Vic: Appeal launched over landmark payout to lung cancer woman

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Vic: Appeal launched over landmark payout to lung cancer woman

By Mike Hedge

MELBOURNE, Aug 26 AAP - A Supreme Court judge erred when he ruled in favour of a dyingwoman who sued one of the world's biggest tobacco companies, a Melbourne court was toldtoday.

A jury subsequently awarded 51-year-old Victorian woman Rolah Anne McCabe $700,000,making her the first Australian smoker to win a legal action against a major tobacco company.

British American Tobacco (BAT) is appealing the decision of Justice Geoffrey Eames,who earlier this year struck out the company's defence.

In the Court of Appeal today, lawyers for BAT said the trial judge's decision was flawed.

Justice Eames had dismissed the BAT defence on the grounds that the company and itslawyers had destroyed and hidden documents vital to the case.

The judge ruled that as a result Mrs McCabe, who started smoking at the age of 12 andis dying from lung cancer, was not required to prove the company was negligent in notmaking her aware of the dangers of smoking.

Justices John D Philips, Peter Buchanan and John Batt heard today that the destructionof documents was a regular procedure at BAT and had not been intended to harm Mrs McCabe'scase.

Counsel for BAT, Alan Myers QC said smokers voluntarily accepted the risks associatedwith their habit, that the company had no obligation to educate smokers and that governmentshad legislated to provide warnings and to regulate the tobacco industry.

Justice Eames said that in "broad terms" the defendant denied Mrs McCabe's illnesswas related to cigarettes and had asserted that the majority of smokers did not contractlung cancer.

The judge criticised both the company and its lawyer Clayton Utz over the use of anew "document retention policy" in 1985.

He said he was satisfied that the primary purpose of the policy was to provide a meansof destroying damaging documents under the cover of an apparently innocent housekeepingarrangement.

Justice Eames said it was also clear that the policy was approved by the defendant's solicitors.

He said that Clayton Utz advised on the wording of the policy in an attempt to disguiseits true purpose.

The appeal continues tomorrow.

AAP mh/gfr/jmd/br

KEYWORD: MCCABE