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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Delahanty v. Players Wills (Ireland) Ltd. & Ors [2004] IEHC 331 (15 October 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/331.html Cite as: [2004] IEHC 331 |
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[2004] IRLHC 331
1998 No. 11093P
PLAINTIFF
DEFENDANTS
JUDGMENT of the Honourable Mr Justice O'Leary dated the 15th day of October 2004
The plaintiff in these proceedings claims against the defendants for loss and damage allegedly suffered from and in connection with the smoking by the plaintiff of cigarettes manufactured by the first and second named defendants. The plaintiff's actions are founded in negligence, breach of duty and breach of statutory duty including beaches of the Defective Products Act 1991.
The present issue relates only to an application by the second named defendant for the following orders
(a) An order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts dismissing the Plaintiff's claim against the Second Named Defendant as disclosing no reasonable cause of action.
(b) Further or in the alternative, an order pursuant to the inherent jurisdiction of this Honourable Court dismissing the Plaintiff's claim against the Second Named Defendant on the grounds that it has no reasonable prospects of success or, alternatively, is bound to fail.
(c) Such further or other order as to this Honourable Court shall seem fit.
(d) An Order providing for the costs of and incidental to this application and of the proceedings.
The application is based on the following evidence (subject to the limited relevance of some of this evidence to the first application):
1. Notice of Motion dated 16th December, 2003.
2. Affidavit of Isabel Foley sworn 16th December, 2003
3. Exhibit IF1 to affidavit of Isabel Foley
4. Exhibit IF2 to affidavit of Isabel Foley
5. Exhibit IF3 to affidavit of Isabel Foley
6. Affidavit of Gabriel Daly sworn 18th February, 2004
7. Exhibit GCD1 to affidavit of Gabriel Daly
8. Second Affidavit of Isabel Foley sworn 22nd March, 2004
9. Second Affidavit of Gabriel Daly sworn 5th May, 2004
Preliminary
In an application of this kind the Court must act on the basis of any agreed facts and where there is a dispute as to facts the evidence and assertions of the plaintiff are to be preferred (except in any case where the alleged facts by the plaintiff are manifestly wrong).
The onus of proof lies with the applicant/defendant.
Facts agreed or found (for the purpose of this application only)
1. The proceedings commenced on 13th October 1998 and the Plenary Summons was served on12th October 1999.
2. The third and fourth named defendants were joined on 23rd April 2002.
3. A Statement of Claim was delivered on 14th June 2002. An amended Statement of Claim was later delivered. Without prejudice to the other rights of the second named defendant in the matter, it was agreed, this application was to proceed on the basis of the second Statement of Claim
4. The Statement of Claim contained a variety of allegations against the first and second named defendants relating to the manufacturing and distribution of cigarettes to the plaintiff over a long number of years. The reliefs claimed included damages for negligence breach of duty breach of statutory duty and breach of constitutional rights.
5. The second named defendants sought further and better particulars of the claim by notice dated 2nd July 2002.
6. The plaintiff replied to the notice on 23rd September 2003.
7. The allegations of person injuries and damage which emerged from the replies to particulars was different in some respects to that which appeared from the Statement of Claim. In general the overall history was the same but the relative responsibility of the first and second named defendants were fundamentally different. The case in general was that the plaintiff started smoking cigarettes in the late 1930's, became addicted in the early 1940's, continued to smoke and was eventually diagnosed with cancer of the lung and other respiratory problems in late 1995. Thereafter she was unable to quit smoking, notwithstanding the danger which she now understood, by reason of her long standing addiction and continues to smoke.
8. The main difference in the case as it emerged in the replies to particulars as and compared with the Statement of Claim was that the plaintiff acknowledged in the reply to particulars that she did not switch from the cigarette brand of the first named defendant to that of the second named defendant until after her operation for lung cancer in October 1995. Up to that date she had no contact with the products of the second named defendant.
9. As a result of these particulars it became clear that much of the Statement of Claim in so far as it made allegations against the second named defendant and its product was redundant and unsustainable. At the hearing of the application counsel on behalf of the plaintiff effectively abandoned all parts of the claim against the second named defendant which relied on alleged use of the second named defendants products prior to October 1995.
Nature of Application
The relief sought by the second named defendant is as set out above but can be summarised as firstly an order dismissing the plaintiff claim against the second named defendant under Order 19 Rule 28 of Rules of the Superior Courts and/or the same order under the inherent jurisdiction of the Court.
Order 19 rule 28 provides:
"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defender being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just".
What is at issue is whether, stripped of the abandoned claims, the plaintiff still has a reasonable cause of action against the second named defendant. In considering this issue, in the first application, the Court is confined to the pleadings i.e. the statement of claim and the replies to particulars.
While the onus of proof in the matter lies with the moving party, the second named defendant, since that defendant makes the submission that none of the remaining pleas could sustain a cause of action it fell to the plaintiff/respondent to point out where she believes a cause of action remains.
The plaintiff's counsel submitted that the plaintiff had a number of remaining claims based on the truncated Statement of Claim. In the first place the damage to the applicant is alleged to be of a continuing nature. In that regard the reply to particulars 38e was relied on when it stated that the plaintiff:
"Continues to suffer, inter alia, ongoing personal injury loss damage and expense as a result of her addiction to cigarettes including those manufactured advertised and distributed by the second named defendant."
In addition the personal injury is particularised in reply 65 (a) to (j j j) and it includes a description of fresh injury post 1995 (from which time, the evidence to date is that the second named defendants cigarettes were the only cigarettes smoked by the plaintiff) as follows:
"On 4th June, 1996 the Plaintiff attended the Clinic. It was noted that the Plaintiff was still smoking. Despite all the morbidity and difficulties which the Plaintiff underwent with the surgery and associated treatment, her addiction was such that she still could not give up smoking.
On 3rd June, 1997 a chest x-ray was performed which showed no change with respect to the chest x-ray of the 23rd September, 1996. She was short of breath, but on examination was noted to be comfortable.
The Plaintiff had a further chest x-ray on the 9th September, 1997. There was no change with respect to the x-ray of the 3rd June, 1997.
On 18th November, 1997, the Plaintiff's G.P., requested urgent follow-up because of increase in shortness of breath, wheeze, cough, production of sputum for two to four weeks. The Plaintiff also had left shoulder pain. Her Becotide was increased and she was given a course of antibiotics.
Chest x-ray on 24th November, 1997 showed left upper lobectomy and hyperinflation.
On 6th January, 1998 the Plaintiff was noted to have lost weight. It was noted that her diet was probably not very good. The Plaintiff's ESR was 70. She was noted to be dizzy."
Without prejudice to the generality of the particulars supplied the plaintiff/respondent identified the following particulars of negligence and breach of duty as referring both to the excluded period (prior to the smoking of Gallaher's cigarettes) and the period after the plaintiff commenced using the second named defendant products.
(d) Causing or permitting the Plaintiff to smoke the said cigarettes when they knew or ought to have known that it was addictive, unsafe and dangerous for her to do so.
(e) Causing or permitting the Plaintiff to smoke the said cigarettes when they knew or ought to have known that same, when used as intended, gave rise to a dependence and were harmful to human health.
(f) Designating, manufacturing and selling a product that when used as intended was not reasonably safe for the Plaintiff to use and when they knew or ought to have known that use of the product by the Plaintiff would cause inevitable damage to the Plaintiff's health.
(o) Persist in manufacturing, marketing and distributing the said cigarettes notwithstanding their knowledge of the fact that same, when used as intended gave rise to a dependence and were harmful to human health.
(p) Failing to desist form manufacturing, marketing and/or distributing the said cigarettes notwithstanding their knowledge of the fact that same, when used as intended, gave rise to dependence and were harmful to human health.
The applicant/defendant denies that the foregoing damage or particulars of negligence could refer to the second named defendant.
The applicant/defendant has also raised in relation to both applications that any damage suffered by the plaintiff after her operation as a result of continued smoking firstly could not succeed against any party and secondly if it did succeed it could only succeed against the first named defendant who on the basis of the pleadings caused the addiction which led to the continued smoking. The Court rejects both of these submissions.
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.
All the foregoing is of course without prejudice to the right of each of the defendants to plead and succeed (if appropriate) on the merits when the Court of trial hears the evidence.
The defence to the application is extremely persuasive. The Court is satisfied that the applicant has failed to discharge the onus of proof needed to persuade the Court to grant the order sought under Order 19 Rule 28 of Rules of the Superior Courts.
With regard to the second application the Court extended its consideration beyond the pleadings to include the other information. The additional information consists, on the applicant/respondent's side, of argumentative affidavits of a solicitor for the most part merely exhibiting correspondence between the parties. There is nothing in these affidavits of value to the Court, additional to what is in the pleadings in reaching a decision in the application relying on the Courts inherent jurisdiction.
The plaintiff respondent exhibits a report of Prof Shane O'Neill M D FRCPI MRCP (UK) FCCP whose report (on one reading) links the continued smoking by the plaintiff to progressive lung damage.
Taken together the additional documents to be considered, in the case based on the Courts inherent jurisdiction, there is nothing to disturb the findings already made.
The applicant has failed to convince this Court that it should succeed under the second heading. If anything the additional items to be considered render the application less likely to succeed
The application is dismissed with costs.