Wittenoom Professor Eric Saint

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1 HISTORICAL AND CURRENT LEGAL ISSUES RELATING TO OCCUPATIONAL CAUSES OF RESPIRATORY MALIGNANCIES Wittenoom Professor Eric Saint Wounds go septic for no other reason than the fact that all they have is this ghastly room with filthy dressings, in which a badly trained orderly (a filthy, nailed son of a bitch with a St John s ticket) tries his best to give all his patients septicaemia, tetanus and gangrene. 1

2 Injury of same class, type or character Mt Isa Mines v Pusey (1971) 125 CLR 383 at 413: It is not a condition of liability that either the precise character of the damage or the extent of it should have been foreseen. It is necessary only that the damage suffered should not be different in kind from that which was foreseeable. Multiple exposures Mesothelioma Cumulative effect 2

3 James Hardie Corporate Restructure 2001 Established Foundation with $293M James Hardie Actuaries Trowbridge Actuarial reports remained in draft not seen by board Not take into account recent cases of minimal exposure 3 rd wave Not take into account increasing settlement figures Not take into account most recent figures indicating increase in cases Based on assumption mesothelioma claims have peaked in 2000 Senior executives realized the work was based on imperfect epidemiological models and was speculative 3

4 Access economics / Pricewaterhouse Stake holder management Examined model as a mathematical tool Was not engaged to examine underlying assumptions Names were used to prevent questions $293M becomes $1.7B In 2004 there was only funding for another 3 years 4

5 The Supreme Court application for restructure 2001 Rolah McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 Lung cancer Addicted as teenager Alleged BAT took no steps to warn consumers and publicly disparaged research results linking smoking to lung cancer Deliberately marketed to adolescents 5

6 Important to case Knowledge of BATAS of the risks of smoking addictive quantities of nicotine Knowledge of BATAS of consumption by children BAT internal documents important to proving case Document strategy Contended since 1985 BAT embarked on a strategy involving Destruction of damaging documents Ascribe innocent intention to destruction Confine litigants to documents in public domain Attaching legal professional privilege inappropriately to documents Establish data bases with external lawyers in attempt to avoid production 6

7 Non disclosure of policy to the Court and to Plaintiff Rolah McCabe as a consequence of policy could never have a fair trial Plaintiff denied a fair trial Rolah McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 at [377]: Once it is concluded, as I have concluded, that the plaintiff has been denied a fair trial, in circumstances which cannot be adequately redressed, then in my opinion there is no point in attempting to quantify the extent of the unfairness. A trial is either fair or it is not. Unless all unfairness which the defendant has created can now be removed then a verdict by the jury in favour of the plaintiff would not demonstrate that the unfairness in the trial had been eliminated, but merely that the plaintiff had succeeded despite the unfairness of her trial. 7

8 Plaintiff denied a fair trial (cont) Rolah McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 at [377]: If it is necessary for me to be satisfied that there would remain a substantial risk of injustice to the plaintiff if the trial proceeds, even after further orders are made in an attempt to alleviate her disadvantage, then I am so satisfied. McCabe Court of Appeal Trial judge overturned BATAS had not complied with discovery orders but Plaintiff s advisors knew of likely destruction thus no prejudice The obvious remedy to a defect in discovery was the filing of a fresh affidavit The trial judge erred in finding that the document retention policy was a means to rid itself of damaging documents under cover of an innocent housekeeping arrangement 8

9 McCabe Court of Appeal (cont) Trial judge overturned In so far as the trial judge referred to the destruction of the 30,000 electronically imaged documents, this could be seen to reflect, yet again, the warning in a manual of the defendant s that there was not much point in destroying the paper document only to keep a record on computer if, as appeared to be the case, one at least of the problems facing the defendant in litigation was the magnitude, expense and complexity of meeting any notice for general discovery Where one party alleged against another that the destruction of documents before the commencement of the proceeding was to its prejudice, the question whether a fair trial was denied was an unsatisfactory criterion for the court s intervention United States of America v Philip Morris & Ors US District Court for District of Columbia Judge Gladys Kessler July 2004 An extraordinary 2,500 page judgment Takes evidence from Australian whistle blower Frederick Gulson Gulson in house counsel at WD & HO Wills, BATAS in Australia Gulson states that the purpose of the Document Retention Policy was to sanitise the company's files. This could include their destruction, privileging them (i.e. endorsing them in such a way that legal privilege could be asserted over them) or putting them beyond the legal control of the company 9

10 United States of America v Philip Morris & Ors US District Court for District of Columbia Judge Gladys Kessler July 2004 (cont) Gulson in house counsel at WD & HO Wills, BATAS in Australia Gulson specifically states that the purpose of the Document Retention Policy was twofold, to protect the litigation position of Wills, and to protect the legal positions of other BAT group companies, especially [its] U.S. affiliate Brown & Williamson Philip Morris, R.J. Reynolds, and BATCo developed a document retention policy for all of their Australian interests through the Tobacco Institute of Australia to ensure that sensitive documents were destroyed United States of America v Philip Morris & Ors US District Court for District of Columbia Judge Gladys Kessler July 2004 (cont) The purpose of the document retention policy was to get rid of all the sensitive documents, but do so under the guise of an innocent house keeping arrangement and to ensure that all relevant documents that were not destroyed or removed from the jurisdiction were properly privileged. In all cases the purposes was [sic] to ensure that the documents were not discoverable Steps were taken to destroy, create privilege over, or remove from the company's control, documents belonging to our overseas affiliates. It was important to ensure that there was no cross contamination of documents which would render these documents discoverable in another jurisdiction, in particular in proceedings against Brown & Williamson in the United States 10

11 United States of America v Philip Morris & Ors US District Court for District of Columbia Judge Gladys Kessler July 2004 (cont) As a result of this document destruction, thousands of potentially relevant smoking and health documents were kept from the courts and the public. By way of example, one document indicates that a search of the Cremona database for Wills knowledge of the risks of lung cancer during the period from 1962 to 1988 identified 949 relevant documents Other findings Cigarette smoking and exposure to second hand smoke kills 440,000 Americans per year Cigarette manufacturers developed and implemented a unified scheme that sought to reassure the public that there was no evidence smoking causes disease the fraudulent scheme would continue for the next five decades Cigarette manufacturers jointly funded research through lawyer administered accounts to recruit and support industry friendly researchers to serve as expert witnesses in litigation 11

12 Other findings (cont) Cigarette companies limited their internal research so as not to be in a position where they held information of a causative link between smoking and disease Cigarette companies recognise no one has ever become a cigarette smoker by smoking cigarettes without nicotine thus have designed their cigarettes to ensure smokers obtain enough nicotine to sustain addiction Other findings (cont) Cigarette companies continue to make health benefit claims concerning filtered and low tar cigarettes when they lacked evidence to substantiate the claims or knew they were false Cigarette companies targeted young people with their marketing efforts researching youth vulnerabilities in order to create marketing campaigns to appeal to youth and foster youth smoking 12

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