Shanahan and Others v P.J. Carroll and Company Ltd and Others

JurisdictionIreland
JudgeGilligan J.
Judgment Date24 April 2007
Neutral Citation[2007] IEHC 229
CourtHigh Court
Date24 April 2007

[2007] IEHC 229

THE HIGH COURT

[No. 639P/2000]
Shanahan & Ors v PJ Carroll & Ors

BETWEEN

FLAW SHANAHAN, JOHN THOMAS McCORMACK AND JOHN STEPHENSON
PLAINTIFFS

AND

P.J. CARROLL AND COMPANY LIMITED, PLAYER AND WILLS (IRELAND) LIMITED, GALLAHER (DUBLIN) LIMITED AND BY ORDER THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL

CONSTITUTION ART 40

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561

DEPARTMENT OF TRANSPORT v CHRIS SMALLER (TRANSPORT) LTD 1989 AC 1197

BISS v LAMBETH, SOUTHWARK & LEWISHAM AREA HEALTH AUTHORITY (TEACHING) 1978 1 WLR 382

SWEENEY v SIR ROBERT MCALPINE & SONS LTD 1974 1 WLR 200

THORPE v ALEXANDER FORK LIFT TRUCKS LTD & ORS 1975 1 WLR 1459

O'C (J) v DPP 2000 3 IR 478 2000/13/5164

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269

O'CONNOR v JOHN PLAYER & SONS LTD & ORS 2004 2 ILRM 321 2004/37/8672

MANNING v BENSON; HEDGES LTD & GARLAND v JOHN PLAYER & SONS LTD; MCNEVIN v P J CARROLL & CO LTD 2004 3 IR 556 2005 1 ILRM 190 2004/29/6876

KEOGH v WYETH LABORATORIES INC & JOHN WYETH & BROTHER LTD 2006 1 IR 345 2005 2 ILRM 508 2005/34/7132 2005 IESC 46

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

O DOMHNAILL v MERRICK 1984 IR 151

TOAL v DUIGNAN 1991 ILRM 135

TOAL v DUIGNAN (NO 2) 1991 ILRM 140

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

STATUTE OF LIMITATIONS 1957

MCMULLEN v IRELAND UNREP ECHR 29.7.2004 (APPLICATION NO 42297/98)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

CONSTITUTION ART 34

CONSTITUTION ART 40.3

BYRNE v MIN FOR DEFENCE 2005 1 IR 577

LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991 S4

LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991 S5

LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991 S6

LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991 S7

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3

OIREACHTAS JOINT COMMITTEE ON HEALTH & CHILDREN A NATIONAL ANTI SMOKING STRATEGY - A REPORT ON HEALTH & SMOKING 1999

HODGSON v IMPERIAL TOBACCO LTD (NO 3) 1999 1 CLY 151

HOUSE OF COMMONS SELECT COMMITTEE HEALTH - SECOND REPORT 2000

EEC DIR 85/374

DELAHUNTY v PLAYER & WILLS (IRELAND) LTD & ORS 2006 1 IR 304

THOMPSON v SMITHS SHIP REPAIRERS 1984 1 QB 405

HOLTBY v BRIGHAM & COWAN (HULL) LTD 2000 AER 421

JEROMSON v SHELL TANKERS UK LTD 2001 ICR 1223 2001 EWCA CIV 101

MCTEAR v IMPERIAL TOBACCO LTD 2005 CSOH 69

POU v BRITISH AMERICAN TOBACCO (NEW ZEALAND) LTD 2006 1 NZLR 661

RSC

FINANCE ACT 1950

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.6.2005 2005/53/11045 2005 IEHC 294

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

PRACTICE AND PROCEDURE

Dismissal of proceedings

Want of prosecution - Delay - Whether inordinate and inexcusable - Balance of justice - Factors to be considered - Degree of delay - Excuse for delay - Whether delay likely to cause serious prejudice to defendant in conduct of defence - Whether balance of justice in favour of allowing proceedings to continue - Claim for damages for tobacco smoking related illness - Inherent jurisdiction of court to strike out proceedings due to lapse of time - Right to expeditious hearing - Whether claim should be struck out on ground of delay - Primor v Stokes Kennedy Crowley [1996] 2 IR 459 and Manning v Benson and Hedges Ltd [2004] 3 IR 556 applied; O'Domhnaill v Merrick [1984] IR 151 considered - Liability for Defective Products Act 1991 (No 28) - Claim dismissed for want of prosecution (2000/639P - Gilligan J - 24/4/2007) [2007] IEHC 229

Shanaghan v P J Carroll & Co Ltd

1

24th day of April, 2007, by Gilligan J.

Gilligan J.
2

These proceedings concern the second named plaintiff who was born on the 21 st December, 1948, and who resides at Cloonaghmore, Abbeylara in the County of Longford.

3

The first three named defendants are corporate bodies engaged in the manufacture, distribution and supply of tobacco and cigarettes within this jurisdiction. The fourth, fifth and sixth named defendants represent the interests of Ireland.

4

The plaintiff claims damages for personal injuries by reason of the negligence and/or breach of duty and/or breach of statutory duty of the defendants and each of them, their servants and agents and by virtue of the provisions of the Liability for Defective Products Act, 1991. The personal injuries aspect is broken down as to a primary claim for damages caused by the effects of tobacco smoking to the plaintiff since he commenced smoking in 1960/1961 and a secondary claim related to ongoing damage to the plaintiff's health caused by his addiction to nicotine.

5

Further, the plaintiff makes a claim for declaratory relief in the following terrns:-

6

(a) A declaration that the manufacture, distribution and/or supply of cigarettes is injurious to the public health generally and to the health of the plaintiff specifically;

7

(b) A declaration that the defendants and each of them have violated and/or failed to respect and protect the constitutional rights of the plaintiff;

8

(c) A declaration that the fourth, fifth and sixth named defendants have failed to vindicate the constitutional rights of the plaintiff,

9

(d) A declaration that the plaintiff has been deprived of his constitutional rights as identified in Article 40 of the Constitution of Ireland;

10

(e) A declaration that the continued sale of cigarettes represents a burden on the economic welfare of Ireland and the people of Ireland;

11

(f) A declaration that the first and/or second and/or third named defendants have made extraordinary profits from the sale of products that they knew or ought to have known to be noxious and addictive;

12

(g) A declaration that, notwithstanding the ostensible legality of the manufacture and sale of the first and/or second and/or third named defendants' products, the exercise of such entitlements constitutes an excess of powers due to the injuries knowingly inflicted thereby;

13

(h) Further, the plaintiff claims damages including aggravated and/or exemplary damages for assault and battery, conspiracy, breach of contract, fraud and/or misrepresentation, negligence and/or breach of statutory duty under the Liability for Defective Products Act, 1991, and/or wrongful interference with and failure to protect the rights of the plaintiff under the Constitution of Ireland and/or breach of duty under the laws of the European Union and/or breach of duty under the European Convention of Human Rights.

14

In or about 1960 to 1961, at the age of 12 or 13, the plaintiff commenced smoking cigarettes manufactured and distributed by the first named defendant and marketed as the "Sweet Afton" brand and cigarettes manufactured and distributed by the second named defendant, marketed as the " Star" and "Wild Woodbine" brand (hereinafter referred to as "Woodbine"). On commencing smoking in or about 1960 to 1961 until in or about 1965, the plaintiff smoked approximately 10 "Sweet Afton" and "Woodbine" cigarettes per day. During this period the plaintiff occasionally smoked other brands of cigarettes including the "John Player" and "Gold Flake" brands, manufactured, advertised and/or distributed by the second named defendant. From in or about 1965 to in or about 1968, the plaintiff smoked approximately 15 to 20 "Sweet Afton", "Woodbine" and "John Player" cigarettes per day and occasionally smoked other brands of cigarettes, namely "Embassy", manufactured, advertised and/or distributed by the second named defendant and "Park Drive" cigarettes. From in or about 1968 to in or about 1973, the plaintiff smoked approximately 30 cigarettes per day, primarily "Sweet Afton" and "Woodbine". From in or about 1973, the plaintiff commenced smoking the cigarettes manufactured and distributed by the first names defendant and marketed as "Carrolls No. 1" (hereinafter known as "Carrolls") and "Major Extra Size" (hereinafter known as "Major"). In or about 1973 to in or about 1976, the plaintiff smoked approximately 30 "Major", "Carrolls" and "John Player" cigarettes per day. From in or about 1976, the plaintiff changed the brand that he smoked to the cigarettes manufactured and distributed by the second named defendant and marketed as "Players No. 6" (hereinafter known as "No. 6"). From in or about 1976 to in or about 1978, the plaintiff smoked 40 "Major", "Carrolls", "John Player" and "No. 6" cigarettes per day. From in or about 1978 to in or about 1988, the plaintiff smoked approximately 40 "John Player" cigarettes per day. From in or about 1988 to in or about 1993, the plaintiff smoked approximately 50 to 60 "John Player" cigarettes per day. From in or about 1993 to in or about 2000, the plaintiff smoked approximately 60 to 80 cigarettes per day. From in or about 2000, the plaintiff has smoked approximately 60 cigarettes per day of the "Silk Cut" brand, manufactured, advertised and/or distributed by the third named defendant. In the summer of 1996, the plaintiff began to experience cramping in his legs and pain in his left calf and he went to see his general practitioner in September, 1996, who duly referred him to a consultant vascular surgeon at St. Vincent's Hospital, Dublin, where he attended on 13 th September, 1996. Segment Doppler pressures were carried out and confirmed that the plaintiff was suffering from arterial disease with atherosclerosis. The plaintiff was admitted to hospital for angiography and these tests showed narrowing in the femoral artery of the thigh on both sides. As a result balloon angioplasty was performed and the plaintiff's position appears to have improved. Despite his efforts, the plaintiff avers that he was unable to stop smoking and in January, 1999 he first learned that Peter McDonnell and Associates, Solicitors were taking claims on behalf of individuals suffering from smoking related illnesses. The...

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