01 June 2005

Court in UK Rejects Tobacco Claim in Landmark Case

The Scottish Court of Session has rejected a claim against a tobacco company for damages arising from smoking in the first such case to be fully heard by a court in the United Kingdom, the Guardian reports. In the case of McTear v. Imperial Tobacco, Lord Nimmo Smith held "Mr McTear was aware, in common with the general public, well before 1971 [the year health warnings were introduced, JB] of the publicity about the health risks associated with smoking. "By the time he is shown ... to have started smoking [the defendant's, JB] brand of cigarettes, he was already aware of the publicity about the health risks. As with many other aspects of his life, he chose to ignore it." Now that sounds a bit harsh, doesn't it? Here are a few extracts from the rather long judgment (available in full here).

On the issue of general causation (whether smoking can cause cancer):

[6.171]… “approaching the evidence with an open mind, as I am bound to do, and applying the law relating to expert evidence, I am unable to find it proved that cigarette smoking can cause lung cancer.

On the issue of individual causation (whether Mr. McTear's cancer was caused by smoking the defendant's cigarettes):

[6.184] The problem ultimately is that, as was demonstrated by the evidence, in the state of modern science there is no way of telling whether in an individual case, such as that of Mr McTear, a lung cancer was caused by cigarette smoking. Still less is there any way of telling whether a smoker who has contracted lung cancer has in fact contracted it as a result of some cause other than smoking, or would not in any event have gone on to contract lung cancer even if he had not been a smoker. This last point is necessarily so, when there are risk factors other than smoking which have been identified as being associated with lung cancer, and when on any view of the matter about 10% of cases of lung cancer are found in non-smokers. The fallacy of applying statistical probability to individual causation has already been recognised judicially, in the passage from the opinion of Lord Mackay of Clashfern in Hotson v East Berkshire Area Health Authority quoted at para.[6.28].

On the issue of negligence (the defendant's alleged failure to take reasonable care):

[7.179] At the centre of my thinking is the individualist philosophy of the common law, described by Lord Hoffmann in Tomlinson v Congleton Borough Council, in the passage quoted at para.[7.46]. As he said, people of full age and sound understanding must look after themselves and take responsibility for their actions. There is no duty to save people from themselves. If they are, or may reasonably be supposed to be, in possession of information about harm which they may suffer if they choose to follow a particular course of action, the responsibility is theirs alone.

I'll be looking out for comparative analyses of this decision and earlier American judgments. Oh, and BTW: Imperial Tobacco's shares rose 2% after the judgment.

For more information on Scottish law and the Scottish legal system, have a look here

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