This is the third 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. Further, 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; and that even after warnings were placed on packs, the defendants reassured the public that smoking would not cause grave consequences to health.

This was the hearing of the plaintiff's application to strike out certain paragraphs of the defences. Both defendants had pleaded that the plaintiff knew or ought to have known that smoking posed risks to health. The plaintiff argued that the "ought to have known" formulation was not an element of the defence of violenti non fit injuria upon which the defendants sought to rely, and therefore that those words should be struck out. Following consideration of the relevant case law, Nicholson J accepted that plaintiff's argument and struck out the relevant portions of the defences.

Subsequent to this case, Ms Scanlon discontinued the proceedings. For earlier case, see: Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 2) [1987] VR 281].