alternatively, is bound to fail.

The plaintiff's pleads causes of action founded on alleged negligence, breach of duty, and breach of statutory duty including, in particular breaches of the Liability for Defective Products Act 1991 and of Council Directive 85/374/EEC of 35th July 1985.
The statement of claim did not differentiate between the first two defendants and contained the following general plea:

“The Plaintiff has smoked cigarettes produced, manufactured, promoted and/or sold by the first and second named Defendants their respective servants and/or agents, for more than fifty years and she has now learned that the said cigarettes were defective in that they, inter alia, were and are addictive and did at all material times hereto contain and produce substances and additives which were inherently dangerous to the health and welfare of all those who consumed the said cigarettes, including the Plaintiff. The first and second named Defendants, their respective servants and/or agents deliberately and knowingly used substances and/or chemical additives in their cigarettes to create dependency and addiction amongst those, including the Plaintiff, who consumed such products.”

The foregoing paragraph contains the essence of the case made by the plaintiff, though it is particularised in much greater detail both in the statement of claim and the replies to notices for particulars delivered on behalf of the plaintiff. In effect, the tobacco manufacturers are alleged to have manufactured and placed on the market products which they knew to be dangerous to health and to have advertised and promoted their sale on the basis that they were safe. The plaintiff lays particular emphasis on the allegation that the cigarettes were, to the knowledge of the manufacturers, addictive and, moreover, that the manufacturers caused or permitted chemical additives to be used in their manufacture with the effect of enhancing nicotine delivery and facilitating the onset and maintenance of nicotine dependence.
As a result of the delivery of detailed particulars by the plaintiff on 23rd September 2003, a sharp distinction emerged between the first two defendants so far as the plaintiff’s claim is concerned. I will recount the basic facts as briefly as I can.
The plaintiff was born in 1926. She commenced smoking cigarettes manufactured by the first-named defendant in 1938. She became addicted at that time. She continued to smoke cigarettes—twenty to thirty per day---- manufactured by the first-named defendant, though she changed to a tipped brand in the 1960’s. The plaintiff became ill in 1995, suffering from coughing, including coughing blood, recurrent chest infections, weight loss and shortness of breath. Following extensive tests, she underwent an upper lobectomy operation on 16th October 1995 and a poorly differentiated squamous cell carcinoma was found with extensive necrosis. This was removed.
The plaintiff pleads in the particulars that she learned of the harm caused by cigarettes, including addiction, from her medical practitioners after the diagnosis of her cancer in October 1995. At that time, she states that she changed her brand to “Silk Cut Extra Mild,” manufactured by the appellant. She has smoked and continues to smoke that brand at the rate of about twenty a day. Because of her addiction, she is unable to give up smoking.
It is complained on her behalf that she has suffered continuing injury since 1995 and that that such injury was cause by smoking cigarettes manufactured by the appellant. The appellant disputes whether this is indeed properly pleaded and I will discuss that matter later.
Mr Paul Sreenan, Senior Counsel, accepted, on behalf of the appellant that the statement of claim, taken in isolation, does contain a plea of a reasonable cause of action. It is common case, however, that the Court may take the particulars into account, in assessing the pleadings.
Mr Sreenan makes the following points:

• There is no reasonable cause of action in respect of the alleged defects in the cigarettes manufactured and sold by the appellant. It is not alleged that the cigarettes were in any way different from or defective by comparison with other cigarettes or any standard for cigarettes. They were lawfully marketed and sold. Indeed, in recent years their advertising, packaging, labelling and sale have been highly regulated. The cigarettes manufactured by the appellant were not defective in the sense of providing “the safety which a person is entitled to expect” for the purposes of section 5 of the Liability for Defective Products Act 1991. That Act does not cover products which carry an inherent risk;

• By reason of the foregoing, it was perfectly lawful to sell the products. Mr Sreenan posed the question: what could the appellant have done? In reality, it could have avoided liability only by withdrawing their cigarettes from the market. It cannot be reasonable to say that a manufacturer can avoid liability only by going out of business;

• The plaintiff had sustained her injury before she ever smoked a cigarette manufactured by the appellant. It is not pleaded that she suffered any additional damage after October 1995, when she commenced smoking the appellant’s cigarettes, which could be attributed to the appellant;

• Mr Sreenan argued that the injuries alleged by the plaintiff could not be attributed to the appellant. The plaintiff pleads that she was addicted to cigarettes, as a result of smoking the cigarettes of the first-named defendant and long before she ever smoked those manufactured by the appellant. At the time she commenced smoking the appellant’s cigarettes, she accepts that she knew that smoking cigarettes had caused her cancer. If it were not for her addiction, she could not reasonably make the case that the appellant was liable to her. She knew perfectly well that smoking was liable to cause damage to her health. Insofar as she explains her behaviour by reference to her addiction, that was not the responsibility of the appellant.

Mr Michael Cush, Senior Counsel, for the plaintiff responded to these points:

• He accepted that there was scope for argument in respect of Mr Sreenan’s first point, but such arguments should take place at the trial and were not the basis for dismissing the action. The plaintiff’s claim is based on negligence at common law as well as under the Act of 1991. In the latter respect, Mr Cush submits that the Act imposes absolute liability. Insofar as the appellant relies on state regulation of the sale of its products, an issue will arise as to the extent to which full disclosure was made to state authorities in respect of the contents of and risks associated with the smoking of cigarettes.

• As to the pleading of injury after 1995, Mr Cush refers to a report of Professor O’Neill exhibited in the affidavit sworn on this motion by the plaintiff’s solicitor, which discloses fresh injury at a time when the plaintiff was smoking only the appellant’s cigarettes. He says that Mr Sreenan had argued that the particulars given of the plaintiff’s post-1995 injuries were referable to her pre-existing injury, but had placed no affidavit evidence before the Court;

• In response to the argument that the appellant was not responsible for causing the plaintiff’s addiction, Mr Cush stated that the plaintiff would make the case that the appellant specifically aimed the marketing of its “Silk Cut Extra Mild,” brand of cigarettes, at least in part at people such as the plaintiff who, though already addicted, were concerned about the health risks.

The foregoing replicated very largely the argument made by the appellant in the High Court, though I have the impression that the principal emphasis there was on the causation argument, namely that the plaintiff’s addiction was not caused by the appellant. O’Leary J ruled on that matter as follows:

“It is a matter for evidence at the trial to assess whether the nature of the addiction to cigarettes (the existence of which the Court must presume for this application) renders it impossible or unreasonable for a person so addicted to stop smoking when confronted with a life-threatening situation. It is not a matter to be decided without evidence at this stage. If it is decided that the addiction was such as to make it impossible or unreasonable for the plaintiff to stop smoking she may well be entitled to damages for any post operative injury subject of course to the other defence pleas.

If it is found by the trial Court that the plaintiff is entitled to post operative damages (based on her continued smoking by reason of addiction) it would be open to the Court to find both the supplier who caused her addiction and the supplier who fed that addiction jointly and/or severally liable for post operative damage. The submission that the later supplier who fed but did not create her addiction could not be liable is rejected.

The Court has considered whether there could be a causal link between the matters identified in the pleadings i.e. the alleged damage on the one hand and the alleged negligence and breach of duty listed above on the other, is satisfied that such a link could be established. Whether such a link will ever be established depends on the strength of the evidence before the Court of trial.”

However, O’Leary J also expressed the view that the report of Prof Shane O'Neill “(on one reading) links the continued smoking by the plaintiff to progressive lung damage.”
The two bases invoked by the appellant in seeking to have the plaintiff’s claim dismissed are complementary. They are designed to prevent actions being pursued in the courts which are entirely devoid of merit. The jurisdiction under the rules depends on the moving party—for the burden is on him—being able to show that the pleadings “disclose no reasonable cause of action” or to be frivolous or vexatious.” The alternative basis involves reliance on the inherent jurisdiction of the Court and can be traced back to the judgment of Costello J in Barry v Buckley [1981] I.R. 306. The circumstances in which that exceptional jurisdiction will be exercised were explained by Costello J (on 2nd October 1992) in D.K. v King [1994] 1 I.R. 166, at page 170:

“The principles on which the court will exercise its inherent jurisdiction to strike out a plaintiff's action can be shortly stated. Basically, the jurisdiction exists to ensure that an abuse of the court's process does not take place. If it is established by satisfactory evidence that the proceedings are frivolous or vexatious or if it is clear that the plaintiff's claim must fail then the court may stay the action. But it will only exercise this jurisdiction sparingly and in clear cases……”

That passage received the express approval of this Court in the judgment of Blayney J in O’Neill v Ryan and others [1993] I.L.R.M. 557. Although this remedy is available in the case of any cause of action, it is clear from the cases that it is likely to be more suitable for use in cases where there is no room for dispute about the evidence. For example, orders have been made under this jurisdiction in some cases of written contracts, where the terms of the law and the applicable principles are readily ascertainable.
In my opinion, this is not a suitable case for the remedy either under the Rules of the Superior Courts or the inherent jurisdiction of the Court. There are complex and difficult issues of both law and fact to be decided, which are more appropriately argued and tested at the full hearing of the action. The plaintiff seeks to make the tobacco companies amenable for selling cigarettes which they sold but which she voluntarily consumed. It is well known that there has been tobacco litigation of many types in many jurisdictions. It is neither necessary nor appropriate that I say more than the minimum required to dispose of this appeal and this motion.
For the purposes of this appeal, it must be assumed—Mr Sreenan did not ask the Court to do otherwise—that the plaintiff suffered very serious illness as a result of smoking cigarettes. Mr Cush made a very simple submission with regard to the Act of 1991. He says it imposes a strict liability. That depends on the cigarettes being regarded as defective products for the purposes of the Act. Section 5(1) of the Act provides:

“For the purposes of this Act a product is defective if it fails to provide the safety which a person is entitled to expect, taking all circumstances into account, including—

(a) the presentation of the product,
(b) the use to which it could reasonably be expected that the product would be put, and
(c) the time when the product was put into circulation.”

I do not think a court could possibly decide, on a motion of the type before the Court on this appeal, whether cigarettes “fail to provide the safety which a person is entitled to expect.” That will require a great deal of evidence to be given at the trial. It is also highly material that the Act of 1991 was passed in order to transpose into Irish law the provisions of the Council Directive of 1985 mentioned above. The definition of defective product is based on Article 6 of the Directive. The Act must be interpreted in the light of the Directive. If the matter comes before this Court in circumstances where a decision on such an interpretation is necessary for the decision of the Court, it would appear that the obligation of the Court to refer this matter to the Court of Justice of the European Communities pursuant to Article 234 of the EC Treaty would arise. That will, of course, depend on whether such an interpretation is necessary for its decision. For that reason alone, it would be impossible to determine such an important issue at this stage. Furthermore, the High Court may wish to refer such questions to the Court of Justice and may do so at any stage of the proceedings.
I am also of the view that the claim based on liability for defective products at common law cannot be dismissed at this stage. In a situation where it has to be assumed that the product admittedly sold caused damage to the plaintiff’s health, it would require very clear authority to convince a court that it is unarguable that the manufacturer is liable. I will say no more.
I am also satisfied that it is sufficiently pleaded that the plaintiff suffered injury as a result of smoking the appellant’s cigarettes after 1995. Firstly, the statement of claim contains sufficient general and undifferentiated pleadings, for the purposes of Order 19, rule 28, that the plaintiff suffered personal injuries as a result of the negligence and other wrongdoing of all the defendants. Secondly, the particulars furnished in September 2003 contain allegations of extensive health difficulties after 1995, though not making any distinction between the effects of smoking the cigarettes of the respective defendants. Thirdly, in his affidavit sworn on behalf of the plaintiff in reply to the present motion, the plaintiff’s solicitor exhibited the report of Professor Shane O’Neill dated 27th November 2003 already mentioned. In the course of that report, Professor O’Neill mentions the fact that the plaintiff had smoked Player cigarettes until 1995 and then began smoking “Silk Cut.” He describes her continuing symptoms of “progressive external dyspnoea secondary to chronic obstructive pulmonary disease with emphysema as a consequence of her cigarette smoking in addition to her prior lobectomy…” (emphasis added). In his concluding opinion, he stated that she “has evidence of progressively severe chronic obstructive pulmonary disease as a consequence of her continued smoking habit.” (emphasis added). Mr Sreenan may, of course, be right to say that it is not reasonable to attribute these symptoms to her smoking after 1995. On the other hand, it is reasonable to expect that there would be some damage due to continued heavy smoking. It is not sufficiently clear, however, that there is no pleading of further injury due to smoking after 1995.
Finally, I turn to the apparently attractive argument based on causation, which I have summarised above. On the hypothesis that the plaintiff was addicted as a result of smoking the cigarettes of the first-named defendant and that she knew smoking causes cancer when she commenced smoking the appellant’s cigarettes, the appellant was neither responsible for the addiction nor for the consequences of the addiction. On the other hand, the plaintiff claims that the appellant’s “Silk Cut” cigarettes were targeted at vulnerable people such as the plaintiff. It was foreseeable that such people would consume cigarettes placed on the market by them. Issues of causation can be some of the most difficult in tort law. While the appellant has raised an arguable point, I cannot agree that it is decisive. Finally, if Mr Cush is correct in his interpretation of the Act of 1991, the liability of the appellant may be strict.
In all the circumstances, I am satisfied that the learned High Court judge was correct. I would dismiss the appeal.