Widow loses smoking test case
31 May 05
Landmark McTear judgment holds no fault by tobacco company, or proof of causation
The widow who fought the cigarette giant Imperial Tobacco for over a decade after her husband, a heavy smoker, died of lung cancer, has lost her battle for compensation.
In one of the longest-running cases to be heard before the Scottish courts, Margaret McTear, from Beith, Ayrshire, took over the action begun by her late husband Alfred before his death, aged 48, in 1993.
Claiming damages of £500,000, Mrs McTear alleged that her husband began smoking in 1964, before health warnings appeared on cigarette packets. He blamed glamorous advertising for the start of his habit, which increased to 60 a day before his diagnosis of cancer.
But Lord Nimmo Smith, who heard 30 days of evidence, 12 days of legal submissions and had to consider 85,000 pages of documents, rejected the claim. In his opinion, which runs to over 350,000 words, he said: "I am satisfied that advertising had nothing to do with [Mr McTear's] reasons for starting to smoke.
"He started to smoke because it was socially acceptable and most young people started smoking as part of becoming adults."
Lord Nimmo Smith was also satisfied on the evidence that by 1964 the general public in the UK were "well aware of the health risks associated with smoking", and that Mr McTear was aware, in common with the general public, well before 1971 (when health warnings began to appear on packets) of the publicity about the health risks associated with smoking, and in particular the risk of lung cancer.
At the same time, he said, Imperial Tobacco could not be taken to have accepted that smoking did cause lung cancer, and this was something that Mrs McTear had to prove. This she had failed to do on the evidence.
"The pursuer relies on epidemiology to prove general causation. I have not been sufficiently instructed by the expert evidence relating to this discipline to be able to form my own judgment as to whether or not this averment is proved. Special knowledge of this subject-matter was not imparted to me, so as to enable me to form my own judgment about it. The pursuer has accordingly failed to prove this averment.
"In any event, the pursuer has failed to prove individual causation. Epidemiology cannot be used to establish causation in any individual case, and the use of statistics applicable to the general population to determine the likelihood of causation in an individual is fallacious. Given that there are possible causes of lung cancer other than cigarette smoking, and given that lung cancer can occur in a non-smoker, it is not possible to determine in any individual case whether but for an individual's cigarette smoking he probably would not have contracted lung cancer."
The judge further held that Mrs McTear had failed to prove that her husband had smoked the defenders' products before 1971, or to what proportion of his total smoking after that date, as he frequently smoked roll-ups. "Therefore by the time he is shown by acceptable evidence to have started smoking the John Player 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".
The judge said he accepted that Mr McTear found it difficult to give up smoking but he did not agree it could be argued that smoking was more addictive than cocaine.
In the result, he said, Mrs McTear had failed to prove any lack of reasonable care or breach of duty by Imperial Tobacco towards her husband. In any event, all the evidence was that if the defenders' products had not existed, Mr McTear would still have taken up smoking in the same quantities. For all these reasons the action failed.
The judgment can be read at http://www.scotcourts.gov.uk/opinions/2005CSOH69.html .