The World Today - Friday, 24 September , 2004 12:46:00
Reporter: Michael Vincent
ELEANOR HALL: To a major court decision in Sydney now and lawyers say tobacco companies will be breathing a multibillion dollar sigh of relief today after a class action they were bringing for an Australian smoker was rejected by the New South Wales Supreme Court today.
Myriam Cauvin, a 40-year-old single mother, can still seek damages for her own health costs, but her case cannot include other claimants, as she had hoped.
Her lawyers say while there are avenues of appeal, today's ruling effectively ends the possibility of class actions against the tobacco companies.
And as Michael Vincent reports, they predict a log jam of individual cases will continue until federal and state governments intervene to create a smoking damages tribunal similar to that for asbestos victims.
MICHAEL VINCENT: Myriam Cauvin was too ill to attend today's judgement and told The World Today she was too sick comment on the outcome.
Her solicitor is Rebecca Dimaridis.
REBECCA DIMARIDIS: She'll be disappointed, yeah. She'll be very disappointed.
REPORTER: What's her condition now?
REBECCA DIMARIDIS: Well, she's um, you know, she's doing all right, but she's got to go get check ups all the time. She's had a lung transplant in 2001, September 11, 2001. So she's always at risk of infection. You know, because of her condition she gets… she's susceptible to illness quite easily. She had a stroke while we were hearing these matters in May this year. But she's pretty much recovered from that. So she's a strong woman, but you know, she's also… she's still suffering.
MICHAEL VINCENT: Myriam Cauvin was diagnosed with emphysema in her early 30s. Now 41 she still can't quit smoking the cigarettes she first puffed at the age of 10.
She had hoped to bring a case that would allow any other Australian smokers to claim damages against the tobacco companies Philip Morris and British American Tobacco.
But that's been rejected by Supreme Court Judge Virginia Bell who ruled the case can only have one claimant because Ms Cauvin's lawyers say the other claimants were not identified.
So it was put to Ms Cauvin's barrister Neil Francey – what if the other claimants had been named in this case?
NEIL FRANCEY: There's three million people in the country who smoke – three or four million people in the country who smoke. Two in third of those will suffer harm from smoke related disease. And what this case could have done is made provision for compensation for them, just as the James Hardie fund is making provision for people who haven't yet got mesothelioma. It's exactly the same principle.
And all the court had to do is to do what the directors of James Hardie did, and make provision, except make adequate provision. Not only that, provision could be made to prevent and reduce harm so that the people would never be identified because they would never get disease because the court would make orders that will prevent and reduce that harm. That's what Myriam Cauvin wanted out of this case, and that's what's been denied.
MICHAEL VINCENT: Mr Francey also blames a lack of state and federal government support both political and bureaucratic for the failure to secure a class action.
He points to this week's $400 billion civil action by the US Government as an example Australia should follow.
NEIL FRANCEY: In the United States, under the Clinton administration, the US Department of Justice committed itself to a case exposing the conduct of the industry and tried to recover money to address the harm caused as a result and that's the type of thing that could have been achieved out of this case, but for a failure of governmental support.
MICHAEL VINCENT: Can it ever go ahead now then, or is today's decision effectively saying no class action against the tobacco companies can ever be brought?
NEIL FRANCEY: For practical purposes that's the result.
ELEANOR HALL: Myriam Cauvin's barrister Neil Francey.
And The World Today did attempt to contact Philip Morris and received no reply, and British American Tobacco told us it has no comment at this stage.
Michael Vincent with our report. |
