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09 November 2005
On May 31 2005 Imperial Tobacco won a resounding victory in a long-running dispute relating to the smoking of cigarettes. The husband of the unsuccessful claimant smoked cigarettes manufactured by the company over a period of nearly 40 years and died of lung cancer.
The judgment of the Scottish Court of Session is several hundred pages long. It analyzes the legal issues that arise in a direct smoking claim, including causation, addiction and public awareness. It also covers the scientific, commercial and social context of the sale of cigarettes in the United Kingdom over the last 50 years. The decision came as a surprise in many quarters, as it challenges many propositions which have come to be taken for granted in US litigation and by the general public in the United Kingdom, including the assumptions that smoking is a cause of lung cancer and that it is addictive.
The claim was first intimated in July 1992. Following an application for legal aid by the claimant, Mrs McTear, the proceedings commenced on January 28 1993. In consideration of Mr McTear's poor health, his evidence was recorded at his home in March 1993. After McTear's death later that year, his widow applied for legal aid to enable her to continue the action, but the application was refused. Thereafter, the case was pursued under a 'no win, no fee' arrangement. A number of procedural points arose for determination in the years which followed; it was not until 2003 that the trial judge was appointed.
The claimant's case was based on the assertions that:
In response, Imperial Tobacco:
The judge was scathing in his criticism of both Mr and Mrs McTear's evidence. He described McTear as "a thoroughly dishonest man" and his widow as "an unreliable and, in some respects, incredible witness". In 1993 McTear stated that, having started to smoke in September 1964, he had unsuccessfully attempted on many occasions to give up smoking. The judge was satisfied that advertising had been unrelated to McTear's reasons for starting to smoke. He considered that McTear had done so because it was socially acceptable and a "rite of passage" to the adult world.
Extensive evidence - in the form of newspaper reports from the late 1950s - was recited in the judgment to demonstrate the publicity given to smoking and related health issues. The evidence of both McTear and his widow was that McTear had smoked John Player cigarettes for many years.
However, the judge accepted the defendant's evidence which showed that the John Player brand was not introduced to the market until April 1971. Therefore, he was not prepared to find that McTear had smoked Imperial's products before 1971. Although the judge found that McTear had smoked John Player brand cigarettes from 1971, he did not accept that McTear had smoked Imperial's cigarettes exclusively from that time.
The judge rejected the view that McTear should be perceived as a victim because he came from a low socio-economic group. He emphasized that adults without legal incapacity are equal in the eyes of the law in respect of their rights, duties, freedoms and responsibilities.
In a comment that reflects a prevailing view within the judiciary, the judge declared that:
The judge divided the causation issue into three propositions, which he identified as:
The judge held that, in order to succeed in her claim, the claimant would have to establish on the balance of probabilities that: (i) McTear would probably not have contracted lung cancer had he not smoked cigarettes; and (ii) negligence on the part of Imperial caused or materially contributed to McTear's lung cancer, either by making at least a material contribution to the exposure which caused his lung cancer or by materially increasing the risk of contracting lung cancer.
The judge rejected the submission that the defendant had previously admitted the general causation argument. He held that, in order for such an admission to be effective, a resolution of the board of directors of Imperial would have been required; no such evidence was presented.
The judge found that the results of animal experiments conducted in the 1950s and 1960s failed to support the general causation hypothesis. Although this was not a crucial point in itself, it was nevertheless significant, as proof of a causal connection between cigarette smoking and lung cancer would depend solely on the conclusions from epidemiological studies. The judge stated that, on one view of the scientific approach, these studies "could be regarded as yielding no more than untested hypotheses".
It followed that the claim would stand or fall on the basis of what could be proved by the epidemiological studies. After hearing evidence on general causation, the judge was unable to decide whether cigarette smoking causes lung cancer. He was critical of the evidence given in this regard by the claimant's expert and concluded that there was no case for Imperial to answer.
The failure of the general causation argument effectively signalled the end of the claim. However, the judge went on to consider the individual causation question. He held that epidemiological data could not be used to reach a conclusion concerning individual causation, and that the information provided in observational epidemiology was generally such that it neither confirmed nor refuted a causal relationship. In addition, the judge found that no witness gave reliable evidence that, but for McTear's smoking, he would not have developed lung cancer.
The judge concluded that there was no way to establish scientifically whether a particular case of lung cancer was caused by smoking. It had not been proved that the lung cancer was probably caused by McTear's smoking. Therefore, the case on individual causation failed.
Having held that the claimant had failed to prove a case both on general causation and individual causation - and that the claim was therefore bound to fail - the judge also considered the allegations of negligence. The claimant alleged that, from 1950 onwards, it had been appreciated that there was a serious health risk associated with smoking. The claim in negligence was based on the assertion that, once this was known, the only reasonable step which reasonable manufacturers could have taken was to cease the manufacture of tobacco products. Had this been done, it was argued, McTear would not have been able to buy cigarettes to smoke.
Imperial submitted that the common law recognizes an individual's freedom to choose whether to accept a risk. If a course of action is undertaken in full awareness of the risk, the individual must take responsibility for the consequences.
As the acceptance of a risk removed the duty of care owed in relation to that particular course of action, it followed that, by the time McTear was or ought to have been aware of the risk, Imperial could not have been in breach of a specific duty of care towards him in that connection. Therefore, Imperial could not be held liable if it could reasonably have assumed that, by the date upon which McTear started smoking, the ordinary consumer would have been aware of the link between smoking and lung cancer.The judge found that only the impossibility of buying tobacco would have reduced or eliminated McTear's consumption of tobacco products. The claimant had not pursued a case that all other UK tobacco manufacturers should also have ceased manufacture. Even if the manufacturers had chosen to do so, tobacco products might still have been imported from overseas, which could not have been prevented without government intervention. The judge concluded that Imperial's action or inaction would have made no difference to McTear's use of tobacco products and, by implication, to the contraction of lung cancer. The judge found no support in the authorities for the proposition that, assuming that cigarette smoking could cause cancer, and that tobacco could therefore be described as a dangerous product, Imperial was under a duty to cease manufacture as soon as it became aware of this. The judge held that:
The judge also considered the question of addiction. The defendant submitted that the evidence presented in the claimant's case proved that, although cigarette smoking might considered a habit-forming activity, it was incorrect to describe it as an addiction. Imperial claimed that the evidence established merely that some people found it difficult to stop smoking, and that a smoker could stop smoking if he or she chose to do so. The judge indicated that he did not agree with the claimant's "mechanistic view" that smokers smoked as a consequence of their nicotine addiction rather than out of choice. He appeared to be influenced by evidence concerning the number of individuals who had managed to quit smoking without resorting to special aids or support.
This decision represents a comprehensive victory for Imperial. Some may consider aspects of the judgment surprising: the opinion that evidence on causation issues is inconclusive is virtually unchallenged in the medical press and elsewhere. If the case had gone against the claimant on certain marginal points, an appeal might be likely. However, the judge's comprehensive rejection means that such an appeal would be ambitious; the odds on further cases being brought against tobacco manufacturers in the United Kingdom must have lengthened considerably.
For further information on this topic please contact David Graves at Lovells by telephone (+44 20 7296 2000) or by fax (+44 20 7296 2001) or by email (email@example.com).
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