Delahunty v Player & Wills (Ireland) Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: MR JUSTICE FENNELLY
• Judgment Date: 05 April 2006
• Neutral Citation: [2006] IESC 21
• Docket Number: [S.C. No. 472 of 2004]
• Date: 05 April 2006

[2006] IESC 21

THE SUPREME COURT

Fennelly J.

McCracken J.

Macken J.

Appeal No. 472/2004

DELAHUNTY v PLAYER & WILLS (IRELAND) LTD & ORS

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

RSC O.19 r28

DIR 85/374/EEC

LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991 S5

BARRY v BUCKLEY 1981 IR 306

K (D) v KING 1994 1 IR 166

O'NEILL v RYAN & ORS 1993 ILRM 557

LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991 S5(1)

PRACTICE AND PROCEDURE

Dismissal of proceedings

Inherent jurisdiction of court to strike out proceedings - Whether pleadings disclose reasonable cause of action - Whether pleadings frivolous or vexatious - Exercise of jurisdiction sparingly and in clear cases - Whether claim raises complex issues of law and fact - Whether room for dispute about evidence - Barry v Buckley [1981] IR 306; DK v King [1994] 1 IR 166; O'Neill v Ryan [1993] ILRM 557 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 19, r 28 - Liability for Defective Products Act 1991 (No 28), s 5 - Council Directive 85/374/EEC - Application to dismiss refused (472/2004 - SC - 5/4/2006) [2006] IEHC 21

Delahunty v Player & Wills Ltd

PRODUCT LIABILITY

Product safety

Defective products - Safety person entitled to expect - Whether cigarettes defective product - Interpretation of defective product - Liability for Defective Products Act 1991 (No 28), s 5 - Council Directive 85/374/EEC - Application to dismiss refused (472/2004 - SC - 5/4/2006) [2006] IEHC 21

Delahunty v Player & Wills Ltd

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

2 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.

3 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.

4 The appellant issued a notice of motion in the High Court seeking:

5 (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.

6 (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.

7 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.

8 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."

9 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.

10 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.

11 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 cigarettesùtwenty 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.

12 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.

13 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.

14 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.

15 Mr Sreenan makes the following points:

16 • 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;

17 • 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;

18 • 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...