When, in the early 1950s, the tobacco industry knew that its products
caused cancer, and, by the early 1960s, that the nicotine they contained
was addictive, they had an important choice to make. On the one hand, they
could come clean, tell the world what they knew about their products, and,
in an orderly way, take them off the market. Or, they could deny deny
deny, mass market to sell as many as possible, devote untold resources to
figuring out how best to capitalise on the extraordinary addictiveness of
nicotine by turning cigarettes into sophisticated drug delivery devices,
and do everything they could to make as much money as possible from a
product that would kill about half of its long-term users. History records
which option they took. And it records the result of that choice. In
Australia alone, over 700,000 people have died since 1950 as a result of
tobacco-related disease; currently about 19,000 a year.
This could only ever have been a holding strategy, however. It could
never last forever. In the US, that holding strategy has fallen like a
house of cards over the last five years, as jury after jury has been shown
previously secret tobacco industry documents that tell a story of
corporate fraud of extraordinary proportions, and these juries have
punished the industry in record amounts. In Australia, the holding
strategy will stay in place just a little bit longer after the Victorian
Court of Appeal overturned a decision of Justice Geoffrey Eames striking
out the defence of British American Tobacco in a case brought against it
by Rolah McCabe, who died of lung cancer in October this year. Justice
Eames had struck out BAT's defence largely on the basis that it had
deliberately destroyed thousands of documents so as to prevent them being
used against the company in cases like that brought by Mrs McCabe.
BAT did not deny wholesale destruction of documents, though it denied
any illegitimate purpose. After a 16 day hearing, Justice Eames had no
doubt what the true purpose was - to keep damaging documents out of Court.
The Court of Appeal disagreed. It found BAT's policy to be legitimate. To
destroy documents to avoid the inconvenience and cost of having to give
discovery of them in litigation was, to the Court, quite different from
destroying them to prevent them being used against the company in Court.
So, said the Court, it was hardly surprising that not only were documents
destroyed, but so, too, were electronic copies, and all records of what
had been destroyed. In respect of a CD ROM, on which some 30,000 documents
were imaged, said the Court, "it was surely not surprising that [BAT]
was at pains to destroy also the computer imaging of the documents being
It is scandalous, if no longer remarkable, that lawyers and their
corporate clients routinely use careful and clever language, and draw
sophistic intellectual distinctions, that mask the reality and
consequences of what they are doing. What is much more frightening,
however, is when Courts of Appeal stand up to cheer them for doing so. The
fact that BAT had succeeded in obliterating the historical record that
would have shown Australian courts what US juries have seen was
irrelevant. What was more important was their "reasons" for
destroying the documents - such as the burden of having to keep them, and
then to have to produce them when the expected litigation materialises.
Just how much has always been at stake for companies like BAT, and how
much incentive they have had to destroy damaging documents, was well
summed up by Ernest Pepples, a lawyer for BAT's US affiliate, Brown &
Williamson, in the early 1980s: "If we admit that smoking is harmful
to heavy smokers, do we not admit that BAT has killed a lot of people each
year for a very long time? Moreover, if the evidence we have today is not
significantly different from the evidence we had five years ago, might it
not be argued that we have been 'wilfully' killing our customers for this
long period? Aside from the catastrophic civil damage and governmental
regulation which would flow from such an admission, I foresee serious
criminal liability problems." Indeed.
The Court of Appeal's decision will undoubtedly be appealed to the High
Court. This country's highest court will have to examine issues that go to
the very heart of our legal and justice system. If the Court of Appeal's
decision stands, the only winners will be big corporations with much to
hide, their $500-an-hour lawyers who give clever advice with no regard
whatsoever for its real-life consequences, and businesses that make
industrial-size shredders, the most efficient machines known to man for
obliterating from the historical record that which a corporation never
wants the world to see.
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