I have very embarrassingly been invited to a symposium on the causes of lung cancer in smokers and whether the correlation is causal or whether it is confounded. Lots of midnight oil burning for me with copious notes. For the record I believe there is sound evidence that it does.
It is one of the strange ironies that we in the pro choice movement do not use this as ammunition against the anti smokers. It concerns:
“Alfred McTear died, aged 48, on 23 March 1993. He and his wife, Mrs Margaret McTear…He was the original pursuer in this action. After his death his wife, as his executrix-dative, was sisted as the pursuer in his room and place. For convenience I shall refer to them respectively as Mr McTear and Mrs McTear.
[1.3] The defenders are Imperial Tobacco Limited, whom I shall refer to as ITL. They manufacture, market and sell tobacco products in the United Kingdom, particularly cigarettes, including the John Player brand. They supply cigarettes to retail outlets throughout Scotland for onward sale to the public, and have done so for many years.
[1.4] Mr McTear died of lung cancer. In this action Mrs McTear claims that this was caused, at least to a material extent, by his smoking, from 1964 to 1992 cigarettes manufactured by ITL, and that throughout the period during which he smoked them ITL were negligent in selling cigarettes, or in any event in selling them without appropriate warnings, and she seeks an award of damages accordingly.” Apparently he also rolled Old Holborn too.
It is a tribute to the presiding Judge Nimmo Smith that the anti smokers were forced to meet ITL on an equal footing and the evidence goes into incredible scientific detail with 38 references to the p53 gene and an astonishing 75 reference to benzo(a)pyrene for example. This was not one of ASH’s cut and shut, stitch ups with Stephen Williams MP, Anne Milton, and the Department of Health.
The first thing I read in the conclusions was on advertising, Judge Smith said:
“9.3] Mr McTear started smoking no earlier than 1964. I am satisfied that advertising had nothing to do with his reasons for starting to smoke. He started smoking because it was socially acceptable and most young people started smoking as part of becoming adults (para.[4.226]). I am prepared to accept that Mr McTear found it difficult to wean himself off his habit once he had started smoking and in that sense could be described as addicted. I do not accept that he was for this reason unable to stop smoking (paras.[4.229] and [6.202] to [6.208]). The averment that tobacco is more addictive than cocaine is not proved.
[9.4] I am satisfied that at all material times, and in particular by 1964, the general public in the United Kingdom, including smokers and potential smokers, were well aware of the health risks associated with smoking, and in particular of the view that smoking could cause lung cancer (para.[3.1] and Part III generally). I am also satisfied that Mr McTear was aware, in common with the general public, well before 1971 of the publicity about the health risks associated with smoking, and in particular the risk of lung cancer. 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 (para.[4.230]).
[9.5] The pursuer can succeed in this case only if she proves all of the following (paras.[1.5] and [6.29]):
(1) That cigarette smoking can cause lung cancer, in the sense that both in the general population and in any individual case it can be said that but for the smoking of cigarettes lung cancer would probably not have been contracted (general causation).
(2) That cigarette smoking caused Mr McTear’s lung cancer, in the sense that but for his having smoked cigarettes he would probably not have contracted lung cancer (individual causation).
(3) That Mr McTear smoked cigarettes manufactured by ITL for long enough and in sufficient quantity for his smoking of their products to have caused or materially contributed to the development of his lung cancer.
(4) That Mr McTear smoked cigarettes manufactured by ITL because ITL were in breach of a duty of care owed by them to him.
(5) That such breach caused or materially contributed to Mr 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 his contracting lung cancer (fault causation).
[9.6] There is no direct evidence that ITL, as a company, have ever accepted that there was a causal connection between smoking and disease, and the evidence before me does not satisfy me that this is the inference which should be drawn (para.[2.76]). The fact that they have never sought to challenge the public health message, that cigarette smoking does cause lung cancer, does not in my opinion constitute such an admission (para.[2.78]). Accordingly, in my opinion, ITL are entitled to put the pursuer to proof of her averment that cigarette smoking can cause lung cancer (para.[2.80]).
[9.7] I must base my decisions about questions of fact on the evidence, and that alone (para.[1.8]). It is not open to me to take account of any passage in any document, the terms of which were not agreed, and to which reference was not made in the course of the evidence of any witness (para.[1.37]). It is not within judicial knowledge that cigarette smoking can cause lung cancer: this is an issue which I am duty-bound to approach with an open mind and to decide on the basis of the evidence led before me; and the burden of proving it is on the pursuer (para.[1.12]).
[9.8] The law relating to expert witnesses is as discussed at para.[5.17]. Above all, the purpose of leading the evidence of any expert witness should have been to impart to me special knowledge of the subject-matter, including published material, lying within the witness’s field of expertise, so as to enable me to form my own judgment about that subject-matter and the conclusions to be drawn from it.
[9.9] 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 (paras.[6.149] to [6.171]).
[9.10] 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 (paras.[6.172] to [6.185]).
[9.11] In any event there was no lack of reasonable care on the part of ITL at any point at which Mr McTear consumed their products, and the pursuer’s negligence case fails. There is no breach of a duty of care on the part of a manufacturer, if a consumer of the manufacturer’s product is harmed by the product, but the consumer knew of the product’s potential for causing harm prior to consumption of it. The individual is well enough served if he is given such information as a normally intelligent person would include in his assessment of how he wishes to conduct his life, thus putting him in the position of making an informed choice (paras.[7.167] to [7.181]).
[9.12] In any event, there is no basis upon which I could hold it established that, if ITL had not manufactured cigarettes at any material time, so that Mr McTear did not smoke their products and accordingly their products could not have made a material contribution to his contracting lung cancer, it would have made any difference. On the contrary, all the evidence is that Mr McTear would have started smoking when he did, and would have continued to smoke, for the same length of time and in the same quantities, as he in fact did. Fault causation would therefore not in any event be established (paras.[7.182] to [7.183]).
[9.13] On my interpretation of the law relating to the maxim volenti non fit iniuria, and in the circumstances of this case, I would not have been disposed to sustain the fourth plea-in-law for ITL, if the pursuer had otherwise succeeded on the foregoing issues (paras.[7.204] to [7.208]).
[9.14] The damages which I would have awarded, had the pursuer succeeded, would have been £25,000 for her claim for compensation under section 1(4) of the Damages (Scotland) Act 1976 (as amended), £45,000 for her claim under section 2(1) of the Act as Mr McTear’s executrix for solatium for the pain, suffering and loss of the amenities of life experienced by him, and £8,000 for her claim under section 8(1) of the Act for services rendered by her to him during his final illness (paras.[8.20] to [8.22]). With interest to 31 May 2005 the total award of damages would have been £138,823.32 (para.[8.23]).
[9.15] In my opinion therefore, for all the foregoing reasons, the pursuer’s case fails on every issue on which I would have needed to find in her favour were I to hold the defenders liable to her in damages. I accordingly sustain the second and third pleas-in-law for the defenders and assoilzie them from the conclusions of the summons.”
Game set and match to Imperial Tobacco.