Ceylon Tobacco Sued for a Smoker’s Death

Background

Ceylon Tobacco Company PLC (CTC), a British American Tobacco (BAT) subsidiary, is the sole manufacturer of cigarettes in Sri Lanka, with a 99% market share for cigarette sales. Further, until the implementation of National Authority on Tobacco and Alcohol (NATA) Act in 2006, CTC advertised and directly promoted their cigarettes to the Sri Lankan public. Tobacco companies have been successfully sued for causing death and disease in their consumers in countries such as United States of America (USA) and Canada. Such litigations enabled smokers and their families to obtain compensations for the damage caused by the products of tobacco companies. Further, they led to outcomes beyond monetary compensation for smokers and their families. In USA, the Master Settlement Agreement (MSA), the agreement to settle around 400 such litigations, led to compensation of the healthcare costs for the government due to tobacco use, to advancement of information available in public domain on internal unethical conduct of tobacco companies, and to drawing attention to the need for rigorous tobacco control actions such as band on advertisement and promotion. Canada also reports a success story in this regard and Australia is reportedly contemplating litigation as the next step for controlling tobacco. Please see Prosecutions against Tobacco Companies: Global Examples and Master Settlement Agreement (MSA) USA for more details.

The Issue

KS Perera, a tailor from Polonnaruwa, Sri Lanka, was a smoker since his teenage years. Perera was diagnosed with lung cancer in September 1996, to which he succumbed on 13th April 2001.

First Lawsuit

KS Perera filed a lawsuit against CTC in the District Courts Colombo (D.C. Colombo Case No. 21163/M). He sought recovery of damages caused by the cancer he got because of smoking cigarettes manufactured by the CTC. Perera passed away before the conclusion of the lawsuit. After his death, Lalitha Padmini, the wife of KS Perera made an application to be substituted as the plaintiff. The Colombo District Courts refused the appeal “on the basis that the cause of action claimed by the plaintiff’s husband was personal to him and did not survive his death.”

The Second Lawsuit

On 11th April 2003, Lalitha Padmini filed the second lawsuit in the District Court Colombo (D.C.Colombo Case No. 36051/MR) against the CTC based on the following complaints:

• ”(a) the cigarettes manufactured, distributed, marketed, advertised, promoted and sold by the defendant (CTC) contain Nicotine, which is an addictive substance, and other carcinogenic chemical substances which are harmful to the health of persons who smoke these cigarettes;
• (b) the defendant (CTC) did not inform the public that, smoking these cigarettes is harmful to the health of persons who do so;
• (c) as a result of the defendant (CTC) advertising and promoting the sale and use of the cigarettes it manufactures, the plaintiff’s husband was induced to start smoking cigarettes and he was unaware that doing so was harmful to his health;
• (d) in the month of September 1996, the plaintiff’s husband was diagnosed with incurable cancer which was caused by his having smoked cigarettes manufactured by the defendant;
• (e) he died on 13th April, 2001 as a result of this cancer;
• (f) the plaintiff’s husband was a tailor who earned an income of about Rs.5,000/- per month;
• (g) the plaintiff is unemployed and was solely dependent on her husband;
• (h) as a result of her husband’s death, the plaintiff has been deprived of the love, affection, care [“ආරක්ෂාව”], protection [“රැකවරණය”] and maintenance [“ ”] which she received from him;
• (i) the plaintiff has suffered grievous mental pain and anguish and the plaintiff has been deprived of the protection and hopes she had for her future life with her husband;
• (j) the plaintiff has been deprived of the pecuniary benefit she would have received, as the heir of the estate of her deceased husband, from the monies which would have been payable to her husband under a decree entered in D.C. Colombo Case No. 21163/M;
• (k) in these circumstances, the plaintiff has suffered loss and damages which are quantified at a sum of Rs. 5,000,000/-;”

Thus, based on the above, Lalitha Padmini accused CTC of:

• ”negligence”,
• ”fraudulent acts” and
• ”violations of several provisions of the Sale of Goods Ordinance and”
• ”(violations of several provisions of the) Foods Act.”

Four preliminary issues were raised related to the second law suit:

• Is there a cause of action (a reason for lawsuit) against CTC?
• Is the cause of action vague?
• Was the cause of action at the “face of the plaint” (at the time of the offense – within two years)?
• Can the plaintiff (Lalitha Padmini) maintain this lawsuit because her application to substitute her husband in the first lawsuit was refused by the District Court?

Plaintiff Lalitha Padmini responded stating the issues should be ruled in her favour. CTC’s responses are listed below:

• ”the plaint is prolix” (too lengthy)
• ”the plaint does not disclose a cause of action (a reason for lawsuit) because the plaintiff is not seeking to recover compensation for patrimonial loss but is, instead, seeking to recover loss and damages for loss of love, affection, care and protection, which is not recoverable under our law”
• ”the plaint is vague due to the plaintiff’s failure to plead the exact amount of the loss and damage caused by the loss of support consequent to her husband’s death”
• “the plaintiff’s cause of action “emanates from the time her husband came to know that he was suffering from cancer” - ie: in September 1996 - and, therefore, this action is ex facie prescribed on the face of the plaint (defective without further investigation), since it has been filed long after the expiry of two years from September 1996”
• “the Court’s refusal to substitute the plaintiff in the place of her deceased husband in D.C. Colombo Case No. 21163/MR and the plaintiff’s failure to appeal from that Order, “precludes her from filing this action.”

After considering the responses, District court resolved the preliminary issues in favour of the plaintiff Lalitha Padmini.

CTC’s Appeal to the Appeal Court

CTC made an appeal (C.A. Appeal No. 349/05) in the Appeals Court against the decision of the District Court on the preliminary issues. CTC was granted leave to appeal, but the case was dismissed after hearing.

CTC’s Appeal to the Supreme Court

CTC then appealed against the Appeal Court’s decision on the preliminary issues to the Supreme court. The case was taken up at the Supreme Court based on whether the Court of Appeal failed to appreciate the three legal issues mentioned below:

• What is the ”cause of action”?
• Was the alleged offense “prior to two years before”? (based on CTC’s plea that as the damaged cause was cancer, the time should be counted by the date of diagnosis rather than the date of death)
• Is the plaintiff “entitled to the damages prayed for”?

On 14th June 2018, Supreme Court ruled against all three aforementioned legal queries and dismissed the appeal by CTC. Supreme court also ordered CTC to pay an amount of LKR 400,000 (USD 2,500) as legal costs for Lalitha Padmini for deliberately delaying the original law suit for 12 years by an appeal that has “no merit”. Supreme Court also ordered the District Court to “hear and determine the trial” “as soon as possible” (Image 1).

Image 1: The final paragraph of the Supreme Court document stating its judgment on CTC’s appeal:

The Implications

This Supreme Court decision taken by the three-judge panel which included the Chief of Justice (CJ) (Priyasath Dep - CJ, Sisira J. De Abrew, Prasanna Jayawardena) was seen as a landmark decision in controlling tobacco in Sri Lanka, because through this decision, Supreme Court of Sri Lanka clarified that:

• CTC deliberately delayed a litigation process against them
• A smoker or a dependent can take legal action to claim damages to smoker’s health from CTC
• The dependents can take legal action to recover the damages due to a death of a smoker from CTC within two years of his death

Tobacco Unmasked Resources

• Ceylon Tobacco Company PLC (CTC)
• Romesh De Silva