Gallege Punyawardana,Head, Swarna Hansa Foundation.

K. S. Perera, started smoking when he was a teenager. Later he was diagnosed with cancer caused by smoking in 1996 and died on 13th April 2001. During his life time he filed a case against the Ceylon Tobacco Company –CTC- claiming damages for manufacturing and marketing a defective product, cigarette, but he died pending that case.

Thereafter his wife filed the present case on 11.04.2003 in the District Court of Colombo claiming Rs.5 Million as damages from the CTC – a subsidiary of BAT- for causing the death of her husband by making available to the public –including her husband- a defective product containing addictive and harmful substances which were not fit for human consumption. The basis of the claim was deprivation of care, protection and maintenance she received from her husband.

When the case was taken up the CTC raised preliminary objections that, i. the Plaintiff’s case was prescribed on the face of the plaint, ii. The Plaint did not disclose a cause and action and did not conform to the imperative provisions of the civil procedure code and iii. The plaintiff cannot maintain this action for the Reason of dismissal of her earlier application to intervene in her husband’s case upon his death.

The District Court overruled such objections, and CTC again appealed against that order to the Court of Appeal. The Court of Appeal too affirmed that order, and again the CTC appealed to the Supreme Court. This process took about 12 years and finally the Supreme Court delivered its Judgement on 14.06.2018.

The salient feature of this Judgement is that the Apex Court in Sri Lanka very straightforwardly decided that CTC was responsible for delaying the case for more than 12 years and thereby caused hardships to the Plaintiff. Their Lordships of the Supreme Court –comprising of the Chief Justice and another two- very categorically stated in the Judgment that;

Accordingly, this appeal is dismissed. The Orders of the District Court and the Court of Appeal are affirmed. As set out above, this appeal, which is on preliminary issues, has no merit. However, by its applications to the Court of Appeal and to this Court, the defendant company has succeeded in delaying the trial by more than 12 years and would have caused the plaintiff to incur expenses which are likely to have imposed a difficult burden on her the plaintiff would have also been put to considerable inconvenience. In another case, these obstacles may even have led to the plaintiff, whose resources are likely to be limited, caving in and giving up the action. In these circumstances, the defendant company shall pay the plaintiff a sum of Rs. 400,000/- as costs, within one month of today. The District Court should hear and determine the trial, on its merits based on the evidence and the law, as soon as possible.”

The Court has admitted that CTC purposely –successfully- delayed the process and placed the Plaintiff at a disadvantageous position. Though, this was the usual conduct of CTC, such conduct has now been criticized by the Apex Court of Law of Sri Lanka, which finally imposed a heavy cost of Rs. 400,000/ on CTC. This presupposes that tobacco industry interference in tobacco control is no longer tolerated.

Now the court cleared that a smoker whose health was damaged by smoking or a person –wife or a child – depending on the deceased for care, protection or maintenance –including services-can file action claiming damages from CTC.

The court also recognized the right of a widower –or a child- to institute legal action against CTC in similar situations, within 2 years from the death –not from the date of diagnosing cancer.

Another significant aspect of the judgement is that it has opened a new dimension in Tobacco Control.

Refer to your letter dated 08th June 2018.

I strongly oppose to your perceptions of historical facts stated in your letter as they are mere distortions and fabrications.

Therefore I, without any hesitation, hereby state my willingness to prove the contrary to your purported and hypothetical perceptions with real and existing evidence.

Please let me know your arrangements to proceed to the next stage in this regard.

Gallege Punyawardana,

Head, Swarna Hansa Foundation.