Cigarette giant faces hefty suit

A 44-year-old company director is suing British American Tobacco (NZ), claiming the cigarette giant got him hooked at an early age.

New Zealander Jeremy David Marshall, who lives in Fiji, began smoking when he was 8 and smoked regularly from the age of 11.

He has had surgery for coronary artery disease, which he attributes to his former smoking habit.

Mr Marshall, the son of an academic and brother to a doctor, is seeking a total of $300,000 in damages in the High Court at Auckland.

But before he can pursue the case, Mr Marshall must obtain the court's permission to bring his claim outside the time limit set by law - a move strongly resisted by BAT's lawyers.

Mr Marshall's counsel, Bruce Corkill, told Justice Geoffrey Venning yesterday that the allegation was that BAT failed to produce cigarettes free of substances likely to cause addiction and heart disease.

Furthermore, BAT failed to warn Mr Marshall of the possibility of addiction and injury to health.

Mr Corkill said that as boy, Mr Marshall began to smoke because of advertisements that "glamorised smoking cigarettes".

By 1974, when warnings were put on cigarette packets, Mr Marshall was addicted. Two years later he was smoking 20 a day.

He continued smoking until diagnosed with severe coronary artery disease requiring bypass surgery in 1997.

Mr Corkill said that before his client took up smoking in 1967, and particularly between 1971 and 1974, when Mr Marshall became addicted, BAT knew or ought to have known that cigarettes contained substances causing addiction in some people, and that its products were likely to cause serious illness, particularly heart disease.

BAT's lawyers, Michael Camp, QC, and Helen Winkelmann, said the long delay in Mr Marshall bringing the case had caused extreme prejudice to the defendants.

The case involved matters going back 30 years and many of BAT's witnesses would be former employees, now elderly, who would be relying on their recollections.

"The unavailability of witnesses and/or loss of records will amount to serious prejudice," Ms Winkelmann told the judge.

Mr Camp said the claim was of dubious merit, necessitating a major 14-week trial, the cost of which was unlikely to be recovered from Mr Marshall, who was described in court as "impecunious".

Mr Camp rejected claims that Mr Marshall's heart operation, hepatitis and malaria, his post-operative depression, isolation in the Solomon Islands during the coup and civil war there, and lack of finances were reasonable cause to justify the delay in bringing proceedings.

Mr Marshall had run businesses, started businesses, rescued people from civil unrest in the Solomons, travelled to New Zealand a number of times, issued defamation proceedings, and instructed New Zealand solicitors to buy a property, Mr Camp said.

It was a matter of choice, not circumstance, that Mr Marshall had not issued proceedings earlier.

Mr Camp said Mr Marshall's allegations relating to his addiction were "at the outer bounds of credibility".

Mr Marshall chose not to quit smoking before his surgery, he said.

"Once the plaintiff was sufficiently motivated to quit, he was able to and did quit."

Mr Camp said there were many risk factors associated with heart disease, and it could not be presumed that Mr Marshall's smoking was the cause of his heart problems.

He questioned the claim that BAT should have made a safer cigarette, free of substances likely to cause addiction or likely to cause the plaintiff to succumb to heart disease.

BAT, he said, challenged whether it could have or should have done either.

"Simply put, the defendant says there is no such thing as a safe cigarette."

Mr Camp said that even if Mr Marshall was not aware of the risks - which was in dispute - those risks could reasonably be known to ordinary consumers.

Once warnings were placed on cigarette packets in 1974, Mr Marshall could have quit.

In failing to do so from that date, he "voluntarily assumed the risk".

Mr Corkill said that Mr Marshall strongly rejected the suggestion that he was aware of the dangers of smoking.

Taking on

* Tobacco Invercargill lung cancer sufferer Janice Pou, 51, was the first New Zealander to sue tobacco companies. She died last September after filing lawsuits claiming more than $300,000 from BAT and WD & HO Wills. Her case is still going ahead.

* In 1998, tobacco companies agreed to pay US$246 billion ($421 billion) to US state Governments in recognition that they had harmed people's health and marketed to children.

* In June 2001, an American jury ordered Philip Morris to pay more than US$3 billion ($5.1 billion) to a lifelong smoker after deciding that the company was responsible for his incurable lung cancer. Philip Morris is appealing. The award was reduced by a judge to US$100 million.