[Intl-tobacco] Australia: Tobacco giant sidesteps claim it destroyed damaging records

[robert weissman]

http://www.smh.com.au/news/national/tobacco-giant-sidesteps-claim-it-destro=
yed-damaging-records/2006/07/05/1151779015440.html
Sydney Morning Herald

Tobacco giant sidesteps claim it destroyed damaging records
Elisabeth Sexton
July 6, 2006

A SYDNEY court case that was shaping up as a landmark claim against a
tobacco company for cancer compensation has been settled out of court
before trial.

The case involved allegations that British American Tobacco had
intentionally destroyed damaging documents - a claim that prompted a
court order in May for the company to hand over sensitive records.

In a joint statement yesterday, BAT and the insurance company Allianz
Australia said they had resolved the claim on terms satisfactory to both
sides.

"These terms do not include any payment to or by either party," the
statement said.

The case had been brought in the name of Allan Mowbray, an employee of
the industrial services company Brambles Industries, who died of lung
cancer in 2002.

Allianz, as the firm's insurer, paid $200,000 in compensation because in
his work as a mechanic Mr Mowbray had been exposed to asbestos fibres
contained in brake linings.

Brambles brought a cross-claim against BAT, saying it should pay some of
the compensation because Mr Mowbray had been a longstanding smoker.

The case, brought in the Dust Diseases Tribunal, where Mr Mowbray
initially lodged his asbestos claim, attracted attention in May when
Brambles amended its cross-claim to include allegations that BAT had
intentionally destroyed damaging documents and hidden others by handing
them to its lawyers under cover of spurious requests for legal advice.

Brambles also claimed BAT had falsely asserted that its so-called
"document retention policies" had an innocent housekeeping explanation,
in order to prevent the courts overturning claims for legal professional
privilege or assuming the worst about the contents of destroyed documents.

On May 30, Judge Jim Curtis ordered BAT to hand over material including
detailed lists of what had happened to tens of thousands of documents
formerly held by companies within the BAT group, and by the Tobacco
Institute of Australia.

At the time, a spokesman for Allianz, Nicholas Schofield, said Judge
Curtis's ruling "could result in previously undisclosed documents,
including privileged and 'warehoused' documents, being made public,
which could be used by other =85 litigants".

The judge noted that Brambles' allegations about document destruction
and intentional attempts to thwart claimants had been the subject of
evidence given in the late Rolah McCabe's case against BAT in the
Victorian Supreme Court, which failed on appeal.