The plaintiff was an unrepresented litigant, allegedly suffering from lung disease. He brought this claim against Philip Morris alleging that it failed to warn him of the risks inherent in smoking its cigarettes and thereby engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s52 of the Trade Practices Act, causing him loss and damage. In this case the defendant sought summary dismissal of the claim against it on the basis that the plaintiff's pleading disclosed no cause of action, was frivolous and vexatious and was an abuse of process.
Mr Lindsay, the plaintiff, had a long history of bringing legal proceedings against several different defendants, including Philip Morris. He had brought several claims similar to this one against Philip Morris in the Supreme Court of Victoria, all of which had been struck out (see: Re Sjostrom-Clemens-Lindsay [2003] VSC 94; Sjostrom-Clemens-Lindsay v Attorney General for the State of Victoria [2003] VSC 132; Attorney-General v Lindsay [2003] VSC 176). The Supreme Court of Victoria had earlier declared him to be a vexatious litigant, with the result that he was unable to institute proceedings in the state of Victoria without leave of the Court.
In this case, Judge Kenny agreed with the defendant that Mr Lindsay's pleading was so flawed that it was incapable of being turned into a tenable one. Judge Kenny placed particular emphasis on the mandatory health warnings required by State and Federal governments which, in his view, rendered Mr Lindsay's claim of a failure to warn hopeless. Further, Mr Lindsay complained about conduct in 1972 and 1973, prior to the Trade Practices Act commencing. Further still, Mr Lindsay failed to allege any causal link between the conduct complained of and the damage he allegedly suffered. Judge Kenny therefore summarily dismissed Mr Lindsay's claim.
Mr Lindsay unsuccessfully appealed this decision to the Full Court of the Federal Court: Lindsey v Philip Morris Limited [2004] FCAFC 40.
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.
A plaintiff’s liability may be limited where she has accepted the risks and consequences of her behavior. The tobacco industry may argue that the dangers of smoking are well known, so liability should be limited.
The plaintiff was an unrepresented litigant, allegedly suffering from lung disease. He brought this claim against Philip Morris alleging that it failed to warn him of the risks inherent in smoking its cigarettes and thereby engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s52 of the Trade Practices Act, causing him loss and damage. In this case the defendant sought summary dismissal of the claim against it on the basis that the plaintiff's pleading disclosed no cause of action, was frivolous and vexatious and was an abuse of process.
Mr Lindsay, the plaintiff, had a long history of bringing legal proceedings against several different defendants, including Philip Morris. He had brought several claims similar to this one against Philip Morris in the Supreme Court of Victoria, all of which had been struck out (see: Re Sjostrom-Clemens-Lindsay [2003] VSC 94; Sjostrom-Clemens-Lindsay v Attorney General for the State of Victoria [2003] VSC 132; Attorney-General v Lindsay [2003] VSC 176). The Supreme Court of Victoria had earlier declared him to be a vexatious litigant, with the result that he was unable to institute proceedings in the state of Victoria without leave of the Court.
In this case, Judge Kenny agreed with the defendant that Mr Lindsay's pleading was so flawed that it was incapable of being turned into a tenable one. Judge Kenny placed particular emphasis on the mandatory health warnings required by State and Federal governments which, in his view, rendered Mr Lindsay's claim of a failure to warn hopeless. Further, Mr Lindsay complained about conduct in 1972 and 1973, prior to the Trade Practices Act commencing. Further still, Mr Lindsay failed to allege any causal link between the conduct complained of and the damage he allegedly suffered. Judge Kenny therefore summarily dismissed Mr Lindsay's claim.
Mr Lindsay unsuccessfully appealed this decision to the Full Court of the Federal Court: Lindsey v Philip Morris Limited [2004] FCAFC 40.