In a judgment delivered by the Court of Appeal dismissing an appeal filed by the Ceylon Tobacco Company Ltd. (CTC) held that a wife of a person who died due to smoking could continue with her case against the Tobacco Company.
In this case, CTC had filed an appeal seeking an order to dismiss the civil suit filed by Mrs. Lalitha Padmini Fernando in the District Court of Colombo claiming Rs. 5 million as damages for the untimely death of her husband.
Mrs. Padmini, the widow of the deceased Cecil Perera (a tailor by profession) who was addicted to smoking cigarettes manufactured by the defendant Company had complained that due to heavy smoking her husband contracted cancer and died. The cigarettes consumed by the deceased contained nicotine which ultimately caused cancer, Mrs. Padmini stated and added that the Tobacco Company was aware of the harmful effects caused to smokers like her husband but refrained from revealing such after effects and her claim includes for loss of support by her husband. Earlier Padmini’s husband too had filed an action against CTC.
The Company filing answer to dismiss Mrs. Padmini’s action stated that the plaintiff and her husband were aware or deemed to have been aware that cigarettes contained nicotine. CTC further stated that the dangers of smoking have been widely known by the general public for many years and as such the plaintiff and her husband should have known that smoking could be harmful to health. The Company pleaded that in conformity with the government regulations, a warning is carried on the packets of cigarettes that smoking would be harmful to health. CTC further stated that Padmini’s husband smoked cigarettes, it was done on his own volition and knowing fully well the risks associated with smoking.
Filing an application in the Appeal Court, CTC claimed that the action was out of time, there is no proper ground to file such an action, the nature of the action was not clear and vague and failed to have herself substituted in a pervious action filed by the deceased’s husband against the Company.
Delivering the judgment in the appeal, Justice Eric Basnayake and L. K. Wimalachandra held that the action filed by the deceased’s wife could be maintained. The bench noted “the cause of action which accrues to the wife and children of a person killed by the negligent act of a defendant is distinct and separate from the cause of action which gave to the person, before his death a right to sue for damages for the same wrong”. If the deceased had a cause of action at the date of his death, then the dependants may bring an action within the prescribed time from the date of the death.
The court held that Mr. Cecil Perera died pending the action and there was a valid cause of action at the time of his death. However, the case filed by him is different from the case filed by his wife. So failure to have herself substituted in the husban’s case has no bearing in this ease.
However, the Court held that matters like whether the defendant (CTC) committed the marketing of cigarettes without proper warning have to be proved by evidence. The cause of action in this case is the death of the plaintiff’s husband of cancer caused by smoking cigarettes manufactured by the defendant. The court also held the CTC had not followed the correct procedure under the Civil Procedure Code in objecting to the plaint on non-disclosure of a proper cause of action.
Mr. Canishks C. Witharana with Ms. Medha N. Gamage appeared for Mrs. Lalitha Fernando.
-Dailymirror
In this case, CTC had filed an appeal seeking an order to dismiss the civil suit filed by Mrs. Lalitha Padmini Fernando in the District Court of Colombo claiming Rs. 5 million as damages for the untimely death of her husband.
Mrs. Padmini, the widow of the deceased Cecil Perera (a tailor by profession) who was addicted to smoking cigarettes manufactured by the defendant Company had complained that due to heavy smoking her husband contracted cancer and died. The cigarettes consumed by the deceased contained nicotine which ultimately caused cancer, Mrs. Padmini stated and added that the Tobacco Company was aware of the harmful effects caused to smokers like her husband but refrained from revealing such after effects and her claim includes for loss of support by her husband. Earlier Padmini’s husband too had filed an action against CTC.
The Company filing answer to dismiss Mrs. Padmini’s action stated that the plaintiff and her husband were aware or deemed to have been aware that cigarettes contained nicotine. CTC further stated that the dangers of smoking have been widely known by the general public for many years and as such the plaintiff and her husband should have known that smoking could be harmful to health. The Company pleaded that in conformity with the government regulations, a warning is carried on the packets of cigarettes that smoking would be harmful to health. CTC further stated that Padmini’s husband smoked cigarettes, it was done on his own volition and knowing fully well the risks associated with smoking.
Filing an application in the Appeal Court, CTC claimed that the action was out of time, there is no proper ground to file such an action, the nature of the action was not clear and vague and failed to have herself substituted in a pervious action filed by the deceased’s husband against the Company.
Delivering the judgment in the appeal, Justice Eric Basnayake and L. K. Wimalachandra held that the action filed by the deceased’s wife could be maintained. The bench noted “the cause of action which accrues to the wife and children of a person killed by the negligent act of a defendant is distinct and separate from the cause of action which gave to the person, before his death a right to sue for damages for the same wrong”. If the deceased had a cause of action at the date of his death, then the dependants may bring an action within the prescribed time from the date of the death.
The court held that Mr. Cecil Perera died pending the action and there was a valid cause of action at the time of his death. However, the case filed by him is different from the case filed by his wife. So failure to have herself substituted in the husban’s case has no bearing in this ease.
However, the Court held that matters like whether the defendant (CTC) committed the marketing of cigarettes without proper warning have to be proved by evidence. The cause of action in this case is the death of the plaintiff’s husband of cancer caused by smoking cigarettes manufactured by the defendant. The court also held the CTC had not followed the correct procedure under the Civil Procedure Code in objecting to the plaint on non-disclosure of a proper cause of action.
Mr. Canishks C. Witharana with Ms. Medha N. Gamage appeared for Mrs. Lalitha Fernando.
-Dailymirror
