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McTear v. Imperial Tobacco Ltd [2005] ScotCS CSOH_69(3) (31 May 2005)
PART VI: CIGARETTE SMOKING, LUNG CANCER AND ADDICTION
[6.1] Before I discuss the conclusions to be drawn from the foregoing expert evidence, I propose at this stage to discuss counsel's submissions about the concept of causation. This is relevant to three averments for the pursuer: (1) that cigarette smoking can cause lung cancer; (2) that Mr McTear's lung cancer was caused by his smoking; and (3) that his lung cancer was caused by the fault and negligence of ITL. Adopting Mr Jones's terminology, I refer to these as general causation, individual causation and fault causation respectively. The burden of proving each of these is on the pursuer. The standard of proof is the balance of probabilities, not the higher standard that would be required for acceptance by scientists as proof (see for example Dingley v The Chief Constable, Strathclyde Police 2000 S.C. (H.L.) 77 per Lord Hope of Craighead at pp.89H to 90E). The following cases were referred to by counsel.
[6.2] (1) In Wardlaw v Bonnington Castings Ltd 1956 S.C. (H.L.) 26 a workman claimed damages from his employers on the ground that he had contracted pneumoconiosis through their negligence and breach of statutory duty. His duties as a steel dresser required him to work with his face in close proximity to a pneumatic hammer whose impact on the castings released particles of dangerous silica dust. Other appliances, although fitted with dust extraction plant, also caused a certain amount of the dangerous dust to permeate the air of the dressing shop. The workman averred that the employers had been negligent in failing to provide him with a respirator, and he further averred that they had been negligent and in breach of their statutory duty in regard to the maintenance of the dust extraction plant and the ventilation of the dressing shop. The workman ultimately admitted that the employers had not been negligent in failing to provide him with a respirator, and the employers ultimately admitted that they had been in breach of regulation 1 of the Grinding of Metals (Miscellaneous Industries) Regulations 1925, in relation to maintenance of some of the dust extraction plant; so that the question for decision came to be whether this breach had been a contributory cause of the pneumoconiosis.
[6.3] The House of Lords held inter alia that where there was a proved breach of a safety regulation and an injury which could be the result of that breach, the onus of proof did not, in the absence of express statutory provision, shift to an employer to prove that the injury was not caused by the breach; that in the present case there was no onus on the employers to show that their breach of statutory duty had not caused the workman's disease, but that the onus was on the workman to show affirmatively, by the ordinary standard of proof in civil actions, that on a balance of probabilities the breach of statutory duty had caused or materially contributed to his injury; and that the workman had discharged this onus and consequently the employers were liable in damages. At pp.32-33 Lord Reid said that the position could be shortly stated in this way:
"It may be that, of the noxious dust in the general atmosphere of the shop, more came from the pneumatic hammers than from the swing grinders, but I think it is sufficiently proved that the dust from the grinders made a substantial contribution. [...] It is therefore probable that much the greater proportion of the noxious dust which he inhaled over the whole period came from the hammers. But on the other hand some certainly came from the swing grinders, and I cannot avoid the conclusion that the proportion which came from the swing grinders was not negligible. [...] In my opinion, it is proved not only that the swing grinders may well have contributed but that they did in fact contribute a quota of silica dust which was not negligible to the pursuer's lungs and therefore did help to produce the disease. That is sufficient to establish liability against the appellants [...]."
[6.4] (2) In McGhee v National Coal Board 1973 SC (HL) 37 a labourer whose normal work was in pipe kilns at a brickworks was sent to work temporarily in brick kilns there. Working conditions were hotter and dustier in the brick kilns than in the pipe kilns. After he experienced irritation of the skin he was diagnosed as suffering from dermatitis. He sued his employers for damages on the ground, inter alia, that they were at fault in not providing adequate washing facilities to enable their employees to remove dust from their bodies after work. After a proof before answer the Lord Ordinary held that his employers were at fault in this respect. According to medical evidence the use of a shower bath immediately after work would have materially reduced the risk of the contraction of dermatitis. The Lord Ordinary, whose interlocutor was affirmed by the First Division, held that the pursuer had failed to establish a causal connection between his injury and the defenders' breach of duty towards him. The House of Lords held, reversing the judgment of the First Division, that as the defenders' fault had materially increased the risk of the pursuer's contraction of the industrial disease they were liable in damages to him.
[6.5] At pp.53-54 Lord Reid said:
"It has always been the law that a pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury. That is well illustrated by the decision of this House in Wardlaw v Bonnington Castings. [...] In the present case the evidence does not shew - perhaps no one knows - just how dermatitis of this type begins."
[6.6] Lord Reid referred to the evidence about the ways in which dermatitis of this type might begin, one of which was that an accumulation of minor abrasions of the horny layer of the skin was a necessary precondition for the onset of the disease. He said that he was inclined to think that the evidence pointed to this view. But in a field where so little appeared to be known with certainty he could not say that it was proved. If it were, then the case would be indistinguishable from Wardlaw's case. He said that he could not accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease would occur and making a material contribution to its occurrence. He concluded:
"There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man's mind works in the every-day affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury."
[6.7] (3) In Hotson v East Berkshire Area Health Authority [1987] AC 750 the plaintiff, then aged 13, fell some twelve feet while climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. He was taken to hospital, but his injury was not correctly diagnosed or treated for five days. In the event, he suffered avascular necrosis of the epiphysis, involving disability of the hip joint with the virtual certainty that osteoarthritis would later develop. He brought an action for damages against, inter alios, the defendant health authority, who admitted negligence in failing to diagnose and treat his injury promptly. Simon Brown J found that even if the health authority had diagnosed the injury correctly and treated the plaintiff promptly there had been a high probability, which he assessed as a 75 per cent risk, that avascular necrosis would still have developed. He held that the plaintiff was entitled to damages for the loss of the 25 per cent chance that he would have made a nearly full recovery and awarded him £11,500. The Court of Appeal dismissed an appeal by the health authority.
[6.8] On a further appeal to the House of Lords, it was held, allowing the appeal, that it had been for the plaintiff to establish on a balance of probabilities that the delay in treatment had at least materially contributed to the development of the avascular necrosis and for the judge to resolve on a balance of probabilities the conflict of medical evidence as to what had caused the avascular necrosis; that the judge's findings of fact were unmistakably to the effect that on a balance of probabilities the plaintiff's fall had left insufficient blood vessels intact to keep the epiphysis alive, which amounted to a finding of fact that the fall had been the sole cause of the avascular necrosis; and that, accordingly, the plaintiff had failed on the issue of causation and no question of quantification had arisen.
[6.9] (4) In Wilsher v Essex Area Health Authority [1988] AC 1074 the plaintiff was born prematurely and was placed in a special care baby unit at a hospital managed by the defendants. If he was to survive, he needed extra oxygen and to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his arterial blood oxygen levels would be accurately read on an electronic monitor. A junior doctor mistakenly inserted the catheter into the umbilical vein with the result that the monitor would give a lower reading. Neither he nor the senior registrar appreciated that the X-rays taken showed the catheter in the vein but both realised that there was something wrong with the readings on the monitor. The senior registrar inserted another catheter but into the same vein and other means of monitoring the arterial blood oxygen were also adopted. The following day the second catheter was replaced by one in the artery. Thereafter the monitoring of the arterial blood oxygen levels continued and at times during the following weeks there were periods when the levels were considered too high. The plaintiff developed retrolental fibroplasia, a condition of the eyes, which resulted in blindness. The plaintiff claimed damages from the defendant health authority for the negligent medical treatment he had received in their special care baby unit. The judge held that the defendants were liable since they had failed to prove that the plaintiff's condition had not been caused by the negligence of their employees. The Court of Appeal, by a majority, dismissed the defendants' appeal.
[6.10] On a further appeal to the House of Lords, it was held, allowing the appeal, that the onus of proving causation rested on the plaintiff; that where a number of different factors, including the administration of excess oxygen, could have caused retrolental fibroplasia, its occurrence following the defendants' failure to take a necessary precaution to prevent excess oxygen causing the condition provided no evidence and raised no presumption that it was excess oxygen rather than one of the other factors which caused or contributed to the plaintiff's condition, and that, since there was conflicting expert evidence as to whether excess oxygen in the first two days of life caused or materially contributed to the plaintiff's condition, a question on which the judge had failed to make relevant findings of fact and which could not be resolved by an examination of the evidence of transcript, the issue of causation must be retried before a different judge.
[6.11] (5) In Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 employees had developed mesothelioma caused by exposure at work to asbestos dust. All the employees had been exposed to asbestos dust during periods of employment with more than one employer. In the Court of Appeal it was common ground that the mechanism initiating the genetic process which culminated in mesothelioma was unknown, that the trigger might equally probably be a single, a few or many asbestos fibres, that once caused the condition was not aggravated by further exposure but that the greater the quantity of fibres inhaled the greater the risk of developing the disease. The Court of Appeal concluded that, since mesothelioma was an indivisible disease triggered on a single unidentifiable occasion by one or more fibres, it could not be proved on a balance of probabilities, where a claimant had been exposed to asbestos fibres by several potential tortfeasors, which period of exposure had caused the disease. The court accordingly held that the claimant in each case had failed to establish causation against any of the defendants.
[6.12] The House of Lords allowed the claimants' appeals, holding that, where an employee had been exposed by different defendants, during different periods of employment, to inhalation of asbestos dust in breach of each defendant's duty to protect him from the risk of contracting mesothelioma and where that risk had eventuated but, in current medical knowledge, the onset of the disease could not be attributed to any particular or cumulative wrongful exposure, a modified approach to proof of causation was justified; that in such a case proof that each defendant's wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for his liability; and that, accordingly, applying that approach and in the circumstances of each case, the claimant could prove, on a balance of probabilities, the necessary causal connection to establish the defendants' liability.
[6.13] Lord Bingham of Cornhill said at p.40:
"2 The essential question underlying the appeals may be accurately expressed in this way. If (1) C was employed at different times and for differing periods by both A and B, and (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B were in breach of their duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together, is C entitled to recover damages against either A or B or against both A and B? [...] The crucial issue on appeal is whether, in the special circumstances of such a case, principle, authority or policy requires or justifies a modified approach to proof of causation."
[6.14] Lord Bingham said at pp.43 to 44, under the heading "Principle":
"8 In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage.
9 The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. [...]"
[6.15] At p.56 Lord Bingham said:
"22 In Wilsher v Essex Area Health Authority a problem of causation arose in a different context. A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. The baby suffered the condition (abbreviated as RLF) of a kind which that breach of duty could have caused, and the breach of duty increased the risk of his suffering it. But there were a number of other factors which might have caused the injury. In the Court of Appeal [1987] Q.B. 730,771-772 Mustill L.J. concluded a detailed review of McGhee by making this statement of principle:
'If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.'
Omitted from this statement is any reference to condition (5) in the composite question formulated in paragraph 2 at the outset of this opinion. It was on this omission that Sir Nicolas Browne-Wilkinson V-C founded his dissenting opinion, at p.779:
'To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer's dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer's skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust. In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff's RLF may have been caused by some completely different agent or agents, e.g. hypercarbia, intravent[r]icular haemorrhage, apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary proportion to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case. The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.'
On the defendants' appeal to the House, this passage in the Vice-Chancellor's judgment was expressly approved by Lord Bridge of Harwich, who gave the only opinion, with which Lord Fraser of Tullybelton, Lord Lowry, Lord Griffiths and Lord Ackner concurred, and the appeal was allowed: [1988] AC 1074, 1090-1092. It is plain, in my respectful opinion, that the House was right to allow the defendants' appeal in Wilsher, for the reasons which the Vice-Chancellor had given and which the House approved. It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage. The decision of the Court of Appeal did indeed involve an extension of the McGhee principle [...]."
[6.16] Lord Nicholls of Birkenhead said, at pp.69-70:
"37 In the normal way, in order to recover damages for negligence, a plaintiff must prove that but for the defendant's wrongful conduct he would not have sustained the harm or loss in question. He must establish at least this degree of causal connection between his damage and the defendant's conduct before the defendant will be held responsible for the damage.
38 Exceptionally this is not so. In some circumstances a lesser degree of causal connection may suffice. This sometimes occurs where the damage flowed from one or other of two alternative causes. Take the well known example where two hunters, acting independently of each other, fire their guns carelessly in a wood, and a pellet from one of the guns injures an innocent passer-by. No one knows, and the plaintiff is unable to prove, from which gun the pellet came. Should the law of negligence leave the plaintiff remediless, and allow both hunters to go away scot-free, even though one of them must have fired the injurious pellet?
39 Not surprisingly, the courts have declined to reach such an unjust decision: see Summers v Tice (1948) 199 P 2d 1, a decision of the Supreme Court of California, and Cook v Lewis [1951] S.C.R. 830, a decision of the Supreme Court of Canada. As between the plaintiff and the two hunters, the evidential difficulty arising from the impossibility of identifying the gun which fired the crucial pellet should redound upon the negligent hunters, not the blameless plaintiff. The unattractive consequence, that one of the hunters will be held liable for an injury he did not in fact inflict, is outweighed by the even less attractive alternative, that the innocent plaintiff should receive no recompense even though one of the negligent hunters injured him. It is this balance ("... outweighed by...") which justifies a relaxation in the standard of causation required. Insistence on the normal standard of causation would work an injustice. Hunting in a careless manner and thereby creating a risk of injury to others, followed by injury to another person, is regarded by the law as sufficient causal connection in the circumstances to found responsibility.
40 This balancing exercise involves a value judgment. This is not at variance with basic principles in this area of the law. The extent to which the law requires a defendant to assume responsibility for loss following upon his wrongful conduct always involves a value judgment. The law habitually limits the extent of the damage for which a defendant is held responsible, even when the damage passes the threshold "but for" test. The converse is also true. On occasions the threshold "but for" test of causal connection may be over-exclusionary. Where justice so requires, the threshold itself may be lowered. In this way the scope of a defendant's liability may be extended. The circumstances where this is appropriate will be exceptional, because of the adverse consequences which the lowering of the threshold will have for a defendant. He will be held responsible for a loss the plaintiff might have suffered even if the defendant had not been involved at all. To impose liability on a defendant in such circumstances normally runs counter to ordinary perceptions of responsibility. Normally this is unacceptable. But there are circumstances, of which the two hunters' case is an example, where this unattractiveness is outweighed by leaving the plaintiff without a remedy.
[...]
43 I need hardly add that considerable restraint is called for in any relaxation of the threshold "but for" test of causal connection. The principle applied on these appeals is emphatically not intended to lead to such a relaxation whenever a plaintiff has difficulty, perhaps understandable difficulty, in discharging the burden of proof resting on him. Unless closely confined in its application this principle could become a source of injustice to defendants. There must be good reason for departing from the normal threshold "but for" test. The reason must be sufficiently weighty to justify depriving the defendant of the protection this test normally and rightly affords him, and it must be plain and obvious that this is so. Policy questions will loom large when a court has to decide whether the difficulties of proof confronting the plaintiff justify taking this exceptional course. It is impossible to be more specific."
[6.17] At p.77, paragraph 70, Lord Hoffmann said that Wilsher was correctly decided, but the grounds upon which McGhee was distinguished in that case were unsatisfactory. He went on:
"71 An alternative ground of distinction is to be found in a passage in the dissenting judgment of Sir Nicolas Browne-Wilkinson V-C in the Court of Appeal, which was approved by the House. He said that the difference was that in McGhee's case the agent of injury was the same -- brick dust -- and the only question was whether it happened before or after it should have been washed off. In Wilsher, the fibroplasia could have been caused by a number of different agencies.
72 That distinction would leave the present case on the right side of the line because the agent of injury was the same -- asbestos dust. But I do not think it is a principled distinction. What if Mr Matthews [one of the claimants] had been exposed to two different agents -- asbestos dust and some other dust -- both of which created a material risk of the same cancer and it was equally impossible to say which had caused the fatal cell mutation? I cannot see why this should make a difference."
[6.18] Lord Hutton said, at p.95:
"118 In my respectful opinion in Wilsher the House was right to hold that the majority of the Court of Appeal should not have extended the McGhee principle to apply where there were five possible candidates which could have caused the plaintiff's blindness. I consider that, as Sir Nicolas Browne-Wilkinson V-C observed [1987] Q.B. 730, 780E-F, the justification for holding a defendant liable is that the defendant created a risk and that the injury suffered by the plaintiff fell squarely within that risk. Subject to this observation on the decision in Wilsher, I wish to confine my opinion to the circumstances of these cases. It may be necessary in the future to consider whether the McGhee principle should be applied to other cases, but such decisions will have to be taken when such cases arise."
[6.19] At p.110 Lord Rodger of Earlsferry had this to say about Wilsher:
"149 Adopting the reasoning of the Vice-Chancellor, the House reversed the decision of the Court of Appeal -- and rightly so. Mustill L.J.'s extension of the approach in McGhee to a situation where there were all kinds of other possible causes of the plaintiff's condition, resulted in obvious injustice to the defendants. In particular, there was nothing to show that the risk which the defendants' staff had created -- that the plaintiff would develop retrolental fibroplasia because of an unduly high level of oxygen -- had eventuated. That being so, there was no proper place for applying the principle in McGhee. As the Vice-Chancellor decisively observed, a failure to take preventive measures against one of five possible causes was no evidence as to which of those five had caused the injury. The reasoning of the Vice-Chancellor, which the House adopted, provided a sound and satisfactory basis for distinguishing McGhee and for allowing the appeal. The year before indeed, the House had distinguished McGhee on the basis that a pursuer had not proved that the junior house officer's mistake had materially increased the risk of the particular kind of neurological damage suffered by his son: Kay's Tutor v Ayrshire and Arran Health Board 1987 SC (HL) 145."
[6.20] At p.118, in paragraph 169, Lord Rodger said:
"It is indeed plain that, as Lord Nicholls of Birkenhead has observed, considerable restraint is called for in using the principle [in McGhee]. Identifying, at an abstract level, the defining characteristics of the cases where it is, none the less, proper to apply the principle is far from easy. The common law naturally and traditionally shies away from such generalisations especially in a developing area of the law. But, having regard to the cases cited by counsel and also, in particular, to the cases and textbooks on the German law referred to in van Gerven, Tort Law, pp.444-447 and pp.459-461, I would tentatively suggest that certain conditions are necessary, but may not always be sufficient, for applying the principle. All the criteria are satisfied in the present cases."
[6.21] In paragraph 170 Lord Rodger set out these conditions, one of which was expressed in these terms:
"Fourthly, the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defendant's wrongdoing. In McGhee, for example, the risk created by the defenders' failure was that the pursuer would develop dermatitis due to brick dust on his skin and he proved that he had developed dermatitis due to brick dust on his skin. By contrast, the principle does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defendant's wrongful act or omission. Wilsher is an example."
[6.22] Mr McEachran submitted that it was not necessary for the pursuer to demonstrate that a particular packet of cigarettes gave rise to Mr McTear's lung cancer. It was enough for her to establish that the smoking of John Player cigarettes played a material part in the smoking which caused his death. Lung cancer did not appear to be like asbestos where one fibre could cause mesothelioma. "It appears that the longer you smoke, and the more you smoke, the more likely you are to contract lung cancer." Reference was made to passages in the evidence of Professor Friend and in IARC 1986, RCP 2000 and IARC 2004. This was the basis on which he presented his case, so he was arguing for a cumulative effect. Perhaps it was the constant invasion of tobacco smoke which caused the problem. But counsel accepted that the exact physical route for lung cancer was not yet known. He also had to deal, he said, with the fact that there had been some tobacco smoke from another source, that was the hand-rolled cigarettes ("roll-ups") which Mr McTear smoked for some time. The fact that some of the tobacco smoke was from another source did not affect liability, though it might have had something to do with the causation of his lung cancer. While the material part of the smoking "was with the defenders", because the pursuer was not able to say exactly how the cancer was started, the problem was not exactly the same as in Fairchild but was similar.
[6.23] Counsel went on to say that before Fairchild had been decided, he probably would have relied on Wardlaw as establishing that all he needed to prove was a material contribution. He said that Fairchild was a very elaborate case, and to some extent the situation in the present case was the same as in Fairchild, in that the mechanism initiating the genetic process was not known but it appeared that the more the smoking, the greater the risk. He particularly relied on the opinions of Lord Bingham and Lord Rodger. Had it not been for Fairchild, he would have relied on Wardlaw to say that, in this case, the smoking over twenty-five years or more of ITL's products could be said to have materially contributed to his lung cancer. He agreed that he did not have the problem which arose in Fairchild, which was that it was not possible to say whether it was an accumulation of fibres or one individual fibre which had triggered off the mesothelioma. Ultimately he agreed that Fairchild perhaps did not add anything to Wardlaw for present purposes. Insofar as smoking raised the problem of lack of medical science to demonstrate exactly how lung cancer was caused, the principles which Lord Rodger set out would apply in this case. But Wardlaw was sufficient for counsel on the facts of this case. He invited me to look at the matter globally and to hold that the smoking of ITL's products had materially increased the risk of Mr McTear's developing lung cancer.
[6.24] Mr Jones submitted that the most relevant authority was Wilsher, approved and reinforced by Fairchild. The question, in counsel's submission, came to be: if it was held that smoking could cause lung cancer, did it cause Mr McTear's lung cancer? Or, as it was put in Fairchild, could it be held that but for his smoking Mr McTear would not have developed lung cancer? On the evidence individuals who did not smoke could contract lung cancer and therefore in the abstract there must be a cause or causes of it other than smoking. It was for the pursuer to satisfy me that of any of the possible causes there might be, the most probable cause was his cigarette smoking, so that if he had not smoked he probably would not have contracted lung cancer. The causes might be exogenous or endogenous. The difficulty did not arise from the evidence in this case of the kind that was addressed in either McGhee or in Fairchild, where medical science simply could not answer basic questions that required to be answered in order to meet legal tests. The result was that the legal test was adjusted to take account of the realities of medical science. The "but for" test expounded by Lord Bingham was only to be departed from in appropriate and well-defined instances, of which this was not one. The present case did not fall outside the type of case to which the normal "but for" test was applicable. Insofar as it might in any sense be a special case, it fell within the reasoning of Wilsher.
Discussion
[6.25] In the first place, I am satisfied from the authorities that, in order to establish that exposure to a substance can cause, or has caused, a condition in an individual or group of individuals, it must be shown on the evidence that, on the balance of probabilities, the condition would not have occurred but for the exposure. This applies to both exposure on a single occasion and, as contended for here, cumulative exposure. There is no suggestion to the contrary in any of the authorities, including Fairchild, in which the "but for" proposition was reaffirmed. In Wardlaw the pursuer would not have contracted pneumoconiosis but for exposure to silica dust: the problem was that some of the dust was "innocent" and some was "guilty", so it had to be decided whether the contribution made by the "guilty" dust was sufficient to establish liability against his employer. In McGhee the pursuer would not have contracted dermatitis but for exposure to dust and ashes in the brick kiln: the problem was whether the fact that the absence of washing facilities materially increased the risk of his contracting dermatitis was sufficient to establish liability against his employers (who were not liable for the initial exposure to dust and ashes). In Fairchild, the plaintiffs would not have contracted mesothelioma but for exposure to asbestos: the problem was whether, since this could have been on a single occasion, liability could nevertheless be established against each of the employers, even though it could not be said in which of the employments the exposure which caused the mesothelioma occurred. This was how Sir Nicholas Browne-Wilkinson V-C approached the question of causation in Wilsher, in the passage in his dissenting opinion which was approved in Fairchild: and Wilsher established that the burden was on the plaintiff in that case to establish which of several possible causes had probably caused the condition in question, in the sense that but for this cause the condition would probably not have occurred.
[6.26] While I shall discuss the evidence about causation later, I do not have the impression that any of the expert witnesses used the expression "cause" in a different sense from that discussed above as its legal sense. Sir Richard Doll, for example, in Doll 1997 at p.25 (see para.[5.205]) said that in epidemiology cigarette smoking was an important cause of lung cancer, as few people would have developed the disease if they had not smoked. This appears to me to be "but for" causation (to the standard of proof beyond reasonable doubt which scientists aim to achieve). It remains for consideration, however, whether, if epidemiologists hold it to be proved that an exposure causes a condition in a population, as an important but not a necessary or a sufficient cause, that can also be said to apply to an individual member of that population.
[6.27] The legal authorities to which reference was made have been concerned with the devising of a coherent set of rules, not about causation of a condition by exposure to a substance, but about fault causation. Where all the exposure is attributable to the negligence of a single employer it can readily be said that the fault has caused the consequent condition. Problems have arisen, however, where, for example, the employer has been negligent in respect of only part of an exposure, all of which has been in that employer's employment; or has materially increased the risk of contracting the condition caused by an exposure for which in itself the employer is not liable; or in exceptional circumstances, such as those in Fairchild, where on one view of the scientific evidence only one employer, or some employers, out of several, has or have been negligent in respect of the exposure which has caused the condition, and it cannot be said which of them it was. The problem considered in Fairchild does not arise from the evidence relied on in support of the cumulative process contended for by Mr McEachran; and I am not sure why that case was referred to at such length, except as the last word on "but for" causation. Mr McEachran eventually settled on Wardlaw as the authority most in point. I agree with this, if a reference to Wilsher is added. Wardlaw comes into play because, if Mr McTear's lung cancer was probably caused by his cigarette smoking, on some kind of cumulative basis, some of the exposure may have occurred at a time when ITL could be said to have been at fault and some at a time when they could not. In any event, for some period at least, there was also exposure to the smoke from at least one other manufacturer's tobacco. That is to say, in a question with ITL, some of the exposure may have been "guilty" and some "innocent". Wardlaw and McGhee established that in that event it is enough if the "guilty" exposure for which ITL could be said to be at fault made a material contribution to the contracting of Mr McTear's lung cancer; though the burden of proving this much still rests on the pursuer.
[6.28] I would add here, for subsequent discussion, that the law recognises that the application of statistical probability to individual causation may be fallacious. In the course of his opinion in Hotson v East Berkshire Area Health Authority, Lord Mackay of Clashfern discussed Herskovits v Group Health Cooperative of Puget Sound (1983) 664 P.2d 474, a decision of the Supreme Court of Washington en banc. At p.789 Lord Mackay referred to the dissenting judgment of Brachtenbach J. In Lord Mackay's summary:
"He warned against the danger of using statistics as a basis on which to prove proximate cause and indicated that it was necessary at the minimum to produce evidence connecting the statistics to the facts of the case. He gave an interesting illustration of a town in which there were only two cab companies, one with three blue cabs and the other with one yellow cab. If a person was knocked down by a cab whose colour had not been observed it would be wrong to suggest that there was a 75% chance that the victim was run down by a blue cab and that accordingly it was more probable than not that the cab that ran him down was blue and therefore that the company running the blue cabs would be responsible for negligence in the running down. He pointed out that before any inference that it was a blue cab would be appropriate further facts would be required as, for example, that a blue cab had been seen in the immediate vicinity at the time of the accident or that a blue cab had been found with a large dent in the very part of the cab which had struck the victim."
[6.29] The conclusions I draw from these authorities, as applied to the evidence in the present case, are as follows:
(1) On the matter of general causation, the burden is on the pursuer to satisfy me, on the balance of probabilities, that as a matter of fact 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.
(2) If so, on the matter of individual causation, the burden is also on the pursuer to satisfy me, on the balance of probabilities, that but for Mr McTear's having smoked cigarettes he would probably not have contracted lung cancer.
(3) If so, on the matter of fault causation, the burden is on the pursuer to satisfy me, on the balance of probabilities, that negligence on the part of ITL, in one or other or both of the respects averred in the pursuer's pleadings, 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.
General causation and individual causation
Submissions for Mrs McTear
[6.30] Mr McEachran asked me to find it proved (1) that cigarette smoking could cause lung cancer and (2) that Mr McTear's lung cancer was caused by cigarette smoking. The United States Government, the United Kingdom Government and the World Health Organization had all accepted for many years that cigarette smoking could cause lung cancer. All the American tobacco companies accepted this, as did all the tobacco companies in the United Kingdom except for ITL. Sir Richard Doll had given evidence that it was almost universally accepted by doctors and scientists by 1957. It was taught in medical schools that cigarette smoking could cause lung cancer, and evidence about this had been given by Dr McCarroll, Dr Kerr and Sir Richard Doll. Professor Idle agreed that it was to be found in general textbooks of medicine that cigarette smoking could cause lung cancer. The public health figures were not challenged by ITL. These included the figure of 89% of lung cancer deaths being attributable to smoking, quoted in Callum 1998, RCP 2000 and UKHC 2000. Mr Davis had given evidence that smokers were far more likely to develop serious diseases like lung cancer than non-smokers. This was tantamount to admitting causation. Mr McEachran also relied on the evidence of Professor Friend and the conclusions of IARC and "the other multi-doctor studies": MRC 1957, RCP 1962, USSG 1964, RCP 1971, USSG 1971, RCP 1977, IARC 1986, USSG 1988, RCP 2000 and IARC 2004. So there was very strong evidence to support the proposition that cigarette smoking could cause lung cancer.
[6.31] Dr McCarroll said that the teaching at medical school was that the main cause of lung cancer was smoking. It was her considered view that Mr McTear died from lung cancer that was a result of cigarette smoking. She had other patients who were heavy smokers and they had tried to give up. Lots of them had tried to give up, and most of them found it very difficult. Her view was that the reason was the addictive nature of the substance. She was aware of general messages about health and in particular that nine out of ten lung cancer deaths among men were caused by smoking. She agreed with the comment in the UKWP 1998 that tobacco was a uniquely dangerous product and if introduced today would not stand the remotest chance of being made legal. In cross-examination she was taken through Mr McTear's medical notes and was asked whether she had made a detailed study of epidemiology literature and carcinogenisis as it related to smoking and lung cancer and agreed that she had not. Counsel said that this was all very interesting, but if the teaching in medical school was that smoking caused lung cancer and that teaching was accepted in this case, then she was quite entitled to make a diagnosis. The court was quite entitled to accept that, supported as it was by Professor Friend and Dr Kerr.
[6.32] Professor Friend was a distinguished clinician from Aberdeen. He gave his evidence with integrity and obvious expertise in his field. He has recently been a Clinical Professor in Medicine and Therapeutics at Aberdeen. He had been Chairman of the Government Scientific Committee on Tobacco and Health since 2000. He had been a respiratory consultant for thirty years and had seen many people with lung cancer, perhaps 3,000 over his career. Professor Friend's evidence was that, since there was a dose-response relationship between cigarette smoking and lung cancer, someone like Mr McTear, who was a heavy smoker, was at very high risk of developing lung cancer. In RCP 2000 it was stated that 89% of lung cancer patients were smokers and in Callum 1998 it was 90%.
[6.33] Professor Friend had been President of the British Thoracic Society and met some 500 to 600 physicians. He had never met a respiratory physician who did not believe that smoking caused lung cancer. Professor Friend referred to IARC 1986. This was a 400 page document which reviewed articles which took sixty pages to list. Members of the working group were of very high reputation, the Chairman was Sir Richard Doll and they were from all over the world. It took a long time for lung cancer to develop, perhaps more than thirty years. According to IARC 1986 tobacco smoke contained more than 3,800 constituents. Counsel submitted that the conclusions and evaluations in the IARC monograph were never challenged during the rest of the evidence led on both sides. The experts for ITL hardly mentioned it. According to it, the proportion of lung cancer attributable to smoking was of the order of 90%: this was also mentioned in IARC 2004, not yet available in full form.
[6.34] When asked about the statement by ITL that cigarette smoking had not been scientifically established as a cause of lung cancer, Professor Friend said that he believed that the epidemiological evidence was very strong and that it had been established beyond reasonable doubt. It was true to say that we did not know the precise mechanisms by which smoking caused lung cancer, but that did not mean that the effect did not occur. We might not know the exact chemical or biological process by which it happened, but he had no doubt that smoking caused lung cancer. This was the view reached in the various reports already referred to. Professor Friend said he believed that if a substantial number of eminent authorities came to a certain conclusion, that was bound to outweigh one's understanding of what a small number of individuals might contest in opposition to that view. Counsel submitted that this was an entirely appropriate position for an expert to take. Professor Friend said that it was highly probable that Mr McTear's lung cancer was caused by smoking.
[6.35] Counsel said that cross-examination of Professor Friend mainly consisted of putting a number of articles to him demonstrating that there were eminent scientists who did not agree with the thesis of the Medical Research Council, the Royal College of Physicians, the United States Surgeon General, and Fisher, Eysenck and Burch were among the names mentioned, but counsel suggested "this line was really exploded when Sir Richard Doll told the court that the great majority of scientists accepted in 1957 that smoking was a cause of lung cancer". In re-examination of Professor Friend it became clear that the witnesses who had given evidence to the United States Congress hearings in the 1970s and 1980s were a group of doctors from the Tobacco Research Council, which was the industry body in the United States, and they were just putting forward the tobacco industry point of view that the causal connection between cigarette smoking and lung cancer had not been established. Professor Friend said that he had never in his professional career been made aware of any strong genetic component to lung cancer development. No other risk factors had been put in detail to Professor Friend in the course of his cross-examination. He had experience of 3,000 patients. This was the basic material, people who had lung cancer. He had to see what their particular history told him.
[6.36] Of the reasons given by Professor Friend for stating that cigarette smoking caused lung cancer, Mr McEachran founded on his evidence that the risk of lung cancer diminished steadily when people had discontinued smoking. He said that once people had stopped smoking for around fifteen years, their risk of developing lung cancer approximated to that of life-long non-smokers. He said that he found this a particularly persuasive outcome. Mr McEachran also founded on Professor Friend's evidence that the incidence of lung cancer had developed in different countries at different times and in a relationship which followed quite closely the smoking habits of those countries, which seemed to him to make it much more likely that it was an environmental cause such as smoking rather than any genetic change which had led to the increase. In addition, in the United Kingdom, where the prevalence of smoking had diminished and there was a reduction in the number of men developing lung cancer, he could not see how this could happen on a purely genetic basis.
[6.37] Mr McEachran described Sir Richard Doll as a world class epidemiologist who remained the careful scientist whilst giving evidence. He relied on Sir Richard's evidence on the following matters. IARC 1986 was produced by a working group which he had chaired. The group was made up of numerous distinguished doctors and scientists, most of whom he knew, who were leaders in their fields. They concluded that smoking caused lung cancer in humans. There had never been any challenge to their evaluations and findings. The historical review in Sir Richard's Green College Lecture, Doll 1997, showed how it came to be realised that smoking caused lung cancer. The conclusion that it did was accepted by the Medical Research Council in 1957. The scientific community accepted the conclusions by the late 1950s. By 1957 the great majority of scientists and doctors accepted that smoking could cause lung cancer. This was the unchallenged evidence of Sir Richard Doll. He said that it was generally accepted in the scientific community in the 1950s that cigarette smoking was a cause of cancer. MRC 1957 effectively settled the issue as far as England was concerned. It was not until the mid 1970s, according to Sir Richard, that the media became convinced about the dangers of cigarette smoking. This change in the attitude of the media led to a much sharper reaction by the public. This related also to the start of warnings on cigarette packets in 1971. Those who expressed contrary views were a minority of scientists, who were just eccentric or wrong.
[6.38] In response to a criticism to be advanced for ITL, that Sir Richard's evidence amounted to no more than saying that the public health reports he looked at said what they said, Mr McEachran said that Sir Richard was not qualified in the disciplines from which the IARC working groups were drawn and was not open to cross-examination therefore on much of the material which formed the conclusions of these groups. In response to the criticism that no data had been presented in support of Sir Richard's view that epidemiology had established that smoking could cause lung cancer, Mr McEachran submitted that I was entitled to form a judgment on that in particular because the "multi-doctor studies" all reached that conclusion, having reviewed the evidence on which it was based. He submitted that the evidence was there. For example, he said of IARC 1986:
"It is 600 pages-worth. If they want to challenge it, they have to go into every page and see if it is wrong. But this is a report by some twenty-seven doctors from all around the world reaching this conclusion. It is extremely powerful evidence for what they conclude and their evaluation."
[6.39] Mr McEachran submitted that Dr Kerr came across as a man of outstanding competence and sharp intellectual ability. He relied on his evidence for the statements that in 98% of cases of squamous cell carcinomas the patients were smokers, it was most unusual to see a squamous cell carcinoma of the lung in a non-smoker, and the pre-invasive squamous dysplasia, the precursor lesion of invasive squamous cell carcinoma, was also frequently found in the bronchi of smokers and much less so in non-smokers. Mr McEachran submitted that Auerbach et al. 1961 was a careful and detailed study of epithelial changes in smokers and non-smokers. This supported the conclusion that there was a very strong association between dysplasia and smoking. This was followed up in Auerbach et al. 1975. Dr Kerr also referred to moderate squamous dysplasia in the biopsy taken from Mr McTear. This was frequently found in the bronchi of smokers and much less so in non-smokers, and Auerbach's research bore this out.
[6.40] Even looking at the evidence of witnesses called for ITL, who were all unbelievers, it was accepted that there was a strong association. The public health figures, which ITL did not challenge, said that 90% of male smokers who died of lung cancer died because of their smoking and heavy smokers were twenty to forty times more likely to contract lung cancer. Also unchallenged, counsel submitted, was that the risk of lung cancer was dependent on duration of smoking and was proportional to the number of cigarettes smoked. Evidence was given about this by Professor Friend, under reference to the passage from IARC 1986, p.312, quoted at para.[5.51], and the passage from USSG 1964, p.196, quoted at para.[5.96]. These, counsel submitted, were large multi-doctor survey documents making this point. In populations with a long duration and heavy intensity of cigarette usage, the proportion of lung cancer attributable to smoking was of the order of 90%. Counsel referred to IARC 1985 p.306, IARC 2004 p.10 and RCP 2000 Table 1.2. These figures, he submitted, were not challenged by ITL. For heavy smokers (those who smoked more than twenty cigarettes per day, according to Professor Friend) the risk of contracting lung cancer was twenty to forty times that for non-smokers. This appeared from Doll 1974 in which it was stated that in the survey of British doctors the mortality from lung cancer was forty times greater in those who smoked thirty-five or more cigarettes a day than in those who had never smoked at all. For a smoker who stopped smoking, it took ten to fifteen years to revert to the same risk level as a non-smoker: RCP 1962, para.28 and Figure 10. The same point was made in RCP 1971, para.4.11 and Figure 4.3. Professor Friend gave evidence that it was about fifteen years before the risk levels evened out.
[6.41] In answer to questions by me, Mr McEachran submitted that considerable weight should be placed on the fact that a proposition had come to be generally accepted. If the United Kingdom and United States Governments and the World Health Organization accepted that smoking caused lung cancer then that should carry great weight. It was extremely relevant that ITL said that they did not know whether cigarette smoking could cause lung cancer. IARC had looked at all the original research and had gone through it in detail and had concluded that cigarette smoking caused lung cancer. It was extremely powerful evidence if a group of scientists had examined the research and had reached a conclusion about it. It would be extremely difficult for a court to be taken through every formula and every graph by scientists in order to explain how they reached a conclusion. It would be much more important for scientists to be able to say what their peers thought. If a group of them looked specifically at the point and concluded, as in this case, that cigarette smoking caused lung cancer, that was the most powerful evidence that could be got to support the conclusion.
[6.42] Sir Richard Doll gave evidence that there were some people who did not accept his conclusions, but the majority did. He was not challenged in his evidence that the great majority of scientists and doctors accepted that cigarette smoking could cause lung cancer, and this fact was also accepted by ITL's experts. All that had to be demonstrated was that on the balance of probabilities cigarette smoking caused lung cancer, and those representing Mrs McTear had gone way beyond that. "The evidence is really overwhelming." It was standard teaching in medical schools that cigarette smoking caused lung cancer. An unsubstantiated theory would not be taught in medical schools. Dr McCarroll, Dr Kerr and Professor Friend had all given evidence that it was standard teaching, and again this was very powerful evidence about something that had been accepted.
[6.43] On the question of reliance on the published reports, Mr McEachran submitted that in a situation where research had come up with a thesis or a theory or a conclusion and bodies of doctors and scientists were set up to consider whether the research conclusions were valid, the results of checks and investigations carried out by these multi-doctor bodies were very powerful evidence that the initial conclusion of the researchers was valid. Professor Friend said that he was not a toxicologist nor an epidemiologist, he was a clinician who obtained information about the causes of disease from his reading elsewhere. He said that a practising physician's duty was to distil what was available from the readily accessible medical literature and to follow his practice accordingly. He had been happy to rely on reports produced by learned people for whom he had a high regard. Under reference to IARC 1986, Professor Friend said that the views expressed in it had been widely accepted by all the medical profession worldwide with only a tiny number of exceptions. He was well entitled to rely on IARC 1986. The fact that he was not an epidemiologist did not mean that he was not entitled to look at scientific papers by learned gentlemen whose views he respected. Counsel submitted that Main v McAndrew Wormald Ltd (discussed at paras.[5.12] to [5.16]) was authority for the view that Professor Friend could rely on epidemiological literature in support of his views as a physician. He was entitled to look at epidemiological evidence and to refer to such things as an IARC report to support his opinion, as a clinician who worked in the area, that smoking caused lung cancer.
[6.44] In considering whether Professor Friend was entitled to say that and rely on IARC 1986, one had to look at the background to this case. ITL did not say that cigarette smoking was not a major cause of lung cancer. They just said that it was not known. One of the original researchers was Sir Richard Doll. In Doll 1997 he went through the history of his research, the conclusion of the research and dealt with the responses by various scientists and doctors. He was not challenged on the conclusion which he reached. So, counsel said,
"We put before this court one of the scientists, an extremely eminent scientist, who had done the work and if there was to be any challenge of this, there he was in the witness box for the defenders to challenge, but their only challenge was: well, not everyone agreed with you."
Sir Richard said that he stood by everything he had said in the lecture and by the results of articles he had written relating to lung cancer and its association with smoking. Sir Richard was taken in some detail through Doll 1997 and this was not challenged in evidence.
[6.45] Counsel accepted that the main evidence for the causal link between smoking and lung cancer was epidemiological. He accepted that the biological and chemical pathways for the development of lung cancer were not yet fully understood and known, and that it was not possible by looking through a microscope at a squamous cell carcinoma to tell that that particular cancer was caused by smoking. Secondly, counsel submitted, it was proved that cigarette smoking probably caused Mr McTear's lung cancer. Mr McEachran relied on the opinion of Dr McCarroll, the opinion of Professor Friend and the evidence of Dr Kerr. Dr McCarroll, his GP, said that all the teaching she received over the years led her to believe that this was a direct result of his smoking. Her general view was that smoking did cause lung cancer and she said that it was likely that Mr McTear died from lung cancer that was as a result of cigarette smoking. Professor Friend reviewed Mr McTear's medical records and commented on his treatment. He was in no doubt that he developed primary bronchial carcinoma in 1992. A moderate squamous dysplasia was found at biopsy. From his own experience squamous dysplasia was a change found in heavy smokers and pathologists recognised it as often being a prelude to malignant change. He was quite entitled to refer to what pathologists found when they did biopsies. In his report he concluded by saying that Mr McTear developed squamous cell carcinoma of the lung in 1992 after smoking heavily for twenty-eight years and the strong probability was that this disease was caused by smoking cigarettes. In evidence he said that you could never with total accuracy define a cause in a given individual, but you could state a probability of causation. It certainly seemed likely that the probable cause here was that Mr McTear's lung cancer was caused by his heavy cigarette smoking, but that was not necessarily the only cause, and it was conceivable that some other cause might have been present in his case. So he was putting it as "highly probable".
[6.46] It was not suggested to Professor Friend specifically in relation to Mr McTear that any particular risk factor was present in this case and was the cause of his lung cancer as opposed to smoking. There was no evidence of that. If the case was that it was something to do with Mr McTear's diet, for example, then that should have been explored with Professor Friend. There had to be some averment and some evidence from the defenders, specifically relating to Mr McTear, saying that other risk factors were present in his case. There was nothing in the pleadings about them, there was nothing in the defenders' expert reports about them, they had just been brought out in the course of evidence and were not put to Professor Friend.
[6.47] Dr Kerr indicated that the type of lung cancer which Mr McTear had, i.e. squamous cell carcinoma, was very commonly found in smokers, and the figure was 98%; and that some of the pre-cancerous stages found on biopsy were also indicative that smoking caused the disease. Dr Kerr had given evidence that it was his own experience that squamous cell carcinoma was particularly associated with smokers and that the diagnosis of squamous cell carcinoma in non-smokers was exceptional. He also said that some of the non-smokers who contracted it could have done so through the inhalation of tobacco smoke in the home or at work, i.e. through "passive" smoking.
[6.48] Mr McEachran submitted that there was no direct contrary medical evidence led on behalf of ITL to refute the evidence for Mrs McTear. There was no medical evidence which said that Mr McTear died of some other cause or that cigarette smoking did not play a material part in his lung cancer. At best ITL could suggest there was evidence that there could be other factors involved in his death. A number of risk factors were mentioned in the pleadings and in the evidence in a general way, but no specific evidence was taken from any of ITL's experts which related the possible risk factors to Mr McTear's case. So there was no evidence which directly contradicted that of Dr McCarroll, Professor Friend and Dr Kerr. Accordingly the court should accept their evidence. Presumably ITL did not get their witnesses to go more closely into the various risk factors mentioned because they were liable to get the retort given by Professor Friend that by far the most significant risk factor was his smoking. Counsel referred to USSG 1964 conclusion 1: "Cigarette smoking is causally related to lung cancer in men. The magnitude of the effect of cigarette smoking far outweighs all other factors." It was probable that Mr McTear was one of the 90%, and because he was such a heavy smoker it was more than probable. Accordingly it was established that smoking caused his lung cancer.
[6.49] Mr McEachran submitted that none of the expert witnesses called for ITL was of particular distinction and none was a world expert in his subject, as Sir Richard Doll was. It was not clear why ITL had to go to Berlin, Prague and Iowa for witnesses. He suggested that they could not find suitable scientists and doctors in the United Kingdom to give the evidence they required. Perhaps they needed witnesses who did not accept the majority view that smoking could cause lung cancer, in other words who supported ITL's position on this. He suggested that I should regard with some scepticism evidence coming from a scientist from a minority group like that. None of the witnesses called for ITL said that smoking did not cause lung cancer. It was noticeable that Dr Lewis did not speak to his second report. Their position seemed to be that they did not accept that it had been proved.
[6.50] Out of the six experts, only three made reference to Mr McTear. These were Professor Gray, Professor Platz and Professor Idle. None of the six experts said that there was any cause of Mr McTear's lung cancer other than smoking. They seemed to have given evidence for three possible reasons. First, to back up ITL's "We do not know" position by showing that the biological and carcinogenic pathways had not been found and the way in which lung cancer was caused was not yet fully understood. The short answer to this was that Sir Richard Doll's evidence that smoking could cause lung cancer was not challenged, and was backed up by numerous multi-doctor studies. Secondly, to back up the position that it was not possible to demonstrate in the individual case that cigarette smoking caused Mr McTear's lung cancer, when the microscope did not tell you and there were other alleged risk factors. The answer to this was that no other cause had been suggested. Neither Dr McCarroll nor Professor Friend was cross-examined to the effect that their evidence and diagnoses were inaccurate. It was just said that they were not entitled to make a diagnosis because they were not epidemiologists. No consultant or respiratory surgeon who had practical and hands-on experience of lung cancer patients gave evidence on behalf of ITL that smoking was not a material cause of Mr McTear's lung cancer. Even ITL's witnesses accepted that cigarette smoking was the strongest risk factor for lung cancer and had the strongest associations.
[6.51] A third possible reason for their evidence was to suggest that there were a number of other risk factors associated with lung cancer. ITL's position in their written pleadings was that they could not say whether any other risk factor played a role in Mr McTear's case. Dr Cohen had gone through a number of articles where it was suggested that there were risk factors for various conditions. He did so outwith the scope of his report. He did not attempt to put any figures on any of these to say how strong was the risk and he did not attempt to relate any of them to Mr McTear. There was nothing in the evidence to demonstrate that he had a poor diet. Counsel referred to evidence given by Mr McTear on commission, when his diet was discussed in cross-examination. He submitted that there was nothing there which could suggest that there was anything wrong with his diet. At the end of the day, the evidence of Dr Cohen was left hanging in the air. No witness had come forward saying that in the case of Mr McTear a particular risk factor was very strongly present and therefore on the balance of probabilities smoking was not a material cause of his death. The court would not be entitled to hold that any of the risk factors referred to in the pleadings applied in the case of Mr McTear, because it was not pled in relation to him that any of them was a factor which applied and had some relationship with his lung cancer. There was no evidence put before the court in relation to Mr McTear's case in respect of these factors and none of them was put to Professor Friend as an alternative. So these were red herrings.
[6.52] Mr McEachran said that Professor Idle was a witness who had had tobacco funding for research. His report concentrated on the biological and carcinogenesis studies which had so far failed to show how lung cancer developed. Researchers had failed to produce squamous cell carcinoma in laboratory animals exposed to cigarette smoke. No constituent or group of constituents as they existed in cigarette smoke had been shown to be a cause of lung cancer. These conclusions were not disputed by Mrs McTear. In concluding, however, that it could not be determined whether or not smoking caused Mr McTear's lung cancer, he was approaching the matter as a chemist and a biologist, and on that basis his position was understandable. There was, however, other evidence which demonstrated that this had been established and was in line with the majority view in science and medical profession. His position was that if it was not established scientifically, he was not prepared to accept that smoking was a cause of lung cancer. This evidence should be rejected in favour of that of Sir Richard Doll and the general view in science and the medical profession that by 1957 the great majority of scientists accepted the causal link.
[6.53] Professor Idle was paid over £100,000 for his work and his evidence. One really had to wonder why it was necessary for ITL to go out of the United Kingdom and to central Europe to get a witness on this matter. Large fees like this encouraged a witness to maintain ITL's position in this case. There was a danger that such a payment would induce bias. The court should be very careful with people whose research had been funded by the tobacco industry and who had been paid large fees, it put into question their independence. So far as Professor Idle was concerned, his research had been funded by the tobacco industry and he had been paid a very substantial sum, so his evidence should be looked at critically. Counsel was, however, unable to point to any part of Professor Idle's report or of his evidence which displayed bias induced by the fact that he had been paid a fee.
[6.54] Mr McEachran made the point that Dr James did not mention Mr McTear in his report or in his evidence, so it was not exactly clear what the relevance of his evidence was. He was contacted by a New York firm of lawyers and he was another man who did not accept that smoking could cause lung cancer. Sir Richard Doll and the multi-doctor reports all accepted that the early figures for the number of lung cancer cases might be soft, but they all concluded that there had been a real increase in lung cancer mortality. Dr James agreed that he was in a minority. He accepted that the figures from 1950 onwards were likely to be reasonably accurate. The reason he stopped at the year 1950 was because that was when the cohort studies started, and obviously the figures would be more accurate thereafter, because particular people were being studied. The figures from the reports were not challenged by ITL and they suggested that the Royal College of Physicians and the United States Surgeon General were correct to proceed on the basis that there were real increases in cancer from the early part of the twentieth century.
[6.55] Mr McEachran said that Dr Lewis had expressed the opinion that epidemiological data could not be used to draw conclusions about the cause of disease in any individual. Another report by him had been lodged, in which he gave the opinion that epidemiological data did not answer the question of whether or not smoking caused lung cancer. This report was not however used in his evidence and perhaps it was obvious why, because it was so out of line with the huge majority of scientific evidence as spoken to by Sir Richard Doll. (Since this report was not referred to in evidence, and is thus not before me for consideration, I can pay no attention either to what it is said to contain or draw any conclusion as to why no reference was made to it.) Mr McEachran's response to Dr Lewis's evidence was that the argument put forward for Mrs McTear was a two-stage one. The first was that smoking caused lung cancer. That had been demonstrated and accepted in the medical and scientific community. Secondly, if that proposition was accepted, then the medical profession were entitled to proceed on it, and the individual clinicians who treated people like Mr McTear were entitled to make diagnoses based on it. Dr McCarroll, who treated Mr McTear, and Professor Friend, who looked at all the medical background evidence, were entitled to make a diagnosis in the particular case. This could be related to Dr Kerr's evidence that there was a 98% association between smoking and squamous cell carcinoma.
[6.56] Mr McEachran said that Dr Cohen was another witness who did not know whether smoking killed. He concluded that laboratory studies using whole cigarette smoke had not produced squamous cell carcinoma of the lung in experimental animals. This was not disputed, but one wondered where this evidence took the defenders when Mr Davis accepted that there was no such thing as a safe cigarette and that smokers were far more likely to develop serious diseases like lung cancer than non-smokers.
[6.57] Mr Jones said that when he had looked at the whole evidence he would ask me to make no finding on the question whether smoking could cause lung cancer, on the basis that I had not seen sufficient, appropriate, reliable evidence to allow me to justify my making this finding. Ultimately, the pursuer had failed to prove that smoking caused Mr McTear's lung cancer.
[6.58] Mr Jones submitted that the evidence led on behalf of ITL came from well-qualified, respectable, independent scientists who had carried out appropriate research into the issue to which each testified. Mr McEachran had made no substantive attack on their evidence; he seemed to rely only on the proposition that, because they had accepted instructions from ITL and some of them, to a limited extent, had been funded in their research by the tobacco industry, they were not to be relied on. Mr Jones invited me to simply reject that proposition. On a consideration of the whole evidence the attack on the defence experts as a body was unfounded.
[6.59] Mr Jones submitted that it was of no significance that Dr James had been approached by a New York firm of lawyers. He was perfectly candid in explaining the process which led to the submission of his report in this case, including the letter to the BMJ (James et al. 1992) and his discussions with ITL's lawyers on causation. He was a forensic pathologist with considerable experience in the United Kingdom, and was a reliable and credible expert witness who had studied the literature and applied his experience and expertise in answering the questions put to him. Mr McEachran had criticised him because he did not accept that smoking could cause lung cancer. He explained, however, that for him to say that smoking caused lung cancer, it would have to be either necessary or sufficient, and it was neither. He did not use the word "cause" in the same way as it was used in the health warning he was shown. It was never explored with him whether he agreed that smoking could cause lung cancer: the question was whether he accepted that smoking did cause lung cancer. He did not agree with the suggestion that the reason why he was asked to carry out research into the period up to 1950 was that because in 1951 the cohort studies had started. He did not agree that the figures would be more accurate after 1950: he said that the figures in the RCP reports were flawed and, after a point, there was a tendency to over-diagnose lung cancer.
[6.60] Mr Jones submitted that on the face of it Professor Idle was an eminent scientist with an impressive CV. It was not suggested by Mr McEachran that he was other than an eminent scientist with an impressive CV who was well qualified to give the evidence that he gave. He was the only witness who had set out to look at all of the literature relevant to the issue of smoking and lung cancer, and indeed smoking and cancer, covering the whole of the twentieth century and into the twenty-first. He did, as experts required to do, mention in his reports all of the material on both sides of the debate, and there was no suggestion that he had failed to do that. It was quite inappropriate to criticise him, as Mr McEachran had done, as one of the people "whose research is being funded by the tobacco industry, who had been paid large fees". The only evidence that he had received funding at the University of Trondheim, where he held his present post, was that he received a small bridging grant in 1995. Mr Jones submitted that this was no proper basis for not accepting Professor Idle's evidence. The starting point was to look to the evidence and to see whether, on the face of it, it was in any sense lacking. Simply to point to fees received for an amount of work that had never been established in the evidence, but which involved looking at many articles and was conducted over a period of years, was not a proper basis for calling into question the independence of the witness, nor was his being paid a bridging grant to help him move and to start up research in a new place. No other reason had been advanced for calling into question Professor Idle's good faith and his independence, and what had been said did not constitute a proper basis on which to criticise him as a witness.
[6.61] Mr Jones said that Professor Platz was the pathologist who had in his earlier career critically reviewed the work of Auerbach in the United States, and he was also an American doctor who had worked in the VA hospitals. His expertise was unique and relevant to the case: a pathologist from the United Kingdom would have been unlikely to have these key areas of expertise. He was not finally asked to come to give evidence until shortly before he did so, and this was because Dr Kerr had referred to and relied on Auerbach and said in the course of his evidence that the catchment of VA hospitals was the general population, and Professor Platz was particularly well qualified to counter this. To describe Auerbach's study as careful was to ignore the clear evidence of flaws in the methodology which were presented in the examination-in-chief of Professor Platz and the cross-examination of Dr Kerr.
[6.62] Mr Jones submitted that Dr McCarroll was the only witness, apart from Professor Friend, who expressed a view on the cause of Mr McTear's lung cancer. She gave evidence that smoking did cause lung cancer and it was likely that Mr McTear died from lung cancer that was as a result of cigarette smoking. Counsel submitted, without intending it as a criticism of Dr McCarroll, that as a general practitioner her views on these matters were of no assistance to the court. A judgment on the general question whether smoking could cause lung cancer required consideration of the whole relevant evidence, including the epidemiological, biological, pharmacological, toxicological and genetic evidence, among other fields. Dr McCarroll professed no qualifications or experience in any of these. She had not carried out any examination of the basis for her belief that smoking could cause lung cancer. She had not studied any of the scientific literature relating to the issue, and indeed she had not heard of Doll or Peto. No doubt she genuinely held her views, and this was what she had been taught, but this did not assist my task in providing a basis for determining that question in this litigation.
[6.63] Mr Jones submitted that Professor Friend in particular, among other instances, had been used as a conduit to introduce material from disciplines that were clearly beyond his range of expertise and experience. On many occasions Professor Friend said that he should not be asked the question because he did not know the answer. There was therefore material which could not have any evidential value simply because it was being drawn out through the medium of the witness. The purpose of the evidence was to give the court an understanding which could be tested in cross-examination. It was of no assistance to the court if the witness declined to be cross-examined on a passage which he had read out from a publication. Moreover there was no evidential value in passages from a published work which had not been adopted by a suitably qualified expert as being evidence going towards an issue in the case. In the present case, the court was really taken on no journey through an understanding of the underlying science on a number of important issues and was simply given ready-made conclusions. The passages from the public health reports that were read out could not be given the status of primary evidence and had no evidential value except to the extent that they were adopted by a witness qualified to do so.
[6.64] The evidence disclosed that Professor Friend was an anti-smoking activist. This coloured his views and the evidence which he gave to the court. He made no apology for his financial contribution to and connections with ASH. He was committed to the cause of ASH and the cause of smoking prevention. He expressed the view that less reliance should be placed on research funded by the tobacco industry. He stood by statements by him in Thorax in favour of an advertising ban, and that the real enemies were not smokers themselves, but the tobacco industry. He did not meet the criteria that would qualify him as an independent expert witness on which the court could rely to give a balanced view on the issues in this case. Rather, he was giving evidence to further a public health cause. He saw it as his function to be an advocate in this case. When it was suggested to him that his report should have been supported by written reference to the primary literature, he said that he realised that this "would have made a stronger argument". When Professor Friend doubted the statement by the Prime Minister in 1964 that there was no excuse for anyone not to be aware that smoking could cause lung cancer, this was an example of a witness who was arguing a position, rather than acting independently and objectively. Professor Friend's statement that Enstrom and Kabat 2003 could not be relied upon because it was funded by the tobacco industry displayed a prejudice and a lack of objectivity. In the course of cross-examination about this study Professor Friend was unable, or unwilling, to give a straightforward answer about the meaning of "statistically significant". He did not put himself in a position by reference to his qualifications and experience to be able to assist the court on the use that was to be made of any epidemiological evidence. He had never heard of Wynder until his involvement in this case. Very often his reply to a question was that he could not help because he was not an epidemiologist.
[6.65] In his report, in expressing an opinion on the cause of Mr McTear's lung cancer, Professor Friend had advanced a number of propositions. Before examining each of these propositions, Mr Jones made two general submissions. First, no data were produced in support of these assertions. For example, when Professor Friend advanced the proposition that there was a dose-response relationship between an individual's cigarette consumption and the risk of developing lung cancer, he just said that this was the position. I was not taken to any material which I could scrutinize, in which the reasons for the conclusions were given and where the necessary criteria were laid out for judgment. This was an example of my function being usurped and of a witness failing to do what expert witnesses were required by the court to do. The assertions were ready-made conclusions, in the language of Wilkinson The Scottish Law of Evidence (see para.[5.8]). Neither in his report nor in his evidence did Professor Friend furnish the court with necessary scientific criteria for testing the accuracy of his conclusions so as to enable the court to form its own independent judgment by the application of these criteria to the facts proved in evidence (Davie v Magistrates of Edinburgh, referred to at paras.[5.5] to [5.6]). Secondly, in a number of instances, Professor Friend relied not on his own professional knowledge or experience but on what he had gleaned from those in other disciplines and from a general knowledge of what was written in the public health reports (two of which, RCP 1962 and USSG 1964, he had not read).
[6.66] The first of these assertions was the presence of squamous dysplasia found by Dr Kerr to be present in Mr McTear's biopsy sample, which Professor Friend described as a pre-malignant change often found in heavy smokers who went on to develop cancer. He acknowledged that he had learnt about this from pathologists and disclaimed any expertise in this respect, saying that a pathologist would need to be asked questions about it. In any event, such a proposition would require to be supported by evidence about studies showing what was found in heavy smokers who went on to develop cancer; these were the data that one would be looking for. Accordingly, no reliance could be placed on this item of Professor Friend's testimony. It was an assertion that could not be tested. It could only be tested by reference to an area of expertise which Professor Friend had expressly disclaimed for himself. When the point was eventually taken up with Dr Kerr, the source of the observation was to be found in part in the Auerbach material, and Mr Jones said that he could not get anywhere of course with Professor Friend on that.
[6.67] Professor Friend's next proposition was that the histological type of cancer diagnosed, of squamous cell type, was of the type where the association with smoking was particularly strong, as it was in so-called small cell carcinoma. He said that the diagnosis of squamous cell lung cancer in non-smokers was exceptional. In his evidence he said that this reflected his experience as a consultant in Aberdeen for over thirty years; in the majority of cases of lung cancer in smokers the patient had either squamous cell or small cell carcinoma, and he added that the diagnosis of squamous cell lung cancer in non-smokers was unusual, though not unknown. Counsel submitted that this evidence provided no assistance in the determination of the question whether or not Mr McTear's lung cancer was caused by his smoking. The statistical evidence, spoken to by Dr Lewis, was that the lifetime risk of developing lung cancer was approximately 1:100 for non-smokers and 10:100 for smokers. The diagnosis of lung cancer in non-smokers on these statistics was therefore unusual and the diagnosis in smokers less unusual, but we learnt nothing from this about what might have caused cancer in an individual smoker or in an individual non-smoker.
[6.68] Professor Friend's next proposition was that it could be argued that some of these unusual patients might have contracted the disease through the inhalation of tobacco smoke in the home or at work, despite not being active smokers. In his examination-in-chief the only evidence offered by him to vouch that proposition was that "a number of authorities and committees believe that is the case". In cross-examination it transpired that he knew of, but had not disclosed, the existence of Enstrom and Kabat 2003, even though he had only dipped into it. The authors of this paper concluded that the results did not support a causal relation between environmental tobacco smoke and tobacco-related mortality, although they did not rule out a small effect. But taking all of that together, no weight should be given to Professor Friend's view on the determination of the question whether Mr McTear's lung cancer was caused by his smoking. This was just a gratuitous remark which had no relevance to the question to be decided, but it was there because it was consonant with Professor Friend's general approach, which was that smoking was bad and we should be rid of it. The proposition was tendentious because it did not properly reflect the state of the debate, so far as one had been allowed an insight.
[6.69] Professor Friend's next point was that tobacco smoke contained known carcinogens. In his examination-in-chief he offered no data in support of this view. In cross-examination he said that he was aware of a number of products which included nitrosamines, benzo[a]pyrene, polonium and others, but he said that he was not a chemist when he was asked to look at a number of papers relevant to this observation. He said he was not a toxicologist, he was not an epidemiologist, he was a clinician who obtained information about the cause of disease from his reading elsewhere. When he was asked whether he had any reason to doubt the proposition that in a complex mixture, such as tobacco smoke, even if carcinogens were present, they might act in a way which was active or in a way which was inhibitory, he said that it was quite outwith his area of expert knowledge. The statement that tobacco smoke contained known carcinogens was information derived from reports he had read. Counsel submitted that in determining the issues in this case I should accord no weight to this assertion.
[6.70] Professor Friend's next proposition was that the prevalence of lung cancer was closely related to the level of consumption and epidemiological data provided clear links between historical smoking levels in different countries and lung cancer incidence. Mr Jones submitted that this assertion was both beyond Professor Friend's expertise and in any event it was unsupported by the data in this case. Professor Friend had repeatedly disclaimed qualifications as an epidemiologist, and said that he had not had an in-depth reading of the literature in the way a professional epidemiologist would have had. Part of the function of a witness of opinion was to have his evidence tested by cross-examination, and with Professor Friend it was not possible to do this because he could not give answers to counsel's questions that would test the various propositions that he had put forward. Accordingly, it could not be determined whether these conclusions were soundly based or not. He was unable to answer questions about the concept of attributable fraction, which was ultimately the keystone of his thinking in expressing the view that it was probable that Mr McTear's lung cancer was caused by smoking. When counsel had been at pains to see whether Professor Friend appreciated that this concept was such that a death could be attributed to two causes, he said that he was being taken beyond his level of expertise and would prefer that this question be asked of one of the other expert witnesses, in particular Sir Richard Doll. Professor Friend said that the foregoing proposition was based on the many reports which had already been presented in his earlier evidence. But he had looked at the summaries only in RCP 1962 and USSG 1964, and he said he was happy to rely on intelligent and sensible appraisal of these large reports. He could not say that he had read the underlying material which had been presented to the Royal College of Physicians.
[6.71] Professor Friend said that a practising physician's duty was to distil what was available from the readily accessible medical literature and to follow his practice accordingly. He had been happy to rely on reports produced by learned people for whom he had a high regard. Counsel observed that this was perfectly appropriate for a practising physician, and indeed what might be expected of him. But it became different when he came into the witness box to give evidence as an expert witness. It was no longer appropriate that he should rely just on his general knowledge of the world around him when it came to helping the court to determine issues which were disputed in the context of the litigation.
[6.72] It was useful to distinguish between the role of the practising physician and the role of the expert witness. Mr McEachran had advanced the proposition that it was quite acceptable for somebody like Dr McCarroll or Professor Friend to express these views because they diagnosed people. But the endeavour of the treating physician was to determine what was wrong with the individual. In this case what was wrong with Mr McTear was that he had squamous cell carcinoma of the lung. It was no necessary part of that diagnosis to attribute it to a cause. When it came to a dispute in litigation the causation of a disease was a different matter from what was involved in the diagnosis of the disease by a clinician in everyday practice. For all these reasons, counsel submitted that I should not rely on this passage in Professor Friend's report in considering whether or not smoking caused Mr McTear's lung cancer.
[6.73] Professor Friend's next proposition was that there was a dose-response relationship between an individual's cigarette consumption and risk of developing lung cancer. Gender differences in lung cancer risk could also be largely explicable on the basis of smoking habits. In examination-in-chief he said that the literature demonstrated a clear relationship between the number of cigarettes smoked per day and the likelihood of developing lung cancer. He said that this was demonstrated very clearly in the British Doctors Study, reported by Doll and Hill. No evidence was however given by him or by any other witness about this study, so it was not part of the evidence in this case. Once again, this evidence from Professor Friend was no more than his ipse dixit. The court had no criteria by which to form its own judgment on the question why an individual's consumption of tobacco put him at a greater risk of developing lung cancer than that of a non-smoker or someone who smoked fewer cigarettes.
[6.74] Further, the evidence before the court demonstrated that the British Doctors Study was not relevant to the determination of the question whether Mr McTear's lung cancer was caused by his smoking. Apart from the evidence of Dr Lewis, no evidence was given by any witness who was qualified to give it about the appropriateness of using population studies to determine the question whether in any given individual a particular exposure might have caused a particular disease. Sir Richard Doll was not asked about individual causation, but it was known that his views were that one could not determine causation in an individual by reference to population studies.
[6.75] The only evidence before the court that smoking caused Mr McTear's lung cancer came from Professor Friend and from Dr McCarroll. This was therefore the foundation point: one could not draw on the epidemiological material in the way that was attempted in this case, or indeed at all, to determine individual causation. But even if one could, the Doll and Hill study did not assist. Dr Lewis had given evidence which included a discussion of the west of Scotland study. This did not support the proposition that there was a dose-response relationship between an individual's cigarette consumption and a risk of developing cancer. To draw a conclusion, as Professor Friend did, from the British Doctors Study, in the face of known data to a different effect, invalidated the conclusion that he drew from it; and in any event no evidence was given about this study so I was not given an understanding of what was the reasoning which led to its conclusions, and therefore no material on which to form a view about whether the conclusions said to be drawn from it by Professor Friend were acceptable or not. In any event, Professor Friend was driven to accept that population studies did not tell us anything about an individual who was a member of that population. He agreed that an individual might smoke twenty cigarettes a day and be diagnosed with lung cancer after twenty years, whilst another individual might smoke fifty a day and never develop lung cancer. Accordingly, even if it was true that a dose-response relationship had been found in some population studies, one could not extrapolate from this to the individual.
[6.76] Professor Friend's next proposition was that in heavy smokers who ceased to smoke, the risk of subsequent development of lung cancer steadily diminished, so that within fifteen years of ceasing smoking the risks of developing lung cancer were little more than in the life-long non-smoking population. Mr Jones said in relation to this that Professor Friend did not purport to rely on his own knowledge or experience in practice for this assertion; it simply amounted to an epidemiological pronouncement outside the range of his expertise, and the court was shown no data in support of it.
[6.77] Professor Friend then said that not all smokers would develop lung cancer. It had been estimated that about 16% of smokers who continued to smoke would develop lung cancer before they reached the age of 75 years. Again, this was an estimate. It was not stated whose estimate it was, when it was made, or where it was made. The court was not told about the data on which it purported to be based, or the methodology applied. Again it was just an assertion, unsupported, from a witness who was not qualified to make a pronouncement.
[6.78] Professor Friend's next proposition was that although cigarette smoking was not the only risk for lung cancer, the proportion of lung cancer mortality attributable to smoking was estimated in RCP 2000 to be 89% in males in the United Kingdom. Counsel had four points to make about this assertion.
[6.79] (1) Professor Friend did not know how the estimate that he relied on was calculated. This was a fundamental barrier to accepting this as reliable evidence, going to the causation of Mr McTear's lung cancer. If he did not know how the estimate was calculated, then there was no material from him before the court that would allow the court to consider the calculation, what one drew from it, whether it was reliable and so on.
[6.80] (2) Professor Friend saw the attributable fraction of 89% for lung cancer as outweighing the other risk factors. His thinking seemed to be that although there might be a number of other risk factors, if the proportion of lung cancer mortality attributable to smoking was 89%, then that must outweigh all of the others. But as could be seen from the cross-examination of Professor Friend and from the evidence of Dr Lewis, this was a complete misunderstanding and misuse of the attributable fraction. Dr Lewis gave evidence that the attributable fraction was not a "proportion", as Professor Friend had called it, of anything, and that attributable fractions could and did total more than 100%. In considering attributable fraction two things were important: relative risk and prevalence. Dr Lewis had given evidence about these.
[6.81] (3) The 89% figure came from Callum, who made the point that attributable fraction could not be read back to an individual.
[6.82] (4) Professor Friend was correct to say that there were other risk factors for lung cancer, apart from cigarette smoking. Apart, however, from diet and family history of lung cancer, which he dismissed in his report and in his evidence, he singularly failed to list those of relevance to Mr McTear's case. In fact, neither Professor Friend nor any other witness called by the pursuer testified to having considered known risk factors for lung cancer by reference to Mr McTear's medical, social and family history, other than his smoking. Consequently, these other risk factors were not excluded as possible causes of his condition. In particular, Professor Friend omitted to take into account Mr McTear's family history. His mother and two paternal half siblings had lung cancer. His half brother Robert McTear died of carcinoma of the bronchus on 1 November 1978 and his half sister Jeanie McTear or Cushnaghan died on 3 January 1996 of bronchopneumonia, metastatic carcinoma and carcinoma of the lung. Mr McTear told Dr Kirsty Muirhead that his half brother had cancer. He told her that his mother died of lung cancer. Mrs McTear gave evidence that his mother had had lung cancer. Mr McTear was his mother's only son and registered her death. She died on 24 August 1963 of medastinal tumour, which according to Dr Kerr was consistent with bronchial carcinoma. The evidence was that family history was a risk factor in his case. Secondly, Professor Friend did not take into account Mr McTear's alcohol abuse. There was a statistically significant association between consumption of alcohol and lung cancer. Thirdly, there was Mr McTear's nutritional status. The evidence was that individuals who abused alcohol often suffered from a vitamin deficiency. Mrs McTear accepted that Mr McTear was undernourished, and he was so described by the Renfrew Council on Alcohol. He was given a vitamin supplement by Dr McCarroll when she treated him for his alcohol abuse. Dr Kerr explained the significance of vitamin A for the maintenance of the bronchial epithelium. Poor diet was statistically associated with lung cancer. Professor Friend also failed to take into account the relevant environmental factors. Mr McTear lived in west central Scotland and membership of that population was associated with an increased risk of developing lung cancer, independently of smoking. He was of low socio-economic status, which was associated with lung cancer independently of smoking. Professor Friend did not take into account Mr McTear's history of viral respiratory infections, particularly influenza, a history which Dr McCarroll described as unusual. One theory of carcinogenesis was that it might be caused by a virus. Professor Friend did not take into account or have any regard to Mr McTear's history of depression and anxiety. Such a history was associated with the development of lung cancer. One theory of carcinogenesis was that a depressed immune system linked to psychological factors might have a role. Professor Friend was asked in cross-examination about these risk factors. In some instances he was aware of them, in others he was not. He was not familiar with the literature. In his examination-in-chief he had said that if certain people had a genetic predisposition to developing lung cancer, they would have to start smoking before that greater risk increased, but he departed from this in cross-examination and said that he found the whole issue confusing to discuss. This condemned him, counsel submitted, as a witness on whose opinion on these matters ought not to be relied on.
[6.83] In addition to not having read RCP 1962 or USSG 1964, Professor Friend had not read USSG 1988. He said earlier in his evidence that he had read the expert reports produced on behalf of ITL, including Professor Idle's report, but it transpired in cross-examination that he had not read it. He was also unable to provide references for any of the data on which he relied in his own report, and he had forgotten the results of his own studies on smoking cessation, which came to the opposite conclusion from the proposition that the heavier the smoking, the more difficult it was for the smoker to stop smoking.
[6.84] Mr Jones submitted that, on this review of Professor Friend's evidence, he failed to meet any of the criteria set out in the authorities as being required of a witness to opinion before he or she could properly be regarded as qualified to speak on the relevant subject. He also failed to meet the test of a witness whose evidence could safely be relied on by the court. In particular, he did not supply the court with the technical or scientific knowledge necessary to enable it to understand and appreciate the relevant scientific issues in the case. He did not have an extensive and accurate state of knowledge and experience of any of the subjects involved in determining whether or not smoking could cause lung cancer, or indeed whether smoking caused Mr McTear's lung cancer. He spoke with no authority and with no experience or qualifications in the relevant disciplines. He did not furnish the court with the necessary scientific criteria for testing the accuracy of his conclusions so as to enable the court to form its own independent judgment by the application of these criteria to any facts proved in evidence. He could not be regarded as giving an objective and unbiased opinion. He was giving evidence on matters well outside his expertise and he assumed the role of an advocate. He was unable to state the facts and assumptions upon which his opinion was based and he omitted to consider material facts which could detract from his concluded opinion. Only when pressed in cross-examination did he make it clear when a particular question or issue fell outside his expertise, and of course at that point any attempt to scrutinise his evidence by cross-examination had to be abandoned. He had carried out no research on the issues in this case, did not comply with the duty to consider material which might be available in the relevant field, and did not comply with the duty not to draw conclusions based only on his own experience.
[6.85] The most flagrant example of this was in relation to familial susceptibility, where he did commit himself to a written view when he had plainly not informed himself about the relevant literature. None of the passages read out to Professor Friend in his examination-in-chief fell within his personal experience in the relevant specialist fields. In support of the foregoing observations, counsel referred to the authorities discussed above at paras.[5.2] to [5.17]. In these circumstances, counsel submitted, no reliance should be placed on the evidence of Professor Friend in determining the question either whether smoking could cause lung cancer or whether Mr McTear's lung cancer was caused by smoking.
[6.86] Mr Jones submitted that it was plain that Sir Richard Doll came to court committed to the belief that smoking could cause lung cancer and other diseases. He was neither asked, nor did he express any view, about what might have caused Mr McTear's lung cancer. He was clearly at pains to persuade the court to accept his view on general causation. He certainly had, on any view, an impressive CV, but in a sense this almost counted against him, because his career had clearly been built from the foundation of the work that he did with Hill in the early 1950s and thereafter, and one might have been forgiven for getting the impression that part of his purpose was the defence of the work that he had done over the years. This was seen most clearly in his dismissal of those who over the years had not even gone so far as to suggest that he was wrong, but had simply suggested that caution should be exercised before the scientific community finally came to the view that the statistical association was causal. Even that prompted him to dismiss whoever put up such an idea as being an eccentric, corrupt, or other descriptions.
[6.87] The pursuer sought to rely on Sir Richard's evidence for the contents, first, of the Green College Lecture, Doll 1997. The difficulty with this approach was that the lecture was essentially a memoir, a reminiscence of how it all happened. It did not purport to be a scientific document. If, during the course of reading through it, Sir Richard had been taken to the primary material of the British Doctors Study and the original Doll and Hill work, then there might have been a foundation for the court to accept the opinions expressed in the lecture. Without that, Sir Richard was in very much the same position as that of Professor Friend: he gave the court an ipse dixit, no doubt from high authority; but he had not done and was not invited to do what an expert witness had to do, which was to inform, to instruct, to process data and to give reasons for conclusions reached.
[6.88] For example, although mention was made of Doll and Hill 1950, no reference was made to the text of this article, in which the authors concluded that cigarette smoking was a factor, and an important factor, in the production of carcinoma of the lung. No evidence was given about the detailed consideration of the possibility of confounding, of the consistency of the findings in different studies, what biological relationships with amount and duration of smoking were considered, what was the size of the estimated relative risk and what was the relationship of time and place and for each sex. The court was given no insight into the material that led the researchers to their conclusion. Therefore it could not test the conclusion by anything that had been put before it in this litigation. For the purpose of exercising a judgment as to whether or not an association could be regarded as establishing a causal link, the starting point was to show what were the data on which the judgment was based. With those data, the witness would be able to demonstrate the process of reasoning that had led him to that conclusion, and the court would therefore be in a position to judge the soundness of the conclusion. Counsel referred to Dingley v The Chief Constable, Strathclyde Police (see para.[5.11]). What was missing from Sir Richard's evidence was the reasoning to support his conclusion.
[6.89] While the fact that Sir Richard's views had come to be generally accepted by a majority of those working in the field might have some weight, nevertheless, without knowing on what the views were based and why they came to be generally accepted, it was not possible to say whether or not they were right, despite the very great eminence of Sir Richard. As counsel explained, when I came to determine the question whether smoking could cause lung cancer on the evidence in this case, I would no doubt feel obliged to give reasons. It would not be sufficient reason for me to say that I found that smoking could cause lung cancer because that was the consensus view of the medical fraternity. This was particularly so where, on the part of some people, there was an acceptance that a statistical association was causal simply because it was a statistical association. For many doctors this was probably good enough as a working hypothesis: if there was a statistical association which was regarded as strong, then a doctor might well feel able to recommend to a patient that he should stop smoking, for example, and would no doubt tell the patient that smoking could cause disease. This did not take me anywhere, counsel submitted, when I had to address that question as an issue in this litigation. In other words, I did not know on what basis this consensus had been reached.
[6.90] Professor Friend accepted that there was a difference between the science of epidemiology and epidemiology as an instrument of public health. He readily accepted that if a body such as the Royal College of Physicians found a statistical association and took the view that the exposure was not of great social benefit, they would feel it their responsibility to declare that the association was causal because that would lead to an acceptable public health outcome. The evidence was that Charles Fletcher had set out to write RCP 1962 in order to persuade Members of Parliament to do something about cigarette smoking. But the report did not state by what standard of proof the Royal College of Physicians reached the conclusion that the association that had been found was causal; it was not known what was regarded as sufficient for them to declare causation and Professor Friend said that something less than the balance of probabilities could well do if it was in the interests of public health. It was for the court to decide if the public health communities' reasons were sound and should be followed, but if it was not given those reasons then there was nothing on which to found an opinion. Scientific truth was not determined by a majority vote, and issues in a litigation were not settled by reference to the number of witnesses on each side. It was not enough to point to a consensus and say that the pursuer won on the numbers. This gave no basis upon which to come to a reasoned judgment on the issue to be determined.
[6.91] It was correct to say that Sir Richard was not challenged on the conclusions he reached. There was no basis for a challenge. The evidence which led Sir Richard to his conclusions was to be found in his epidemiological studies, but none of these was before the court in evidence. There had been no evidence of the reasoning process which, as Lord Prosser said in Dingley, was the critical aspect of the evidence of an opinion witness. The pursuer relied wholly on Sir Richard's ipse dixit. At least, the data contained in Sir Richard's papers should have been open to scrutiny, and thereafter the statistical techniques which were applied to the data and the manner in which a judgment was exercised. This was on the principle that the court required to be instructed in the specialist facts of the case, the criteria for reaching conclusions and the material upon which these conclusions were reached. It would not have been an impossible task. Sir Richard could at least have been taken to those papers to which reference was made. He could have instructed me how to do epidemiology at least sufficiently to understand the reasoning which led to the conclusion. Ultimately it was for me to form the judgment, on the basis of sufficient instruction. It was not a criticism of any of the witnesses to say that this was simply lacking as a result of the approach which had been adopted in this case.
[6.92] Mr McEachran had advanced the proposition that it was enough to see what was in the public health reports and that many doctors shared the view that the association was causal. This was not the correct approach to take in the determination of issues such as the present. It amounted to a submission that the function of the court should be usurped by a majority of clinicians. If all the court had was the oracular pronouncement of a witness, no matter how eminent, then all that the court could do was give its own oracular pronouncement as an echo of what the witness had said. As the Lord President said in Davie v Magistrates of Edinburgh, that will not do.
[6.93] In addition, Sir Richard said that when he reached conclusions about causation, he took into account all of the evidence, just as the court did. This of course would include the biological evidence, the laboratory evidence and all the other factors that would feed into the ultimate conclusion. An epidemiologist, had he been going through the raw data and giving reasons for his conclusion, would no doubt have discussed what the other evidence was and how it played into the ultimate conclusion. But none of that was before the court in this case.
[6.94] It was because of the need to consider all the relevant surrounding facts and circumstances that it was appropriate to examine Sir Richard's dismissal of anybody who sounded a word of caution as worthy of no note. The opinions he expressed were forthright and definite. He was committed to his own view as early as 1949. This was on the basis of the one retrospective epidemiological study on hospital patients that he was conducting with Hill, and also on his own conviction that some of the apparent increase in lung cancer incidence was real. There was no evidence that when he formed these views he had considered that the statistical association between cigarette smoking and lung cancer might be accounted for by some confounding element. It was clear that he did not consider the constitutional hypothesis, even as a possibility to be excluded. It was plain also that nothing anyone had ever said had caused him to doubt his conviction that the statistical association between smoking and lung cancer was causal. He was scathing about those who sounded a note of caution about accepting causation as proved on the statistical evidence alone and without testing competing hypotheses. Their views were dismissed as eccentric, bizarre, nonsense or dishonest. In cross-examination he was asked about Fisher, Berkson, Seltzer, Yerushalmy, Eysenck, Burch, Oldham, Stern, Gwynne Jones, Feinstein, Passey, Little, Tokuhata, Hueper and Rosenblatt. Counsel reviewed Sir Richard's cross-examination about the views expressed by each of these individuals. He submitted that no proper reasons were given by Sir Richard for rejecting the views of any of them.
[6.95] Counsel accordingly invited me not to accept Sir Richard's evidence that the question whether the statistical association between smoking and lung cancer was causal was effectively settled by 1957. There were eminent scientists who could be seen to be expressing a note of caution, not only in the 1950s, but well into the 1960s and indeed into the 1970s. Secondly, he invited me not to hold that it was established in this case that smoking could cause lung cancer on the basis of Sir Richard's evidence. Sir Richard could not be regarded as giving an objective and unbiased opinion. He assumed the role of an advocate. He argued for what he believed as opposed to assisting the court to an understanding of the issues. He did not state the facts and assumptions upon which his opinion was based. He was not prepared to consider material facts which could detract from his concluded opinion. He did not supply the court with the technical or scientific knowledge necessary to enable it to understand and appreciate the relevant epidemiological and other scientific issues. He did not furnish me with the necessary scientific criteria for testing the accuracy of his conclusions, so as to enable me to form my own independent judgment by the application of these criteria to the facts proved in evidence. The reasoning behind his conclusions was not before the court. In the absence of any supporting primary material, his views amounted to a bare ipse dixit or a bare oracular pronouncement which could not be tested or independently appraised. On the evidence presented, therefore, I was unable to form my own judgment on these conclusions enunciated by Sir Richard. Again, counsel referred to the tests laid down in the authorities discussed above. It was not in itself a reason for rejecting an expert witness's evidence because he or she was known to have certain views on the subject in question, so long as they were able to justify those views in the witness box and be prepared to give rational grounds for rejecting any different views, or any material which might tend to contradict their own views. But Sir Richard simply dismissed alternative possibilities out of hand.
[6.96] Sir Richard had also been invited to look at IARC 1986 and IARC 2004. This amounted to no more than evidence that these documents said what they said. Although Sir Richard was Chairman of the working group which was responsible for IARC 1986, he was not asked to look at or explain the epidemiological or other scientific data that were relied on in support of its conclusions, and therefore these data too were not before the court. Further, Sir Richard was not qualified in toxicology, chemistry, biology, oncology, radiobiology or cytogenics, which were the disciplines from which the working group responsible for IARC 1986 were drawn, and presumably from which the working group responsible for IARC 2004 were also drawn. He was not open to cross-examination and did not explain to the court much of the material that informed the conclusions of these groups.
[6.97] Mr Jones said that Dr Kerr was relied on by Mr McEachran, but he was not asked questions directly about causation, although he did give some evidence which Mr McEachran prayed in aid. Dr Kerr was an experienced pathologist with a special interest in lung cancer. He thought that there was a strong association between smoking and lung cancer and there were things in tobacco smoke which caused lung cancer. In cross-examination it became apparent that his understanding about the latter point was based on a very general understanding that there were a whole variety of different chemical agents within tobacco smoke, some of which were recognised in test situations using either laboratory animals or human tissue cells in culture, where those chemicals were recognised as carcinogens because they could be shown experimentally to induce tumours in laboratory animals, and also to induce changes in animal cells, in tissue culture for example; changes which were recognised as being associated with the development of the malignant process. He did not know the literature on the animal studies well enough to comment on whether it had been possible to induce squamous cell bronchogenic carcinoma in animals by inhalation of tobacco smoke, nor was he familiar with the details of the experiments using human tissue culture. His evidence did not go beyond saying he believed that studies had been done, but he did not know the details.
[6.98] In addition to a clinical diagnosis, Dr Kerr's report addressed the relationship between squamous cell lung cancer and smoking in two ways. He stated that 98% of squamous cell lung cancers were found in smokers and, under reference to Auerbach, that squamous dysplasia was frequently found in the bronchi of smokers and much less so in non-smokers. Mr Jones submitted that insofar as he was speaking on matters going beyond clinical diagnosis and his own direct experience, Dr Kerr's evidence should be treated with caution. The reasons for this were as follows. Firstly, in his report he relied on Nasiell et al. 1987 in support of the proposition that the pre-invasive squamous dysplasia, the precursor lesion of invasive squamous cell carcinoma, was also frequently found in the bronchi of smokers and much less so in non-smokers. In examination-in-chief he particularly pointed to the data in Table 8.1 on p.217 of the paper. The table contained the statement that 23% of non-smokers with chronic inflammatory lung diseases displayed atypical metaplasia. He said that this required, however, to be read subject to the qualification that the table related to cytological changes. Counsel submitted that if the table required to be looked at with that qualification in mind for the figure of 23%, it had also to be looked at with that qualification in mind for the information on which Dr Kerr relied.
[6.99] Secondly, Dr Kerr relied on Colby et al. 1995 for the proposition that 98% of squamous cell lung cancers were found in smokers. It became apparent in cross-examination that he had not gone further than the statement in the textbook. He did not appreciate even that the data had been mis-referenced, as explained by Dr Lewis. It was also apparent from his cross-examination that it was impossible to tell whether or not the data upon which the figure was based had any statistical significance, again as explained by Dr Lewis. Dr Kerr claimed that the information in Table 2 was that squamous carcinoma in the lung was much more likely to be found in someone who had been a smoker rather than in someone who had been a non-smoker. On his interpretation, the rates of smoking in the general population had nothing to do with the paper, they were quite irrelevant to the interpretation of the data. Counsel submitted that this undermined his credit, because he misunderstood the requirements of epidemiology if one was looking for a statistical association.
[6.100] This was a matter of logic, in any event, but there was evidence from Dr Lewis about it. Dr Lewis gave reasons for expressing the view that there was insufficient information about the population sampled, and the general population from which it was drawn, to enable conclusions to be drawn about the relationship found between ever-smoking and epidermoid cancer. Counsel agreed that the way of putting his point was that without information about the study group that would enable a view to be taken as to whether or not it could be regarded as representative of the general population, it could not be determined whether or not a valid extrapolation could be made of figures relating to the study group to the general population. One would have to know what the prevalence of the exposure was in the general population in order to see whether there was either a match or a mismatch. Dr Kerr's evidence on this matter called into question his understanding and therefore his use of the epidemiological data.
[6.101] Dr Kerr also relied on Auerbach et al. 1975. But it was apparent that he had given no consideration to the question whether the population studied by the authors was representative of the general population. He was under the misapprehension that Veterans Administration Hospitals treated the general population, whereas Dr Platz's evidence, based on personal knowledge, was that these hospitals in fact treated a very specific sub-group, even of the United States veterans. Dr Platz also explained that the population had multiple health problems, in particular poor nutrition, and there was evidence from Dr Platz and Dr Kerr that this was a potential relevance to the maintenance of the bronchial epithelium.
[6.102] Mr McEachran, in relying on these papers, had submitted that the studies were "rigorously controlled". Mr Jones submitted that it was clear from Dr Lewis's evidence, about Colby et al. 1995 in particular, that they had not controlled for confounding. In re-examination of Dr Kerr on Colby et al. 1995, Mr McEachran asked Dr Kerr to compare the 98% figure in that paper with the 30% of the United Kingdom population who were current smokers. He could not say what further percentage of the population had previously smoked but had given up. Contrary to what Mr McEachran submitted, that this was a mismatch, it was like comparing apples and oranges. The figure of 30% was for current smokers in the United Kingdom, whereas the figure of 98% was of Americans presenting over an unknown period up to 1979.
[6.103] In Rosenow and Carr 1979 the diagnoses were based on sputum cytology alone. Dr Kerr gave evidence that the importance of cytological atypical cells could be difficult to determine, and indeed he said in effect that one could not draw useful conclusions about the incidence of dysplasia from Nasiell et al. 1987, upon which he founded in his report, because it was based on cytology. There was more information to be gained from a biopsy specimen. When tumours were typed on the basis of small biopsies, there was some scope for inaccuracy. In any event, without confirmation of the tumour classification on removal of the tumour, there was scope for inaccuracy. This was sufficient for him to write that it was of concern that, if 85% to 90% of patients had a diagnosis made on pre-operative specimens alone, with the likelihood of some degree of inaccuracy in tumour classification from such specimens, then epidemiological studies might be based on flawed data. Epidemiological data would be more useful if based upon more robust histological diagnosis. Further, the typing used by Rosenow and Carr was based on the 1967 World Health Organization classification. Dr Kerr gave evidence that sometimes under this classification; where histological typing was difficult, some pathologists opted for squamous cell carcinoma simply on the basis that it was the most likely one to occur. In other words, where typing was difficult, as on Dr Kerr's evidence it might well be, and where the diagnosis was based on cytology alone, there was a bias towards reporting squamous cell carcinoma.
[6.104] Dr Kerr agreed that in Auerbach et al. 1975 the study comprised 662 autopsies of men, of whom six were non-smokers. In counsel's submission, since 99% of the population studied were smokers, one could not take anything as being significant from the fact that 100% of the squamous cell carcinomas were found in smokers. This again was to do with populations. The authors of the paper did not claim that what they found was statistically significant. If the purpose of referring to Auerbach et al. 1975 was to support the figure of 98% in Colby et al. 1995, then it did not give support. Dr Kerr had also agreed that Auerbach and Garfinkel 1991 provided figures that were "in the same ball park" as the 98% in Colby et al. 1995. But in this study, which reported on 505 cases of lung carcinoma, the number of patients who had never smoked being ten, this meant that the never-smokers were 2% and the smokers were 98% of the total, but without knowing about the prevalence of smoking, one could not draw any conclusions about the significance of the figures that were brought out.
[6.105] Dr Kerr also drew on his own experience, saying that it was most unusual to see a squamous cell carcinoma of the lung in a non-smoker. But it emerged in his evidence that he would not consistently be given smoking histories of patients. He said that he would be more likely to be given a smoking history where the patient was a non-smoker. Since therefore he received samples without a smoking history, it was plain, counsel submitted, that any estimate by him of the proportion of smokers to non-smokers would be unreliable. In any event, what the evidence established was that lung cancer was a rare disease in non-smokers and a little less uncommon in smokers. This was simply a statement of the statistical association. Therefore, a pathologist would see fewer squamous cell lung cancers in non-smokers than in smokers. Accordingly Dr Kerr's experience did not advance the issue of causation.
[6.106] Finally, there was no finding that any particular proportion of squamous cell carcinomas could properly be made on the basis of Dr Kerr's evidence or on the basis of the other material before the court. Professor Platz gave evidence about Auerbach 1961. He did not take issue with the reported findings and acknowledged that they showed a strong association between the degree of exposure and the frequency and degree of changes in the bronchial epithelium. But he did take issue with the conclusion that the findings supported the judgment that a direct causal relationship existed between smoking and these changes. Dr Kerr himself accepted that all that Auerbach could show was an association. Auerbach also found a variety of changes in the lungs of non-smokers. He said that it was possible to find dysplasia in the lungs of non-smokers. So, inasmuch as there was a statistical association between smoking and lung cancer, if squamous dysplasia was a step on the way to lung cancer, then it would be expected that there would be a statistical association between squamous dysplasia and lung cancer. But this still went nowhere to resolving the question whether the relationship was one of cause and effect.
[6.107] Moreover, Auerbach's study population consisted of people who had died and had come to autopsy in United States Veterans Administration Hospitals and people who had died and come to autopsy in other hospitals. The relative proportion of these two groups was not reported. The evidence was that patients of Veterans Hospitals had had different characteristics from the general community, as described by Professor Platz. His evidence was that, to the extent to which the study population was made up of this group, the findings could not be generalised to the population at large. Apart from the fact that this was a selected sub-group, there was no evidence about their service experience which might be relevant. For example, there was the possibility of exposure to gas. Auerbach did not report on whether or not there were differences between this group of patients and the group of patients from general hospitals. This, in counsel's submission, was on the face of it a potential confounding factor. Finally, no equivalent study had been carried out to investigate whether or not there was a similar association of changes in the lung with other potential risk factors.
[6.108] Mr Jones said that Dr Lewis had prepared reports both on general causation and on individual causation and on individual causation, but he was asked questions only on the latter. Professor Lelorier, an abstract of whose evidence on epidemiology and in particular on general causation had been lodged as a production, was not called as a witness. It might have been thought that the reason for this was that an attack was going to be mounted on the sufficiency of the epidemiological evidence relied on by the pursuer. Counsel said that he was not in a position to invite me to make a positive finding on ITL's averment that the cause or causes of lung cancer had not been established. This was because a judgment on that question required to be formed on the basis of all the relevant evidence, and this was not before me.
[6.109] Since, however, it had been said that the defence was disingenuous, Mr Jones invited me to consider whether this was well-founded on the material that I had seen. Such an assertion could only be made on the basis of the evidence which had been led in this court. On the matter of specific causation, not only was this a defence put forward in good faith, it was a defence which had been made out. Counsel said that this was on the basis of his analysis of the evidence of Professor Friend, Dr McCarroll and Dr Kerr, and on the evidence of Dr Lewis. The case advanced on behalf of the pursuer on individual causation had to deal with the application of the attributable fraction. Counsel reminded me of the evidence of Dr Lewis, which demonstrated that Professor Friend was wrong to speak of "proportions" of attributable fractions.
[6.110] Mr Jones pointed out that many passages in the multi-disciplinary reports that were referred to were put to witnesses by Mr McEachran and they were simply asked to notice that these were what the authors of the reports said. So in many instances there was not even an attempt to have the witnesses adopt what was being said. Yet Mr McEachran sought to rely on those passages in his submissions. In addition, there were passages about which not a word was said during the course of evidence, but upon which Mr McEachran now sought to rely. As a simple matter of admissibility, this approach was misconceived. There were many reasons, but they were all to deal with the same considerations which arose from the authorities bearing upon the adoption of reports by expert witnesses. Such passages had not been tested in evidence, and accordingly it could not be told what reasoning might have lain behind them. So the question was, what evidential value did these passages from the multi-disciplinary reports have when they were not competently adopted by a suitably qualified witness.
[6.111] Counsel submitted that when an expert witness gave evidence, the court was interested to know: (1) the qualifications and experience of the witness; (2) information that the witness had been given about the case; (3) the investigations, if any, that the witness had carried out and the results of these investigations; (4) the assumptions that the witness might have made and the reasons for these assumptions, in order to see whether they were soundly based; (5) the methodology that the witness had applied in reaching his or her opinion; and (6) the reasons for the witness's conclusions. The witness's evidence on all of these matters must be open to being tested, not only by the cross-examiner but also by the court. It necessarily followed that the evidence on all of these matters must be understood by the court. This was because the court was: (1) interested to have the technical or scientific knowledge necessary to enable it to understand and appreciate the relevant scientific issues in the case; (2) interested to have the necessary scientific criteria for testing the accuracy of a witness's conclusions so as to enable the court to form its own independent judgment by the application of these criteria to the facts proved in evidence; (3) interested to have the relevant supporting primary material so that it could be independently appraised by the court; (4) interested to determine whether the evidence was presented as an objective and unbiased opinion and was not an exercise in advocacy; and (5) interested in being satisfied that the witness considered all material facts which could detract from the opinions expressed. None of these desiderata were met when passages from reports were simply read out or, not even having been read out during the evidence, were relied on during submissions.
[6.112] Mr Jones said that there were a number of observations that fell to be made about the reports relied upon by Mr McEachran. Most reliance had been placed on IARC 1986. Mr Jones invited me to note that it was actually written in 1985, so it was now some nineteen years since it was written. Since then, as the evidence of the expert witnesses for ITL demonstrated, science had progressed. Theories had come and gone, new studies had been done, new facts had been discovered and therefore IARC 1986 could not provide a comprehensive and up to date figure. No evidence had been led about how the authors of these reports approached the question of standard of proof, or even whether they approached it at all. One would need to know what was the purpose in the minds of the authors of these reports and what they considered as sufficient to express a definite conclusion on any matter.
[6.113] In a litigation, if a number of possibilities were given as causes of an injury or a condition, the court would expect the pursuer to establish that the cause contended for was the most likely one. Very often this was done by excluding other possible causes or leading evidence to satisfy the court that the other possibilities were less likely. It was not known whether that sort of exercise was undertaken by the authors of the multi-disciplinary public health reports and, if so to what extent and by what criteria the authors might pronounce themselves satisfied. The authorities established that an expert witness was expected to disclose any assumptions which underlay his report, if he had prepared one, or his evidence and his conclusions given in evidence. Again, it was important for the court to be able to assess whether these assumptions were well-founded and well reasoned, and for the court to form its own view.
[6.114] Examples of this could be found in the passage in MRC 1957 discussed in the evidence of Dr James. In this, it was a basic assumption that there had been a very great increase in the death rate from lung cancer. This led the authors of the report to their conclusions. The court would only be able to adopt these conclusions by accepting the basic assumption underlying them, which was that the increase in incidence was real rather than artifactual. The problem was that this was an article of faith. Even without contrary evidence, there was no basis on which the validity of the assumption could be tested. There were no underlying data to determine whether the assumption was well made, and no reasoning to determine whether the conclusion that the rise in incidence was real was soundly based. This was a fundamental problem which arose from the invitation by Mr McEachran to accept the conclusions of these reports.
[6.115] While MRC 1957 only extended to two pages, Mr McEachran had seen some weight in the fact that the reports he was relying on ran to hundreds of pages and had cited hundreds of underlying texts. In Mr Jones's submission this diminished any value they might have, because the court had not seen these pages or texts and accordingly did not know on what data the conclusions were based and whether the reasons for coming to them were sound. For the reasons given by Lord Prosser in Dingley v The Chief Constable, Strathclyde Police (see para.[5.11], it was all very well to say that the authors of these reports were eminent and drawn from a number of different countries, but it was still necessary to look behind that to see whether there was sufficient reason to rely on their conclusions.
[6.116] Another point was that a public health body, interested in avoiding risks, might very well quite legitimately ignore possibilities, when there was no evidence for them, but this was not the same approach as it was appropriate for a court to adopt, as was decided in Wilsher v Essex Area Health Authority. This could be seen in the passage in RCP 1962 discussed by Dr James, in which the possibility raised by some pathologists, that lung cancer used to be more common than mortality figures suggested, was rejected. As it was expressed in this report, such an approach might be quite justifiable as a public health advocacy tool, but it was not an accurate presentation of the material. What was entirely missing from the report was discussion and reasoning of the kind seen in the evidence of Dr James. Again, the court was being invited to take all of this as the ipse dixit of the Royal College of Physicians, with no opportunity to evaluate the material.
[6.117] Because the court had not seen the texts of reports running to some hundreds of pages, it could not be known on what assumptions they were based. In USSG 1964, for example, the committee proceeded on an acceptance that there had been a continuing rise in lung cancer as part of a trend that began before 1940. Similar assumptions would be found in other reports. Because the texts had not been explored even to the extent necessary to know what assumptions had been made, this was another reason to decline to accept their conclusions as effectively replacing my own views on the matter, when I had not been given the material to reach these views. As Lord Prosser said, litigants were entitled to a judicial pronouncement, not to an oracular pronouncement of some eminent body. This could have been done. The starting point might have been to ask Sir Richard Doll questions about epidemiology. It might or might not have been necessary to supplement his evidence with material from other disciplines but without even his evidence, reliance could not be placed on the conclusions about epidemiology which were given in the reports.
[6.118] Counsel turned to the question of what constituted a public health report. Professor Idle described IARC 1986 as a public health report destined for member Governments of the United Nations. Professor Friend described the origins of RCP 1962, under reference to Fletcher 1992. Professor Gray described reports such as those of the Royal College of Physicians and the United States Surgeon General as being part of a strategy aimed at changing people's behaviour, a mixture of propaganda and the scientific evidence upon it which it was based, but with the interpretations and the language used to describe those data biased towards the interests of the message that was being conveyed. Counsel did not suggest that there was anything untoward with this, but it had consequences for the way in which such reports were written and it might have consequences for the way that conclusions were drawn. Counsel agreed that this raised the question whether a report written for such a purpose could properly be regarded as forming part of the corpus of scientific literature to which an expert witness should have regard. Such a report was not equivalent to a scientific study or a scientific paper, but was written for a different purpose. As Professor Gray explained, the data that carried most weight were those in the primary experimental or empirical reports, the archival data. By contrast, the reports that Mr McEachran relied on were properly characterised as public health reports, and indeed at one point he appeared to accept that that was what they were.
[6.119] Dr Lewis gave evidence about the difference between the science of epidemiology and the public health profession of epidemiology. He recognised the process by which public health activists, on the strength of a belief, wished to transmit it to governmental figures in order to influence governmental action. Professor Friend gave evidence that media advocacy was the strategic use of mass media for advancing a social or public policy initiative. Although this expression was of relatively recent origin, it was understood and applied when the early public health reports were published, as could be seen from Fletcher 1992. Professor Friend accepted that one of the purposes of RCP 2000 was to persuade the Government to control tobacco. It was not surprising, counsel submitted, and not in any sense dishonourable, that the authors of this report set out to present conclusions in a way that would influence the Government and change behaviour. It was Professor Friend's belief that in general the purpose of the reports published by the Royal College of Physicians was to bring about change and apply pressure; but further, he agreed that if a body such as the Royal College of Physicians had good evidence of a strong statistical association between an exposure and a disease, he would expect it to incline towards warning the public to avoid the exposure. He was asked about passages in Gori 1989, and there was nothing in this article with which he disagreed. It was consistent with what he said was the purpose of epidemiology as a public health discipline.
[6.120] Accordingly it should be borne in mind that ultimately the purpose of such reports was to persuade, and so they were not documents like scientific papers that a court could rely on as expressing reasoned scientific conclusions. They could not be relied on as determining issues in the way that the court would determine them, and therefore they could not be relied on to assist in the determination of these issues, given that they were the only material. Even within communities particularly interested in the subject, the danger existed of confusion between "association" and "cause". Gori was saying the same thing, that there might be an acceptance that where an association was found, this should be taken as being the same as cause. This was also consistent with Professor Friend's view that where an association was found between an exposure and a disease outcome, it might be legitimate for the public health community to declare that the association was causal, if this would bring about what was regarded as a public health benefit. For all these reasons, these public health reports were not to be relied on for the purposes to which Mr McEachran would have them put.
[6.121] In summary, given the purpose of public health reports and the public health community's approach to how they should be drafted, the standard of proof applied to determine the issues addressed in a public health report could not be taken to be equivalent to or higher than that applicable to the determination of the issues in a litigation. Moreover, the views or conclusions of a committee proved no primary fact other than that the committee had reached those particular views or conclusions. So they were of no evidential value except to the extent that they had been adopted by a witness, qualified in the relevant field, who furnished the court with the necessary scientific criteria for testing their accuracy, so as to enable the court to form its own independent judgment by the application of these criteria to the facts proved in evidence.
[6.122] Counsel then turned to address Mr McEachran's submission that the "multi-doctor studies" from MRC 1957 to IARC 2004 all concluded that cigarette smoking could cause lung cancer. IARC 2004 had of course only been published in summary form in 2002. None of these reports was a study in the scientific sense, but was a review carried out by groups of members drawn from a variety of disciplines. The authors of the reports stated that the results of animal skin-painting experiments supported the proposition that the statistical association between cigarette smoking and lung cancer was causal. But Sir Richard Doll and Professor Friend said that the results of these experiments were of no value in determining whether smoking could cause lung cancer. Having regard to Professor Idle's evidence in particular, this was the correct view: skin-painting experiments were of no value in determining whether smoking could cause lung cancer. So the view which was expressed in the public health reports that the statistical association between cigarette smoking and lung cancer was causal was undermined. Considered as part of an exercise in evaluating the evidence, when this piece of evidence was taken out as being of no value, then in counsel's submission the conclusion ought properly to be regarded as undermined. In his submission, the evidence demonstrated that the public health reports could not be relied on, either as accurately recording the studies that were reviewed, or as expressing conclusions soundly based in the science.
[6.123] Perhaps one of the most representative criticisms of the public health reports was put to Professor Friend, and he was not able to refute it. This was the view expressed in Sommers 1976 that USSG 1964 dealt with the difficulty of assigning causality, but the summary and conclusions brushed these aside and assigned a causality not demonstrably evident in the text. Another example of the unreliability of public health reports to recall the studies accurately or to express conclusions soundly was found in IARC 1986. The report founded on the results of animal inhalation studies and was shown in evidence to have mis-stated the results of Dalbey et al. 1980, the study on which it relied for its conclusion that chronic exposure of rats to whole cigarette smoke resulted in the induction of malignant respiratory tract tumours, but which was shown to have adopted flawed methodology. More broadly, as Dr Cohen stated, and was not disputed, none of the fifty-seven inhalation and intratracheal carcinogenicity studies in the mouse, rat, hamster, guinea pig, rabbit or dog, as reviewed in his report, showed a statistically significant increase in squamous cell carcinoma of the lung following exposure to cigarette smoke and, indeed, none of the authors of these studies reported a statistically significant increase for this carcinoma. He also concluded that laboratory studies using whole cigarette smoke had not produced squamous cell carcinoma of the lung in experimental animals.
[6.124] Although Sir Richard Doll was the chairman of the IARC working group, he was not asked to look at or explain the epidemiological or other scientific data that were relied on in support of the conclusions of IARC 1986, so these data were not before the court. Another criticism of a public health report was the use of "really flawed" statistics in RCP 1971, as explained by Dr James. For the reasons given by him, no useful comparison could be made between the figures given in Table II in RCP 1962 and Figure 4.1 in RCP 1971.
[6.125] While Mr Jones made references to other criticisms of the public health reports, these were the main ones and I regard them as sufficient foundation for his submission. His main submission was that the passages in the public health reports relied on by the pursuer were the bare ipsi dixerunt of their authors. The court had been given only ready-made conclusions without the data on which the authors proceeded. The court had not been furnished with the necessary scientific criteria for testing the accuracy of these conclusions. None of the conclusions of the reports could be tested by cross-examination. The standard of proof, if any applied, was not enunciated. Underlying assumptions might or might not have been stated, but were not proved in this court, and in a number of demonstrated instances methodology relied on in reports, which were in turn relied on by the authors, had been shown to be flawed. In other respects the reports had been shown to have reached the conclusions which were not justified by the evidence which it had been possible to look at.
[6.126] In his submission that there was general acceptance of the proposition that smoking could cause lung cancer, Mr McEachran had placed a great deal of emphasis on the number of pages to which a report ran, or to the number of pages of references, or to the number of articles referenced. His submission was that I should be impressed by these features. Mr Jones submitted that this might be seen to count against Mr McEachran's use of these documents. If he produced a 600-page report and cherry-picked half a dozen pages to put before the court, containing passages which were useful to his case, the difficulty was that the court did not see the remaining pages and did not know what other features were being brought to bear. As a result, there was material that I did not have and could not properly use in order to assess the validity of conclusions which were finally reached and on which Mr McEachran relied. Scientific truth was not determined by majority vote and scientific debate was not decided by the number of words used in arguing a position. A court of law was not entitled to determine issues between the parties that came before it on the basis of what most people believed, or even what everybody believed, but on the material that was presented. Counsel agreed that the point could be put in this way, that one should be that much more cautious of accepting a consensus view for the very reason that that was what it was and was therefore not perhaps being examined critically at the time it was held. Once the proposition became embedded into the culture, then there was no fresh mind brought to bear upon it and it was just accepted. The fact that it was accepted told us nothing about its truth. Reference was again made to what Lord Prosser said in Dingley v The Chief Constable, Strathclyde Police, quoted at para.[5.5].
[6.127] Of course, as counsel reminded me, his position was that on the evidence, amongst serious scientists for many years and indeed up to the present day, those who had considered the evidence and had applied their minds to the issues were still engaged in a debate about the cause of causes of cancer, including lung cancer, and doubts continued to be expressed about the causal connection between cigarette smoking and lung cancer. Professor Friend said that he thought that serious scientists had always challenged the causal hypothesis as the explanation for the association between cigarette smoking and lung cancer. It was also instructive to look at what Frenk and Dar 2000, in the passage discussed in Professor Gray's evidence, had to say about the effect of consensus within the scientific community.
[6.128] Mr Jones reminded me of the passage from USSG 1964, referred to in the evidence of Professor Idle:
"Statistical methods cannot establish proof of a causal relationship in an association. The causal significance of an association is a matter of judgment which goes beyond any statement of statistical probability."
One of the problems was that when one was looking at a statistical association, the effect of confounding had to be considered. Counsel referred to the passage in Berkson 1959 discussed by Professor Idle at para.[5.487]. It was not a ground of criticism of Professor Idle that he said that, even if there was such an association between A and B that B always followed A, he would still look for laboratory evidence: on the contrary, this was the correct view. For example, if an association was discovered between drinking milk and tuberculosis, such that everybody who drank milk contracted tuberculosis and no one who did not drink milk contracted tuberculosis, on the statistics alone one might conclude that it was drinking milk that caused tuberculosis, and the public health response might be to ban milk consumption. Of course, it was not the milk that caused tuberculosis, and laboratory experimentation could be carried out to discover the nature of the relationship that the statistics had revealed. This was consistent with the approach of Hill 1966, also referred to by Professor Idle. Professor Gray, Professor Idle and Dr Lewis all emphasised the importance of considering and, where possible, eliminating potential confounding factors by the scientific method.
[6.129] Illustrations of the problem of confounding in various contexts, and of the difficulties that confounding presented in understanding the association between smoking and lung cancer, appeared in the evidence. For example, in Pollack et al. 1984, in considering the association between lung cancer and alcohol consumption, adjustment was made for the potential confounding factors of age and smoking, and in Knekt et al. 1996, in considering the association between lung cancer and depressed mood, adjustment was made for potential confounding factors of age, education, geographic area, smoking, alcohol consumption and various other potential factors. In working on the association between lung cancer and family history of lung cancer, adjustment was made for the confounding effects of age, sex, cigarette smoking and occupational and industrial exposure: Ooi et al. 1986.
[6.130] Dr Lewis gave evidence that in order to control for a particular confounder, the potential confounder must have been identified and the study designed in order to control for it. Professor Gray gave evidence about Kendler et al. 1993, in which a control method was used in examining the association between smoking and depression. Dr Lewis gave evidence that, even if lung cancer only occurred in smokers, this would still leave open the question whether smoking caused lung cancer, lung cancer caused smoking or both had some common third cause. The conclusion of Kendler et al. 1993 was that the relationship between ever-smoking and major depression was not causal but was mediated largely or entirely through genetic factors which influenced the liability to both ever-smoking and major depression. Psychological factors had been implicated in carcinogenesis and had been linked with lung cancer in the context of various theories about which Professor Idle gave evidence.
[6.131] Professor Gray gave evidence that the fact that a change was observed after a drug was discontinued did not justify the inference that the change was caused by discontinuing the drug. He went on to explain that, for example, symptoms reported by smokers after stopping smoking did not, with the exception of increased appetite and decreased heart rate, appeared to be specific symptoms attributable to the absence of nicotine, but were similar to symptoms reported by people who gave up cherished habits of many kinds, including habits which did not depend on any substance at all.
[6.132] Dr James's evidence demonstrated that the link often made between the apparent increase in the incidence of lung cancer and the increased incidence of smoking in the first half of the twentieth century was confounded by a number of other factors, including improved methods of diagnosis, the changing age profile of the population, decreased incidence of other diseases such as tuberculosis, increasing awareness of lung cancer and changes in the profile of patients admitted as in-patients to hospital. He discussed Bandera et al. 2001, a report on the link between alcohol consumption and lung cancer, in which there was discussion of the need to consider the role of diet. He also discussed Darby et al. 2001, which postulated that the associations, both positive and negative, found between lung cancer and various dietary factors were to be explained by reference to a confounder. Finally, the difficulties presented by the association between smoking and drinking, diet, and socio-economic class were discussed by Professor Lewis in cross-examination.
[6.133] From the 1950s eminent scientists, notably Sir Ronald Fisher, cautioned that the association between smoking and lung cancer might not be causal but might reflect some third confounding factor, probably genetic or constitutional in nature. Scientific work had been carried out since the 1950s which provided support for this approach. At a general level, Professor Gray gave evidence to the effect that smokers and non-smokers differed from one another genetically and in personality. Smokers tended to have different personality characteristics from non-smokers, and these had a genetic basis. Professor Gray's evidence, which was consistent with the work of Warburton, was that there was a considerable interaction between the individual's personality and environmental factors, including social factors. Moreover, individuals with particular personality traits might be likely to find that smoking was helpful to them: for example someone who was inclined to anxiety and depression might find that smoking was helpful in ameliorating these conditions, while someone inclined to be aggressive might find smoking useful because it could calm him down. Recent work had shown that genetic factors influenced smoking behaviour. Professor Gray explained that genetic inheritance accounted for about half the variance of taking up smoking and about 70% of the variance of continuing to smoke. He referred to recent literature which supported the existence of a link between genetics and smoking behaviour: Kendler et al. 1993 and True et al. 1997. The latter paper reported on results which, when taken with results from other studies, were regarded as being consistent with the conclusion of an important genetic contribution to the risk of becoming a long-term smoker in men.
[6.134] There was evidence from Professor Idle and Dr Lewis that particular aspects of an individual's personality and emotional make-up might be linked to cancer development. Dr Lewis referred to Horne and Picard 1979, and evidence was given about epidemiological studies that a family history of lung cancer was a risk factor for lung cancer.
[6.135] Sir Ronald Fisher's point could be illustrated by reference to the facts of the present case, about which Professor Gray gave evidence: Mr McTear was a man who exhibited personality traits which tended to be characteristic of smokers and which would have given him reasons for smoking. He was a man with a marked family history of lung cancer. Aspects of his lifestyle illustrated further the problem of confounding. He had a stressful lifestyle, with features which were linked to lung cancer by Kissen. He suffered from influenza and other viral infections of the respiratory tract throughout his life; such infections could impair the immune system and immunosuppression had been linked to lung cancer. Previous respiratory diseases were a risk factor for lung cancer. He abused alcohol, and alcohol consumption was a risk factor for lung cancer. Evidence about these matters was given by Professor Gray, Professor Idle and Dr Lewis. There was also the question of the importance of vitamin A for maintenance of the bronchial epithelium and the link between vitamin A deficiency and carcinogenesis, and Dr Lewis had given evidence about those of low socio-economic status living in an urban area of west Scotland being at an increased risk of lung cancer.
[6.136] It had been said in opposition to Fisher's thesis that it might be difficult to envisage how genetic factors could account for the apparent increased incidence in lung cancer over time. But the evidence before the court was that it was not possible to tell whether or not the apparent increase in incidence was real and, if it was real, to what extent it was so. So, as Dr James had explained, we were left with an unknown. Similarly, it was impossible to tell on the evidence whether or not the statistical association between smoking and lung cancer was accounted for by the constitutional hypothesis or, if that hypothesis did not account for the whole association, to what extent the association was accounted for by constitutional factors.
[6.137] Given all of this, and given that cancer was a biological, not a statistical problem, Professor Idle was well qualified to express a view on whether smoking had been established as a cause of lung cancer. He noted repeatedly the limited understanding that science had of the mechanisms of cancer and the causation of the disease. He described the various theories of cancer causation and noted how theories that were once considered highly credible had been discarded at times, then revived. He described the inability of laboratory experiments to produce lung cancer in animals exposed to cigarette smoke, and the similar failure, despite long-standing efforts, to identify what ingredient or ingredients in cigarette smoke might be responsible for the development of lung cancer. He described the need for an understanding of the basic biology of cancer and the limitations of our understanding of this. Various theories of cancer development had been advanced over the years. Some, like that of viral causation, had been put forward, then seemingly rejected, then once again considered plausible. Others, such as cancer as a protein-based disease, or the role of ciliastasis, had fallen by the wayside. Others again, such as the theory that cancer involved changes in DNA, remained current today.
[6.138] In the course of his evidence Professor Idle considered the two-stage theory which had been broadly accepted by the end of 1964; but now this theory was not accepted and instead it was thought that there was a multi-stage process. He referred to the possibility that viruses might induce cancer, and work on viruses as cancer-causing agents was very much alive and continuing. Professor Idle discussed the competition between opposing theories favoured by the McArdle laboratory and the Chester Beatty Institute relating to protein and DNA. He said that there could be no consensus where these two institutes had not reached a common view. Having examined these and other theories he gave evidence that, to date, no theory explained or could explain the origins and development of cancer.
[6.139] Both Professor Idle and Dr Cohen gave evidence that laboratory studies had not produced lung cancer in animals exposed to cigarette smoke. What was interesting, counsel submitted, was not just that squamous cell carcinoma had not been induced in the lungs of laboratory animals, but that great care had been taken to create experiments which would produce positive results. For example, researchers satisfied themselves that cigarette smoke reached the lung in the mouse model. Professor Idle looked at the question of complex mixtures, and whether any ingredient had been identified as a cause of lung cancer, and concluded that it had not. He finally concluded that, in his judgment, cigarette smoking had not been established as a cause of human lung cancer and indeed the cause of cancer was unknown. Dr Cohen gave evidence that the majority of chemicals that had been shown to develop tumours in animals had been reported to show an increased risk in humans, and he could think of no examples where the human data were in conflict with the animal data. This rather underlined an expectation that when animal experiments were being carried out, they might produce a result to confirm that cigarette smoking could cause lung cancer. Dr Cohen gave evidence that studies had been carried out on animals in whom it had been demonstrated that cancer could be induced within their lifespan. Professor Platz gave evidence that it was not possible to distinguish between a smoker and a non-smoker, or indeed an individual with any other exposure that might be associated with lung cancer, on examination of pathological material.
[6.140] Finally, Dr Lewis gave evidence about the relationship that might be expected between the incidence of lung cancer and a decrease in the prevalence of smoking. In the MRFIT (see para.[5.845]) no difference had been found in lung cancer mortality, or in overall mortality, when a comparison was made between the "special intervention" and the "usual care" groups. At least, he said, this showed that the attributable fraction calculation was not valid. Counsel explained that this point was not developed because he was not presenting an epidemiological case and this arose from cross-examination. But he described this as "completing the circle". First, there was evidence doubting whether the apparent rise in the incidence of lung cancer in the first half of the twentieth century was in fact real; then there were questions about the components of the proof of a causal connection between smoking and lung cancer; there was statistical association, but then there seemed to be a view that one needed more than a statistical association; finally, this showed that there was material which pointed to the unwisdom of relying on the attributable risk fraction as the predictor of what would happen if an exposure were removed. More generally when exposure was removed, in fact diseases associated with smoking did not decline. While none of this was developed, it did bear on the question whether a proper defence had been put forward. Mr McEachran's assertion that it could not was unsustainable, when there was at least an indication of the complexity of the issues.
[6.141] Mr Jones said that, far from having lodged nothing in this case to vouch the proposition that the cause or causes of lung cancer were not known, they had lodged literally thousands of scientific papers, amongst which were some that showed the complexity of the issue. Evidence had also been given by some of the very experts who had been advising ITL over recent years on the question whether the causal connection was established. Accordingly counsel invited me to reject as unfounded the submission for the pursuer that there was no real defence on the general causation case.
[6.142] He also invited me to hold that the defence on individual causation was not made out. On the question of what might have caused Mr McTear's lung cancer, neither Professor Friend nor Dr McCarroll, who were the only witnesses who were asked for a view on the subject, gave evidence that the court could rely on for the conclusion that it did. Mr McEachran had made the point that none of the six experts said that there was any other cause of Mr McTear's lung cancer; neither Dr McCarroll nor Professor Friend was cross-examined to the effect that their evidence and diagnoses were inaccurate, it was just said that they were not entitled to make a diagnosis because they were not epidemiologists. Mr Jones made two points about this submission. First, the attribution of an individual's cancer to a putative cause was not diagnosis. Mr McTear's diagnosis was squamous cell carcinoma of the lung. Establishing the cause of this was a separate matter from the diagnosis of the disease. The published view of Doll and Peto, which Dr McCarroll accepted as correct, was that doctors could not tell in an individual what might have caused lung cancer: Peto and Doll 1992. She accepted that where a statistical association was found between smoking and a disease, there would be no way for the medical practitioner certifying deaths to know which of the incidences of these diseases to attribute to the habit. This was a view shared by Dr James, who gave evidence about James et al. 1992. This contained the statement that the difficulty lay in applying an epidemiological and statistical association to individual cases.
[6.143] Counsel submitted, further, that there was no evidence from any epidemiologist to suggest that it would be legitimate or appropriate to apply epidemiological and statistical associations to individual cases. The only person who attempted to do this was Professor Friend, who relied on attributable fraction. It was no doubt because of this difficulty that Sir Richard Doll was not invited to express any views on individual causation; his views on this were known.
[6.144] Professor Friend was in fact cross-examined at length on other possible causes. In many cases he was unable to assist, and he certainly had not applied his mind to the question of other possible causes and the need to exclude them before coming to a conclusion about smoking. Notice was given in the pleadings for ITL of studies which reported lung cancer to be statistically associated with many factors other than cigarette smoking. Some of these factors were related to Mr McTear's case. Professor Friend accepted that there were other risk factors. Given that the starting point for the pursuer's case was epidemiology, in order for her to establish to the court's satisfaction that one rather than any other exposure in Mr McTear's life caused his lung cancer, then there would have to be some attempt in the evidence to exclude the other possible causes and to explain why they should be excluded. There was no evidence on this. Having regard to the case of Wilsher, as discussed in Fairchild, this was fatal to the pursuer's case on individual causation. Some people contracted lung cancer who had never smoked, and if it could not be said one way or the other whether Mr McTear would not have contracted lung cancer but for smoking cigarettes, then the pursuer failed.
[6.145] It was misleading to submit, as Mr McEachran had done, that even ITL's witnesses accepted that cigarette smoking was the strongest risk factor for lung cancer and had the strongest associations. Only Dr Lewis was asked about the relative strength of risk factors and so on. He did not accept the use of the expression "high material risk factor" as one used by epidemiologists. He was prepared to accept that a strong association existed between cigarette smoking and lung cancer. Under reference to Dong and Hemminki 2001, he said that familial clustering had similarly strong associations. Under reference to Gillis et al. 1988a, he said that in west central Scotland the dose-response relationship between smoking and lung cancer peaked at about twenty cigarettes per day. The authors found that in an area of exceptionally high lung cancer incidence, there was a lack of increase of the relative risk of lung cancer at higher levels of cigarette smoking, and they were unable to explain this on the basis of confounding, bias or artefact. The low level of relative risk found at all levels of cigarette consumption coupled with the small increase in relative risk observed at the highest levels of smoking represented a paradox for an area with such a very high rate of lung cancer.
[6.146] Mr Jones submitted that the submission that the association between smoking and lung cancer was stronger than any other was not made out on this evidence. There was no evidence that was relevant in this case to allow strengths of association as they might apply to Mr McTear to be assessed. The court was being invited to use the epidemiological material in order to determine causation in an individual. It was clearly illegitimate to attempt to determine the cause of Mr McTear's lung cancer by having regard to relative strengths of association, because the strength of an association was determined for populations and not individuals, and because the strength of an association could vary from population to population. No witness gave evidence that smoking was the most likely cause of Mr McTear's lung cancer by reference to the strength of association in populations. So nothing could be drawn from strengths of association. Professor Friend's reliance on the attributable fraction was simply misconceived and was not a foundation, on any view, for drawing conclusions about the cause of lung cancer in any individual and in particular in Mr McTear. This evidence, the evidence from the public health reports and the evidence of the consensus view relied on by Mr McEachran took me nowhere, Mr Jones submitted, on the matter of individual causation, because they were all about disease in populations.
[6.147] Mr Jones submitted that on every issue on which the pursuer needed to succeed in order ultimately to establish liability against the defenders, she failed, and did so for want of sufficient proof. In answer to a question by me, as to what should be the outcome if the court was unable to decide one way or the other on the evidence, counsel referred to Rhesa Shipping Co S.A. v Edmunds [1985] 1 WLR 948.
[6.148] In this case, the plaintiffs' motor vessel sank. The plaintiffs sought to recover, under policies of marine insurance, against underwriters, in respect of the loss of the vessel, claiming that the loss was occasioned by a peril insured against, which included "perils of the seas". The burden of proving this, on a balance of probabilities, lay on the plaintiffs. In discussing the requirements of this standard of proof, Lord Brandon of Oakbrook, in a passage at pp.955-956, referred to Sir Arthur Conan Doyle, The Sign of Four, in which Mr Sherlock Holmes is quoted as saying to his friend Dr Watson: "How often I have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" His Lordship went on to say:
"In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. [...]
The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden."
Counsel submitted that, although the circumstances of that case were quite different, the approach was applicable in any case where the question was whether or not the pursuer had discharged the burden of proof on a series of issues that would lead ultimately to a determination of liability.
Discussion: (1) General Causation
[6.149] I propose to say at this point only a brief word about the expert witnesses. The demeanour of only two of them requires comment. Sir Richard Doll (who, of all the expert witnesses, was the only one not to avail himself of my invitation to be seated while giving evidence), made clear by his demeanour as well as the content of his evidence with what disdain he regarded those individuals who disagreed with his conclusion that the causal connection between cigarette smoking and lung cancer was proved. Professor Hastings, who regarded himself as an advocate for greater measures of tobacco control, carried this into his courtroom manner and his tendency to argue with counsel rather than to answer questions. I am bound to say that none of Professor Friend, Sir Richard Doll and Professor Hastings seemed to me to be mindful of the need to be independent (see para.[5.18]), and each appeared to me to engage in advocacy to a greater or lesser extent. Beyond these comments, my impression of all of the expert witnesses was that they gave evidence in a manner appropriate to their professional standing and the context of the proof. I propose therefore to concentrate principally on the content of the expert evidence, to the extent necessary to explain the views set out in the paragraphs which follow.
[6.150] Mr McEachran did not seek to argue that the causal connection between cigarette smoking and lung cancer had been established by any branch of scientific inquiry other than epidemiology. He accepted that it was established on the evidence that the process by which lung cancer developed was not yet known (see para.[6.30]). He also accepted in effect, at para.[6.56], that the averment for ITL at p.16 of the Closed Record was proved, "that over several decades, an enormous research effort has been made to produce in the laboratory the kind of lung cancer reported to be statistically associated with smoking. However, researchers have been unable to produce such cancer in test animals exposed to fresh whole smoke."
[6.151] To my mind, this means that, despite counsel's criticisms of him, no issue was taken with the substance of Professor Idle's examination-in-chief from paras.[5.484] to [5.694]. In the latter paragraph he said that it was his judgment that cigarette smoking had not been established as a cause of human lung cancer. Indeed the cause of cancer was unknown. Moreover, the mechanisms by which lung cancer developed were not known. Researchers had not produced squamous cell lung carcinoma in laboratory animals by inhalation exposure to cigarette smoke. No constituent or group of constituents, as they existed in the complex mixture which was cigarette smoke, had been shown to be a cause of lung cancer in smokers. Provided that it is borne in mind that, as stated at para.[5.484], he had been asked to give an opinion based upon his own area of scientific expertise, these appear to me to be inevitable conclusions from his very impressive survey of all the relevant literature. His area of scientific expertise did not extend to epidemiology, and he was not asked to consider epidemiological studies in the course of his investigations. Epidemiology apart, no researcher would in my view have reached a conclusion different from that of Professor Idle.
[6.152] Professor Idle's research did not appear to me to have omitted reference to any publication (apart from the epidemiological literature and the reports and other publications based on it) which might have served to undermine his conclusions, nor did it appear to me that he misrepresented the substance of any publication to which he did refer. His own conclusions seem to me to have been fairly and objectively based on the literature he had considered. Whether or not they were justified depends, of course, on what a scientist with expertise in the relevant field is to be expected to take into account. What his evidence demonstrates is not simply that there is no basis in the literature relating to any branch of scientific inquiry other than epidemiology for holding that cigarette smoking can cause lung cancer, but that an enormous amount of effort, resources and ingenuity have been devoted to the pursuit of scientific inquiry on this issue, with essentially a negative result. If regard is had to his instructions to give an opinion based upon his own area of scientific expertise, Professor Idle appears to me to have been fully justified in stating that it could not be determined whether or not smoking caused Mr McTear's lung cancer.
[6.153] No issue was taken at all with the evidence-in-chief of Dr Cohen, who conducted what I regard as a convincing evaluation of the carcinogenicity studies reported in the scientific literature, in order to determine whether exposure of laboratory animals to cigarette smoke by inhalation or intratracheal administration resulted in the development of squamous cell carcinoma of the lung. As stated at para.[5.758], he reported that none of the inhalation and intratracheal carcinogenicity studies in the various animal species there referred to, and as reviewed by him, showed a statistically-significant increase in squamous cell carcinoma of the lung following exposure to cigarette smoke and indeed none of the authors of these studies reported a statistically-significant increase for this carcinoma. I was also impressed by his critique, at paras.[5.759] to [5.764], of Dalbey et al. 1980, on which IARC 1986 relied for the statement at p.194 (see paras.[5.45] and [5.759]) that, in one study involving long-term exposure of rats to cigarette smoke, tumours of the respiratory tract were induced. His view was that on the evidence that was before the working group and discussed in the monograph, they were not entitled to express this conclusion, having regard to the defective reporting of the results in Dalbey et al. 1980. As I understood it, Dr Cohen's evidence on this matter was not disputed by Mr McEachran. The consequence is that support for the statement in IARC 1986 is no longer there. Dr Cohen's evidence therefore reinforces what I take from Mr McEachran's reliance on the epidemiology alone, which is that, this apart, no scientist with appropriate expertise who studied the relevant literature would conclude that it had been established that cigarette smoking could cause lung cancer, let alone that it caused Mr McTear's lung cancer.
[6.154] The results of experiments on animals do not necessarily apply to humans, though many in the scientific community must have regarded animal experiments as being capable of yielding results of relevance to the causation of lung cancer in humans, otherwise there could have been no justification for the expenditure of so much money and effort on animal experiments. It appears to me to be well established on the evidence that for many years epidemiological studies were regarded as serving to yield hypotheses, which could then be tested by properly constructed scientific experiments. On my reading of the evidence, it was principally on this basis, to test a hypothesis, that experiments were carried out at the Harrogate Laboratories, and not because it was already accepted by the tobacco industry that the causal connection between cigarette smoking and lung cancer had been established. It was agreed on all sides that, for ethical reasons, no scientific experiment of this kind, which would have involved, as part of a randomised controlled trial, the introduction of a group of randomly selected humans to cigarette smoking, could be conducted. So the animal experiments were of particular importance. The absence of support from the results of experiments on animals is not critical, but it is significant, because proof of the causal connection between cigarette smoking and lung cancer therefore depends solely on the conclusions to be drawn from the epidemiological studies, which on one view of the scientific approach could be regarded as yielding no more than untested hypotheses. Whatever view is taken, however, the pursuer's case stands or falls on what has been proved before me about the epidemiological studies which have led to the judgment that the causal connection is proved.
[6.155] Everything then depends on the view that I take about the evidence relating to the epidemiology of cigarette smoking and lung cancer. What is clear, from the authorities discussed in paras.[5.2] to [5.17], is that I have to consider whether the evidence of any of the expert witnesses has imparted to me special knowledge of the subject-matter of epidemiology, including published material, lying within the witness's field of expertise, so as to enable me to form my own judgment about it and the conclusions to be drawn from it. This is particularly so because it was agreed by Sir Richard Doll, and (subject to what I have to say about his expertise) by Professor Friend that the determination of the question whether or not the statistical association between cigarette smoking and lung cancer was causal itself required an exercise of judgment to be formed in light of all the available, relevant evidence. There is a statement to this effect in USSG 1964, p.20, quoted at para.[5.211] and elsewhere in this Opinion. This is: "The causal significance of an association is a matter of judgment which goes beyond any statement of statistical probability." Not only did Sir Richard Doll agree with this, he said, also at para.[5.211], that a conclusion had to be formed on the evidence as a matter of judgment, as in a court of law. He said that in addition to the strength of the association all other relevant evidence had to be considered by an epidemiologist, in the same manner as a judge would do. I am satisfied that it is not open to me to form my judgment on the evidence without being taught how to do epidemiology to a sufficient extent, and without being provided with sufficient factual material, to enable me to decide whether it is proved, at least on the balance of probabilities, not only that there is an association between cigarette smoking and lung cancer, but that the proper conclusion to draw from this is that there is a causal connection between them.
[6.156] I cannot say that I have had full instruction in this, but I have picked up some snippets along the way. What is clear to me at the outset is that epidemiology is a discrete branch of scientific inquiry, or academic discipline, with its own peculiar terminology and techniques. It is no more part of medicine than it is of public health or statistics, though it draws on and contributes to all three. I have no reason to think that Sir Richard Doll, for example, who is regarded as one of the leading figures in epidemiology, would regard a consultant physician as being qualified to express views about epidemiology without proper instruction in that discipline.
[6.157] Epidemiology, as I understand it, is in itself the study of patterns of disease occurring in human populations and the factors that influence these patterns. An epidemiologist may collect primary data, by conducting a survey, or secondary data, derived from other researchers' primary data. Consideration requires to be given to bias, such as selection bias, information bias or recall bias, and to confounding, which I understand to be a variable (usually unrecognised) that influences the observed relationship between an exposure and outcome. An exposure may be either exogenous, such as exposure to asbestos at work, or endogenous, such as a genetic defect. An association may be found between an exposure and a disease which may be judged to be statistically significant, after consideration of the confidence interval. This is a range of values likely, with a specified degree of certainty, to contain the true population figure for a variable drawn from a sample study.
[6.158] If an association between an exposure and a condition is judged to be statistically significant, after taking account of the foregoing considerations, that in itself does not constitute a judgment that there is a causal connection between the exposure and the condition. The distinction between association and causation is not always recognised, and clearly gives rise to confusion in the minds of those who are insufficiently instructed in epidemiology. The finding of an association between an exposure and a condition or disease, even if judged to be statistically significant, does not of itself connote that a causal connection between the two is established. This is a matter for a further exercise of judgment, taking account of such criteria as the consistency, the strength, the specificity, the temporal relationship and the coherence of the association (see USSG 1964, p.20, referred to at para.[5.729]). This must, I think, especially be so when, in the view of Sir Richard Doll, seen in the passage in Doll 1997 quoted at para.[5.205] cigarette smoking is not a necessary cause nor a sufficient cause of lung cancer, and Dr James at para.[5.476] agreed with this.
[6.159] The concept of relative risk requires discussion. This, as I understand it, is used to compare the incidence of a disease or condition in a group with a particular exposure to those without it. It is thus related to the concept of association, and is neutral: it does not connote that a causal connection is established. The use of the word "risk" in epidemiology appears to have led to some misunderstanding on the part of those unfamiliar with the terminology of this discipline. In ordinary language, "risk" in its primary sense refers to exposure to a hazard or danger, and carries the connotation of a potential causal connection between the risk and the subsequent misfortune or loss, should that eventuate. This has, in my view, led to a serious misunderstanding on the part of Professor Friend, who seems to have regarded the relative risk derived from a comparison of the incidence of lung cancer in smokers and non-smokers, which is such as to yield a positive association between the exposure and the disease, as connoting the establishment of a causal connection between the two. This is not so, though the relative risk may be of a magnitude such that a positive association may be judged to be strong enough for a causal connection is established.
[6.160] From what I have seen of the scientific literature, it appears possible to divide it into three categories, which I shall call the primary, the secondary and the tertiary literature. The primary literature contains, in Professor Gray's useful phrase (see para.[5.41]), the "archival data". In the field of epidemiology, it would be expected no doubt to explain the study design, the measures taken to control for bias and confounding, the statistical techniques used to determine whether or not an association has been found between an exposure and a condition or disease, such as the use of a confidence interval, and the process of reasoning which leads to any conclusions about the significance of the association and any judgment which is formed about a causal connection between the exposure and the condition or disease. There is, as I understand it, an expectation of transparency in the primary literature, so that the authors' work can be subjected to the scrutiny of their peers. Indeed, in many cases a paper is subjected to peer review before being accepted for publication in a learned journal. The scope for such scrutiny is central to the scientific process, because if a conclusion is based on sound research it should be capable of subsequent replication. A good example of this process may be found in Dr Lewis's discussion of Doll et al. 1994 at paras.[5.832] to [5.838], including the statement at para.[5.834] that he found the paper difficult to understand because he did not see the numbers behind it.
[6.161] What I call the secondary literature takes the form of review articles, where data from more than one publication in the primary literature are drawn together and re-evaluated. This process may serve to produce more reliable results, as being derived from a larger dataset which is the aggregate of the data in other studies, and may also serve to demonstrate errors or anomalies in previous studies. What I call the tertiary literature is different from the secondary literature because it involves the examination of both the primary and secondary literature without performing the kind of exercise which is done in the case of a review article. From what I have seen of them, documents such as USSG 1964 and IARC 1986 fall into this category: the authors conducted no original research themselves for the purpose of compiling the reports, nor did they subject data to the kind of process that would be used in a review article. Instead they act as compendia for summaries of numerous publications (as can be seen from the extensive lists of references), and the conclusions are therefore derived from a comprehensive, though not necessarily exhaustive, examination of all the relevant literature.
[6.162] I can say with confidence that no evidence was led about the primary literature which was sufficient to impart to me special knowledge of the relevant subject-matter and to enable me to form my own judgment about it and the conclusions to be drawn from it. This could have been done: it is clear that the survey of British doctors, on which Sir Richard Doll and colleagues have worked for many years, is regarded as a classic of its kind, both because of the pioneering nature of the research, a preliminary report of which was published as Doll and Hill 1950, and because this has been followed up with subsequent papers over several decades. I could at least have been shown these papers, which I assume disclosed the data, the statistical techniques and all the other considerations which led to the authors' conclusions, so that I could see for myself whether these conclusions were soundly based. The opportunity was there, with Sir Richard Doll in the witness box, and indeed Professor Friend for one thought that evidence would be given about this survey. Warning had been given on behalf of ITL, as early as the specification of documents referred to at para.[1.24], that Sir Richard Doll's data were of potential interest to the court. But in the event no attempt was made to show me the data.
[6.163] The fact that I have not been taken to any of the primary literature about the survey of British doctors, or indeed any other epidemiological study in which the conclusion was reached that there was a causal connection between cigarette smoking and lung cancer, appears to me to constitute a fundamental defect in the presentation of the pursuer's case. As has been seen, many were persuaded about the conclusions of Doll and Hill, but others were not. Those who were must have done so because they had the opportunity of considering what had been published about the data, the statistical techniques and so on and regarded them as sufficient to justify the conclusions. Those who were not persuaded must also have had the opportunity of considering the primary literature. I cannot believe that any scientist of any standing would have reached a view, either in favour of or against Doll and Hill, on the basis of a reading of no more than their conclusions. Yet I have no basis for saying why those who were persuaded were right to be persuaded, and those who were not persuaded were wrong. A mere head count will not do.
[6.164] This is particularly so when regard is had to Sir Richard Doll's evidence about those who disagreed with him. No attempt was made by him to explain why it was that they were wrong to disagree with him. They were all, on the face of it, people of some degree of professional standing who had put up reasoned objections to his conclusions. A reasoned response would have served to show why they were wrong. Yet Sir Richard relied before me principally on ad hominem arguments of a kind which is surely unacceptable in rational academic debate. His comments about Fisher may be read at paras.[5.215] to [5.221], about Berkson at paras.[5.222] to [5.228], about Seltzer at paras.[5.244] to [5.248], about Yerushalmy at paras.[5.229] to [5.232], about Eysenck at paras.[5.233] to [5.237] and [5.254], about Burch at paras.[5.239] to [5.243] and [5.250] to [5.251], about Oldham at para.[5.253], about Stern at para.[5.255], about Gwynne Jones at para[5.256], about Feinstein at paras.[5.258] to [5.259], about Passey at paras.[5.260] to [5.261], about Little at para.[5.273], about Tokuhata at para.[5.274], about Hueper at paras.[5.277] to [5.280] and about Rosenblat at paras.[5.268] to [5.269]. I can find little in these passages beyond assertions that those who disagreed with Sir Richard were wrong, coupled from time to time with epithets which I quite frankly found it unbecoming for a man of his stature to have chosen to use. If Sir Richard succeeded in winning over any of those whom he had previously failed to persuade, it cannot have been with these words.
[6.165] Great reliance was placed on Doll 1997, and in the course of his evidence-in-chief Sir Richard was taken over much of the text of this lecture. But I am unable to regard it as anything more than a form of memoir, in terms of self-congratulation no doubt appropriate to the occasion, but unilluminating as to the reasons why Sir Richard was right and those who disagreed with him were wrong. That is to say, he did not purport to publish his research in the lecture. While it was an interesting retrospective overview of the history of the debate, and served to establish that as a matter of fact there had been general acceptance of his conclusions, it did not attempt to enter into the merits of the debate.
[6.166] Mr McEachran's main argument, as I understood it, was that the conclusion that cigarette smoking could cause lung cancer had met with general acceptance in the scientific community by the late 1950s, was accepted by the media in the 1970s, was taught at medical schools and reflected in textbooks, and could be seen stated in a series of substantial multi-disciplinary reports, which he called the "multi-doctor studies", listed at para.[6.30], to the extent that the conclusions of IARC 1986 had never been challenged. This is all very well, but I have to say that I am reminded of the Bellman in Lewis Carroll's The Hunting of the Snark, who said: "What I tell you three times is true". But however often a conclusion may be repeated, it is only as sound as the research on which it is based, and of this I have seen none. However eminent and numerous the authors of a report may be, however many articles they may have read before preparing their texts, however many pages their reports may run to, are to no avail if I am then shown no more than the conclusions reached after all this effort. It is no good to tell me that a report is 400 or 600 pages long, and indeed to ask me to weigh the report in my hand, as Mr McEachran at one time asked me to do with UKHC 2000 Vol.II, and its list of references extends to several hundred items, without letting me see any of the text on which the conclusions are based. Indeed, as Mr Jones pointed out, the very length of a report may emphasise the inappropriateness of going simply to its conclusions: the length shows how much ground there was to cover before the conclusions could be stated. The conclusions, taken on their own, are no more than oracular pronouncements.
[6.167] Although evidence was taken from Professor Friend during his examination-in-chief about the conclusions of some of these reports, it became apparent in cross-examination that he was not qualified to express any view as to whether or not these conclusions were justified. He said repeatedly that he was not an epidemiologist: see paras.[5.95], [5.116], [5.119], [5.138] and [5.147]. I cannot regard him as being of any assistance in determining the question whether the conclusion that cigarette smoking can cause lung cancer is justified on the basis of the epidemiology. Indeed, for all the reasons given by Mr Jones in his submissions at paras.[6.64] to [6.85], I am unable to accept his evidence on any other issue of importance in this case. Sir Richard Doll was the only witness led on behalf of the pursuer who was in a position to give evidence which would enable me to form my own judgment about this issue, and for all the reasons I have given I would regard this opportunity as having been missed. I had no more than his ipse dixit. And no doubt it was because of this that the decision was taken by Mr Jones not to ask Dr Lewis, when in due course he gave evidence, about the issue of general causation: there was by then no case for ITL to answer.
[6.168] Because of these defects in the pursuer's case as presented to me there is little more that I require to say about the expert evidence bearing on general causation. I should however add that I accept the evidence of Dr James, which was subjected to little challenge, that it could not be determined how much of the apparent rise in lung cancer mortality between 1900 and 1950 was real because of changes in population; in diagnosis and treatment; in medical knowledge and practice; in the role of hospitals; in the availability of medical care and in death certification and general statistical methods. This view was based on what appeared to me to be a comprehensive review of the literature and was shared by other pathologists. In consequence, doubt is cast on any epidemiological study which states that during that period there was a correlation between an increase in cigarette smoking and a subsequent increase in lung cancer mortality. I do not think it necessary to say more about this, because I was never taken to the primary research in which such a claim may have been made.
[6.169] A remaining point is that I accepted the evidence of Professor Platz about the defects in the Auerbach studies, Auerbach et al. 1957 and Auerbach et al. 1961. These may be seen to have had defects, not only for the internal reasons to which Professor Platz pointed, but also because his own knowledge of VA hospitals served to cast doubt on the reliability of Auerbach's original data. This in turn serves to undermine Dr Kerr's reliance on Auerbach et al. 1961 and subsequent studies, Auerbach et al. 1975 and Auerbach and Garfinkel 1991, which essentially repeated the findings in the 1961 paper. Accordingly his view of the significance of squamous dysplasia may be affected. But since this was not ultimately an important part of the pursuer's case I do not think it necessary to address it further. What Professor Platz's critique of Auerbach, along with Dr Cohen's of Dalbey et al. 1980, Dr Lewis's of Colby et al. 1995 and Professor Gray's of Henningfield 1984, which I mention elsewhere, is that there is good reason from these and other examples to think that the tertiary literature cannot necessarily be relied upon. If the conclusions of papers such as these in the primary literature may on critical examination be found to be unsound, then there may be more: and in that event, if the primary literature has been accepted without criticism by the authors of the tertiary literature, the latter may not be as reliable as one would expect.
[6.170] For all these reasons, and in addition for the reasons advanced in detail by Mr Jones, which I accept, in my opinion the pursuer has failed to discharge the burden of proving, in accordance with the requirements of the law of evidence relating to expert witnesses, that cigarette smoking can cause lung cancer. I am forced to say, following Lord Brandon in Rhesa Shipping Co S.A. v Edmunds, referred to at paras.[6.147] to [6.148], that the state of the evidence is such that I simply cannot decide one way or the other whether cigarette smoking can cause lung cancer. Since the burden of proving this rests on the pursuer, she has failed to discharge this burden, and accordingly this branch of her case fails.
[6.171] I conclude this passage by emphasising that I am in no way finding that cigarette smoking cannot or does not cause lung cancer: I am simply saying that, 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.
[6.172] I turn now to the question of individual causation, that is to say whether it is proved on the balance of probabilities that cigarette smoking caused Mr McTear's lung cancer, in the sense that but for his smoking of cigarettes he would not have contracted it. I require to assume, for the purpose of considering this question, that, contrary to what I have held in preceding paragraphs, the evidence led before me is sufficient to establish that cigarette smoking can cause lung cancer, i.e. I have to assume that the pursuer's case on general causation succeeds. If so, this would have been because I accepted that sufficient evidence had been led about the epidemiology relating to the association between cigarette smoking and lung cancer to enable me to form my own judgment about it and to conclude that there was a causal connection between them. Nevertheless, I bear in mind that on any view of the matter only a relatively small minority of smokers contract lung cancer: see, for example, Dr Lewis's evidence at para.[5.796].
[6.173] The question then comes to be whether, if a causal connection is established between cigarette smoking and lung cancer in the general population on the basis of epidemiology, that conclusion can be applied to the question whether an individual's, and in particular Mr McTear's, smoking of cigarettes caused his lung cancer. Putting it at its simplest, as Mr McEachran sought to do, the question is whether, if in 90% of cases of lung cancer it was caused by cigarette smoking, it could be said in any individual case that it was more likely than not that his smoking of cigarettes caused his lung cancer.
[6.174] It was not suggested that it could be established by any other means in any individual case that the lung cancer was caused by cigarette smoking. Mr McEachran agreed that the presentation of lung cancer was the same whether the individual was a smoker or a non-smoker. There was no evidence that it was possible by physical examination, by biopsy, by post mortem examination or by any other medical or scientific means to establish that in an individual case of lung cancer it was caused by smoking; or, to put it another way, without the taking of a history from the patient, it was not possible to form any opinion about the cause of his lung cancer.
[6.175] As has been seen, counsel were divided on the use of the word "diagnosis". According to the Oxford English Dictionary, "diagnosis" in its medical sense means "determination of the nature of a diseased condition; identification of a disease by careful investigation of its symptoms and history; also, the opinion (formally stated) resulting from such investigation." While I can see that the taking of a history may be relevant to the diagnosis of a condition or disease in some cases, this is not such a case, in the absence of any distinguishing features between lung cancers in smokers and lung cancers in non-smokers. I do not overlook that Dr Kerr said (at para.[5.343]) that when specimens were submitted to him for examination, he might or might not be told the smoking history of the patient, and if he was given any history at all, it would more often be in the unusual situation where such a specimen was sent to him in a non-smoker, simply to highlight the fact that he was being asked whether the patient had lung cancer and he ought to know that the patient was a non-smoker. It should be noted, however, that Dr Kerr did not say that the history assisted him in the performance of his task of diagnosis; and it may be doubted, from his account, whether it assisted the physicians. In my opinion what can properly be regarded as diagnosis in the circumstances of the present case, when considering Mr McTear's lung cancer, was that he had contracted squamous cell carcinoma of the lung. That it may have been caused by his cigarette smoking was no more part of the diagnosis than a history of a skiing accident, for example, as part of the diagnosis of a fracture of a vertebra. A history of cigarette smoking in an individual may of course be added to the statistics upon which epidemiology is based, but it is not part of the diagnosis in the individual.
[6.176] The difficulty of using statistics derived from epidemiological studies in determining causation in individual cases is well-recognised. In Callum 1998, referred to at para.[5.802], it was stated:
"People who have never smoked cigarettes die from diseases that smoking can cause, and to that same extent some cigarette smokers too can die of the disease but not as a result of their smoking. The matters used to estimate the number of deaths caused by smoking are all based on a proportion of deaths caused by smoking, and cannot be traced back to individuals."
Dr Lewis said that he agreed with this statement. In Peto and Doll 1992, referred to in the evidence of Dr McCarroll at para.[5.25], the authors stated that for most deaths that were in fact due to tobacco there was no reliable way to know that those particular deaths were due to tobacco. Even though the epidemiologist might be able to say with confidence, in the example given, that about half of the deaths from myocardial infarction were due to tobacco, "there would be no way for the medical practitioners certifying those deaths to know which ones to attribute to the habit." Dr McCarroll accepted this. Dr James's view, as stated in James et al. 1992 (see para.[5.450]) was that the difficulty lay in applying an epidemiological and statistical association between smoking and several potentially fatal diseases to individual cases.
[6.177] As Sir Richard Doll stated in Doll 1997, in the passage quoted at para.[5.205], cigarette smoking is not a necessary cause nor a sufficient cause of lung cancer, but it can be an important cause (as few people would have developed the disease if they had not smoked). If that is true in a population, then all the more so is it true in an individual case. It is striking that Sir Richard Doll was not asked for his opinion whether cigarette smoking caused Mr McTear's lung cancer; I agree with Mr Jones's submission that the inference is that this was because it was impossible to tell, on the basis of epidemiology, whether or not cigarette smoking had caused any individual case of lung cancer.
[6.178] Having regard to what I have already said about Dr McCarroll, I mean no disrespect to her when I express the view that she was not qualified to conclude that Mr McTear's lung cancer was probably caused by his cigarette smoking. As I have said, I do not regard the issue of causation as being part of her diagnosis. It may serve the purposes of a general practitioner well enough, particularly when she has been taught at medical school that most cases of lung cancer are caused by cigarette smoking, to reach such a conclusion in an individual case. But she had never had occasion to examine the underlying science, with particular reference to the question whether statistical methods used in epidemiology could be applied to the issue of causation in individual cases.
[6.179] In my view, the pursuer's case on individual causation depends on the evidence of Professor Friend. As I have said, I have to assume for present purposes that it has been proved before me, on the basis of the epidemiology, that cigarette smoking can cause lung cancer. So I assume that it has been proved that 90% of cases of lung cancer are caused by cigarette smoking. If this is taken as the starting point, then Professor Friend's clinical experience does no more than bear out the statistics upon which the epidemiology is based: it does not add to the conclusion that there is a causal connection between cigarette smoking and lung cancer. The real question is whether, notwithstanding the views referred to above, Professor Friend was correct in making use of statistics to reach conclusions in individual cases.
[6.180] I find Dr Lewis's evidence entirely convincing. It is consistent with the above views and gives extensive reasons for concluding that epidemiological data cannot be used to draw conclusions about the cause of disease in any individual. This opinion was hardly subjected to cross-examination, except in a brief passage at para.[5.843], the rest of his cross-examination being taken up with epidemiological issues. In Mr McEachran's submissions no attempt was made to argue that I should not accept Dr Lewis's conclusion, still less to discredit the extensive reasons he gave for reaching it. It is accordingly sufficient in my view to state that I accept, for the reasons given by him, and under reference to the literature referred to by him, that epidemiological evidence cannot be used to make statements about individual causation. The information provided in an observational epidemiology is generally such that it can neither confirm nor refute a causal relationship, particularly when the exposure in question is not specifically associated with a certain condition (i.e., the exposure is always associated with the condition, and vice versa). Epidemiology cannot provide information on the likelihood that an exposure produced an individual's condition. The population attributable risk is a measure for populations only and does not imply a likelihood of disease occurrence within an individual, contingent upon that individual's exposure. The fact that cases and non-cases can emerge both from the unexposed and the exposed groups show that the likelihood of the individual occurrence cannot be reliably predicted from his or her exposure group membership alone. The group estimates obscure the underlying heterogeneity of the population, so that it is entirely possible that other group memberships besides exposure, like genetic profile, socio-economic status, workplace, diet and other exposures make a major contribution to disease occurrence. The question of using epidemiological data for individual causation raises the problem of identifying a particular individual who was harmed by the exposure. While models such as the assigned share concept, derived from attributable fractions, have attempted to deal with this, they suffer from the limitations mentioned by Dr Lewis. The attempt to identify exposure as the sole cause of disease in an individual produces a statement counter to fact in that it implies that the individual would have remained healthy if the exposure had not occurred. This, as Dr Lewis said, is not provable and cannot be derived from epidemiological data.
[6.181] There is ample evidence (of which it is sufficient to refer to the papers discussed by Dr Lewis at paras.[5.810] to [5.828], that there are risk factors for lung cancer other than cigarette smoking. Some of these risk factors were present in Mr McTear's case, as submitted by Mr Jones at para.[6.135]: personality traits, family history of lung cancer, stressful lifestyle, viral infections of the respiratory tract, alcohol abuse, vitamin A deficiency, low socio-economic status and residence in an urban area of west Scotland. On the evidence, a non-smoker exposed to any or all of these risk factors can develop lung cancer. Whether or not there is a causal connection between any of these risk factors and lung cancer is a matter of judgment, which I do not require to exercise for present purposes. What is significant is that in Mr McTear's case these risk factors were present and, if epidemiology can be used, as Professor Friend sought to use it, to determine whether Mr McTear's cigarette smoking caused his lung cancer, then account requires to be taken of these other risk factors. I do not agree with Mr McEachran's submission that it was for ITL to prove that Mr McTear's lung cancer was due to some cause other than cigarette smoking. The burden of proving individual causation is on the pursuer, and in assessing the evidence of Professor Friend I am entitled to have regard to the extent to which he considered and, if so, found reasons for discounting other possible causes.
[6.182] In the end, it was demonstrated all too clearly in the cross-examination of Professor Friend that he did not understand the concept of attributable fraction and how it could not be used to determine the probability of causation in an individual. This of course was because, as he himself said repeatedly, he was not an epidemiologist; and the cross-examination only served to demonstrate that he had no real understanding of the concepts and techniques used in that branch of science.
[6.183] As Mr Jones said, no witness gave evidence, apart from that already discussed, that but for Mr McTear's smoking he would not have developed lung cancer; no witness said that it was more likely than not that his lung cancer was caused by his smoking, except on the basis of Dr McCarroll's general knowledge and on the basis of Professor Friend's misapplication of attributable fraction. For the above reasons I do not regard the evidence of either of these two witnesses as constituting an acceptable basis for holding it proved that cigarette smoking did cause Mr McTear's lung cancer.
[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].
[6.185] In the result, I am not in a position to hold, and do not purport to hold, that Mr McTear's lung cancer was not caused by his cigarette smoking. But I am not satisfied, on the basis of the evidence led before me, that it has been proved that it probably was caused by his smoking, in the sense that it is more likely than not that but for his smoking he would not have contracted lung cancer. The pursuer fails on this branch of the case also.
[6.186] I turn now to consider the averment for the pursuer that:
"Tobacco is addictive in the sense that once individuals such as [Mr McTear] have started smoking it is difficult for them to wean themselves off the habit. It is more addictive than cocaine." (Closed Record p.22D-E)
This is supported by a reference in the pursuer's pleadings to USSG 1988. ITL deny these averments and aver that smoking is correctly regarded as a habit and not an addiction. They go on to aver that people choose to smoke for a variety of reasons, that smokers derive benefits from smoking, that over the years many millions of smokers have stopped smoking through choice, and that while some smokers may find it difficult to stop smoking, smokers who choose to stop smoking are able to do so.
[6.187] It should be noted that there is no reference in the pursuer's pleadings to DSM-IV or ICD-10. The position of ITL, as stated in the letter by the Corporate Affairs Director of Imperial Tobacco Group plc dated 20 January 2000, was that they agreed that nicotine could be regarded as addictive by reference to DSM-IV and ICD-10 but this did not mean that smokers were unable to stop smoking if they chose to do so (see para.[2.11]). No evidence was led about the terms of ICD-10, and the terms of DSM-IV were only referred to in the evidence of Professor Friend at para.[5.167], where he agreed that the passage in the introduction relating to the use of DSM-IV in forensic settings was in general terms the correct approach to take. This passage urged the use of caution in the drawing of conclusions from the fact that an individual's presentation met the criteria for a DSM-IV diagnosis. So I am unable to give further content to the position of Imperial Tobacco Group plc before the House of Commons Health Committee, and I must consider the averments for the pursuer on their own terms.
Submissions for Mrs McTear
[6.188] Mr McEachran submitted that the averments for ITL were an example of inappropriate pleading, having regard to the position adopted before the House of Commons Health Committee, and by Mr Davis in evidence. He relied on passages in USSG 1988 and RCP 2000. The former were brought out in the evidence of Professor Friend at paras.[5.66] to [5.73] and in the evidence of Professor Gray at paras.[5.418], [5.443] to [5.444], and the latter in the evidence of Professor Friend at paras.[5.74] to [5.83] and in the evidence of Professor Gray at para.[5.394]. Reference was also made by counsel to IARC 2004, of which only the conclusions were available at the time of the proof.
[6.189] Mr McEachran submitted that the evidence showed that it was difficult for smokers to give up smoking. The evidence was that it was nicotine in the cigarette which was the drug which caused the craving. That was the conclusion of "these two large multi-doctor reports". In further discussion Mr McEachran submitted that there were two factors working together, "the positive side, to get the benefits that smoking gives, and also the withdrawal effects from the removal of the nicotine".
[6.190] Counsel relied on Professor Friend's evidence in this regard. This, he submitted, demonstrated that there were many people who found it extremely difficult to give up smoking. They were driven by two features mentioned by Professor Friend, the need to have another cigarette, and the symptoms of withdrawal. The overwhelming evidence was that it was nicotine in the tobacco which caused addiction, the difficulty of giving up. Counsel said that he was unwilling to explore the concept of addiction further than to rely on the fact that many, if not most, cigarette smokers did indeed find it very difficult to give up.
[6.191] Mr McEachran submitted that Professor Hastings, on whose evidence he also relied, came across as an articulate and able Professor of Social Marketing, who was obviously well thought of. He succeeded in getting his message across in a number of areas. Mr McEachran agreed with my impression, that Professor Hastings was rather determined to express a point of view which was not necessarily an answer to the question he was being asked. This was, he said because he had strong views on the matter. Mr McEachran relied on his evidence for the effects of advertising, which encouraged people to keep on smoking when they might otherwise have given up in response to public health campaigns and publicity in the media about the risks to health of smoking. This meant that there was a very confused picture indeed, with different people saying different things. MacAskill et al. 2002, of which Professor Hastings was one of the authors, demonstrated why it might be particularly difficult for Mr McTear, having started smoking and being a heavy smoker, to be able to give up.
[6.192] Mr McEachran submitted that Professor Gray was prepared to accept that smoking was addictive in a descriptive sense. If this meant what was averred on behalf of the pursuer, that it was difficult for people who started smoking to wean themselves off the habit, then there was no dispute. But Professor Gray denied that nicotine was the drug which caused the addiction. He was prepared to say that it would have a contributory influence. Professor Gray's evidence represented a minority view from a tobacco man. He was a psychologist and not a doctor. Some of his research had been funded by the tobacco industry. This meant that I had to look carefully at his evidence to see whether there might be a bias towards that industry. His evidence about addiction needed to be assessed against the admission of ITL to the House of Commons Health Committee, that nicotine could be regarded as addictive by reference to DSM-IV and ICD-10. He accepted that he was out on a limb compared with many distinguished scientists and doctors.
[6.193] Mr McEachran made the point that USSG 1988 was a very impressive document. Over fifty scientists were involved and it extended to 600 pages. Their conclusions were that cigarettes were addicting and nicotine was the drug in tobacco which caused addiction. So Professor Gray was going against the views of a much larger body of scientists and doctors. In any event he accepted that a smoker might find it very difficult to stop smoking, which was the pursuer's case.
Submissions for ITL
[6.194] Mr Jones submitted that it was quite inappropriate on the evidence to seek to dismiss Professor Gray's evidence, as Mr McEachran had done, by calling him a "tobacco man". He was the only witness who was qualified to give opinion evidence on the question of addiction. He was in fact a distinguished Professor of Psychology from a leading academic institution and had researched and published extensively on a range of subjects to do with the brain and its relationship to behaviour. It was not a proper ground of criticism that he was not a doctor: he did not come to give evidence as a doctor but as a research scientist. His evidence was based on a wide reading of the literature. He had plainly given detailed consideration to the issues he was asked to address. He gave good and sufficient reasons for the opinions which he expressed. He could not legitimately be criticised for having sought and received funding from the tobacco industry, in particular for work of potential therapeutic value in relation to Alzheimer's disease. This was particularly so when he did this at a time when it was not unusual to take funding from the tobacco industry, and at a time when funding from other sources was limited. In any event, while most, if not all, of his research into nicotine received some support from the tobacco industry, this formed only one part of his very extensive body of publications. It was not correct to say that he denied the nicotine effect in tobacco: in his opinion, nicotine affected cognitive function and mood, and it was because of these effects that people chose to smoke, amongst other reasons. He denied that nicotine, or indeed tobacco, in some way affected the smoker's ability to choose whether to smoke or not. It was also said of him that he was "out on a limb". There were, however, those who supported his opinion on the addiction model: Warburton 1988a and 1988b, and Frenk and Dar 2000, in a passage which was unchallenged by Professor Friend. Indeed MacAskill et al. 2002 lent support to the functional model proposed by Professor Gray. In counsel's submission, what was important was not the "head count", but the cogency of Professor Gray's reasoning for his conclusions, which was not effectively challenged either in evidence or in submission.
[6.195] Mr Jones then turned to Mr McEachran's submission that ITL's pleadings about the addiction issue were inappropriate. After discussion at the Procedure Roll on the question whether an averment for Mrs McTear that tobacco was addictive was sufficiently specific to give fair notice of the characteristics of tobacco that were relied upon, an amendment was allowed so that the pleadings were now as quoted above. Mr Jones submitted that, on a proper construction, the averments for ITL meant that it was not true of all smokers that it was difficult for them to wean themselves off the habit. Taking the denial with its qualification, he submitted, it was clear that the defenders' response to the pursuer's case on addiction was that not every smoker found it difficult to stop and that any smoker who chose to do so could stop.
[6.196] Mr Jones went on to submit that ITL's averments were proved. Mr McTear stopped smoking. Mrs McTear stopped smoking. Sir Richard Doll, having been a smoker for twenty years, stopped smoking "without difficulty". USSG 1988 at p.466 stated:
"[T]here are approximately 41 million former smokers in the United States. Approximately 90 percent of former smokers report that they quit smoking without formal treatment programs or smoking cessation devices [...]."
Professor Gray expressed the opinion that different smokers sought different outcomes from smoking, but an individual smoker was likely to smoke for different reasons at different times, and smokers continued to smoke because of the benefits they derived from it, not because they were addicted to it. Professor Gray's views found empirical support in Professor Hastings's research in socially deprived areas of Glasgow, which found that smoking met a multitude of needs in the lives of the populations studied by the researchers.
[6.197] Replying to Mr McEachran's submission that ITL had admitted to the House of Commons Health Committee that tobacco was addictive, Mr Jones reminded me that ITL were asked questions in writing, one of which was whether nicotine could be regarded as addictive by reference to DSM-IV and ICD-10. There was no reference to either of these in the pleadings, and objection was taken to references being made to them in the evidence. Although ITL agreed that nicotine could be regarded as addictive by reference to these manuals, they said that this did not mean that smokers were unable to stop smoking if they chose to do so. Because the pursuer had no pleadings about DSM-IV or ICD-10, there was very limited evidence about the significance of the characterisation of nicotine as addictive by reference to the diagnostic criteria, but Professor Friend accepted that the criteria in DSM-IV were meant to be applied in the diagnosis of an individual by those capable of exercising clinical judgment. In addition, DSM-IV stated in terms at p.xxxiii:
"[T]he fact that an individual's presentation meets the criteria for a DSM-IV diagnosis does not carry any necessary implication regarding the individual's degree of control over the behaviors that may be associated with the disorder."
Having regard to these considerations, Mr Jones invited me to reject Mr McEachran's allegations that ITL's pleadings about addiction were inappropriate.
[6.198] Mr Jones pointed out that USSG 1988 concluded that nicotine had pharmacological effects similar to drugs such as cocaine and heroin. Reference was made to Henningfield 1984 and a number of other studies using the same methodology, which it was claimed showed similar levels of reported euphoria. RCP 2000 in turn referenced USSG 1988 and Henningfield 1984 for the same purpose. The methodology used in these studies was quite comprehensively criticised by Professor Gray in his evidence, under reference to Warburton 1988a. Accordingly, the conclusions of Henningfield 1984 and other studies adopting the same methodology could not be relied on for the proposition that tobacco had pharmacological effects similar to drugs such as cocaine and heroin. So the conclusions to this effect in the public health reports could not be relied on. Another aspect of this was that Henningfield was one of the scientific editors of USSG 1988 and he was a contributor to RCP 2000. RCP 2000 was also criticised in relation to its use of statistics on quitting.
[6.199] Mr Jones submitted that the pursuer led no witness who had any expertise on the matter of addiction. Moreover, Professor Hastings was plainly committed to the cause of tobacco control, regarded himself as an advocate for greater measures of tobacco control, and was on record as saying that the tobacco industry was to lung cancer what the mosquito was to malaria. He considered that the world would be a better place if people did not smoke tobacco. He had been an active campaigner for a ban on advertising and was a member of the Advisory Council of ASH. He was almost invariably inclined to respond to questions by making comments that were argumentative rather than by giving a direct answer to the question. His career had been in social marketing, which he described as a discipline the purpose of which was to change behaviour with a view to health benefits. All of this served to explain his perspective. His interest was in factors that might influence people's smoking behaviour.
[6.200] In any event, as the evidence turned out, and having regard to Mr McEachran's submissions, it was clear that there was little, if anything, between the parties on the substance of this part of the pursuer's case. The only difference of substance in the pleadings appeared to be that, whilst the pursuer was asserting that anybody who smoked would find it difficult to wean himself or herself off the habit, it had all along been the position of ITL that, whilst some people might find it difficult, people could, if they chose, stop smoking. Ultimately, in his submission, it was ITL's position which was made out on the evidence: it was accepted that it might be difficult for some individuals to stop smoking.
[6.201] This left the pursuer's case deficient in this important respect. It was not now, nor could it be, suggested that if Mr McTear tried to stop smoking and did not stop smoking it was because he was unable to do so. The position might have been different if it were proved that his free will to exercise a decision to stop smoking had been overcome by nicotine or something else in tobacco: one then would have to look at the case in that context. But on the evidence there was nothing left other than that some people found it difficult to stop smoking. Accordingly, counsel invited me to deal with this part of the pursuer's case by finding that some smokers might find it difficult to stop smoking, but that any smoker, if he or she chose to do so, could stop smoking. He also asked me to reject the suggestion that I should make a finding that tobacco was addictive in any sense. This was because, first, there were a number of different definitions of the word "addictive". If I made a finding that some people might find it difficult to stop smoking when they were smokers, that disposed of the issue between the parties and did not introduce the difficulties and confusion that the use of the word "addictive" would introduce. Secondly, counsel asked me expressly to decline to make a finding that "tobacco is more addictive than cocaine" on the basis that no evidence had been led in support of this.
[6.202] Although counsel claimed that the parties were not far apart on the question of addiction, the foregoing account of their submissions may make them seem to be further apart. I can say at the outset that the averment for the pursuer that tobacco is more addictive than cocaine is not proved: the pursuer led no evidence in support of this apart from the references to heroin and cocaine in the passages in USSG 1988 referred to in the evidence of Professor Friend (paras.[5.66], [5.67] and [5.72]). Professor Friend was not, however, qualified to express any view about this. As he said himself, at para.[5.72], he was not an addiction specialist and not a psychiatrist, he had only had the opportunity to read some of the literature (i.e. the reports referred to above). He nevertheless said that he believed that nicotine resulted in a very strong addiction for many people, which he clearly regarded as being "an intense physical addiction, as a result of a chemical process which had been very carefully studied". In cross-examination, at paras.[5.162] to [5.171], Professor Friend demonstrated not only a lack of familiarity with the relevant literature, but also a forgetfulness about literature in which he had participated, BTS 1990 and Lennox et al. 2001, which would support the conclusions that ability to stop smoking did not appear to be affected by daily cigarette consumption, sex, age, or heaviness of smoking, but there was a significant inverse association with a level of social deprivation. I am not therefore prepared to accept Professor Friend's evidence about addiction, primarily because this did not appear to me to lie within his field of expertise.
[6.203] By contrast, Professor Gray appeared to me to be well qualified to give evidence about addiction, and I found his evidence to be persuasive. I reject the criticism of him that he was a "tobacco man". I detected no bias in his evidence, which appeared to me to be presented with moderation, internal coherence and appropriate reference to authority. Rose et al. 2000 gave support for his view that, as far as the pleasure and satisfaction of smoking were concerned, the principal route did not involve nicotine, but lay somewhere else in the complex behaviour that was smoking a cigarette. Support for the view that smoking had an intrinsic anti-depressant action was found in Kendler et al. 1993, and there was laboratory evidence that nicotine could have the effect of reducing anxiety. Accordingly Professor Gray's overview that nicotine and smoking tobacco had a remarkably broad spectrum of activity in alleviating negative mood and emotion, including depression, irritability and anxiety was supported by the literature. This justified the functional view which he favoured.
[6.204] Professor Gray's criticisms of the "addiction" model appeared to me to have force. I was particularly impressed by the criticism of Henningfield 1984. As had been brought out in Warburton 1988a, Henningfield's histograms when re-plotted on the same scale did not provide strong support for Henningfield's conclusion. Nicotine could then be seen to be, at best, a weak euphoriant and did not act like other compounds in the maintenance of other kinds of substance self-administration. Professor Gray also considered the question of tolerance and contrasted withdrawal symptoms from quitting smoking and from quitting heroin. His discussion of these supported the view that the behavioural and psychological changes observed in quitting smokers were more reasonably interpreted as reflecting non-specific dysphoria consequent upon disruption of a habit and loss of the pleasure or other benefits the habit provided.
[6.205] I was impressed above all by Professor Gray's critique of the mechanistic view embodied in the proposition that smokers did not smoke out of choice but because they became addicted to nicotine. As he pointed out, under the normal humanist view of life people chose to do things. The mechanistic view was not supported by the data about the number of people who had given up smoking. Support for the functional view was found in Warburton 1988b. Among the functional effects of smoking, of particular relevance in Mr McTear's case were those concerned with mood control. If smoking tobacco alleviated depression, not because it had a direct antidepressant effect, but rather because, for a habitual smoker, deprivation of smoking had a depressant effect, this could explain Mr McTear's behaviour on the occasions when he temporarily gave up smoking. There was little by the way of direct challenge to this evidence in cross-examination. He said that it was not possible to say why one smoker succeeded in quitting while another did not, though the answer might lie in the smoker's individual circumstances. He agreed that it could be taken from MacAskill et al. 2002 that people in lower socio-economic groups in Scotland were more likely to smoke and less likely to give up. But, as he pointed out, this observation was consistent with the functional model.
[6.206] Professor Gray's evidence accordingly is consistent with the averment for the pursuer that once individuals such as Mr McTear have started smoking it is difficult for them to wean themselves off the habit. It provides no support for the proposition that tobacco is more addictive than cocaine, or more addictive than heroin for that matter. There is no evidence before me which provides support for the conclusion in USSG 1988 that the pharmacological and behavioural processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine. Indeed, insofar as this relied on Henningfield 1984, it lacked a sound scientific basis.
[6.207] What I take particularly from Professor Gray's evidence, and his preference for the functional model, is that it retains the element of choice. The ability to choose is a central feature of the individualist philosophy of the common law which I discuss in Part VII. The word "addiction" is of questionable use in describing some forms of repetitive behaviour which the individual may or may not wish to alter. In everyday parlance it has come to be applied to such behaviour as shopping, for example, and even in its more scientific use it appears to be capable of being applied to behaviour such as gambling which does not involve the ingestion of any substance (though no doubt effects on the chemistry of the brain would need to be considered). If "addiction" can be applied in such a wide sense it ceases to be useful for any occasion, such as the present, when precision of meaning is required, though it may serve a legitimate purpose in the public health context. Even in that context, the definition of "addiction" has changed over time: USSG 1964, in the passage quoted at para.[5.163], said that the tobacco habit should be characterized as an habituation rather than an addiction. I prefer to concentrate on the behaviour and thought processes that the word has been used to describe.
[6.208] The evidence of Professor Hastings appears to me to add nothing for present purposes. The fact that individuals may be exposed to advertising, and even influenced by it, does not mean that they are precluded from exercising a free choice. Advertising simply adds to the complexity of the individual's decision-making process. People are well-accustomed to weighing up mixed messages, and to making their own decisions and choices. In any event Professor Hastings himself disclaimed any such mechanistic account of the influences to which an individual such as Mr McTear might be exposed. For an individual to say that he has found difficulty in altering or giving up a habit, as Mr McTear did of his smoking, because he is "addicted", appears to me to be little more than an attempt to absolve himself of individual responsibility for his own decisions and choices. In my view a smoker such as Mr McTear makes a deliberate choice as to whether to start smoking, whether to continue smoking or to stop smoking, and indeed whether or not to smoke a cigarette on any particular occasion. The fact that smokers such as Mr McTear may find it difficult to give up does not appear to me to deprive them of the element of free will which is fundamental to the individualist philosophy of the common law.
PART VII: LIABILITY
[7.1] Although I have held that the pursuer has not discharged the burden of proving that cigarette smoking can cause lung cancer and, if so, that it caused Mr McTear's lung cancer, so that the pursuer's case on both general causation and individual causation fails, I have nevertheless to consider whether ITL should be found liable on the assumption that, contrary to what I have held, the pursuer has succeeded in both these respects. It should be borne in mind that the remainder of this Part proceeds on this hypothesis.
[7.2] Mr McEachran began his submissions on liability by saying that this was a defective product liability case, but the Consumer Protection Act 1987 did not apply because a special exemption was made for cigarettes at section 10(7)(f). Accordingly the matter proceeded at common law. This was as summarised in Salmond & Heuston, The Law of Torts (21st edn., 1996), p.296:
"Before 1932 it was extremely doubtful whether there was any liability on the part of a manufacturer of goods to the ultimate consumer or user with whom there was no contractual relationship, when there was no fraud, when he did not know the article to be dangerous, and when it did not belong to the category of things dangerous per se. But in that year the decision of a majority of the House of Lords in Donoghue v Stevenson, an appeal from the Court of Session, established that in such circumstances the manufacturer might owe a duty to the ultimate consumer."
[7.3] Counsel founded therefore primarily on Donoghue v Stevenson 1932 SC (HL) 31. In this case the pursuer brought an action of damages against a manufacturer of ginger beer, averring that she had been poisoned by ginger beer, which was bought from a retail dealer in an opaque sealed bottled in which it had left the manufacturer's premises, and which contained a decomposed snail. The House of Lords held, by a majority, that where the manufacturer of a product intended for human consumption sent it out in a form which showed that he meant it to reach the ultimate consumer in the form in which it left his factory, with no reasonable possibility of intermediate examination by the retailer or consumer, and with the knowledge that want of reasonable care on his part in the preparation of the product might result in injury to the consumer, the manufacturer owed a duty to the consumer to take such care, and would be liable to the consumer in damages if he or she suffered injury through the failure to take such care.
[7.4] Lord Atkin said, at p.43:
"The sole question for determination in this case is legal. Do the averments made by the pursuer in her pleadings, if true, disclose a cause of action? I need not restate the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health."
[7.5] At p.57, Lord Atkin said:
"If your Lordships accept the view that this pleading discloses a relevant cause of action, you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."
[7.6] At pp.59-60, Lord Thankerton said:
"There can be no doubt, in my opinion, that, equally in the law of Scotland and the law of England, it lies upon the party claiming redress in such a case to show that there was some relation of duty between her and the defender which required the defender to exercise due and reasonable care for her safety. [...] The special circumstances from which the appellant claims that such a relationship of duty should be inferred may, I think, be stated thus, namely, that the respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact, and that she has been injured by the harmful nature of the article owing to the failure of the manufacturer to take reasonable care in its preparation prior to its enclosure in the sealed vessel, will be entitled to reparation from the manufacturer.
In my opinion, the existence of a legal duty under such circumstances is in conformity with the principles of both the law of Scotland and the law of England."
[7.7] Lord Macmillan said, at p.72:
"It must always be a question of circumstances whether the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. I can readily conceive that, where a manufacturer has parted with his product and it has passed into other hands, it may well be exposed to vicissitudes which may render it defective or noxious, for which the manufacturer could not in any view be held to be to blame. It may be a good general rule to regard responsibility as ceasing when control ceases. So, also, where between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer's product before he re-issues it to the actual user. But where, as in the present case, the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer, and the manufacturer takes steps to ensure this by sealing or otherwise closing the container so that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. The intervention of any exterior agency is intended to be excluded, and was in fact in the present case excluded."
[7.8] Counsel said that he referred to Donoghue v Stevenson as establishing that in such circumstances the manufacturer might owe a duty to the ultimate consumer. He founded particularly on the speech of Lord Atkin as effectively applying the wider "neighbourhood" principle propounded in this case to manufacturers. Counsel submitted that the manufacturers' duty had been given a broad interpretation and was not limited to food and drink, but extended to any item capable of causing damage, such as an article of clothing: Grant v Australian Knitting Mills Ltd [1936] AC 85. The appellant in this case contracted dermatitis of an external origin as a result of wearing a woollen garment which, when purchased from the retailers, was in a defective condition owing to the presence of excess sulphites which, it was found, had been negligently left in it in the process of manufacture. The presence of the deleterious chemical in the garment was a hidden and latent defect, and could not be detected by any examination that could reasonably be made; nothing happened between the making of the garment and its being worn to change its condition; and the garment was made by the manufacturers for the purpose of being worn exactly as it was worn in fact by the appellant. It was held, applying the principle of Donoghue v Stevenson, that these facts established a duty to take care as between the manufacturers and the appellant for the breach of which the manufacturers were liable in tort. In delivering the judgment of the Privy Council, Lord Wright said at p.105:
"The principle of Donoghue's case can only be applied where the defect is hidden and unknown to the consumer, otherwise the directness of cause and effect is absent: the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief follows, because it follows from his own conscious volition in choosing to incur the risk or certainty of mischance."
[7.9] Counsel submitted that cigarettes were themselves defective because they had elements in them which caused death. Knowledge by the manufacturer that there was a risk of serious injury to the health of the consumer was obviously vital to establish liability: there was no need to prove exactly how that risk came about. So far as lung cancer was concerned, it was enough to establish that serious scientists were raising significant concerns that tobacco smoking was liable to cause damage to health, especially lung cancer: to hold otherwise would be to put the consumer at the mercy of the "flat earther", because otherwise the manufacturer could wait until all scientists were convinced before taking action.
[7.10] Sir Richard Doll had given unchallenged evidence that by about the date of MRC 1957 at least the great majority of scientists accepted the link between tobacco smoking and lung cancer. ITL founded on evidence that some scientists did not accept the Doll thesis, but he had described them as mistaken and eccentric. Considering that no challenge had been put forward to IARC 1986 and later reports, it was clear that he was right, even though in 1964 there were a few who did not accept the hypothesis. ITL employed scientists and they were aware of the state of knowledge, both in the industry and among scientists. ITL were aware of the early reports. In addition there was the evidence about Dr Bentley's report following a meeting in 1958. So it was established that ITL were aware in the late 1950s of the risk of lung cancer. At the latest by 1957 ITL were aware that their product was liable to cause lung cancer to smokers and accordingly to cause death. It was their duty to cease manufacture, at least until they had managed to remove the carcinogen or carcinogens from the tobacco smoke that led to lung cancer. They seemed, despite this duty, to have continued with the manufacture for reasons of profit. They thus became liable to anyone like Mr McTear who suffered injury when he started smoking after that time. ITL had to take their victim, Mr McTear, as they found him. No doubt many smokers of their products were drinkers, were unemployed, were depressed, and had been convicted of drink-related offences. ITL would be aware of the level of smoking in the socio-economic class to which Mr McTear belonged.
[7.11] Counsel next referred to Wright v Dunlop Rubber Co Ltd (1972) 13 K.I.R. 255. The plaintiffs in this case commenced employment with the first defendants (Dunlops) in December 1946 and March 1947 respectively. They alleged that they had contracted cancer of the bladder as a result of being exposed, during the course of their employment, to Nonox S, a chemical containing carcinogenic substances manufactured by the second defendants, Imperial Chemical Industries Limited (ICI) and sold to the first defendants. In May 1949 Dunlops were warned that they might have a grave problem of bladder cancer. They stopped using Nonox S. In 1966 the plaintiffs were diagnosed as suffering from the disease. In actions for damages the plaintiffs alleged negligence against both defendants, and further alleged breaches of section 47 of the Factories Act 1937 against Dunlops. Both defendants denied negligence, breach of duty and causation. O'Connor J. gave judgment for the plaintiffs against both defendants. He held inter alia that ICI should have withdrawn Nonox S before the end of 1946 and that Dunlops enhanced the risk of injury to the plaintiffs by failing from 1960 onwards to advise all employees employed before 1949 to submit themselves for screening. ICI appealed as to liability.
[7.12] The Court of Appeal held, dismissing the appeal, that the manufacturer of a chemical product owed to the purchaser's employees a duty to take all reasonable steps to satisfy himself that the product was safe in the sense that there was no substantial risk of any substantial injury to health on the part of persons who were likely to use it or to be brought into contact with its use, the method of use being such as was at least reasonably to be expected as normal and proper; that ICI knew, or ought to have realised, before either of the plaintiffs entered the employment of Dunlops, that Nonox S was, or contained, a carcinogenic substance involving a real risk of causing cancer of the bladder to persons working in rubber factories in which it was used; and that, in failing to cease manufacturing and supplying Nonox S at that time, ICI were negligent. The following passages in the judgment of the court, read by Sachs L.J. and Lawton L.J., were referred to in the discussion before me.
[7.13] At p.266 the court summarised the contentions of the parties on the negligence issue as follows:
"The plaintiffs' argument, broadly stated, is that at all material times (which in the circumstances of this case means the 1940s) ICI knew: first, that the A and B amines, particularly the B amine, were dangerous carcinogens in both bulk and trace; secondly, that the free amines in Nonox S included the A and B amines; thirdly, that the free amines in Nonox S would volatilise at temperatures over 1020C; fourthly, that in Dunlops' factories Nonox S would be under heat at temperatures over this figure; fifthly, that in the course of production in those factories dust would be dispersed into the atmosphere when bags of Nonox S were emptied and when the Banbury mixers were charged with raw rubber and Nonox S; and, sixthly, that the rubber-making processes would give off a large amount of fumes. Knowing what they did, it was submitted, ICI should have appreciated the nature and extent of the risks to which they were subjecting Dunlops' workers and should have either withdrawn Nonox S or, at the very least, have given them a warning about its carcinogenic properties. Their failure to do either was alleged to be negligence.
ICI did not dispute that they had this knowledge. What has been in issue was the inferences which could, or should, have been drawn from it. Their main contention has been that at no time before 1949 did they know, or could have been reasonably expected to have known, that the free amines in Nonox S could cause bladder cancer amongst workers in Dunlops' factories."
[7.14] After considering the evidence as to ICI's knowledge, the court concluded, also at p.266, that the contemporaneous documentary evidence proved that from about 1942 onwards ICI knew that very small amounts of amine in the atmosphere, whether as dust or fumes, were a grave hazard to the health of those who came into contact with them. At p.267 the court turned to the question:
"Having this knowledge, would ICI, if they had given positive thought to the matter, have appreciated the risks to which Dunlops' workers would be exposed in handling Nonox S? If yes, what should they have done?"
After reviewing the evidence bearing on this question the court said, at p.268:
"It follows, in our judgment, that the warnings given in the medical literature in the 1920s and the 1930s should have made ICI think about risks in use; and they may probably have had this result because, as we have found, they did consider the risks to which their own workers were exposed in handling Nonox S."
[7.15] At p.271 the court reached the following conclusions on the negligence issue:
"In the judgment of this court, ICI long before 1949 were in a position to appreciate that Dunlops' workers were at risk. It is difficult to say when, on balance of probabilities, they should have appreciated this. The trial judge put the date at 1940, which is perhaps earlier than we would feel able to put it on the evidence before us. The date to which we are disposed is by the year 1943; though we cannot rule out an earlier date as a possibility. Clearly, they were in that position well before either of the plaintiffs entered their employment with Dunlops. Had they given thought to the risk to Dunlops' workers, as manifestly they should have done, some action by them was called for. The least they should have done was to have warned Dunlops of the suspicions which they had. The giving of a warning would probably have resulted in Dunlops giving up buying Nonox S: this is what happened in July 1949 as soon as ICI had told them about the risks. ICI in fact did nothing; and the two plaintiffs worked in an atmosphere contaminated with the A and B amines without any protection of any kind, with the result that they both, years later, were found to be suffering from bladder cancer.
In coming to this conclusion we have gone further than O'Connor J., who found for the plaintiffs on the basis that had ICI at any time after 1940 asked themselves whether it was safe for workmen in the rubber industry to be exposed to the B amine they would have been obliged to admit that they did not know and on that narrower ground were liable in negligence. We agree with that approach; but we have founded our conclusions on the basis that ICI actually had the relevant knowledge."
[7.16] The court then turned, at pp.271-273, to consider the relevant law, in these terms:
"What, then, are the consequences in law? The relevant principle of law by which the question whether or not ICI were in breach of a duty owed to the plaintiffs falls to be decided seems to be clear, viz., that the duty of the manufacturer to the purchaser's workmen in a case such as this is the same as the duty of a manufacturer towards his own workmen, subject only to one proviso. That proviso is that the manufacturer knows how the goods are going to be used by the purchaser. So far as the present case is concerned, the proviso creates no difficulty for the plaintiffs. While ICI did not know all the details of the processes of rubber manufacture in which Nonox S was used by Dunlops, they were not unaware of anything which was material for present purposes. There was no suggestion that Nonox S was used by Dunlops in any unexpected or unusual way, or that any of the relevant factors, such as the temperatures at which the processes were conducted, were not known or could not readily have been discovered by ICI. No problem arises in this appeal in connection with the opportunity for intermediate inspection by Dunlops. Thus, we do not have to consider the question which has sometimes arisen in the application of the Donoghue v Stevenson [...] principle. For ICI have not raised any suggestion, and in this appeal have expressly disclaimed the suggestion that, if ICI ought to have foreseen the risk to the plaintiffs arising from the use of Nonox S by Dunlops, Dunlops should also have foreseen that risk. We do not, therefore, have to consider what, if any, effect such a contention, if it were established, would have on the question of ICI's liability to the plaintiffs.
ICI, then, owed a duty to Dunlops' employees in respect of Nonox S. What was the extent of the duty? It was a duty to take all reasonable steps to satisfy themselves that Nonox S was safe: 'safe' in the sense that there was no substantial risk of any substantial injury to health on the part of persons who were likely to use it or to be brought into contact with its use, the method of the use being such as was intended or contemplated or was at least reasonably to be expected as a normal and proper use.
It is obvious that the answer to the question: 'What are reasonable steps?' must depend upon the particular facts. It is obvious, also, that the duty is not necessarily confined to the period before the product is first produced or put on the market. Thus, if, when a product is first marketed, there is no reason to suppose that it is carcinogenic, but thereafter information shows, or gives reason to suspect, that it may be carcinogenic, the manufacturer has failed in his duty if he has failed to do whatever may have been reasonable in the circumstances in keeping up to date with knowledge of such developments and acting with whatever promptness fairly reflects the nature of the information and the seriousness of the possible consequences.
If the manufacturer discovers that the product is unsafe, or has reason to believe that it may be unsafe, his duty may be to cease forthwith to manufacture or supply the product in its unsafe form. It may be that in some circumstances the duty would be fulfilled by less drastic action: by, for example, giving proper warning to persons to whom the product is supplied of the relevant facts, as known or suspected, giving rise to the actual or potential risk. Factors which would be relevant would be the gravity of the consequences if the risk should become a reality, and the gravity of the consequences which would arise from the withdrawal of the product. In the present appeal, we do not, however, have to consider that question: for it is not suggested on behalf of ICI that, if they ought to have realised the carcinogenic qualities of Nonox S before the time when the plaintiffs were exposed to it, they could, or would, have refrained from at once ceasing its manufacture and supply, as they in fact did in August 1949.
The principal issue with which we are concerned in this appeal is thus essentially simple. It can be simply stated, and, as we think, simply and shortly answered. The question is whether ICI, before the end of 1946, when the plaintiff Mr Wright was first employed by Dunlops, knew or ought to have realised that Nonox S was, or contained, a carcinogenic substance involving a real risk of causing cancer of the bladder to persons working in rubber factories in which Nonox S was used.
If the plaintiffs fail to establish that the answer to that question is 'Yes', their claim fails. If the plaintiffs succeed on that issue, then, subject to the question of causation, their claims succeeds. O'Connor J. held that the plaintiffs succeeded on that issue. We agree with him. Our own examination of the evidence has led us to the same basic findings of fact as he made; indeed, as already stated, we have made an important additional finding about knowledge. This means that negligence has been proved."
[7.17] Counsel submitted that, while the tobacco manufacturers would not have any knowledge that their product was carcinogenic until the work done by Sir Richard Doll and others, starting in 1950, there were risks of a significant number of deaths, and the only reasonable step which reasonable manufacturers would have taken in the 1950s would have been to cease manufacture until the problem had been dealt with. This submission applied to all tobacco manufacturers in the United Kingdom, who all ought reasonably to have ceased production by 1957. If the tobacco manufacturers had ceased manufacture, this would have focused everybody's minds on getting a solution to the problem. What had happened was that it had been allowed to continue and there were now more than 120,000 deaths a year from smoking, on the basis of the unchallenged public health figures. It was not relevant, in looking to see what a reasonable manufacturer would do, to consider what the Government position was as a matter of public health. The complaint was that ITL continued to manufacture, and if cigarettes had not been available in 1964 Mr McTear would not have been able to smoke them. The risks had been established by epidemiology, and were accepted by the scientific and medical community by 1957. This was an extremely dangerous product, and if it was going to kill people, then the duty was to cease production. It was not legitimate to say in response that smoking was socially acceptable and regarded as a source of pleasure, nor that it had beneficial effects primarily in the area of mental health.
[7.18] Counsel accepted that the scope of a duty of care had to be examined according to the standards at the time, and what might be reasonable for a manufacturer to do now was not necessarily the same as would have been reasonable for the manufacturer to have done fifty years before. But given that the risk was the same then as now, he submitted that the duty on the manufacturer was no different. It was not reasonable for a manufacturer who found that his product was capable of causing such serious harm to leave it to the public authorities to make it unlawful for him to sell the product or restrict its sales, and unless and until they did that to continue selling the product. Wright v Dunlop Rubber Co Ltd was an example of a case where an obligation fell on the manufacturers to take action once they discovered that a substance was carcinogenic, and the action was to withdraw it. In Thompson v Smith's Shiprepairers (North Shields) Ltd [1984] 1 Q.B. 405 it was held that the test to be applied in determining the time at which an employer's failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not extraordinarily solicitous for his workers' safety in the light of what he knew or ought to have known at the time. This afforded an example of the focus on the date when the defender should reasonably have foreseen a risk of injury, which in the present case was in the 1950s and in particular 1957.
Submissions for ITL
[7.19] Mr Jones started his submissions by saying that if I was with him on either general or individual causation, then it was not necessary to go further. But it was nevertheless necessary to consider all of the issues, including the legal issues, so he proceeded to address me on them. Even if I were persuaded that Mr McTear's lung cancer was caused by his smoking of ITL's cigarettes, the real issue was whether or not he suffered injury as a result of a breach of a duty of care owed to him by ITL, that is to say whether, but for the breach of a duty of care owed to him by ITL, he would not have contracted lung cancer. There was no such thing as negligence or liability in the air: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388 at p.425. Liability could not be isolated from its context. There had to be a complete picture of cause and effect before negligence or breach of duty could be discussed.
[7.20] In addressing the central issue, he invited me to consider two preliminary questions to help clarify the two key issues of fact. The first of these was the relevance of knowledge of the health risks associated with smoking; and the second was the relevant date for assessing whether or not Mr McTear suffered injury as a result of a breach of a duty of care owed to him by ITL. On the first question, if Mr McTear smoked ITL's cigarettes, knowing of the link between smoking and lung cancer that was being talked about, then he could not blame ITL if in fact he contracted lung cancer as a result of smoking in that state of knowledge. In those circumstances one could say either that ITL did not owe him any relevant duty of care, or that they were not in breach of any duty of care owed to him, or that any breach of their duty of care to him did not cause his injury, or that he was volens. In the cases these various possibilities crossed over and sometimes excluded each other, but ultimately they arrived at the same point, which was the absence of liability on the part of the defenders.
[7.21] I observed that it could not be said that ITL did not owe a duty of care to Mr McTear as they would to any ultimate consumer of their products, but what needed to be looked at was the content of the duty. Mr Jones said that this raised an interesting jurisprudential point. In the cases sometimes the result was that a defender or defendant was absolved from blame because there was no liability. This result was variously described as coming about sometimes because there was no duty of care in the circumstances; or sometimes because there was a duty of care, but there was not a breach of the particular formulation of that duty. It could be put either way. For his purposes, ultimately in this case it really did not matter, because he would be concentrating on the content of any duty of care. His hesitation in accepting my way of putting it was that we came back to the problem of there being no such thing as negligence in the air. One might say that as a matter of principle there was a duty to avoid acts and omissions which it was reasonably foreseeable would be likely to injure one's neighbour, but this only had any practical application when one came to determine whether a breach of a duty of care had caused injury. This might be a rather impractical philosophical answer, but it was a reflection of the views that were expressed in some of the cases. Ultimately it was necessary to identify just what particular duty was to be performed in any case, without looking at the broader question, because that ultimately was what the court was concerned with.
[7.22] Mr Jones submitted that there was a breach of a duty of care in Donoghue v Stevenson because there was no opportunity for intermediate inspection of the contents of an opaque sealed bottle, so that the purchaser was not aware that there was a snail in the bottle. If the purchaser bought the bottle knowing that there was a snail in it, there would be no action for breach of any duty to take care to avoid a snail getting into the bottle during manufacture. If there was an opportunity prior to consumption for becoming aware of whatever the harmful defect might be, there was no breach of duty. Counsel referred to Grant v Australian Knitting Mills Ltd, supra.
[7.23] Reference was next made to Titchener v British Railways Board 1984 SC (HL) 34. According to the report, the Occupiers' Liability (Scotland) Act 1960, section 2, provides inter alia:
"(1) The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(3) Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care."
[7.24] In this case a girl aged 15 was struck by a train while crossing a railway line. She raised an action of damages against British Railways Board averring that they had failed in terms of section 2 of the 1960 Act to take reasonable care to maintain a fence made of sleepers, which separated the public street from the embankment on which the line was situated. It was established after proof that there had been gaps in the fence through which persons could easily reach the line and that the defenders had known that persons did walk across the line by that route. The pursuer admitted in evidence that she had so crossed the line on several previous occasions with her boyfriend. She had known that it was dangerous to do so and that she should have looked out for trains on the occasion of the accident, as she had done previously. The Lord Ordinary disbelieved her when she said that she would have been prevented from crossing the line by an ordinary post and wire fence. The Lord Ordinary, Lord Ross, assoilzied the defenders. In the course of his Opinion the Lord Ordinary at pp.40-41 quoted a passage from the cross-examination of the pursuer in the course of which she said:
"Well, before my accident I never ever thought that it would happen to me, that I would never get hit by a train, it was just a chance that I took."
He added the comment:
"A person who takes a chance necessarily consents to take what comes."
[7.25] The pursuer reclaimed and an Extra Division adhered to the Lord Ordinary's interlocutor. The pursuer appealed. The House of Lords held:
(1) That the duty of the occupier of premises under section 2(1) of the 1960 Act was to show such care as in all the circumstances was reasonable to see that the person entering on them would not suffer injury; in the case of the operator of a railway the existence and extent of a duty to maintain a fence beside the line depended on the circumstances, including the age and intelligence of the person entering on to the line and the nature of the locus. (2) That, in relation to the appellant, the Lord Ordinary was entitled to hold that the respondents owed no duty to her to maintain the fence in a better condition than it was on the grounds that she was aware of the danger, that on-coming trains could be seen for a quarter of a mile and that she had not averred any complaint as to the way in which the train had been operated.
(3) That the Lord Ordinary and the Extra Division were also correct in holding that even if the respondents had failed in their duty to maintain the fence the appellant had failed to prove as a matter of probability that the accident would have been prevented had the fence been maintained.
(4) That the Lord Ordinary was also correct in holding that the respondents had established a defence under section 2(3) of the 1960 Act which merely stated the principle of volenti non fit iniuria in that the appellant was well aware of and accepted the risk of crossing the line while trains were being operated properly.
[7.26] At p.52 the Lord Chancellor, Lord Hailsham of St. Marylebone, said:
"To my mind the crucial fact in this appeal was that no averment was or could have been made against the respondent Board that the train which struck the appellant was being driven otherwise than in a perfectly proper manner. If such an averment had been made and proved the respondent Board would have been liable on the lines of the well-known passage of Denning L.J.'s judgment in Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264 at p.271. But, on the facts and evidence in this case, once it was accepted that there was no negligence on the part of the driver of the train, it seems to me that the pursuer's claim, which was based solely on the condition of the fence, was doomed to failure, if only because, on her own admissions, she had voluntarily accepted the risk whatever it was which she incurred by crossing the line, provided only that it was a 'risk of danger from the running of the railway in the ordinary and accustomed way'.
On this analysis of the facts it is possible to formulate the result either by saying that, at the critical moment, that is when the appellant crossed the line, the respondent Board owed no duty to the appellant, or that the duty they owed to the appellant had been discharged by the time she crossed the boundary fence, or that the accident was not caused by any breach of duty on the part of the respondent Board, or alternatively that, having assumed the risk involved, the respondent Board was covered by the doctrine volenti non fit iniuria."
[7.27] At pp.54-55 Lord Fraser of Tullybelton said:
"The duty under section 2(1) was considered by your Lordships' house in McGlone v British Railways Board 1966 S.C. (H.L.) 1 where Lord Guest said at p.15 'The duty is not to ensure the entrant's safety but only to show reasonable care. What is reasonable care must depend "on all circumstances of the case"'. One of the circumstances is the age and intelligence of the entrant. That appears from the provision in section 2(1) that the duty is to show 'such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury' (emphasis added). The question in each case relates to the particular person who has entered upon the premises. The submission of counsel for the respondents was that they did more than enough to discharge their obligations to this appellant because the fences along the north and south sides of the line, notwithstanding that they had gaps, gave her warning that if she went on she would be entering upon railway premises. She was well aware, as she admitted, of the danger of walking across or along the line, and she said that when doing so she normally kept a lookout for trains. By giving her that warning, the respondents were, said Mr Morison [senior counsel for the respondents], doing more than they were obliged to do, because this appellant already knew that the railway was there, and therefore needed no warning. Counsel accepted that the logical conclusion of this argument was that, as the appellant had no need of a warning, the respondents could have left their premises near the bridge completely unfenced without being in breach of any duty towards her. A fortiori they had no duty to do more than they did.
The Lord Ordinary accepted that argument, and in the Division Lord Hunter agreed, although only with some hesitation.
I must emphasise that the question in this appeal is not whether the respondents, and other operators of railways if any there be, have as a general rule a duty to the public to maintain fences beside their lines in good condition or at all. The existence and extent of a duty to fence will depend on the circumstances of the case including the age and intelligence of the particular person entering upon the premises; the duty will tend to be higher in a question with a very young or a very old person than in the question with a normally active and intelligent adult or adolescent. The nature of the locus and the obviousness or otherwise of the railway may also be relevant. In the circumstances of this case, and in a question with this appellant, I have reached the opinion that the Lord Ordinary was well entitled to hold, as he did, that the respondents owed no duty to her to do more than they in fact did to maintain the fence along the line. I reached that view primarily because the appellant admitted that she was fully aware that the line existed, that there was danger in walking across it or along it, that she ought to have kept a lookout for trains, and that she had done so when crossing the line on previous occasions."
[7.28] Lord Fraser went on to consider additional features of the case which he regarded as important. He then said, also at p.55:
"There was therefore no special danger peculiar to the locus of the accident, and no criticism was made by the appellant of the way in which the particular train was being operated. [...] Taking all these circumstances together I consider that the respondents did not owe the appellant a duty to maintain the fence in better condition that it was. If it were necessary to do so I would hold that they owed her no duty to provide any fence at all."
[7.29] At pp.55-57 Lord Fraser went on to consider additional grounds on which the Lord Ordinary and the Division had based their decisions. First, he held that the Lord Ordinary had correctly decided that, even if the respondents were at fault in failing to maintain the fence and to repair the gaps in it, the appellant had failed to prove, as a matter of probability, that if the respondents had performed their duty in those respects, the accident would have been prevented. He then said:
"Secondly, the Lord Ordinary held that the respondents had established a defence under section 2(3) of the 1960 Act by proving that the appellant had willingly accepted the risks of walking across the line. As Lord Reid said in McGlone, supra, subsection (3) merely puts in words the principle volenti non fit iniuria. That principle is perhaps less often relied upon in industrial accident cases at the present time than formerly, but so far as cases under the 1960 Act are concerned, the principle is expressly stated in section 2(3) and there is no room for an argument that it is out of date or discredited. If the Lord Ordinary was entitled to sustain this defence, the result would be that, whether the respondents would otherwise have been in breach of their duty to the appellant or not, the appellant had exempted them from any obligation towards her. [....] On this matter I am of opinion, in agreement with Lord Hunter, that the Lord Ordinary was well-founded in sustaining this defence. The reasons for doing so are in the main the same as the reasons for holding that the respondents were not in breach of their duty. The appellant admitted that she was fully aware that this was a line along which trains ran, and that it would be dangerous to cross the line because of the presence of trains. She said in cross-examination 'it was just a chance I took', and the Lord Ordinary evidently accepted that she understood what she was saying. She was in a different position from the boy in McGlone, supra, who did not have a proper appreciation of the danger from live wires - see Lord Reid at p.13 and Lord Pearce at p.18. As I said already the appellant did not suggest that the train which injured her had been operated in an improper or unusual way. The importance of that is that the chance which she took was no doubt limited to the danger from a train operated properly, in the 'ordinary and accustomed way' - see Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264, per Denning L.J. at p.271. Had there been evidence to show that the train which injured the appellant was driven negligently, like the train in Slater's case, the risk which materialised would not have been within the risks that the appellant had accepted. But there is nothing of that kind here. In my opinion therefore the defence under section 2(3) is established."
[7.30] Counsel submitted that the duty of a manufacturer of goods was to show such care as in all the circumstances was reasonable, so there was no distinction to be made between that duty and the duty of an occupier of premises. The pursuer in Titchener voluntarily accepted the risk, whatever it was, which she incurred by crossing the line. In a case involving a manufacturer and consumer, the duty was not to ensure the consumer's safety, but it was only to show reasonable care, and that depended on all the circumstances of the case. Likewise, the occupier of premises had no duty to ensure the safety of a person coming on to land and effectively, once that person knew of the existence of danger, there was no duty on the part of the occupier to do more. Mr McEachran had submitted in effect that warnings might not have been heeded by Mr McTear, so that it was the duty of ITL to erect an "impenetrable barrier" by ceasing production. This was analogous to what was being argued for the pursuer in Titchener. But the duty was to exercise reasonable care, having in mind the reasonable person as the person to whom that duty was owed, an adult who on an objective view would act reasonably in all the circumstances. So, even although in Titchener an impenetrable barrier might have had the effect of keeping her off the railway, there was no duty to erect one when her knowledge was that she was "taking a chance" by going onto the line.
[7.31] It was important, counsel submitted, to consider the factual basis upon which all of the judges in the House of Lords held either that there was no breach of duty, or that the maxim volenti non fit iniuria applied, because the pursuer had taken a chance. This was consistent with the policy of the law, that once an individual was aware that there was a risk in what they were doing, then the consequences of the risk fell on him, because he could choose whether or not to take the risk. The cases on volenti non fit iniuria, where the acceptance was of a future risk, where there had not yet been negligence, such as driving carelessly, could be contrasted with the type of circumstance found in Titchener, where the alleged fault had already taken place, in that case the state of the fence. These circumstances were important in determining as a matter of fact whether the pursuer had accepted a risk, waived a claim and so on. It was sometimes very difficult to get to volenti non fit iniuria, because by the time one was looking at that one had already decided that there was no breach of a duty of care. Counsel submitted that Titchener afforded an insight into the general policy of the common law, which was founded on the notion of individual freedom, and the notion that the individual took responsibility for his own actions. The common law recognised that individuals were entitled to do things which involved risk to their health or well-being, but if they did so they must accept responsibility for the consequences of their actions.
[7.32] These principles could be seen in action in Tomlinson v Congleton Borough Council [2004] 1 AC 46. In a country park owned and occupied by the first defendant and managed by the second defendant (Cheshire County Council) was a lake that had formed in a disused quarry. It was meant to attract many visitors in hot weather. Swimming in the lake was prohibited, and the defendants displayed prominent notices reading "Dangerous Water: No Swimming" and employed rangers with the duty of giving oral warnings against swimming and handing out safety leaflets. The first defendant, aware that the notices were frequently ignored and had little effect in preventing visitors to the park from entering the water and that several accidents had resulted from swimming in the lake, intended planting vegetation around the shore to prevent people from going into the water but had not yet done so because of a shortage of financial resources. On a hot day the plaintiff, aged 18, went into the lake and from a standing position in shallow water dived and struck his head on the sandy bottom, breaking his neck. He claimed damages against the defendants, alleging that the accident had been caused by their breach of the duty of care that they had owed to him as a trespasser under section 1 of the Occupiers' Liability Act 1984. The judge, on a preliminary issue as to liability, found that there had been nothing about the lake that made it any more dangerous than any other ordinary stretch of open water and that the danger and risk of injury from diving in it where it was shallow had been obvious. He dismissed the plaintiff's claim. The Court of Appeal by a majority allowed an appeal by the plaintiff.
[7.33] On appeal by the defendants, the House of Lords held, allowing the appeal, that (Lord Hutton dubitante) any risk of the plaintiff suffering injury had arisen not from any danger due to the state of the defendants' premises or to things done or omitted to be done on them within section 1(1)(a) of the 1984 Act but from the plaintiff's own misjudgment in attempting to dive in too shallow water; that that had not been a risk giving rise to any duty on the defendants; and that, in any event, it had not been a risk in respect of which the defendants might reasonably have been expected to afford the plaintiff some protection under section 1(1)(c).
[7.34] At pp.81-86 Lord Hoffmann said:
"32 That leaves paragraph (c) [of section 1(3) of the Occupiers' Liability Act 1984]. Was the risk one against which the council might reasonably be expected to offer the plaintiff some protection? The judge found that 'the danger and risk of injury from diving in the lake where it was shallow were obvious'. In such a case the judge held, both as a matter of common sense and following consistent authority (Staples v West Dorset District Council (1995) 93 L.G.R. 536, Ratcliff v McConnell [1999] 1 WLR 670 and Darby v National Trust [2001] P.I.Q.R. P372), that there was no duty to warn against the danger. A warning would not tell a swimmer anything he did not already know. Nor was it necessary to do anything else. 'I do not think,' said the judge, 'that the defendants' legal duty to the plaintiff in the circumstances required them to take the extreme measures which were completed after the accident.' Even if Mr Tomlinson had been owed a duty under the 1957 Act as a lawful visitor, the council would not have been obliged to do more than they did."
[7.35] After summarising the opinions delivered in the Court of Appeal, Lord Hoffmann went on:
"34 My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to 'such care as in all the circumstances of the case is reasonable' depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and to the cost of preventative measures. These factors have to be balanced against each other.
35 For example, in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No.2)) [1967] 1 AC 617, there was no social value or cost saving in the defendant's activity. Lord Reid said, at p.643:
'In the present case there was no justification whatever for discharging the oil into Sydney Harbour. Not only was it an offence to do so, but it involved considerable loss financially. If the ship's engineer had thought about the matter, there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately.'
36 So the defendants were held liable for damage which was only a very remote possibility. Similarly in Jolley v Sutton London Borough Council [2000] 1 WLR 1082 there was no social value or cost saving to the Council in creating a risk by leaving a derelict boat lying about. It was something which they ought to have removed whether it created a risk of injury or not. So they were held liable for an injury which, though foreseeable, was not particularly likely. On the other hand, in The Wagon Mound (No.2) [1967] 1 AC 617 Lord Reid, at p.642, drew a contrast with Bolton v Stone [1951] AC 850 in which the House of Lords held that it was not negligent for a cricket club to do nothing about the risk of someone being injured by a cricket ball hit out of the ground. The difference was that the cricket club were carrying on a lawful and socially useful activity and would have had to stop playing cricket at that ground.
37 This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care or in which Parliament, as in the 1957 Act, has decreed that there should be. And it may lead to the conclusion that even though injury is foreseeable, as it was in Bolton v Stone, it is still in all the circumstances reasonable to do nothing about it."
[7.36] After contrasting the 1957 and 1984 Acts, Lord Hoffmann turned to the balance under the 1957 Act. He said, at para.39, "I accept that we are concerned with the steps, if any, which should have been taken to prevent any kind of water accident." He also said that "there is obviously some degree of risk in swimming and diving, as there is in climbing, cycling, fell-walking and many other such activities." He decided that the financial cost of taking preventative measures was not a significant item in the balancing exercise. Then at para.41 he said:
"There are two other related considerations which are far more important. The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the council should be entitled to allow people of full capacity to decide for themselves whether to take the risk."
[7.37] After discussing the social value of the activities, Lord Hoffmann, under the heading "Free will" said:
"44 The second consideration, namely the question of whether people should accept responsibility for the risks they choose to run, is the point made by Lord Phillips of Worth Matravers M.R. in Donoghue v Folkestone Properties Ltd [2003] QB 1008, 1024, para.53 and which I said was central to this appeal. Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk. By contrast, Miss Bessie Stone (Bolton v Stone [1951] AC 850), to whom the House of Lords held that no duty was owed, was innocently standing on the pavement outside her garden gate at 10 Beckenham Road, Cheetham when she was struck by a ball hit for six out of the Cheetham Cricket Club ground. She was certainly not engaging in any activity which involved an inherent risk of such injury. So compared with Bolton v Stone, this is an a fortiori case.
45 I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may [...] think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.
46 My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley L.J. [2003] 2 WLR 1120, 1135, para.45, that it is 'only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability'. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Comr of Police of the Metropolis [2000] 1 AC 360.
47 It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law."
[7.38] At paras.48 and 49 Lord Hoffmann referred to defensive measures taken by the council officers to prevent the council from being held liable to pay compensation. He said that "local authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers". In any event there was little evidence that defensive measures had had much effect on diving injuries. He then concluded by saying:
"50 My Lords, for these reasons I consider that even if swimming had not been prohibited, and the council had owed a duty under section 2(2) of the 1957 Act, that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious. If that is the case, then plainly there can have been no duty under the 1984 Act. The risk was not one against which he was entitled under section 1(3)(c) to protection. [....]"
[7.39] Lord Hutton, at pp.88-91, said:
"57 I thought for a time that [the reasoning of Ward L.J. in the Court of Appeal] was persuasive, but I have concluded that it should not be accepted because I consider that it is contrary to a principle stated in the older authorities which is still good law. In Stevenson v Glasgow Corporation 1908 S.C. 1034, 1039 Lord McLaren stated:
'in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law.'
58 In Glasgow Corporation v Taylor [1922] 1 AC 44, 61 Lord Shaw of Dunfermline stated:
'Grounds thrown open by a municipality to the public may contain objects of natural beauty, say precipitous cliffs or the banks of streams, the dangers of the resort to which are plain.'
Lord Shaw then cited with approval the words of Lord McLaren in Stevenson v Glasgow Corporation 1908 S.C. 1034, 1038 that 'in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures'. I think that when Lord McLaren referred to physical features against which 'it is impossible to guard by protective measures' he was not referring to protective measures which it is physically impossible to put in place; rather he had in mind measures which the common sense of mankind indicates as being unnecessary to take. This statement echoed the observation of the Lord President, Lord Dunedin, in Hastie v Edinburgh Magistrates 1907 S.C. 1102, 1106 that there are certain risks against which the law, in accordance with the dictates of common sense, does not give protection - such risks are 'just one of the results of the world as we find it'.
59 Stevenson v Glasgow Corporation and Hastie v Edinburgh Magistrates (which were not concerned with trespassers) were decided almost a century ago and the judgments are couched in old-fashioned language, but I consider that they express a principle which is still valid today, namely, that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff and to impose a duty on him to do so. In my opinion this principle, although not always explicitly stated, underlies the cases relied on by the appellants where it has been held that the occupier is not liable where a person has injured himself or drowned in an inland lake or pool or in the sea or on some natural feature."
[7.40] After referring to other cases in which the judgment of Lord Shaw in Glasgow Corporation v Taylor had, expressly or implicitly, been applied, Lord Hutton concluded by saying:
"65 Therefore I consider that the risk of the plaintiff striking his head on the bottom of the lake was not one against which the defendants might reasonably have been expected to offer him some protection, and accordingly they are not liable to him because they owed him no duty. I would add that there might be exceptional cases where the principles stated in Stevenson v Glasgow Corporation 1908 S.C. 1034 and Glasgow Corporation v Taylor [1922] 1 AC 44 should not apply and where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, for example where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen. But the present is not such a case [...]."
[7.41] In the course of his opinion Lord Hobhouse of Woodborough said, at p.94:
"74 Returning to the facts of this case, what more was it reasonable to expect of the defendants beyond putting up the notices and issuing warnings and prohibitions? It will not have escaped your Lordships that the putting up of the notices prohibiting swimming is the peg which the claimant uses to acquire the status of trespasser and the benefit of the suggested more favourable duty of care under the 1984 Act. But this is a case where, as held by the judge, all the relevant characteristics of this mere were already obvious to the claimant. In these circumstances, no purpose was in fact served by the warning. It told the claimant nothing he did already know [...]. There was no danger; any danger did not arise from the state of the premises; any risk of striking the bottom from diving in such shallow water was obvious; the claimant did not need to be warned against running that risk; it was not reasonable to expect the occupier to offer the claimant (or any other trespasser) any protection against that obvious risk."
[7.42] At pp.96-97, in para.81, Lord Hobhouse said:
"[I]t is not, and never should be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? Does the law require that attractive waterside picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no. But this is the road down which your Lordships, like other courts before, have been invited to travel and which the councils in the present case found so inviting. In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen."
[7.43] Counsel submitted that when it came to the alleged duty to cease manufacture, the court had to look at all the facts and circumstances of the case and determine what was reasonable in that context. The principle that the individual should be free to choose risks, and if he did so that he must take the responsibility if harm resulted, applied even where the risk was one of death. The balance between risk on the one hand and individual autonomy on the other was recognised by the courts in Scotland, like those in England, and reflected the individualist values of the common law here. The principles of the English common law of tort and the Scottish common law of delict were likely to be the same, as for example in the field of employment law. Tomlinson was an example of a case where there was not even a duty to warn against risks which were obvious. An individual's responsibility required that it was for the individual, when he made his choices, to satisfy himself whether or not there was a risk, and if so what it was, and then to decide whether he was going to run it.
[7.44] Reference was next made to Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. The deceased in this case was held in a police cell in the custody of the defendant's officers, who had been alerted to the risk that he might commit suicide, although a doctor who examined him soon after his arrival at the police station stated that he showed no evidence of any psychiatric disorder or clinical depression. Taking advantage of the officers' inadvertence in leaving the flap of the cell door open, the deceased tied his shirt through the spy-hole on the outside of the door and hanged himself. In an action for negligence begun by the plaintiff as administratrix of his estate, the defendant raised the defences of, inter alia, novus actus interveniens and contributory negligence under the Law Reform (Contributory Negligence) Act 1945. The judge found that the defendant's officers were in breach of a duty of care to take reasonable steps to prevent the deceased's suicide but held that since he was of sound mind his deliberate act entitled the defendant to rely on the suicide as a novus actus interveniens, and accordingly dismissed the action. On the issue of contributory negligence the judge assessed the deceased's responsibility at 100%. The Court of Appeal, by a majority, allowed the plaintiff's appeal on the grounds that the duty of care to the deceased existed irrespective of his state of mind, that his suicide, being the very act against which the defendant had been required to guard, did not constitute a novus actus interveniens, and that in all the circumstances it was inappropriate to reduce the award of damages to reflect the deceased's responsibility for his loss.
[7.45] On the defendant's appeal, a majority of the House of Lords held that a deliberate and informed act intended to exploit a situation created by a defendant did not negative causation where the defendant was in breach of a specific duty imposed by law to guard against that very act; that those entrusted with the custody of prisoners had a duty to take reasonable care for their safety while in custody whether they were of sound or unsound mind; and that, accordingly, since the defendant was admittedly in breach of duty, the deceased's act in taking his own life did not entitle the defendant to rely on the defences of novus actus interveniens or volenti non fit iniuria. The House, however, held, in allowing the appeal, that "fault" within the meaning of section 4 of the Act of 1945 could include intentional acts as well as negligence; that the deceased had responsibility for his own life and since his intentional act while he was of sound mind was a substantial cause of his death, the defence of contributory negligence succeeded; and that, having regard to all the circumstances, responsibility for the suicide should be apportioned equally between the deceased and the defendant and the damages reduced accordingly.
[7.46] At pp.367 to 368 Lord Hoffmann said:
"The commissioner appeals to your Lordships' House. Mr Pannick argued two points on his behalf. The first was the question of causation: was the breach of duty by the police a cause of Mr Lynch's death? The way he put the answer was to say that the deliberate act of suicide, while of sound mind, was a novus actus interveniens which negatived the [causal] connection between the breach of duty and the death. He said at first that he was going to argue the application of the maxim volenti non fit iniuria as a separate point. But when it came down to it, he accepted that if the breach of duty was a cause of the death, he could not succeed on volenti non fit iniuria. I think that is right. In the present case, volenti non fit iniuria can only mean that Mr Lynch voluntarily caused his own death to the exclusion of any [causal] effect on the part of what was done by the police. So I think it all comes to the same thing: was the breach of duty by the police a cause of the death? [...]
On the first question, Mr Pannick relied upon the general principles stated in Hart and Honoré, Causation and the Law, 2nd ed. (1985), p.136:
'the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by a defendant, negatives [causal] connection.'
However, as Hart and Honoré also point out, at pp.194-204, there is an exception to this undoubted rule in the case in which the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being. It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss. This principle has been recently considered by your Lordships' House in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] 2 WLR 350. In that case, examples are given of cases in which liability has been imposed for causing events which were the immediate consequence of the deliberate acts of third parties but which the defendant had a duty to prevent or take reasonable care to prevent.
Mr Pannick accepted this principle when the deliberate act was that of a third party, but he said that it was different when it was the act of the plaintiff himself. Deliberately inflicting damage on oneself had to be an act which negatived causal connection with anything which had gone before.
This argument is based upon the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself."
At the top of p.369 Lord Hoffmann added:
"The duty, as I have said, is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives."
[7.47] Lord Hope of Craighead said, at pp.379-380:
"It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury. As a general rule the common law duty of care is directed towards the prevention of accidents or of injury caused by negligence. The person to whom the duty is owed is, of course, under a corresponding duty to take reasonable care for his own safety. If he is in breach of that duty, his damages may be reduced on the ground of his contributory negligence. But if he injures himself by intentionally doing deliberately the very thing which the defendant is under a duty to prevent him doing negligently, he may find that he is unable to recover any damages. He may be found to have assumed the risk of injury, on the principle of volenti non fit iniuria. Or it may be held that the chain of causation was broken by his deliberate act, in which case his claim will be defeated on the principle of novus actus interveniens. Or it may simply be that his loss, injury and damage will be held to have been caused wholly by his own fault with the result that there will be no room even for a reduced award on the ground of contributory negligence."
[7.48] Counsel said that he referred to this case because of the emphasis on the individualist philosophy of the common law and the principle that people of full age and sound understanding must look after themselves and take responsibility for their actions. In a case such as that of Reeves, the duty arose because of the special relationship which existed and was a reflection of the nature of that special relationship. The relationship between a manufacturer and a consumer did not fall into this type of special category.
[7.49] Counsel submitted that this was consistent with Scottish authority. In Law Hospital NHS Trust v Lord Advocate 1996 SC 301 a patient suffered from irreversible damage to the cerebral cortex and fell into a persistent vegetative state in 1992. Permanently insensate, the patient remained alive only because feeding and hydration were provided to her artificially and because of the nursing care she received in a hospital. Medical experts opined that her case was useless and that there were no useful avenues of treatment to explore. The patient was unable to consent to treatment ceasing and her family agreed with the experts that the treatment should stop. The hospital raised an action, concluding for declarator that the proposed course of terminating nutrition and hydration and all other life sustaining treatment to the patient would not be unlawful. In the course of his opinion the Lord President, Lord Hope, said at p.306:
"It may be helpful if I were to describe at the outset what I consider to be the function of the Court in a case of this kind. It belongs to a group of cases which have been recurring with increasing frequency in recent years where the courts are being asked to give their authority to actions to be taken by medical practitioners which raise acute questions of moral or ethical principle. Medical science has now advanced to such a degree that many techniques are now possible which only a generation ago would have been unthinkable. The ability to prolong life by artificial means has reached such a stage that it is possible to nourish the body and preserve it from disease so that life in the clinical sense may be continued indefinitely. Invasive techniques such as those of sterilisation are also possible without the slightest risk of any other physical injury than that which is to be inflicted deliberately. Where the patient is of full age and capable of understanding and consenting to the procedures which on medical advice are for his or her benefit, or decides to refuse medical treatment, the right of self determination provides the solution to all problems, at least so far as the court is concerned. It is not in doubt that a medical practitioner who acts or omits to act with the consent of his patient requires no sanction or other authority from the court. The patient's consent renders lawful that which would otherwise be unlawful. It is not for the court to substitute its own views as to what may or may not be in the patient's best interests for the decision of the patient, if of full age and capacity."
Counsel submitted that this was an example of the court's recognition of the fundamental right of self determination. This was consistent with the "individualist philosophy" of the law described by Lord Hoffman.
[7.50] Against this background, counsel submitted, in the present case it was critical for the pursuer to establish, first, that Mr McTear was not aware of the health risks associated with smoking when he started smoking and, secondly, that by the time he became aware of these risks something irrevocable had happened. This was that there must have been some change which had occurred within him that was eventually going to lead to a diagnosis of lung cancer: this was to be regarded as the moment when he suffered damage. Counsel referred to this as the time when he contracted lung cancer, although it might have been, so far as the evidence disclosed, at any time, long or short, before he was actually diagnosed as having lung cancer. Without establishing these two things, the pursuer's case inevitably failed, because she failed to establish that there was any breach of duty on the part of ITL which caused Mr McTear's lung cancer.
[7.51] This brought counsel on to a preliminary question, which was to do with establishing the relevant date for assessing whether or not Mr McTear suffered injury as a result of breach of duty on the part of ITL. Mr McEachran had submitted that the date of breach should be 1957, but Mr Jones submitted that this was just wrong. It was wrong to consider the question of duty in the abstract. The correct question was whether or not Mr McTear suffered injury as a result of any breach by the defenders of a duty of care owed to him and then, if so, to consider when he suffered injury. That then was the moment of the breach.
[7.52] Counsel referred to Hamilton v Fife Health Board 1993 SC 369 in support of this submission. A child was born in 1976 and died three days later in consequence of injuries sustained by it while in utero which were allegedly caused by negligent acts on the part of the doctors attending the child's mother. The parents of the child brought an action against the health board seeking damages for loss of the child's society. The defenders argued that the action was irrelevant as the child had not been a person for the purposes of the 1976 Act at the time when the injuries were sustained. The Lord Ordinary held that personal injuries could only be sustained by a person and that the child had not been a person at the relevant time. The pursuers reclaimed.
[7.53] It was held by the First Division, reversing the judgment of the Lord Ordinary, that the case depended on the construction to be placed upon section 1(1) of the Damages (Scotland) Act 1976, that there could be no liability until both damnum and iniuria concurred, but once the child was born and became a person the necessary concurrence was established and the child acquired the right to sue the person whose breach of duty resulted in its loss; and it followed that the defenders were liable to pay damages to the pursuers in accordance with section 1(1) of the 1976 Act. Lord McCluskey said at p.382:
"As the act or omission must be one giving rise to liability to pay damages, there can be no liability until both damnum and iniuria concur. There can be no liability to pay damages until there is a person in respect of whose loss the claim to damages arises."
Lord Caplan said, at p.388:
"However the duty is not breached nor does a right of action arise at the point when the careless act is committed (assuming there were such an act). The duty which rests on a person charged with taking care is not the academic responsibility of not being negligent but rather the duty not to cause harm by negligence. The delict is only committed when the initial negligent act actually causes harm. That is to say the concurrence of iniuria and damnum is required. Thus as Lord Reid said in Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 S.C. 92 at p.109:
'The ground of any action based on negligence is a concurrence of duty and damage and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs.'
As Phillips J. puts it in de Martell v Merton & Sutton Health Authority [1993] QB 204 at p.218:
'The duty in the law of negligence is not a duty to exercise reasonable care to avoid risk of causing injury. It is the duty not to cause injury by want of reasonable care.'"
[7.54] Counsel also referred to Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 S.C. (H.L.) 92. In this case a workman, who had been injured through the breaking of a defective part in the machine with which he was working, brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had supplied it to his employers, on averments to the effect that the accident had been caused by the fault of the manufacturers in that they failed to supply his employers with a machine which was safe for use by their servants. The machine had been supplied on 7 July 1955 and the accident had happened on 9 August 1956, but the manufacturers were not convened in the action until 25 March 1959. The House of Lords held that the three-year limitation period provided by section 6(1)(a) of the Law Reform (Limitation of Actions &c.) Act 1954 ran from the date when the workman suffered the injury and that, accordingly, the action against the manufacturers was not time-barred.
[7.55] Lord Reid said, at pp.109-110:
"It appears to me that default in the sense of breach of duty must persist after the act or neglect until the damage is suffered. The ground of any action based on negligence is the concurrence of breach of duty and damage, and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs. Suppose that the damage occurred a year or two years after the manufacture and sale of the article: then undoubtedly the injured person can sue. But how could he sue if the manufacturer could say that his default had ceased a year before the injured person ever came near the dangerous article? Whatever be the true view with regard to the act or neglect, I think that the appellant is entitled to say that the respondents' 'default giving rise to the action' existed at the time when he suffered his injuries."
[7.56] Lord Keith of Avonholm, at pp.112-113, said:
"Now this is a Donoghue v Stevenson type of case, and such a case undoubtedly introduces specialities into the law of negligence. But, on any view, I see difficulty in saying that there was negligence at the date of supply. At that date on the pursuer's pleadings there was no reason why the manufacturers should have known of the dangerous state of the strut. It can hardly be expected that they had a legal duty to take it to pieces and inspect it before sending it out. Undoubtedly there was an act of carelessness on the part of some workman when the pin was welded to the strut and the manufacturers would be vicariously responsible for that carelessness. But can it be said that at either date there was an act of negligence in the legal sense? The manufacturers owed a duty to anyone who should handle the machine to take reasonable steps to see that it was safe. They owed a duty not to injure, but until someone was injured there was no breach of duty. Only then could it be said that an act of negligence had been committed. That, I think, necessarily follows from the judgment of this House in Donoghue v Stevenson."
Then, after analysing the decisions in Heaven v Pender (1883) 11 Q.B.D. 503, Donoghue v Stevenson and Grant v Australian Knitting Mills Ltd, Lord Keith said, at p.113:
"Applying the ratio of these decisions there was, in my opinion, no act, neglect or default within the meaning of the statute affecting the pursuer until he was injured. A fortiori there was no act, neglect or default giving rise to his action before that date. It was then for the first time that there arose a breach of duty which made its impact on the pursuer. Time, in my opinion, commenced to run against the pursuer under the statute from that date."
[7.57] Lord Denning, at pp.115-116, under reference to Donoghue v Stevenson, said:
"I think the true principle is contained simply in this: 'You must not injure your neighbour by your fault.' It is the doing of damage to him which, in my opinion, is the breach of duty giving rise to the action. It is no doubt correct to say, as Lord MacMillan did say (at p.71), that the manufacturer 'is under a duty to take care in the manufacture of these articles.' That is a duty which he owes to all those who may have occasion to use the article: and it is a duty which is broken at the time when he is negligent in making the article. But it is not a breach of duty to any particular individual. And it is not that breach of duty which gives rise to the action. There is another duty also to be considered: and that is the duty which Lord Atkin put in this wise (at p.44): 'You must not injure your neighbour': which I would expand so as to say that there is a duty on every man not to injure his neighbour by his want of reasonable care. This is a duty which he owes, not to the world at large, but to his neighbour. It is broken only when his neighbour is injured and not before. Then, and then only, is there a breach of duty giving rise to an action."
[7.58] Mr Jones said that the intriguing question which arose in this case was that Mr McTear might or might not have started smoking in 1964. If he did, then that clearly was the earliest date on which he could have suffered injury as a result of any breach of duty on the part of ITL. At some time, which in counsel's submission was when he started smoking, but even if it was not, he became aware of the health risks said to be associated with smoking. At that moment there was no breach of duty on the part of ITL, even assuming that there had earlier been some breach because of a failure to warn. This was because the authorities showed that once he knew of the risks then there was no need to warn him. In counsel's submission, it would have to be found that Mr McTear contracted lung cancer before the moment when any putative breach on the part of ITL came to an end, because unless there was that concurrence of damnum and iniuria, there was no liability on their part.
[7.59] This of course proceeded on the assumption, contrary to counsel's primary submissions on the facts, that it was held that smoking could cause lung cancer and caused Mr McTear's lung cancer. In that event, I would be relying on the epidemiology, and the evidence was that after about fifteen years' cessation, the risk returned to normal. So I could not find that by the time that the breach of duty ceased, Mr McTear had inhaled enough cigarette smoke to constitute a material contribution to a subsequent development of lung cancer, unless the "guilty exposure" occurred within about fifteen years before Mr McTear was diagnosed as having contracted lung cancer. Even assuming that Mr McEachran was correct in his submission that Mr McTear became aware of the risks to health associated with smoking in 1971 by reason of the Government health warnings appearing on cigarette packets, and attempted to stop smoking then, any contribution made by the hypothetical negligence of ITL would have ceased to have effect between 1981 and 1986. Mr McTear was diagnosed as suffering from lung cancer in 1992, and there was reason to suppose that he might have had diagnosable lung cancer in 1991. If he had stopped smoking at any time up to 1975, on that evidence the risk would have returned to normal.
[7.60] Counsel's main submission, however, was that it could not be determined on the evidence when there was a concurrence of iniuria and damnum. Without such evidence, there could be no liability. There was no evidence that when Mr McTear consumed his first cigarette or packet of cigarettes, or had smoked for the first month after he began, that made any material contribution to his subsequent lung cancer. Without such evidence, it was not possible to determine when he contracted lung cancer in the sense counsel had advanced. It could not be determined that he contracted lung cancer at any time before he became aware of the health risks said to be associated with smoking, and it could not therefore be decided that his lung cancer was attributable to any breach of duty on the part of ITL, because the date of the concurrence of alleged breach and injury could not be determined.
[7.61] Mr Jones accepted that, if I were to hold that Mr McTear was unaware of the risks to health associated with smoking until some time after he started smoking, and that from the outset a material contribution was being made to the lung cancer he eventually contracted, then he would be in more difficulty. But, he submitted, there was no evidence to that effect. Indeed the evidence was to the opposite effect, that the risk returned to normal after about fifteen years. On any view, Mr McTear was aware of the risk long before 1975, so there was no breach of duty after that date and therefore there could not have been a concurrence of injury and breach of duty when he first contracted his lung cancer. On this basis, there came a time when there was no continuing breach of duty on ITL and from that moment on Mr McTear took the risk of injury. The causal connection between the breach and the lung cancer was, in these circumstances, broken.
[7.62] The test, counsel submitted, was whether, but for Mr McTear's smoking up until the moment he became aware of the risks to health, he would not have contracted lung cancer. The idea of individual responsibility carried with it the freedom to choose among various options. The law proceeded on the basis that the consumer to whom a manufacturer might have to have regard was a reasonable man, because that was the only way in which the law could sensibly operate. Such a man would do what was reasonable in the circumstances. The moment that Mr McTear contracted his lung cancer was the moment at which it fell to be determined whether there existed any duty owed by ITL to Mr McTear, and if so what was its nature. It was essential for the pursuer to prove, not only that Mr McTear was unaware of the health risks associated with smoking when he started, but also that prior to the date when he became aware of the health risks he had already contracted lung cancer or a material contribution had already been made to his contracting lung cancer. Mr McTear's continuing smoking once he was aware of the health risks was entirely his responsibility. ITL could have no liability to Mr McTear from the moment that he became aware of the health risks associated with smoking unless in some sense the damage was already done. It could not be said that they were at fault thereafter unless it was established that, when Mr McTear started smoking, the nature of cigarettes was such that he would not be able to stop, ITL knew this, Mr McTear did not and therefore they were in breach of a duty to warn him of it.
[7.63] None of that was made out in the present case. There was no evidence that ITL had any reason to believe that anybody who started smoking might be unable to stop. On the evidence, some people might find it difficult to stop, but there was no evidence that Mr McTear did not know that when he started smoking. Without that foundation, any case based on inability to stop smoking simply failed. On the evidence, the pursuer's case was perilled on showing that Mr McTear was damaged by the time he first became aware of the health risks said to be associated with smoking. The very earliest date for that would be 1964, and there was nothing on the evidence that would allow the court to hold that to be proved.
[7.64] Counsel then turned to look at the content of any duty of care. It followed from the individualist philosophy that the common law did not in general impose a duty on manufacturers not to produce or sell goods, the use or consumption of which involved risks to health. The legislature might intervene to regulate or even prohibit the manufacture and sale of particular commodities, but that did not trench upon the individualist assumptions of the common law. The policy of the common law in the context of product liability was not that all risk should be eliminated but, consistently with the underlying principle of individual autonomy, that consumers should not be exposed to dangers of which they could not reasonably be expected to be aware. In Donoghue v Stevenson the manufacturer was in breach of duty, not simply because there was a snail in the ginger beer bottle, but because the bottle was opaque and the dangerous snail was unlikely to be discovered by any intermediate inspection before the consumer poured the ginger beer into her glass. If the risks associated with the use of the product were patent, it was up to the consumer to decide whether or not he or she wished to use or consume the product.
[7.65] Counsel referred to the speeches of Lord Atkin, Lord Thankerton and Lord MacMillan in Donoghue v Stevenson, quoted at paras.[7.4] to [7.7]. Counsel submitted, on the basis of these passages, that the absence of any reasonable opportunity for inspection or intermediate examination was an essential feature of the type of liability identified in that case. If the policy of the law were to eliminate risk to the consumer, the possibility or the opportunity for intermediate inspection would be an irrelevant consideration in determining the existence and scope of a duty of care owed by the manufacturer to the consumer, because the opportunity for inspection could not be said necessarily to eliminate the risk. Because the consumer should be free to choose whether or not to run risks, then the opportunity for intermediate inspection became relevant. Until the decision in Donoghue v Stevenson in the Court of Session, the only line of authority which permitted recovery where a consumer was injured by a product was where it was established that the product was dangerous in itself. Donoghue v Stevenson introduced for the first time the possibility of recovery where injury was caused by a defective product. The decision assimilated this area of the law, so that liability for defective products and liability for dangerous products moved forward together, according to the same principles; and the duty then of the manufacturer was to take such care as was reasonable in the whole circumstances. This could be seen from the speech of Lord Atkin in particular.
[7.66] The scope of the principle in Donoghue v Stevenson was stated by Lord Wright in Grant v Australian Knitting Mills Ltd and by Lord Keith of Kinkel in Murphy v Brentwood District Council [1991] 1 AC 398. In the latter case the House of Lords held inter alia that, while the principle in Donoghue v Stevenson applied to impose a duty on the builder of a house to take reasonable care to avoid injury or damage, through defects in its construction, to the persons or property of those whom he ought to have in contemplation as likely to suffer such injury or damage, that principle as stated extended only to latent defects.
[7.67] Lord Keith of Kinkel said at p.464:
"[A]n essential feature of the species of liability in negligence established by Donoghue v Stevenson was that the carelessly manufactured product should be intended to reach the injured consumer in the same state as that in which it was put up with no reasonable prospect of intermediate examination: see per Lord Atkin, at p.599; also Grant v Australian Knitting Mills Ltd [1936] AC 85, 103-105, per Lord Wright. It is the latency of the defect which constitutes the mischief. There may be room for disputation as to whether the likelihood of intermediate examination and consequent actual discovery of the defect has the effect of negativing a duty of care or of breaking the chain of causation [...]. But there can be no doubt that, whatever the rationale, a person who is injured through consuming or using a product of the defective nature of which he is well aware has no remedy against the manufacturer."
[7.68] Lord Jauncey of Tullichettle said, at p.492:
"In the 40 years after Donoghue v Stevenson it was accepted that the principles enunciated by Lord Atkin were limited to cases where there was physical damage to person or to property other than the property which gave rise to the damage and where there was no reasonable opportunity of discovering the defect which ultimately caused the damage: Grant v Australian Knitting Mills Ltd [1936] AC 85, Farr v Butters Brothers & Co [1932] 2 K.B. 606."
At pp.494-5 Lord Jauncey said that two matters emerged clearly from Lord Atkin's speech in Donoghue v Stevenson, one of which was "that the duty only extended to articles which were likely to be used before a reasonable opportunity of inspection had occurred."
[7.69] Counsel then turned to consider the duties of a manufacturer who produced a product, the use or consumption of which involved inherent risks. He submitted that such a manufacturer had a duty to act reasonably in all the circumstances. Reference was made first to Holmes v Ashford [1950] 2 All.E.R. 76. In this case a hairdresser treated the plaintiff's hair with a dye, and as a result the plaintiff contracted dermatitis. The dye had been delivered to the hairdresser in labelled bottles together with a small brochure of instructions. Both the labels and the brochure contained a warning that the dye might be dangerous to certain skins, and a recommendation that a test should be made before it was used. The hairdresser had read the labels and the brochure and was aware of the danger, but he made no test and did not warn the plaintiff. The plaintiff claimed damages against the hairdresser and the manufacturers, and was awarded judgment against both. On appeal by the manufacturers, the Court of Appeal held that a manufacturer who put a dangerous article on the market must take reasonable steps to prevent any person coming into contact with it from being injured, but it was not necessary in every case that precautions should be taken to ensure that the ultimate recipient of the article was warned of the danger; in the present case the manufacturers had given the hairdresser a warning which was sufficient to intimate to him the potential danger of the dye, and it was not necessary that they should have warned the plaintiff; and, therefore, they had discharged the duty which was on them.
[7.70] Tucker L.J. said, at p.77:
"A number of authorities have been cited to us by counsel for the plaintiff in support of the proposition that a manufacturer who puts a dangerous article on the market must take reasonable precautions to ensure that the ultimate recipient is warned of the danger. I think that that is not the correct way of stating the proposition. Every person who puts on the market a dangerous article (and the learned judge has found this to be a dangerous article) must take reasonable steps in all the circumstances. This is not an article the nature of which can be ascertained by intermediate examination, and, therefore, it is an article which requires some warning. The question in this case is: Was the warning attached to this bottle a sufficient and adequate warning to be given in cases where the material is supplied to hairdressers for use on their customers? We must presume that the material is supplied to reasonable people, and the first defendant has said that he read the warning, appreciated what it meant, and ignored it. I find it, therefore, impossible to hold that the warning which was, in fact, given in the present case was insufficient."
[7.71] Counsel submitted that this case yielded the proposition that the manufacturer must take such steps as were reasonable in all the circumstances, and the presumption that the product was supplied to reasonable people. If people did not act responsibly, then that was their choice and they must take the consequences. As a general proposition, where it could reasonably be presumed that the consumer knew or ought to know of a risk inherent in using a product, there was no duty on the manufacturer either to warn or to withdraw the product. Provided that the ordinary consumer was in a position to make an informed choice, the law left him to make that choice: he was free to consume or not to consume the product in question.
[7.72] Counsel contrasted the position of the ordinary consumer with that of an employee. He submitted that Wright v Dunlop Rubber Co Ltd did not yield the general proposition that if a manufacturer learned that his product was associated with the risk of contracting fatal diseases and death, he had a duty to withdraw the product from the market until he had eliminated the risk. The statement that the duty of the manufacturer to the purchaser's workmen in a case such as Wright was the same as the duty of a manufacturer towards his own workmen, subject to the proviso that the manufacturer knew how the goods were going to be used by the purchaser, put Wright into the category of cases where there was a relationship between the alleged wrongdoer and the claimant such as to affect the content of the duty of care and consequently the exercise of the duty of care. As in Tomlinson, the relationship was in a special category, because the employee was not free to choose whether or not to use the substance, and in any event had no knowledge of its nature. An employee did not have freedom to exercise choice. He had to do the work that his employer instructed him to do. As it was put in Tomlinson, where there was a relationship of a particular nature which brought particular duties, there might be a duty to protect the other person even against obvious risks or self-inflicted harm.
[7.73] Wright v Dunlop Rubber Co Ltd was considered by the Supreme Court of Victoria in Thompson v Johnson and Johnson Pty Ltd [1991] 2 V.R. 449. The plaintiff sued the defendants, who were manufacturers and distributors of a particular brand of tampon manufactured in New Zealand, and purchased by the plaintiff in November or December 1980 in Australia and used by her soon after, alleging negligence resulting in personal injuries to her in the form of toxic shock syndrome. In dismissing the plaintiff's appeal against the decision of Vincent J., the Appeal Division of the Supreme Court of Victoria held: (1) The duty of care in such a case as the present could not be categorised as being merely a duty to warn or alternatively to withdraw a product from the market. The duty was a duty to take reasonable care to avoid injury or harm being suffered by those using the product as intended. In each case it would be necessary for the tribunal of fact to determine whether in all the circumstances those marketing the goods failed to take reasonable care and whether that failure was a cause of the injury suffered by the user. (2) After a reported case of toxic shock syndrome in New Zealand in October 1980, the first defendant's position in Australia was still not to be equated with that of the manufacturer of the equivalent tampon in the United States. (3) The recommendation of the National Health and Medical Research Council (NHMRC) whether or not to give a warning was a relevant fact to be taken into account when determining whether reasonable care had been exercised. (4) It had not been established that within the relevant period of time the defendants were in breach of their duty of care by failing to give warning on or in packets of their tampons or by paid advertisement through the means of the print and electronic media. (5) Having regard to all relevant matters including the evidence of reluctance on the part of the Health Department in New Zealand to forward a draft letter prepared on behalf of the American manufacturer to medical practitioners in New Zealand, but rather a preference for handling such communications itself, the trial judge was in error in concluding that the defendants were in breach of their duty of care by failing to write to all Australian medical practitioners before the plaintiff's illness advising them of the risk of a relationship of toxic shock syndrome to the use of the tampons.
[7.74] At p.488 the Appeal Division considered a submission on behalf of the appellant that the trial judge should have found, and erred in not finding, that in the circumstances of the case the respondents were not in breach of any relevant duty of care owed by them to the appellant. The court said:
"The threshold question in considering the matter is to determine the scope of the duty of care owed by the respondents as distributors and manufacturers of Carefree Super tampons used by the appellant being one of the class of persons who could be reasonably foreseen to be purchasers and users of that product.
That a duty of care was owed by the respondents to the appellant was not disputed by the respondents. The tampons used by the appellant and manufactured by the second respondent and distributed by it to the first respondent and by it in turn to the public for purchase by that section of them using the same was of a nature, kind and composition as designed and intended. It was not part of the appellant's case that it suffered from any defect of fault brought about in its preparation or distribution as to give rise to consideration of that type of duty of care as was considered, for example, in Donoghue v Stevenson [1932] AC 562 and Grant v Australian Knitting Mills Ltd [1936] AC 85.
However, where the manufacturer and/or distributor of the product ought reasonably to have foreseen that there was a risk of injury, which was not far-fetched, in the sense referred to by Lord Reid in The Wagon Mound (No.2) [1967] AC 617 at pp.643-4 and by Mason J., as he then was, in Wyong Shire Council v Shirt (1980) 146 C.L.R. 40, at pp.46-7, there exists a relationship between the respondents and the appellant as a member of the class of persons likely to purchase and use the products so manufactured and distributed which gave rise to a duty of care by the respondents to the appellant.
The question is, 'what is the scope of that duty of care?' Is it to take reasonable care to avoid injury to the appellant from her use or continued use of the product? If such is the duty then in determining whether the respondents were in breach of their duty it is necessary to evaluate the magnitude of that risk and all other relevant circumstances and matters in order to determine whether the respondents' response to the risk was reasonable or whether it was such as to constitute a breach of the duty owed: see Wyong Shire Council v Shirt, at p.47. If, however, as was contended for on behalf of the appellant the scope of the duty was to warn the appellant as being a member of the class of persons to whom the duty was owed, of the risk involved in using or continuing to use Carefree Super tampons then, putting aside any question of causation in the event of a breach of their duty, the appellant would be entitled to succeed."
[7.75] The court then went on to consider a number of previous decisions, including Wright v Dunlop Rubber Co Ltd before continuing, at pp.490-492:
"It is a question of fact in each case whether the duty owed has been breached. It is not a question of law. The manufacturer and retailer must act reasonably in placing its product on the market. The almost infinite variety of circumstances forbid any categorical exegesis of the manner of performance of the relevant duty of reasonable care.
Accordingly the duty of care cannot be categorised in the circumstances of such a case as this as being merely a duty to warn or alternatively to withdraw the product from the market. The duty is a duty to take reasonable care in the Donoghue v Stevenson sense to avoid injury or harm being suffered by those using the product as intended. In some circumstances a discharge of such duty of care might require and demand that the product be withdrawn from the market so as to prevent it being used. In other circumstances in order to discharge the duty it might be necessary to give adequate warning as to the risks involved in its use. It does not follow that the failure to warn with respect to those risks will necessarily constitute a breach of duty. In each case it will be necessary for the tribunal of fact to determine whether in all the circumstances those marketing the goods failed to take reasonable care and whether that failure was a cause of the injury suffered by the user.
It follows that the fact that no warning was given in all the circumstances of this case must be examined in the light of the duty of the manufacturer and distributor to take reasonable care. In Wyong Shire Council v Shirt, at pp.47-8, Mason J. said:
'In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.'
In his judgment the learned trial judge said, [1991] 2 V.R. 449, at p.468:
'Lying at the heart of this matter, however, is the necessity to ensure, as far as possible, that consumers are not unnecessarily or, through no fault of their own, unknowingly exposed to the risk of injury or other adverse consequences being suffered by reason of their use of products available to them in the marketplace.'
Again he said, at p.469:
'As a general proposition it appears to me to be obvious that where possible consequences of the contraction of a condition include death, even though the risk of any contraction may be very small, a potential purchaser is, at least, entitled to know of the existence of that risk and to be able to choose whether or not it will be accepted.'
If by those expressions his Honour meant that a manufacturer and/or distributor of goods to which such a risk as last referred to is attached and which risk would not ordinarily be apparent [...] has a duty or an obligation in order to satisfy that entitlement to warn of such risk as distinct from a duty to take reasonable care, we would disagree. If such was the case it would promote the duty to take reasonable care to an absolute duty to warn of such risk. The consequences of risk, which possibly may result in death, does not of itself give rise to a duty or obligation to warn of the risk. However, it would be a very material consideration to be regarded along with other material considerations when assessing whether the duty to take reasonable care in all the circumstances had been fulfilled."
[7.76] The court then went on to consider what they regarded as material considerations. Among these was the position of the NHMRC, of which the court said, at p.494:
"Whether or not the NHMRC recommended that a warning be given was not determinative of the question of reasonable care, for to accept that proposition would permit the respondents to abrogate the duty of reasonable care owed by them. It is not the response of such a body which determines whether a person in the position of the respondents is or is not negligent. That is for the courts to decide. However, it is a relevant fact to be taken into account when determining whether reasonable care has been exercised."
[7.77] The Appeal Division concluded this passage of their opinion, also at p.494, in these terms:
"The evidence was that in October and November 1980 there was much publicity about the matter of toxic shock syndrome. The fact was that the appellant was a reader of newspapers and regarded herself as having a fair general knowledge through the media but nevertheless she was unaware of toxic shock. These facts were relevant to the question whether a reasonable response by the respondents to the knowledge of the risk concerned called for the placing of advertisements in newspapers and/or advertising by means of the electronic media and whether a failure to do so constituted negligence.
Having regard to all these matters we have concluded that it was not established on the evidence that within the time frame in the circumstances of this case the respondents were in breach of the duty of care owed by them to the class of persons of whom the appellant was a member, by failure to give warning on or in packets of Carefree Super tampons or by paid advertisements [through] the means of the print and electronic media of the risk of the use of such tampons being associated with the onset of toxic shock syndrome."
The Appeal Division also decided that the trial judge was in error in concluding that the respondents who were the manufacturers and distributors of the product were in breach of the duty owed by them by failing to write to all medical practitioners in Australia before the plaintiff's illness advising them of the risk of the relationship of the onset of toxic shock syndrome to the use of tampons by menstruating women.
[7.78] Counsel submitted that this case demonstrated that a duty to warn was imposed where a danger was unknown; but it was a duty simply to warn adequately and not to insure against it. This duty might arise if the manufacturer knew or ought to know something which the consumer did not know and could not reasonably be expected to know, but if the existence of a risk was common knowledge as a result of information which was in the public domain, then the manufacturer might not be under any duty even to give a warning. In all cases it was for the consumer to make an informed choice. The authorities established that a manufacturer of consumer goods produced to meet a demand would not normally be acting unreasonably in continuing to produce and sell them, even if they involved risk, unless the risk was hidden from the public. It was enough to give a warning of risks to health. There was a duty on the manufacturer to warn, in the sense of giving information; the consumer should be made aware of any risk inherent in the use of the product so that he could exercise the choice whether to use the product or not. There was no authority for the proposition that the manufacturer had any duty to do more than inform, and in particular to persuade or shock or cajole. On the evidence in the present case, insofar as ITL were under a duty to give warnings of risks to health, they fulfilled this duty from 1971 onwards when Government health warnings first appeared on cigarette packets. These were not only sufficient for this purpose in general, but were in fact sufficient in the case of Mr McTear, who became aware of the risks to health caused by smoking in 1971, if not before.
[7.79] Counsel submitted that Wright v Dunlop Rubber Co Ltd laid down no strict rule about cessation of manufacture, it simply reiterated that a manufacturer should do what was reasonable in the whole circumstances of the case. Counsel next referred to Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 C.L.R. 540. A representative action was brought in the Federal Court of Australia on behalf of a group of consumers who had contracted the hepatitis A virus after eating oysters harvested from the waters of Wallis Lake in New South Wales. The waters had been polluted by human faecal contamination which in turn contaminated the oysters. The applicants alleged that the grower of the oysters (GBO), the distributor (GBD), the local government authority for the area in which Wallis Lake was located (the council), and the State government were liable in negligence for the harm suffered. They also claimed that GBO and GBA were liable under various provisions of the Trade Practices Act 1974 (Cth), and an individual applicant brought a personal claim against GBO under sections 74B and 74D of that Act. The representative applicants succeeded against each respondent in negligence but failed in respect of claims based on sections 52, 71, 74C and 75AD of the Trade Practices Act. The individual succeeded in his personal claim under the Act. On appeal by the State and the council to a Full Court on the issue of existence of a duty of care to consumers of the oysters and by GBO and GBD on the issue of breach of the relevant duty of care and of sections 74B and 74D of the Act, all but the council's appeals were dismissed. On further appeal to the High Court of Australia, it was held, inter alia, by a majority that neither GBO nor GBD had breached its duty of care to the consumers.
[7.80] In the course of his opinion, Gaudron J. said, at p.571, para.64, contrasting the provisions of the Trade Practices Act 1974 and the general law of negligence:
"Although different concepts inform the law of negligence, ordinarily there is a duty to warn only if there is a foreseeable risk that a person will be led to believe that something is safe when it is not."
[7.81] McHugh J. said at p.583, para.101:
"The Barclay companies accepted that they owed oyster consumers a duty of care to ensure that the oysters were safe for human consumption. The issues in relation to the Barclay companies related to the scope of the duty of care that they owed to oyster consumers and whether there was a breach of that duty."
In the course of his consideration of these issues McHugh J. said at p.585, para.106:
"The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer [footnote reference to Donoghue v Stevenson [1932] AC 562 at 599, per Lord Atkin]. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. But, as Wyong Shire Council v Shirt [footnote reference to (1980) 146 C.L.R. 40 at 47-48, per Mason J., Stephen and Aickin J.J. agreeing] shows, the question of breach is far more complex than an affirmative or negative answer to the question whether the defendant carried out the duty as formulated. It involves evaluating and weighing a number of competing considerations."
[7.82] After discussing the competing considerations, McHugh J. concluded, at p.587, para.113:
"In my opinion, the steps that the Barclay companies took [in suspending the harvesting of oysters for a period of several days during and after the heavy rain which led to the human faecal contamination] were a reasonable response to a very low risk of viral contamination. Reasonable care did not require them to go to the expense of conducting sanitary surveys - even if they could have done so effectively - or shutting down their business indefinitely or labelling their oysters with a warning concerning the risk of viral contamination. In nearly a century, no previous outbreak had occurred. What they did was in accordance with industry practice and at the time was a reasonable response to the slight possibility that consumers would suffer harm because of viral contamination caused by the heavy rain that occurred in November 1996."
[7.83] Gummow and Hayne JJ. said at pp.611-612, para.192:
"A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach [footnote reference to Brodie v Singleton Shire Council (2001) 206 C.L.R. 512 at 627-628 [309]]. That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk. As Isaacs A-CJ observed in 1924, '[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done' [footnote reference to Metropolitan Gas Co v Melbourne Corporation (1924) 35 C.L.R. 186 at 194]. The trial judge and the majority of the Full Court in the present case failed to identify with the necessary precision, by reference to considerations of the nature of those indicated in Wyong Shire Council, the reasonable response to the risk of harm that existed. In so failing, their Honours fell into an error of law."
[7.84] After discussing various courses of action, Gummow and Hayne JJ. said at p.614, para.201:
"Therefore, in practical terms, the alternatives open to the Barclay companies were (i) to cease harvesting and selling oysters after the November 1996 rainfall event until a sanitary survey was conducted and testing revealed an acceptable risk; or (ii) to sell oysters with a warning as to their possible viral contamination; or (iii) to cease growing oysters at Wallis Lake entirely, and, perhaps, to establish operations in pristine waters elsewhere. Given the attitude of both the Council and the State, and the apparent similarity between the November 1996 rainfall and previous rainfall events, option (i) effectively would have required the cessation of harvesting for an unspecified, potentially indefinite, period following any such heavy rainfall. Option (ii) is likely to have had the same effect as ceasing to sell oysters altogether. Option (iii) was not explored in any detail during argument and would have required relocation to some unspecified waterway isolated from human beings. Each of the three courses of action would have been either entirely destructive of, or highly disruptive to, the business of the Barclay companies. Each represents alleviating action of the most difficult, expensive and inconvenient type. According to the settled principles propounded in Wyong Shire Council, such alleviating action can only be required by the law of negligence if the magnitude of the risk and the degree of probability of its occurrence are great indeed."
At p.615, para.202, Gummow and Hayne JJ. said:
"Notwithstanding the significant magnitude of the risk of harm that eventuated in this case, the degree of probability of its occurrence cannot be said to justify the difficult, expensive and inconvenient alleviating action contended for by the consumers."
[7.85] Counsel submitted that this case afforded an example of the reinforcement in another jurisdiction of the correct approach, which was that there was no absolute duty to warn or to cease manufacture. Both that case, and Wright v Dunlop Rubber Co Ltd, were entirely consistent with the general proposition that a manufacturer of a product, the consumption of which might involve risk, had a duty to act reasonably in all the circumstances, but this did not dictate any particular result. On the contrary, a manufacturer of consumer goods would normally not be acting unreasonably in continuing to produce and sell them, even if consumption of them should involve risk, unless the risk was hidden from the public.
[7.86] Counsel went on to submit that the starting point in considering whether or not there was a duty to warn was to articulate the proposition about the risks or dangers attaching to the use of a product which it would be proper to make on the basis of the current state of the science. It was only against such a background that one could assess whether or not in all the circumstances it was incumbent upon the manufacturer to issue a warning. Once the risks were properly articulated, the extent to which knowledge of them was already in the public domain was an important consideration in determining whether or not a manufacturer who had not issued a warning had fulfilled his duty to act reasonably in all the circumstances. The cases established that there was in general no duty to warn in respect of risks which were patent or which one could reasonably anticipate would be discovered by intermediate inspection. In general, a manufacturer had no duty to warn of risks of which it would be reasonable to expect an ordinary consumer to be aware.
[7.87] Counsel referred to Bogle v McDonald's Restaurants Ltd [2002] EWHC 490 (QB). In a trial of generic issues arising from the pleaded cases of a group of claimants suing for personal injuries caused by the spillage of hot drinks served by the defendant (McDonald's), the generic issues included:
"(5) Whether there was a duty upon the defendant to warn its customers as to the risk of scalding from hot drinks.
(6) If there was such a duty, whether the defendant was in breach of it."
Field J. discussed these generic issues at paras.63-69 of his opinion. At para.64 he noted the contentions for the claimants that there was a duty to warn for various reasons, including:
"(5) Whilst some customers might be aware of the risk, the duty to warn arises because some may not be aware of the risk."
[7.88] At para.65 Field J. said:
"I think it a fair inference that small children very rarely buy or intentionally consume coffee and tea in McDonald's Restaurants. (It is certainly the case that in all the claims that have been brought, the hot drinks were bought by an adult.) In my opinion, McDonald's could therefore expect that the great majority of those who bought hot drinks in their restaurants would be in their teenage years or above. In my judgement, these customers could be taken to know that the coffee and tea they were buying was hot and could cause a nasty scalding injury if it spilled on someone. Most customers would not know precisely how hot the drink was, but they would know that tea and coffee is made with very hot water. Nor would most customers know just how severe the scalding injury could be, but they would know that it could be very painful and serious. They would also know that drinks occasionally get spilled in restaurants such as those run by McDonald's."
[7.89] At para.67, he said:
"Whether McDonald's were negligent in not warning their customers depends on an objective assessment of all the circumstances, including the risk of injury and the customers' appreciation of those matters that gave rise to the risk. As I have said, I am quite satisfied that those who bought coffee and tea could be taken to know that such drinks sometimes get spilled and are served at temperatures which cause serious and painful injury if they come into contact with someone's skin. I accordingly find that there was no duty on McDonald's to warn their customers about the risk posed by the temperatures at which tea and coffee were served, notwithstanding the warnings they gave to their employees and the fact that from 1995 a warning has been printed on the cups."
[7.90] Counsel submitted that in this case the court adopted the approach of what it was reasonable to do in the whole circumstances. This was consistent with the general approach in the leading authorities. Reference was next made to Hodge & Sons v Anglo-American Oil Co (1922) 12 Ll.L.R. 183. In the first action the plaintiffs who were barge repairers in London claimed damages arising out of an explosion on the Anglo-American Oil Company's oil tank barge Warwick, when she was being repaired by the plaintiffs, to whom she had been sent for that purpose by the defendants Messrs Miller & Co. As a result of the explosion several lives were lost and considerable damage done. In the second action, which was in the nature of a test action, the plaintiff, a boilermaker employed by Messrs Hodge & Sons, claimed damages for personal injuries caused by the explosion.
[7.91] In the course of his opinion Bankes L.J. said, at pp.184-185, after narrating the circumstances:
"It is in these circumstances that the question of liability arises. The Anglo-American Oil Co were, in my opinion, under a double duty, (a) the duty of using reasonable means for securing the efficient cleaning out of the tank, and (b) the duty of giving any necessary warning of the dangerous character of the tank even after a proper and sufficient cleaning. The first duty, in my opinion, extended to all those who necessarily came into contact with the tank in the course of carrying out the repairs, including therefore the plaintiff Willmott. With regard to the second duty, a warning would not, in my opinion, be required where the person who would otherwise be entitled to warning was already aware of the danger, or [...] might reasonably be assumed to be aware of it. Messrs Miller obviously required no warning; they were perfectly well aware of the danger. Messrs Hodges were in relation to the Anglo-American Oil Co in a different position to Messrs Miller: but I assume that the Anglo-American Oil Co were aware that the barge was being sent to Messrs Hodges for repair. If so, Messrs Hodges would be entitled to a warning unless they, like Messrs Miller, are to be taken to have been aware of the danger. Having regard to what must be the state of knowledge among ship and barge repairers on the Thames as to the danger of dealing with cleaned petrol tanks, I think that the Anglo-American Oil Co were entitled to assume that Messrs Hodges needed no warning as to that danger. [...]
I do not think that the present is a case in which the Anglo-American Oil Co were under any duty to Messrs Hodges' workmen to give them any individual warning. Whether a warning to an employer of the dangerous character of an article sent to him for repair is a sufficient warning to the workmen directed by the employer to carry out those repairs must be a question of fact depending upon the particular circumstances of each case. There are in this case, in my opinion, no such special circumstances as placed the Anglo-American Oil Co under any duty to give any warning to the plaintiff Willmott or to the other employees of Messrs Hodges."
[7.92] In the course of his opinion Scrutton L.J. reviewed the cases bearing on the question whether a warning ought to have been given, and at p.187 he said:
"But all the cases cited distinguish the case of a thing in its nature dangerous without warning, described by Lord Shand in Caledonian Railway Co v Mulholland [1898] AC 216, at p.292, citing the argument of the present Lord Dunedin, then Lord Advocate, as 'an instrument noxious or dangerous in itself which might produce an accident from the mere handling of it,' and by Lord Dunedin himself in Dominion Natural Gas Co v Collins [1900] A.C. 646:
'What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that in the case of articles dangerous in themselves such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or instal such articles when it is necessarily the case that other parties will come within their proximity.'"
[7.93] At p.188 Scrutton L.J. went on to say:
"The law, therefore, seems to be:
(1) That if the barge which has carried petrol is an article dangerous in itself, it is the duty of the owners to take proper and reasonable precautions to prevent its doing damage to people likely to come into contact with it. These precautions may be fulfilled by entrusting it to a competent person with reasonable warning of its dangerous character, if that danger is not obvious. If such precautions are not taken, the owner will be liable to third persons with whom he has no contact for damage done by the barge, which they could not have avoided with reasonable care.
(2) If the barge which has carried petrol is not dangerous in itself, but becomes dangerous because it has been insufficiently cleaned, and the owner is ignorant of the danger, the owner is not liable for damage caused by it to persons with whom he has no contract. (Earl v Lubbock [1905] 1 KB 253)
(3) In the case of a thing dangerous in itself, where either the danger is obvious or the owner has given proper warning to the person entrusted with it, not being his servant, the owner is not liable for negligence of such person causing injury to a third party; such negligence is nova causa interveniens."
[7.94] Counsel submitted that a distinction could be drawn between Hodge & Sons and Wright v Dunlop Rubber Co Ltd, because in Hodge & Sons the employers could be assumed to know of the danger, whereas in Wright the employers in fact did not know of the danger and could not be assumed to know of it. If the consumer had the relevant knowledge, then there might be no duty to give a warning; and Hodge & Sons demonstrated that there was a distinction between the relationship between a manufacturer of a product and the consumer, and that of an employer and an employee. Tomlinson supported the submission that it was not necessary that the claimant should know the precise nature and extent of the risk, and once he appreciated that there was some risk it fell to him to satisfy himself as to its nature and extent, and it was assumed that he would do so.
[7.95] Applying these considerations to the present case, counsel submitted, it would suffice if it could reasonably be assumed by ITL by the relevant date, that is the date when Mr McTear started smoking, whenever that was, that the ordinary consumer would be aware of a link between smoking and lung cancer, because he would then know that by smoking he was running a risk of fatal disease. By contrast with an employee, if a consumer was aware that the product which he was contemplating consuming was linked with a fatal disease, then that was sufficient to place the onus on him to decide whether or not he was prepared to "take a chance", in the expression used in Titchener, without seeking further advice or information about the precise nature and extent of the risks. If the manufacturer could reasonably take it that consumers in general were aware that the product was linked with a fatal disease, then it was sufficient for them reasonably to assume that the onus was on ultimate consumers to determine whether they were prepared to take a chance and consume the product. This was consistent with what was said in Grant v Australian Knitting Mills Ltd, and with Titchener. It was also consistent with Woods v Multi-Sport Holdings Pty Ltd (2002) 208 C.L.R. 460.
[7.96] In the latter case a player was struck in the eye by the ball when batting in a game of indoor cricket. He suffered serious injury and sued the owner/operator of the facility at which the game was played. It was not disputed that the defendant owed a duty to take reasonable steps to avoid the risk of injury to players arising from the dangers involved in playing indoor cricket. The plaintiff contended that the defendant was in breach of that duty in failing to warn him or to display signs warning of the dangers of the game, in particular of the risk of serious eye injury, and in failing to provide him with eye protection equipment. The High Court of Australia held, by a majority, that there were no grounds for rejecting the trial judge's finding (a) that the defendant's duty of care did not require it to provide the plaintiff with a helmet that would have protected him against the risk of injury to his eyes; or (b) that the risk of a player being struck was so obvious that reasonableness did not require the defendant to warn players about the specific risk of eye injury.
[7.97] It is sufficient to quote from the opinion of Gleeson C.J. In discussing the appellant's complaint of a failure to provide a sign to warn of the dangers of indoor cricket, and, in particular, the risk of serious eye injury, he referred at p.470, para.31 to the dangers of indoor cricket, and at p.471, para.32, to the expression "inherent risks" used by the trial judge to describe risks which are "by their nature obvious to persons participating in the sport", and described the risk of being hit by a cricket ball during the course of play as a risk of that kind. At para.34, Gleeson C.J. referred to the heightened risk of a particular type of eye injury because of the more malleable quality of the ball used in indoor cricket, by comparison with that used in outdoor cricket, which would allow it to impact on the eye surface rather than injure the bones around the socket. He referred to the conclusion of the trial judge that reasonableness did not require a warning, which was expressed in these terms:
"I do not consider that in these circumstances, where being hit in any part of the body including the head, is an obvious risk, that there is any duty to warn of the specific risk of serious eye injury."
[7.98] At p.472, para.39, Gleeson C.J. said:
"Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of duty of care speak in terms of balancing the magnitude of the risk with the cost of inconvenience of preventing it. But, as Mason J. pointed out in Wyong Shire Council v Shirt [footnote reference to (1980) 146 C.L.R. 40 at 47], ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk."
[7.99] At pp.473-474 Gleeson C.J. said:
"43 As to the matter of the warning, the trial judge dealt with the appellant's case as it was put to her. The case was that there should have been a warning of the dangers associated with indoor cricket and, in particular, the danger of serious eye injury. It is useful to reflect upon what exactly might have been the content of the warning. There was no reason to limit it to the risk of head injury, much less eye injury. There was one particular respect in which the type of eye injury suffered at indoor cricket can be different from the type suffered at outdoor cricket, but there were probably also a number of respects in which the risk of back injury, or concussion from collisions, might be different from the risks associated with outdoor cricket. The risk that, in the confined space in which the game was played, any player, batsman or fielder, might receive a severe blow to any part of the head, including the eye, was, the trial judge found, obvious and well known to the appellant. It was argued that the appellant was not aware of the precise nature, and full extent, of the risk. But warnings of the kind here in question are not intended to address matters of precision. Judge French concluded that the risk of a player being struck in the face by a cricket ball was so obvious that reasonableness did not require the respondent to warn the players about it.
44 Judge French, and the Full Court, were criticised in argument for their reliance on what Judge French described as the comment of Kirby J. in Romeo v Conservation Commission (N.T.) (1998) 192 C.L.R. 431 at 478 that:
'Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.'
45 It is right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case. Reasonableness would not ordinarily require the proprietor of an ice skating rink to warn adults that there is a danger of falling; but there may be some skaters to whom such a warning ought to be given. Nevertheless, as a generalisation, what Kirby J. said is, with respect, fair comment. That is how Judge French and the Full Court understood it, and they did no more than indicate that they regarded it as apposite to the present case. There is no error in that."
[7.100] By contrast, counsel referred to Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd [1997] 3 S.C.R. 1210. In this case, Saint John Shipbuilding Limited (SJSL) constructed an oil rig for Bow Valley Husky (Bermuda) Limited (BVHB) which was to conduct drilling operations off the east coast of Canada. A heat trace system was required in order to prepare the rig for winter operations. The purpose of a heat trace system was to prevent the rig's pipes or "mud lines" from freezing. The heat trace system which was installed was supplied by Raychem Canada Limited and Raychem Corporation (Raychem). This system was chosen after consultation with Raychem representatives because it had a self-regulating heater. Raychem's heat trace system used Thermaclad wrap to keep moisture from the insulation and heat trace wire. The specification for the Raychem heat trace system required the installation of a ground fault circuit breaker system, the purpose of which was to cut off the power in the event of an electrical fault, to prevent arcing of the heat trace wire. The ground fault circuit breaker system initially installed by SJSL was unsuitable, and a functioning system was not installed on the rig until after the incident which formed the basis of the case. During the drilling of an exploratory well a fire broke out on the oil rig, causing damage to cables.
[7.101] In a subsequent litigation, the trial judge held inter alia that SJSL was liable in tort for breach of duty to warn of the inflammability of Thermaclad. He also held that the defendant Raychem was liable in tort for breach of its duty to warn. When the case reached the Supreme Court of Canada, it was held by a majority that SJSL's appeal with regard to the duty to warn should be allowed. The majority of the court held that BVHB was not entitled to claim against SJSL on the basis of the tort duty to warn, by reason of provisions of the contract between them. The majority did not however disagree with what was said by the minority of the court about the duty to warn.
[7.102] The opinion of the minority was delivered by McLachlin J., who said at pp.1229-1230:
"SJSL argues that in order for a duty to warn to arise, there must be an 'informational imbalance' between the manufacturer or supplier and the party who is owed the warning. SJSL submits that the plaintiff BVHB knew as much about the inflammability of the Thermaclad as it did.
The law may be simply stated. Manufacturers and suppliers are required to warn all those who may reasonably be affected by potentially dangerous products: Lambert v Lastoplex Chemicals Co [1972] S.C.R. 569, and Hollis v Dow Corning Corp. [1995] 4 S.C.R. 634. This duty extends even to those persons who are not party to the contract of sale: Rivtow Marine Ltd v Washington Iron Works [1974] S.C.R. 1189. The potential user must be reasonably foreseeable to the manufacturer or supplier - manufacturers and suppliers (including a builder-supplier like SJSL) do not have the duty to warn the entire world about every danger that can result from improper use of their product.
The plaintiff BVHB was clearly within the class of persons that SJSL and Raychem ought to have known might reasonably be affected by the use of Thermaclad. SJSL was in a contractual relationship with BVHB, and Raychem had directly approached BVHB's predecessor [...] to encourage the use of its products in the construction of the rig.
The defendant SJSL submits that there is an additional requirement for a duty to warn: a knowledge imbalance between the manufacturer or supplier and the consumer. It goes on to argue that since BVHB knew about the inflammability of Thermaclad no duty to warn arose. The Court of Appeal held that knowledge may be a defence, but only where the plaintiff can be viewed as accepting the risk (volenti non fit iniuria).
I agree with the Court of Appeal that knowledge that there may be a risk in some circumstances does not negate a duty to warn. Liability for failure to warn is based not merely on a knowledge imbalance. If that were so every person with knowledge would be under a duty to warn. It is based primarily on the manufacture or supply of products intended for the use of others and the reliance that consumers reasonably place on the manufacturer and supplier. Unless the consumer's knowledge negates reasonable reliance, the manufacturer or supplier remains liable. This occurs where the consumer has so much knowledge that a reasonable person would conclude that the consumer fully appreciated and willingly assumed the risk posed by use of the product, making the maxim volenti non fit iniuria applicable: Lambert, supra.
The evidence establishes that the plaintiff BVHB knew that Thermaclad would burn under some circumstances. The defendants SJSL and Raychem, however, had much more detailed knowledge of the specific inflammability characteristics of the Thermaclad. Raychem gained this knowledge through its own testing as manufacturer. SJSL gained it through its request to Raychem for information on Thermaclad's inflammability. BVHB did not have the degree of knowledge necessary to negate reliance on SJSL and Raychem. SJSL and Raychem did not demonstrate that BVHB accepted the risk of using Thermaclad. It follows that both SJSL and Raychem owed BVHB a duty to warn [...]."
[7.103] Mr Jones submitted that the approach of McLachlin J. was more restrictive than that in Murphy v Brentwood District Council and in the Australian cases. It left wholly out of account any consideration of what it was reasonable for the manufacturer to do in the whole circumstances. McLachlin J. had, he submitted, started with a consideration of the loss and asked what the manufacturer ought to have done to avoid the loss. It was in this context that she started by looking at the knowledge that was actually possessed by the claimant. He submitted that this approach was not consistent with the United Kingdom authorities, particularly Murphy v Brentwood District Council. Once it was acknowledged that, where there was an opportunity for intermediate inspection and where the approach was to consider what it was reasonable for the manufacturer to do and to assume, in the whole circumstances of the case, about the consumer of its products, then it could be seen that the approach of McLachlin J. was wholly inconsistent with that of the United Kingdom courts. It was also inconsistent with the approach in Graham Barclay Oysters Pty Ltd v Ryan, Thompson v Johnson and Johnson Pty Ltd, Woods v Multi-Sport Holdings Pty Ltd and Bogle v McDonald's Restaurants Ltd. McLachlin J. had left out of account any possibility that the plaintiff might fail because there was no duty to warn in the particular circumstances, and went straight to the question whether the consumer fully appreciated and willingly assumed the risk posed by use of the product. As could be seen in Titchener, under the approach in the United Kingdom, it was not necessary to have a full appreciation and willing assumption of the risk posed for the maxim volenti non fit iniuria to apply.
[7.104] Counsel next turned to two English cases which, he submitted, supported the proposition that a manufacturer had a duty to do what was reasonable in the whole circumstances, making reasonable assumptions about its consumers. Reference was made in the first place to London Graving Dock Co Ltd v Horton [1951] A.C. 737. In this case an experienced welder who had for a month been carrying out work on a ship as an employee of sub-contractors engaged by ship-repairers in occupation of the ship, sustained injuries, without negligence on his part, owing to the inadequacy of certain staging, constituting an unusual danger, of which he had full knowledge and which, despite complaints, the ship-repairers had not remedied. It was held by a majority in the House of Lords that, the welder being an invitee, his knowledge of the unusual risk exonerated the ship-repairers from liability for the damage sustained by him and that it was not essential to their defence to establish that he was volens in that he was not under any feeling of constraint in accepting the risk.
[7.105] At p.749 Lord Porter summarised the facts in Donoghue v Stevenson, and at p.750 he said:
"Your Lordships' House held that, assuming the facts alleged to be true, the manufacturer would have escaped if it was natural to expect that the intermediate vendor would take care to see that the contents were in order. The pursuer, however, could recover from the manufacturer because such an examination was not to be expected. The law required the latter to be careful not to run the risk of injuring a person whom he contemplates or ought to contemplate as likely to be injured by his negligence, but an examination by the retail vendor, if rightly expected, could be relied upon by the manufacturer and would have been a complete answer to the claim. Still more so would knowledge by the purchaser of the true position, whether such knowledge was actual or such as the circumstances would warrant the manufacturer to assume. The defence did not have to show that the pursuer drank the contents with a full knowledge of the risk: it would have been enough if examination and consequent knowledge was to be expected. To that extent an argument based on Donoghue v Stevenson seems less forcible than the more obvious contention founded upon the relationship of invitor and invitee. Neither ground, in my opinion, supports the conclusion that the appellants were in breach of their duty of care."
[7.106] Secondly, in Lewis v University of Bristol [1999] E.W.C.A. Civ. 1569, the plaintiff was a research assistant employed by the University of Bristol. She was an experienced molecular biologist. She was using an ultra violet transilluminator to photograph DNA gel in a laboratory when she was exposed to an excessive dose of ultra violet light and suffered serious burns to her face and neck. For some years she had used an ultra violet transilluminator known as a TL33 without mishap. Shortly before this event, and without her knowledge, this machine had been replaced by the University by a more powerful machine of similar appearance. The machine was manufactured by the third party, Ultra Violet Products Limited, who had supplied an instruction book with the machine.
[7.107] The first opinion in the Court of Appeal was delivered by Otton L.J., who accepted a submission that the TM40 was manufactured for a niche market. It was not a product created for general consumer use. It was a product created for exclusively scientific uses. After a reference to Holmes v Ashford he said:
"It is thus in my view a simple question of fact and degree in every case whether a manufacture[r] has given sufficient warning in all the circumstances when supplying a dangerous piece of equipment. [...] If the question is asked: what ought the reasonable manufacture[r] to foresee and what steps should he reasonably take?, the answer to my mind is clear. These manufacturers could reasonably foresee that the university would adequately instruct anyone who might use the machine - and in particular the research assistants - and they could not reasonably have foreseen that the university would allow the machine to put into circulation and use without adequate warning."
[7.108] The Lord Chief Justice, Lord Bingham of Cornhill, said that he agreed that the third party could not reasonably be expected to foresee the possibility that an expert professional buyer such as a scientific department of a university would make a machine such as the TM40 transilluminator available for use by its staff without, if necessary, familiarising itself with the potential hazards of such a machine and the safety precautions necessary to counter those hazards, and without taking steps to warn its staff of the dangers and to give instruction on the safe operation of the machine.
[7.109] Mr Jones submitted that this case constituted another example of the application of the proposition that the starting point was not what the plaintiff knew or did not know, but what it was reasonable, in the whole circumstances of the case, for the manufacturer to do and to assume.
[7.110] Turning to the present case, counsel submitted that the link between smoking and lung cancer was firmly in the public domain by September 1964, which was the earliest date that liability could arise. The publicity given to this link was one factor. It was also relevant that the Government had since 1956 publicly asserted that it would take steps to ensure that members of the public were informed of the link and associated risks and took active steps to inform the public. The actions of the Government were an important part of the context within which the question whether or not ITL had acted reasonably in the whole circumstances had to be assessed.
[7.111] The importance of common knowledge of the risks associated with smoking in assessing whether or not cigarette manufacturers had acted reasonably in not issuing warnings had been recognised in other jurisdictions. Reference was made to seven cases.
[7.112] (1) In Létourneau v Imperial Tobacco Ltd (1998) 162 D.L.R. (4th) 734, the plaintiff began smoking in 1964, attempted unsuccessfully to quit in 1973 and 1980, and finally quit in 1996, with the aid of nicotine patches. She brought an action against two tobacco companies for the cost of the patches. The evidence showed that in 1964, smoking was considered a habit rather than an addiction. In the Court of Quebec, Pokomandy Q.C.J. held, dismissing the action, that the tobacco companies were not obliged in 1964 to warn of the danger of addiction, nor to warn that smoking was habit-forming, since this was well-known. In any event, the plaintiff's loss was not caused by any failure to warn, since she continued to smoke with knowledge of the risks.
[7.113] In the course of his opinion (as translated in the report), the judge said, at pp.744-747:
"A manufacturer, in addition to liability for any danger or hidden defect resulting from a flawed design in goods offered for sale to the public, or the improper use of materials used in the manufacture of the said goods, or the defective assembling of the goods, also has the duty to sufficiently inform the purchaser or end user of the dangers or special nature of the goods that may render them unfit for a particular purpose.
Thus, the manufacturer which sells its goods to the general public has the duty to warn the consumer of any risks and dangers associated with its use.
The scope and content of the duty to warn varies according to circumstances, the nature of the goods and the knowledge of the purchaser. [...]
This duty to warn and provide information aims to compensate for the consumer's lack of knowledge with respect to the true nature of products, how to use them, or certain consequences arising out of use which the manufacturer is presumed to know.
The objective is to place the customer in the position of the normally prudent, knowledgeable and well-informed person. If the substance or object is universally recognised as being dangerous or the user is aware of the dangerous nature of a product or has used it for a sufficiently long period that any additional information would be superfluous, the failure to warn or inform will not be deemed a fault of the manufacturer.
In other words, manufacturers are under no obligation to warn end users of their products with respect to facts which are generally known, that is so well known in the community that they are more or less beyond dispute.
Thus, the Court will review the particular facts of each case in order to determine the scope of the manufacturer's duty to warn with respect to the product, the circumstances and the party in question."
[7.114] After reviewing the evidence relating to the state of public knowledge that smoking cigarettes constituted a health hazard, and the display of messages stating that smoking cigarettes was harmful to health, the judge said:
"The consumer, having been informed by such warnings of risk to health associated with smoking cigarettes, is under a duty to become informed and seek advice with respect to the specific and foreseeable consequences for him or her of such use. The manufacturer has the duty to inform, but not to advise."
After consideration of the petitioner's personal circumstances, the judge said, at p.746:
"As an adult, she must assume the consequences of having chosen an activity whose risks and dangers were known."
[7.115] After discussion of the petitioner's complaint that the respondents should have informed her that she risked becoming addicted to nicotine by smoking over a long period of time, the judge said, also at p.746:
"The only warning under the circumstances that could have been given is that long-term, heavy smoking could be very habit-forming and that consequently quitting smoking could prove to be difficult.
However, that was already known, not only as a result of cigarette-smoking, but also of several other pleasant activities practised intensively over a long period of time.
The manufacturer is not obliged to warn of dangers that are clearly known to all.
The argument of the petitioner to the effect that she was unaware of the consequences of the habit of smoking is not very convincing when placed within the context of the overall evidence.
In fact, any reasonable person who acts, undertakes an activity or engages in behaviour of any nature is presumed to assume the consequences of his or her choice, which implies a minimal duty to educate oneself in advance of the risks and benefits at stake.
If the petitioner did not do so and voluntarily or carelessly ignored the consequences of smoking, including the subsequent difficulty of stopping, instead considering only its present aspect, she must now assume the consequences of such a choice."
[7.116] (2) Heine v Reemtsma Cigarettenfabriken GmbH 2 O 294/02 was a decision of the Second Chamber for Civil Matters of the Arnsberg Regional Court, Germany, announced on 14 November 2003. I was informed that it was under appeal. A translation of the judgment was prepared for the present proceedings. According to the first paragraph:
"The Plaintiff claims damages and compensation for pain due to harm to his health from smoking 'Ernte 23' brand cigarettes manufactured by the Defendant. He furthermore seeks information about the addition of addiction-promoting substances and a finding with regard to consequential damages. He hereby cites the Defendant's failure to provide warnings, product manipulation and a fundamental flaw in the cigarette product."
[7.117] At pp.13-15 of the translated opinion the court held that there was no liability from the point of view of producer liability due to a fault in construction or instruction. They said:
"There is no construction fault in cigarettes. Cigarettes are not a faulty product, in spite of the health risks arising from their consumption. The dangers arising from this have indisputably been known to consumers and the Plaintiff for a long time and were consciously accepted. Everyone knows that in the long term smoking can lead to serious, potentially even fatal harm to health, that it can lead to addiction which makes it hard to stop smoking. Consumers cannot justifiably expect that cigarettes are constructed in such a way that they do not give rise to these dangers. For instance, in the jurisdiction which this chamber follows it has long been recognised that the producer does not have to avert dangers which are typically linked with the use of a product and known to the users or recognised and accepted by them [...]. The decisive aspect therefore is that smokers are responsible for their own acts. They must themselves bear the consequences of their independent behaviour and cannot pass them on to the cigarette manufacturers."
[7.118] Further down p.14, the court said:
"The Defendant has also not committed a so-called instruction fault by neglecting warnings on his products. The Plaintiff did not concretely assert that the Defendant had not met the legal duty of information and this is not evident. There are no further duties of information for the Defendant.
The manufacturer of a product must only indicate the most important features. He must not meet any special duties of information if certain product risks are generally known.
However, all risks linked with the consumption of cigarettes have been known to the consumers for a long time. This also includes the possible addictive effect of cigarette consumption. This does not concern special knowledge - such as how health is harmed by cigarette consumption. Therefore the judiciary has basically unanimously rejected a further duty of information [...]. Thus there does not have to be separate information about an allegedly addiction-increasing effect of additives. Because the effect of these substances, i.e. in lay terms that smoking is addictive - as always - is not news to the consumer."
[7.119] (3) Lund v J.L. Tiedemanns Tobaksfabrik A.S., H.R. - 2002 - 00753a, 31 October 2003, was a decision of the Supreme Court of Norway. A translation of the judgment was prepared for the present proceedings. The case concerned a request for a declaratory judgment finding that a tobacco manufacturer was liable for damages on a strict liability basis with respect to an injured party who after over 40 years of cigarette smoking developed lung cancer and died. The leading opinion was delivered by Judge Flock, with whom the other members of the Supreme Court agreed. At para.47 he said:
"The parties have in their arguments before the Supreme Court concentrated to a large degree on what knowledge of the health risks of smoking the normal consumer had during the space of time from 1950 to 1975. The appellant has acknowledged that the knowledge of both the general public as well as that of [the deceased] Robert Lund of the risks in 1975 had been brought to such a level that continued smoking after that took place at his own risk."
[7.120] The judge then went on to review the evidence, commenting, in para.49:
"The parties are in agreement that the question of the relationship between smoking and damage to health is not related to what the individual injured party - Robert Lund in our case - knew or did not know."
After referring to the publication of various reports, including one by the Norwegian General Director of Health in 1964, the judge concluded, at para.56:
"Despite the fact that extremely many cigarette smokers continued not to accept the consequences of the medical knowledge that the research had brought to light, I am of the opinion that the consumers had in any event received such information in 1964 concerning health damage that a normally intelligent person would include it in his assessment of how he wished to conduct his life. Such as I see it, there cannot be any doubt that Robert Lund's smoking after this point in time took place at his own risk."
[7.121] The judge then turned to consider the ten year period between 1954, when Robert Lund began smoking the particular brand of tobacco in question, to 1964. He said, at para.63:
"My overall impression of the material that was submitted on the situation from the first half of the 1950s up to 1964 is that medical science at that time had still not secured reliable knowledge concerning a direct causal relationship between cigarette smoking and lung cancer and other serious injuries to health."
At para.64, however, he concluded:
"During this last 10-year period prior to the final conclusions being able to be drawn, the relationship between smoking and damage to health was not unknown to the average man or woman. However due to the lack of completely clear evidence it was to a greater degree than later left to the individual as to the extent to which one wished to believe what one read and heard now and then about the harmful effects of tobacco. And then as now, it was completely up to the individual as to whether one chose to take the chance. What is crucial for me is that it also must have been generally known at the time that cigarette smoking could involve a risk of serious health damage, and that the risk of such damage in any event to some extent would increase if the consumption of cigarettes was large. Such as I view the case, no more fine-meshed of an analysis is needed on this point."
[7.122] (4) Cruz-Vargas v R.J. Reynolds Tobacco Company 348 F.3d 271 (1st Cir.2003) was a decision of the United States Court of Appeals, 1st Circuit. Relatives of a deceased smoker brought a negligence and strict liability suit against a tobacco company, alleging that it was responsible for his death. The action was brought in the United States District Court for the District of Puerto Rico. There was evidence that "the average consumer in Puerto Rico during the 1950's, during the 1960's" was aware both of health risks, such as cancer and cardiovascular disease, associated with smoking and that "smoking was or could be difficult to quit".
[7.123] In discussing the evidence regarding common knowledge, the Court of Appeals said at pp.275-276:
"[5, 6] This case calls for us to evaluate application of the common knowledge doctrine in the context of tobacco litigation. The doctrine stems from the principle that a manufacturer cannot be held liable under either strict liability or negligence for failure to warn of a danger commonly known to the public. See, e.g., Guevara v Dorsey Labs., Div. of Sandoz, Inc., 845 F 2d 364, 367 (1st Cir. 1988) ('The duty to warn in general is limited to hazards not commonly known to the relevant public'); Aponte Rivera v Sears Roebuck, 44 P.R. Offic. Trans. 7, 144 D.P.R. 830 (1998) ('[A] manufacturer need not warn of a hazard if the average consumer ordinarily has knowledge of the dangers of the product.'). [...]
[7, 8] A products liability plaintiff alleging failure to warn must prove
'(1) the manufacturer knew, or should have known of the risk inherent in the product; (2) there were no warnings or instructions, or those provided were inadequate; (3) the absence of warnings made the product inherently dangerous; (4) the absence of adequate warnings or instructions was the proximate cause of plaintiff's injury.'
Aponte Rivera, 44 P.R. Offic. Trans. at 6. Under the common knowledge doctrine, however, a defendant neither breaches a duty nor causes the product to be inherently dangerous when the allegedly omitted warning concerns a danger of which the public is well aware. [...]
The crux of appellants' entreaty on appeal is that neither the strict liability nor the negligence claim requires any affirmative showing, and thus the burden rested entirely on Reynolds. Whether or not this is a correct view of the law, after searching the record we have found no evidence which supports appellants' allegations that there was a lack of common knowledge and thus we are compelled to find that Reynolds met its burden in any event."
[7.124] (5) In Roysdon v R.J. Reynolds Tobacco Company 849 F.2d 230 (6th Cir. 1988), a smoker and his wife brought an action against a tobacco manufacturer to recover for disease allegedly caused by smoking. The United States Court of Appeals, Sixth Circuit, inter alia affirmed the dismissal by the United States District Court for the Eastern District of Tennessee of the plaintiffs' failure to warn claim. At p.236, para.10, the Court of Appeals said:
"[T]he district court took judicial notice that
'tobacco has been used for over 400 years and that its characteristics have also been fully explored. Knowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge of the community.'
Roysdon, 623 F.Supp. at 1192. Remembering that this action was limited to the ten years preceding the filing of this complaint [on 5 July 1984], we think this approach was appropriate. The extensive information regarding the risks of smoking available to the public during that time precluded the existence of a jury question as to whether cigarettes are unreasonably dangerous. We find that whether there was knowledge regarding Mr Roysdon's specific medical problem is irrelevant in light of the serious nature of the other diseases known at that time to be caused by cigarette smoking."
[7.125] (6) Paugh v R.J. Reynolds Tobacco Company 834 F.Supp. 228 (N.D.Ohio 1993) was a decision of the United States District Court, N.D.Ohio, E.D. In the course of her opinion, the district judge said, at pp.230-231:
"The dangers posed by tobacco smoking have long been within the ordinary knowledge common to the community. In fact, tobacco is specifically mentioned in the Restatement (Second) of Torts as an example of a product which is not defective merely because the effects of smoking may be harmful. Rest. (2d) of Torts §402A(i)."
[7.126] After referring to various authorities, including Roysdon v R.J. Reynolds, the district judge said at p.231:
"[E]specially in light of the Sixth Circuit's holding in Roysdon, this Court finds that the better-reasoned decisions are those finding the dangers of smoking to have been common knowledge. Much as in the case of alcohol, users of tobacco products have made a consumer choice in the face of health risks that are common to ordinary knowledge. [...] That some ignore or underestimate these risks has little bearing on the extent to which knowledge of the dangers [is] salient within the community. Therefore, because the risks posed by smoking are an inherent characteristic of cigarettes, and because knowledge of these risks has been common to the community since well before 1966, Paugh's allegations are insufficient to support her claim for damages caused by a product in an 'unsafe and defective' condition [...]."
[7.127] (7) In Tompkin v American Brands 219 F.3d 566 (6th Cir. 2000). The widow of a former smoker brought a product liability suit against cigarette manufacturers. The United States District Court for the Northern District of Ohio granted summary judgment to the manufacturers. The plaintiff appealed. The United States Court of Appeals, Sixth Circuit, held inter alia that "fact questions precluded summary judgment on design defect and failure to warn claims under the Ohio Products Liability Act (OPLA)". So far as the failure to warn claim was concerned, the question for the Court of Appeals was whether there was an issue to be tried. In reaching their decision on this, the Court of Appeals required to make certain assumptions in favour of the plaintiff: as explained at p.575 they required to credit the report and deposition of Dr Whelan, relied upon by the plaintiff, as true and to read all inferences in the light most favourable to the plaintiff. OPLA expressly exempts from liability products whose dangers are regarded as "common knowledge". Specifically, a defendant is not liable for a purported design defect when "the harm for which the claimant seeks to recover compensatory damages... is recognised by the ordinary person with the ordinary knowledge common to the community."
[7.128] In the course of their opinion, at pp.572-575, the Court of Appeals said:
"[3] At the outset, we think it necessary to frame properly the issue we must decide. The pertinent issue here is not whether the public knew that smoking was hazardous to health at some undifferentiated level, but whether it knew of the specific linkages between smoking and lung cancer. Public awareness of a broad-based and ambiguous risk that smoking might be tenuously connected to lung cancer does not suggest 'common knowledge' of the known scientific fact that cigarette smoking is a strong precipitant of lung cancer. [...] It is one thing to be aware generally that a product might have an attenuated and theoretical connection with a deadly disease like lung cancer; it is another altogether to comprehend that it is the cause of an overwhelming majority of lung cancer cases [...]. The 'common knowledge' requirement is emasculated if a defendant may show merely that the public was aware that a product presented health risks at some vague, unspecified, and undifferentiated level.
Viewing the 'common knowledge' issue through the proper lenses, we conclude that a rational jury could find the absence of 'common knowledge,' between 1950 and 1965, of the nature of the link between smoking and lung cancer. While Dr Whelan concedes that an overwhelming majority of the public was aware that smoking was dangerous to health, and that opinion polls even showed an awareness of some connection between smoking and lung cancer [...], she nevertheless concluded that there was 'no reason to believe' that the public had any understanding of the nature of this connection. [...]
Surely, if the ordinary person had an understanding of the harms of cigarette smoking that was wildly disproportionate to its actual danger, one may not characterize such misunderstanding as 'common knowledge.' The requirement that the public have 'common knowledge' - as opposed to broad familiarity, or some other more generalized standard - informs that substantial incongruence between perceived and actual risk precludes a 'common knowledge' finding. [...]
In short, crediting the report and deposition of Dr Whelan as true and reading all inferences in the light most favorable to Mrs Tompkin [...] we hold that a rational factfinder could reasonably conclude that the public did not have 'common knowledge' of the strong connection between cigarette smoking and lung cancer between 1950 and 1965."
[7.129] Counsel submitted that these authorities were consonant with the United Kingdom approach, which was that, in individualist philosophy, the individual was well enough served if he was given such information as a normally intelligent person would include in his assessment of how he wished to conduct his life, thus putting him in the position of making an informed choice. Where risks were common knowledge, no liability arose from failure to give a warning. It was enough if the average consumer had sufficient knowledge to know that he took a chance. It was a question of fact whether there was publicly available information amounting to common knowledge.
[7.130] Counsel submitted that the underlying policy of the law could also be seen in Pelman v McDonald's Corporation 237 F.Supp.2d 512 (S.D.N.Y.2003). In this case, parents brought an action on behalf of their children against fast-food corporations and restaurants, alleging violations of state consumer protection laws and negligence in connection with the children's over-consumption of fast-food products. The United States District Court, S.D. New York, dismissed the action, holding inter alia that the defendants owed no duty to warn consumers of the products' well-known attributes. At p.520 District Judge Sweet set out the causes of action alleged by the plaintiffs, two of which were expressed in these terms:
"Count III sounds in negligence, alleging that McDonalds acted at least negligently in selling food products that are high in cholesterol, fat, salt and sugar when studies show that such foods cause obesity and detrimental health effects.
Count IV alleges that McDonalds failed to warn the consumers of McDonalds' products of the ingredients, quantity, qualities and levels of cholesterol, fat, salt and sugar content and other ingredients in those products, and that a diet high in fat, salt, sugar and cholesterol could lead to obesity and health problems."
[7.131] In discussing count III, at pp.532-533 the judge said:
"[14] [...] It is well-known that fast food in general, and McDonalds' products in particular, contain high levels of cholesterol, fat, salt and sugar, and that such attributes are bad for one.
[...] If a person knows or should know that eating copious orders of super- sized McDonalds' products is unhealthy and may result in weight gain (and its concomitant problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonalds. [...]
As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer. [...] Plaintiffs have failed to allege in the Complaint that their decisions to eat at McDonalds several times a week were anything but a choice freely made and which now may not be pinned on McDonalds."
[7.132] In discussing count IV, at pp.540-541, the judge said:
"[19] [...] In Liriano v Hobart Corp., 92 N.Y.2d 232 [...] (1998), the New York Court of Appeals summarized the current State of New York law with regard to a manufacturer's liability for failure to warn in a products liability case:
'A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known. A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable... [A] manufacturer may be liable for failing to warn against the dangers of foreseeable misuse of the product... A manufacturer's superior position to garner information and its corresponding duty to warn is no less with respect to the ability to learn of... misuse of a product....' [...]
[21, 22] In duty to warn the cases, New York recognises two circumstances that would preclude a finding of proximate cause: (1) obviousness and (2) the knowledgeable user. [...]
[23] Pursuant to the 'open and obvious' exception, a manufacturer may not be liable for a failure to warn if the risks were sufficiently obvious to the user without a warning. [...]
[24] The open and obvious defense will not apply 'when there are aspects of the hazard which are concealed or not reasonably apparent to the user...". Liriano, 92 N.Y.2d at 241-42 [...]
[25] Because of the difficulty in administering this test, the question of whether a danger is open and obvious is usually a jury question unless only one conclusion may be drawn from the established facts. [...]
[26] As discussed above, the Complaint fails to allege that the McDonalds' products consumed by the plaintiffs were dangerous in any way other than that which was open and obvious to a reasonable consumer."
Counsel submitted that the approach in Pelman would be followed in the United Kingdom.
[7.133] So far as Mr McEachran's submission about cigarettes as being a "defective product" was concerned, Mr Jones made the point that the pursuer did not aver and had not sought to prove that the cigarettes allegedly smoked by Mr McTear were anything other than ordinary cigarettes. This case did not concern the introduction into the product of some extraneous substance as a result of a manufacturing error. It would not be in dispute that ITL did have a duty to take reasonable care to avoid contamination, on ordinary Donoghue v Stevenson principles. This was not, however, such a case: the issue was whether or not ITL had any duty in relation to risks inherent in the ordinary and intended use of the product. The appropriate analogy was with, for example, foods rich in fat, the consumption of which carried inherent health risks, as in Pelman's case.
[7.134] Mr Jones then turned to the circumstances of the present case. Counsel reiterated his submission, based on the individualistic philosophy of the common law, that in general it was for individuals to decide what goods and services they wished to purchase and consume. It was for them to decide whether or not any risk associated with the particular activity was one which they wished to take. It was not in general for the court to determine that any particular consumer product should not be available for purchase. Various factors emerged from the evidence. Cigarettes were at all relevant times widely enjoyed and socially acceptable. In the 1960s, the majority of adults in the United Kingdom smoked. USSG 1964, referred to in Professor Friend's evidence, discussed the significant beneficial effects of smoking. Professor Gray described the benefits which smokers might derive from smoking: most smokers reported that they enjoyed smoking. Mr McTear's evidence, given on commission, was that this was why he smoked. Smokers described how they smoked for one or more of a range of beneficial effects related to sensory enjoyment, mood control and increasing alertness. In MacAskill et al. 2002, of which Professor Hastings was one of the authors, it was found that smoking was, for many of the subjects of the study, their main pleasure, and met a multitude of needs in the lives of the study population.
[7.135] Counsel submitted that in order to determine whether or not in all the circumstances ITL acted unreasonably in not withdrawing their products from the market or in not issuing a warning, it was necessary in the first place to identify what the state of the science at the relevant time would justify as the appropriate understanding of any risk. In his submission the pursuer had not led any appropriate evidence upon which the court could reach a reasoned conclusion on the state of the science today, and by the same reasoning she had not led any evidence upon which the court could reach a reasoned conclusion about the state of the science as at, for example, September 1964. It was, in any event, relevant to the question of reasonableness that, even if the majority of scientists had concluded that smoking could cause lung cancer, there continued to be serious scientists who were arguing caution, at least in accepting the causal hypothesis, and some who were proposing alternative explanations.
[7.136] The attitude of the Government and the public health authorities was relevant to the issue of reasonableness in not withdrawing the product from the market and not issuing a warning. There was no suggestion from the Government that smoking should be banned or that cigarettes should be withdrawn from sale. There was no evidence that the Royal College of Physicians were recommending prohibition of the sale of cigarettes. All the recommendations in RCP 1962 were designed to lead to the consuming public being informed. The stated policy of the Government at the relevant time was to ensure that adults knew the facts about the dangers of smoking and to discourage children and young people from acquiring the habit. This could be seen from the report of the Ministry of Health for the year ended 31 December 1962, referred to in the cross-examination of Professor Hastings. By the late 1960s it had become policy to seek to discourage smoking by campaigns directed to making it appear unfashionable, but it remained Government policy, as it did today, to recognise that people had a right to choose whether or not to smoke. The views of the Government might not, counsel submitted, as a general proposition, be determinative of the question whether a manufacturer who continued to sell his product was in breach of his duty of care, but in the circumstances of this case the views of the Government were a factor of some weight. It was not in general the business of the common law to dictate what goods and services might lawfully be sold and purchased, although the legislature and, under delegated powers, the executive might regulate or even prohibit the sale and purchase of particular goods and services. The question whether the sale and purchase of particular goods and services should be prohibited raised issues of policy which were not in general for the courts to address in the context of delictual liability. By 1964 the Government was taking active steps, pursuant to its policy, to inform the public.
[7.137] A further consideration which was relevant, counsel submitted, was that ITL were, and remained, a substantial company upon which many people relied for their livelihood. Given that the Government then and now regarded smoking as a legitimate choice for individuals to make, it was not incumbent on ITL in all the circumstances unilaterally in effect to cease trading. Counsel stressed the word "unilaterally", because the evidence was that all the other cigarette manufacturers continued to trade, and this was a relevant consideration for ITL to have had in mind were there any question of ceasing manufacture. These, counsel submitted, were all relevant facts and circumstances, but of course they had to be seen in the context of public awareness at the relevant time or times. On the question of public awareness, Mr Jones invited me to find, under reference to the material set out in Part III, that the 1954 and 1956 ministerial statements, publication of MRC 1957, RCP 1962 and USSG 1964 and the ban on television advertising of cigarettes in 1965 were all significant media events widely covered in the press throughout the country, and that the coverage of smoking and health issues was not confined to these significant news stories. The media coverage effectively constituted reminders throughout the 1950s and 1960s that there were risks associated with smoking.
[7.138] The starting point was the evidence of Professor Hastings that the health evidence about tobacco was well known and publicised by the 1960s, that there was considerable publicity about the health consequences of smoking during the 1960s, and that Mr McTear must have been aware of it. This was because of the extensive media coverage at the time. Professor Hastings said that in effect any member of the public must have been aware of the publicity that was being given to the health consequences of smoking. Mrs McTear said, consistently with the evidence of Professor Hastings, that the first disease she could remember being linked with smoking was lung cancer. While Professor Hastings was quite content to recognise that people were bound to have been aware of publicity given to the health risks associated with smoking, his concern was that other messages, and in particular advertising, would influence people towards smoking. Counsel did not criticise him for having this approach, but in his submission this was quite different from the approach of the law: the law did not require that the manufacturer should set out to change people's behaviour. That was left to public health bodies and people like Professor Hastings. In addition, he had a tendency to judge comments in newspapers, and Government policy and actions in the 1950s and the 1960s, from the standpoint of his current understanding of the science and of more recent practice in the field of social marketing. But his general conclusions about the depth and breadth of the penetration of public awareness, particularly in the early 1960s, were well founded. They were amply supported by the vast quantity of media reporting of the issue of smoking and health that had been agreed by way of joint minute.
[7.139] More generally, it emerged from the evidence of Professor Hastings that the media covered events and other matters which were considered to be of interest to readers, listeners and viewers. In the 1950s and 1960s it would have been of interest to many members of the public that smoking was being linked with fatal diseases. The press took an interest in research on matters of topical interest, as could be seen by reference to the reporting of the work of Doll and Hill. The media also took an interest in the views of the medical profession on topical issues of the day. There were some reports in the 1950s on the views of the medical profession on the health risks associated with smoking. In January 1953 a television programme presented by Dr Fletcher called "The tobacco habit" described the evidence on the link between smoking and lung cancer: he was the secretary to the committee which produced RCP 1962. The programme was commented on in newspapers such as the Daily Mirror and the Sunday Pictorial.
[7.140] The ministerial statement in the House of Commons in 1954, that the statistical evidence pointed to smoking as a factor in lung cancer, made it clear that the Government was giving a warning that there was a risk of lung cancer associated with smoking cigarettes, albeit that the warning was qualified in certain respects. This statement was widely reported in newspapers targeted at all social strata. The ministerial statement in the House of Commons in 1956 was again a significant news story which was widely and prominently reported. It included a public announcement by the Government that it was going to take steps to ensure that the public were kept informed. The statement was reported in the Daily Record and the Evening Times, among other newspapers.
[7.141] The publication of MRC 1957 and the ministerial statement in the House of Commons were again widely reported in newspapers, including the Daily Record, the Evening Citizen, the Evening Times and the Paisley Daily Express. It was covered also on radio and television. The report was widely anticipated in the press throughout the United Kingdom, and following its publication was also widely reported. The reports referred to the ministerial statement that once the risks were generally known, everyone who smoked would have to be relied upon, as a responsible person, to assess them and act as he thought best.
[7.142] The publication RCP 1962 received extensive publicity. There were reports in the Daily Record, the Evening Times, the Evening Citizen and the Sunday Post, among other newspapers. Following publication of the report the Government embarked on a campaign. Publicity material was supplied by the Ministry free of charge to local authorities and to other organisations. In 1965, television fillers were being shown on ITV free of charge to the Government.
[7.143] Not only was central Government taking responsibility on itself and encouraging local authorities to do specific things, there were local initiatives. There was a vigorous campaign waged in Paisley, for example, in the first half of the 1960s. Reference was made to reports in the Paisley Daily Express and the Paisley and Renfrew Gazette. There were reports of an anti-smoking clinic being opened in Paisley in February 1965.
[7.144] There was also widespread coverage of the publication of USSG 1964. In counsel's submission the public awareness was such that at the very latest by the time of publication of this report it could be taken that the public knew about the health risks, and in particular the association between smoking and lung cancer. On 30 January 1964 the Prime Minister, Sir Alec Douglas-Home, said in the House of Commons: "I do not think there is any excuse for anyone not to know the connection between cigarette smoking and cancer." Not only could this be regarded as a responsibly expressed view, but a tobacco manufacturer such as ITL was entitled to rely on it when thinking about what reasonably to do in the light of emerging knowledge about the link between smoking and lung cancer.
[7.145] Against this background of public awareness and the other facts and circumstances counsel had referred to, he submitted that there was no duty on ITL to cease production or to put out warnings. While there were no Government health warnings on cigarette packets until 1971, it was clear that the Government and various public health bodies were putting out repeated warnings during the 1950s and into the 1960s about the link between smoking and lung cancer, and indeed the media coverage of the significant events was intended to be and was in effect a series of public health warnings. Professor Hastings had accepted that any member of the public must have been aware of the publicity that was being given to the health consequences of smoking in the 1960s.
[7.146] There was no evidence that the tobacco industry sought to contradict the public health message. Sir Richard Doll's evidence was that in the United Kingdom the tobacco industry did not seek to challenge it. Counsel invited me to sustain the objection to the line of evidence from Professor Hastings about statements from the tobacco industry. There was no notice in the pleadings of any argument that public awareness of the public health warnings was in some way affected by statements from the tobacco industry. Had it been the pursuer's intention to argue that public awareness of the public health warnings as at September 1964 had been in some way affected by industry statements, this line should have been foreshadowed in the pleadings, and notice should have been given of the industry statements to be relied upon by her in that regard. Not only were there no averments to this effect, there was no averment that Mr McTear was influenced in his decisions about smoking by any statements by the tobacco industry. He made no reference to this when he gave evidence on commission, and there was no averment that ITL were in breach of any duty by virtue of any statement made by them.
[7.147] In any event, counsel submitted, the evidence did not support the proposition that awareness of the public health warnings as at September 1964 was in any way influenced by industry statements. This could be seen by reference to the evidence of Professor Hastings, summarised above. Even in the 1950s when those in the tobacco industry were calling for caution, any member of the public who became aware of a report of such a statement would also be aware that the statement was a response to the announcement which had given rise to the report, and would accordingly have been aware of the health risks about which warning was being given, as well as the fact that these warnings were being given by the Government and public health authorities. The fact that such an individual might have been made aware of the position of the tobacco industry still left him with the relevant information to enquire further if he wished or, if not, to make a choice about future action. For the purposes of the duty of care it was sufficient that it could reasonably be assumed that the ordinary consumer would have been aware of the warnings about smoking and health being given by the Government and the public health authorities. Counsel made it clear that he was not saying that as a matter of assertion, no comment was made by the tobacco industry in 1962 or 1964; his submission was that if Mr McEachran wished to make out that the tobacco lobby group contradicted the conclusions, it was for him to bring the evidence on which he relied, and none had been brought out.
[7.148] Counsel concluded his submissions on the issue of public awareness by referring to the pleadings for ITL on this issue:
"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. There was, at all material times, extensive coverage in the media in the United Kingdom of smoking and health issues. At all material times there were numerous articles on smoking and health in the print media throughout the United Kingdom."
As counsel pointed out, these averments were met by a general denial, but in the event it had proved possible to agree many thousands of newspaper articles and publications in the other media which clearly vouched them. In addition, reliance was placed on the pursuer's own expert, Professor Hastings, for the above propositions taken from his evidence about the level of public awareness in the United Kingdom at the relevant time.
[7.149] Mr Jones submitted that it was not clear what finding I was being invited to make about the nature of advertising, or about ITL's expenditure on advertising and promotion. The pleadings on advertising were limited, and there was very limited evidence before the court about the nature of cigarette advertising by ITL, or in general, at the relevant time. There was, however, evidence that in April 1962, following the publication of RCP 1962, the tobacco industry voluntarily restricted their television advertising to the period after 9pm. In June 1962 the industry agreed with the Independent Television Authority that television advertising would be governed by a code which excluded advertisements which suggested that cigarette smoking was inseparable from masculinity, that it was a desirable recreation for young people, that it was a socially acceptable habit, that it produced ecstatic pleasure or that it was enjoyed by popular heroes or heroines. It could not be taken from this that advertising previously suggested, for example, that cigarette smoking was inseparable from masculinity or recreation for young people. This would have to be demonstrated by reference to advertisements. In any event, given that I had sustained an objection, there was no live issue in the present case.
[7.150] Since, however, that Mr McTear had given evidence on this matter at commission without objection, counsel went on to submit that in addition to the restrictions on television advertising in 1962, in November 1962 the tobacco industry agreed to apply the same restrictions to other advertisements, and in June 1964 a new code for television advertising was promulgated containing further restrictions. So by the time Mr McTear started smoking in September 1964 or later it was difficult to see what there was for him to fall for.
[7.151] In response to Mr McEachran's submissions about the contrast between ITL's advertising expenditure and direct government expenditure, counsel submitted that this was not a direct comparison because the costings on the public health side did not take into account the publicity through the mass media, nor local authority expenditure. In any event ITL, like other tobacco manufacturers, operated in a competitive market, selling a lawful product which was at all relevant times widely socially acceptable. They were entitled to promote their products within the law and within any relevant advertising codes of practice and any voluntary restrictions accepted by them. Professor Hastings accepted that advertising performed the function of strengthening brand identity. Mr Davis gave evidence that ITL's advertising was aimed primarily at the smokers of other manufacturers' cigarettes, to persuade them to convert to ITL's products. Counsel submitted that the relevant question was whether or not it could reasonably be assumed at the relevant time, September 1964 or later, that the ordinary consumer was aware of the warnings which the Government and public health authorities were putting out to the public. If they were, then the fact that ITL were advertising their products was irrelevant.
[7.152] Both on the pleadings and on the evidence, the tobacco manufacturers, including ITL, were deriving their information from the same published sources as were available to the public. There was nothing to which they were privy which was not publicly available and which might therefore place them under a duty to provide information which the public did not otherwise have. ITL had no better or greater knowledge than the average consumer, and they gained it at precisely the same time as the average consumer did, and in the same way. In addition, the Government were relying on the same material at the same time. The foundation of the pursuer's case was based on the published reports, starting with MRC 1957. There was no evidence that the public would have been any better informed than they already were, by reason of the publicity given to these reports, if ITL had printed warnings on cigarette packets or in advertisements that smoking could cause fatal diseases. On the evidence, when Mr McTear started smoking in 1964 or later, ITL's products carried no hidden danger, such that they were under a duty to give warnings about it. The public awareness that smoking was linked with health risks, and in particular lung cancer, was so widespread that ITL had no duty to give warnings about it. The same level of public awareness ruled out any duty to cease manufacture.
[7.153] Turning to the issue of fault causation, Mr Jones submitted that the first question which arose from the argument for the pursuer, that Mr McTear would not have developed lung cancer but for ITL's breach of duty, was whether, if ITL had ceased manufacturing, Mr McTear would not have smoked. Mr Jones submitted that the onus was on the pursuer to establish, not only that ITL were in breach of a duty owed to Mr McTear, but that, if they had not been in breach of that duty of care, he would not have contracted lung cancer; or, to take the principal formula as that derived from Fairchild, the onus was on her to establish that, but for ITL's breach of duty, Mr McTear would not have contracted lung cancer.
[7.154] Counsel referred to McWilliams v Sir William Arrol & Co 1962 SC (HL) 70. In this case, a workman was killed when he fell a distance of seventy feet from a steel lattice tower which was in the course of erection at a shipyard. After evidence had been led, it was found proved that both his employers, who were independent contractors in charge of the operation of erecting the tower, and the occupiers of the shipyard were in breach of their respective duties to provide a safety belt. It was also found proved that, even if a safety belt had been provided, the deceased would not have worn one. In making this finding, the Lord Ordinary held that the onus was on the pursuer to prove that the deceased would have worn a safety belt had one been provided. The House of Lords held, affirming the judgment of the First Division, that the onus was on the pursuer to establish, not only the breach of duty, but also the causal connection between the breach of duty and the accident; that what the deceased would have done, if a safety belt had been provided, was a matter of inference from the appropriate facts, and that, in the present case, the inference was that he would not have worn a belt; further that there was no obligation on the employers to instruct or exhort him to wear a safety belt; and that, accordingly, liability had been established.
[7.155] It is sufficient to quote from the speech of Lord Reid who said, after referring to the evidence, at p.81: "So it seems to me to be a natural, and indeed almost inevitable, inference that he would not have worn a belt on this occasion even if it had been available." At p.83 Lord Reid said:
"It has been suggested that the decision of this House in Wardlaw v Bonnington Castings Ltd 1956 S.C. (H.L.) 26 lays down new law and increased the burden on pursuers. I do not think so. It states what has always been the law - a pursuer must prove his case. He must prove that the fault of the defender caused or contributed to the damage which he has suffered. But proof need not be by direct evidence. If general practice or a regulation requires that some safety appliance shall be provided, one would assume that it is of some use, and that a reasonable man would use it. And one would assume that the injured man was a reasonable man. So the initial onus on the pursuer to connect the failure to provide the appliance with the accident would normally be discharged merely by proving the circumstances which led to the accident, and it is only where the evidence throws doubt on either of these assumptions that any difficulty would arise. Normally, it would be left to the defender to adduce evidence, if he could, to displace these assumptions. So, in practice, it would be realistic, even if not theoretically accurate, to say that the onus is generally on the defender to show that the man would not have used the appliance, even if it had been available. But in the end, when all the evidence has been brought out, it rarely matters where the onus originally lay: the question is which way the balance of probability has come to rest."
[7.156] Counsel submitted that the pursuer's case was that if ITL had ceased to manufacture, Mr McTear would not have smoked and would not have contracted lung cancer. The difficulty in deciding this came about because of the lack of evidence. Without evidence from Mr McTear to the effect that, if ITL's cigarettes were not available on the market, he would simply never have smoked, then the case did not get off the ground. His first smoking experiences involved taking cigarettes from any source, not a specific brand. Over a period of years half of his smoking consumption was of Old Holborn hand-rolling tobacco, which rather tended to negate any suggestion that, if ITL's cigarettes had not been available, he would simply never have smoked. He had smoked before he started smoking the John Player brand of cigarettes, and he was smoking roll-ups, on any view of the evidence, right up until the time that he stopped smoking altogether. The pursuer's position, that if ITL had ceased manufacture, Mr McTear would not have contracted lung cancer as a result of their fault, was untenable. If he was going to contract lung cancer anyhow, then the fault had not caused it. For the pursuer to establish fault causation, it was necessary to prove that if the defenders had ceased manufacture Mr McTear would simply not have smoked and therefore would not have contracted lung cancer as a result of smoking, or in any event, he would not have smoked enough to cause lung cancer. It was not clear which of these was being argued for. There was no authority to vouch the proposition that one should proceed on the assumption that everybody else did everything that they should have done, so there was no foundation for assuming that all the United Kingdom tobacco manufacturers would have ceased production in 1957. What had to be done was to look at the particular breach and ask what the result would have been if it had not occurred. The difficulty was that there was no evidence about what Mr McTear would have done had ITL's products not been available. McWilliams was authority for the need to show a causal connection between the breach and the damage, and the burden of proving this was on the pursuer. The present case was a fortiori of McWilliams, because there was evidence from Mr McTear which supported the inference that he would in any event have started smoking, continued to smoke and increased the amount he smoked; and if it was smoking that caused his lung cancer, that the result would not have been any different.
[7.157] Mr Jones said that it was not clear whether a warnings case was still being advanced. Mr McEachran's submissions had appeared to suggest that if the Government health warnings which first appeared on cigarette packets in 1971 had appeared at the time when Mr McTear was starting to smoke, he would not have started to smoke. The first problem arising from this was that in order to determine whether the performance of a duty by ITL to warn would have had the result that Mr McTear would not have started smoking, and therefore whether it could be said that but for the breach he would not have contracted lung cancer, it was necessary to decide what was the state of the science. Only when that was determined could one determine what would have been the appropriate warning. The next question was, if Mr McTear had been given the warning, what would have been the result. In order to establish fault causation, it would be necessary to say that if he had seen warnings on cigarette packets he would never have started smoking. If there was a duty to put on a warning, then that must be to reflect the science at the time, and if that was done, then there would have to be evidence that the consumer, seeing such a warning, would have been deterred from starting to smoke; and there was simply no evidence to that effect.
[7.158] If the pursuer's case was that a 1971-type warning would have been sufficient to have deterred Mr McTear in 1964, it would be necessary for her to establish that when he started smoking regularly in September 1964 or thereafter, he was not in fact already aware that smoking was believed to be a cause of lung cancer; and that if he had been made so aware such a warning would have deterred him from starting to smoke. If Mr McTear had the information, as counsel submitted he did, that cigarette smoking could cause lung cancer before he starting smoking, that was enough for him to make an informed choice.
[7.159] Counsel submitted that the next question for consideration was whether it was proved that Mr McTear smoked a sufficient quantity of ITL's products to have caused or materially contributed to his lung cancer. The starting point for consideration of this question was whether Mrs McTear had proved how much of ITL's products Mr McTear consumed.
[7.160] I have already discussed counsel's submission that there was no reliable factual evidence on which I could make any finding as to: (1) the date when Mr McTear started smoking products manufactured by ITL; (2) how long he smoked ITL's products; (3) how much of ITL's products he smoked from time to time; and (4) the proportion of ITL's products he may have smoked compared with other products such as hand-rolling tobacco and cigarettes produced by other manufacturers. Counsel further submitted that there was no expert evidence that Mr McTear smoked sufficient of ITL's products over a sufficient period to have contributed to his lung cancer. There was no evidence that he smoked ITL's products during any time when he was unaware of the association between smoking and lung cancer. The only evidence about a dose-response relationship between smoking and disease was that of Professor Friend, and he accepted that this was general evidence about populations and that the dose-response relationship did not apply to individuals. He accepted that somebody could smoke fifty cigarettes a day for years and never develop lung cancer, for example. Dr Lewis also gave evidence that the generality of the dose-response relationship did not apply to the population of West Central Scotland.
[7.161] Mr Jones submitted that the question of difficulty in stopping smoking ("addiction") would only arise if it was held that smoking caused Mr McTear's lung cancer, and that ITL were in breach of a duty of care to Mr McTear when he contracted lung cancer or when he had consumed sufficient of their products to have materially contributed to his lung cancer. The pursuer's case now seemed to be that, if Mr McTear became aware that there were health risks associated with smoking before he contracted lung cancer and before he consumed a sufficient quantity of ITL's products to contribute materially to his condition, ITL were liable because Mr McTear continued to smoke until the time came when he contracted lung cancer or until smoking materially contributed to it, because he found it difficult to stop.
[7.162] It might be that this was the reason for the pursuer's argument that ITL had to take their victim as they found him as a consumer of their products. Mr Jones submitted that this was not a principle of liability: it was a doctrine applicable to questions of remoteness of damage, and it did not open the door to liability. Counsel referred to the decision of the First Division in McKillen v Barclay Curle & Co Ltd 1967 S.L.T. 41. In this case, a plumber's mate who fractured a rib when he was descending a three-step staging maintained that tuberculosis from which he was found to be suffering had been reactivated by the accident. In an action against his employers it was held that the accident was caused by their negligence, and damages, including damages in respect of his tuberculosis, were awarded. The defenders reclaimed on the measure of damages and maintained inter alia that the reactivation of the pursuer's tuberculosis was not a foreseeable consequence of the accident for which the defenders were bound to compensate him. The First Division held inter alia that the doctrine of reasonable foreseeability had no relevance to the measure of damage once liability had been established, since the party guilty of negligence must take his victim as he found him. The Lord President (Lord Clyde) said at p.42:
"In my opinion it has never been the law of Scotland that a man guilty of negligence towards another is only liable for the damage in respect of physical injuries which a reasonable man would foresee as likely to follow from it. On the contrary it has always been law of Scotland as I understand it that once a man is negligent and injures another by his negligence he is liable for all the damage to the injured man which naturally and directly arises out of the negligence. He must take his victim as he finds him, and if his victim has a weak heart and dies as a result of the injury the negligent man is liable in damages for his death, even although a normal man might only in the same circumstances have sustained a relatively trivial injury. [...] The doctrine of reasonable foreseeability with all its subtle ramifications may be applied in determining questions of liability [...]. It has no relevance once liability is established and the measure of damage is being determined."
[7.163] Counsel submitted that in any event there was no credible and reliable evidence that before 1992 Mr McTear made any serious attempt to stop smoking and found it difficult to do so. He did stop smoking when he was diagnosed as suffering from lung cancer, and there was no evidence that he found that difficult. As Professor Gray said, he stopped in 1992 because he was motivated to stop.
[7.164] Further and in any event, even if there were such evidence that Mr McTear tried to stop and found it difficult, the law, counsel submitted, did not absolve individuals of their legal responsibilities on account of a subjective belief that it was difficult to meet such responsibilities. Counsel referred to Morris v Murray [1991] 2 QB 6. In this case, after drinking alcohol during the whole of the afternoon, the plaintiff and his friend decided to go on a flight in the friend's light aircraft. The plaintiff drove the car which took them to the airfield and he helped to start and refuel the aircraft, which was piloted by the friend. Shortly after take-off the aircraft crashed, killing the pilot and severely injuring the plaintiff. In an action against the pilot's personal representatives for personal injuries, the judge, in giving judgment for the plaintiff, held that the defendants had succeeded on their plea of contributory negligence but not their alternative plea of volenti non fit iniuria. On the defendants' appeal, the Court of Appeal held, allowing the appeal, that the plaintiff willingly embarked upon the flight, knowing that the pilot was so drunk as to be incapable of discharging a normal duty of care; that the danger in embarking upon the flight was both obvious and great and the plaintiff was not so drunk as to be incapable of appreciating the nature and extent of the risk involved, and, therefore, he was to be taken to have fully accepted the risk of serious injury and implicitly discharged the pilot from liability for negligence in relation to the flying of the aircraft; and that, accordingly, the maxim volenti non fit iniuria applied as a defence to the plaintiff's claim. At pp.16-17 Fox L.J. said:
"If the plaintiff had himself been sober on the afternoon of the flight it seems to me that, by agreeing to be flown by Mr Murray, he must be taken to have accepted fully the risk of serious injury. The danger was both obvious and great. [...] None of [the facts] suggests that his facilities were so muddled that he was incapable of appreciating obvious risks. [...] I think he knew what he was doing and was capable of appreciating the risks. [...] I think that in embarking upon the flight the plaintiff had implicitly waived his rights in the event of injury consequent on Mr Murray's failure to fly with reasonable care."
[7.165] Counsel referred to this passage in support of a submission that there was no evidence that when Mr McTear was aware of the risks that were being warned of, he was incapable of stopping smoking. He would have to get to that point before he could be said to have continued to smoke as a result of ITL's breach of some duty owed to him. The matter was more complicated than that, because in any event, if he became aware, as he clearly did, then at that stage any breach of a duty to warn flew off, so there was no fault causation. What the pursuer would have to do would be to say that there was a continuing breach of another kind, that he was incapable of stopping and that the breach on the part of the defenders was in not having warned him that, once he stopped smoking, he was unable to stop. This was wholly missing in the case in any event. Counsel's main submission was that "difficulty" was not a good reason in law for not performing the duties that were incumbent upon an individual. As Professor Gray said, Mr McTear could have stopped, and it was really a question of motivation: there was nothing to prevent him from stopping.
[7.166] In answer to a question by me, Mr Jones submitted that there was no distinction between the civil law and the criminal law where it came to the general proposition that individuals were responsible for their own actions. Counsel referred to Galbraith v HM Advocate (No.2) 2002 JC 1, in which the law of diminished responsibility was reconsidered by a court of five judges, of whom I was one. In delivering the Opinion of the Court, the Lord Justice-General (Lord Rodger of Earlsferry), said at p.17, para.44:
"It is, of course, impossible to attempt to describe the ambit of the doctrine of diminished responsibility without even attempting to describe the operation of the doctrine itself. A common theme in the cases where judges have left the issue to the jury is that they involve some abnormality of the accused's mind. While philosophers continue to debate the timeless questions - about the nature of the relationship between mind and body and about the extent to which individuals have control over their actions - our law proceeds on the basis that an adult person of sound mind has sufficient control over his acts, and over his omissions to act, as to be responsible for them in law. Criminal acts and omissions are punished accordingly."
During the discussion about this case, I observed that I could not see anything unjust in attributing the same responsibility for the purposes of the civil law as was attributed for the purposes of the criminal law. One had to assume that the individual was a reasonably well-informed and reasonably responsible member of the public. Mr Jones agreed that this would be consistent with the chapter of his submissions which related to the way in which one had to approach the question of the information that was available to the public.
Discussion: (1) Negligence
[7.167] Although it is averred on behalf of the pursuer, at p.25A-B of the Closed Record, that it was "the duty of the defenders prior to 1964 and thereafter to warn persons smoking their products, or who may be intending to start smoking their products of the facts that smoking was addictive and could cause lung cancer, such as by printing clear warnings on their cigarette packets or in advertisements that smoking could cause fatal diseases", and that it was breach of this among other duties that ultimately caused Mr McTear's lung cancer, as can be seen from the foregoing summary this did not form any significant part, if at all, of Mr McEachran's submissions on the issue of negligence.
[7.168] This appears to me to be inevitable, given the state of the evidence, which is reflected in my finding in fact at para.[4.230] that Mr McTear was aware, in common with the general public, well before 1971, and indeed by 1964, when he said he started smoking, of the publicity about the health risks associated with smoking, and in particular the risk of lung cancer. At para.[4.227] I have stated that I am not prepared to hold it proved that it was ITL's products that Mr McTear smoked at any time prior to 1971. That was of course the year in which Government health warnings first appeared on cigarette packets. I have also held it proved that tobacco is "addictive" in no more than the sense averred by the pursuer, that once individuals have started smoking it is difficult for them to wean themselves off the habit, and, at para.[4.229], that Mr McTear did not in fact become "addicted" to tobacco except in this sense. In these circumstances I do not think it necessary to discuss further the case based on an alleged failure to give warnings. I would only comment that there appears to me to be no justification for a criticism which appeared to be made of ITL, in common with other tobacco manufacturers, that the warnings they printed originated not with themselves but with the Government. I can see no force in this: the point is that the warnings were there to be read, as indeed they were by Mr McTear.
[7.169] Accordingly, I now turn to consider the averment for the pursuer on which Mr McEachran founded, also at p.25A-B of the Closed Record, that it was "the duty of the defenders to take reasonable care not to manufacture tobacco products, including John Player cigarettes for sale to members of the general population such as the deceased", and it was "their duty to take reasonable care not [to] sell such products directly or indirectly to consumers such as the deceased."
[7.170] The starting point for Mr McEachran's submissions about the applicable law was Donoghue v Stevenson, paras.[7.3] to [ 7.7]. This case established that the manufacturer of a product intended for consumption owed a duty to the ultimate consumer of the product to take reasonable care that the consumer should not suffer harm by reason of any act or omission on the part of the manufacturer which he should reasonably foresee as being liable to cause such damage. Breach of this duty is negligence, so that the manufacturer becomes liable in reparation to the consumer for any harm caused by it. This is, however, only the starting point. While the decision in Donoghue v Stevenson was of fundamental importance in establishing that a duty of care may be owed by a manufacturer to a consumer, and indeed owed in many other relationships, it did not establish the content of the duty beyond stating that it is to take reasonable care.
[7.171] What appears to me to be the more useful approach is that advanced by Mr Jones, which is to consider whether, assuming that Mr McTear suffered harm as a result of smoking ITL's products, this was caused by a failure on their part in a duty to him to exercise reasonable care. What has to be examined is the content of such duty. In relation to Mr McTear this cannot have existed earlier than 1964, which on his own account is when he started to smoke, or 1971, which is the earliest date at which I am prepared to hold that he was proved to have been smoking John Player cigarettes.
[7.172] Assuming for present purposes that cigarette smoking can cause lung cancer, and that tobacco can therefore be described as a dangerous product, I can find no support in the authorities for the proposition that as soon as they became aware of this ITL had a duty effectively to cease manufacture. They could only have had such a duty if the law held that a manufacturer must ensure the safety of the consumer. The cases do not support this approach. In Holmes v Ashford, referred to at paras.[7.69] to [7.70], the Court of Appeal went no further than to hold that every person who put on the market a dangerous article must take reasonable steps in all the circumstances.
[7.173] In Donoghue v Stevenson the circumstances were that the ginger beer, and the snail, were contained in an opaque sealed bottle, and there was no opportunity for intermediate inspection of its contents. In Grant v Australian Knitting Mills Ltd, para.[7.8] it was emphasised that Donoghue v Stevenson only applied where the defect was hidden and unknown to the consumer. Reference may also be made to Murphy v Brentwood District Council, in the passage from the speech of Lord Keith quoted at para.[7.67]. As Lord Keith said, an essential feature of the species of liability in negligence established by Donoghue v Stevenson was that it was the latency of the defect in a carelessly manufactured product which constituted the mischief: there could be no doubt that a person who was injured through consuming or using a product of the defective nature of which he was well aware had no remedy against the manufacturer.
[7.174] As Mr Jones submitted, the proposition that there is no duty to warn of risks of which the ordinary member of the relevant class of people may reasonably be assumed to be aware applies not only in the context of product liability, but also in other circumstances involving risk: see for example Hodge & Sons v Anglo-American Oil Co, quoted at paras.[7.90] to [7.93], and Tomlinson v Congleton Borough Council, quoted at paras.[7.32] to [7.42]. Wright v Dunlop Rubber Co Ltd (see paras.[7.11] to [7.16]) does not appear to me to be of any assistance to the pursuer, for two reasons: first, because ICI knew or ought to have realised that there was a real risk to employees of Dunlops, of which neither Dunlops nor their employees were aware, arising from the use of the product; and secondly because as employees the plaintiffs were obliged to use substances which Dunlops as their employers instructed them to use in the course of their employment, and this formed part of the circumstances of which ICI ought to have taken account in the exercise of reasonable care.
[7.175] The circumstances which appear to me to be relevant to the present case are as follows. Tobacco and tobacco products have at all material times lawfully been sold to adult members of the population in the United Kingdom. The manufacture and sale of tobacco products support a substantial industry. ITL are a substantial company with numerous employees and their activities no doubt make a substantial contribution to the economy. The demand for their products may be related to the evidence that smoking gives pleasure and may have social benefits. USSG 1964, pp.354-356, quoted at para.[5.163], referred to "significant beneficial effects of smoking primarily in the area of mental health". There is no suggestion in this case that cigarettes manufactured by ITL have at any time contained any substance other than what the public would normally expect as a constituent of a cigarette, so this is not a case of a latent defect of the kind that was discussed in Donoghue v Stevenson and Grant v Australian Knitting Mills Ltd: smokers of ITL's cigarettes were consuming products in a state in which ITL intended that they should reach the consumers and which the consumers themselves intended to consume in that state. There cannot thus be said to have been a "defect" in their products of which the consumers of their products were not also aware. ITL became aware in the same way as the general public did, from published reports, of the association between cigarette smoking and lung cancer from 1950 onwards. The Government have from the outset relied on the provision to the public of information and education about the risks to health, in particular lung cancer, associated with cigarette smoking. Apart from the imposition of restrictions designed to prevent the sale of cigarettes to persons other than adults and the use of fiscal measures designed, in part, to act as a deterrent to purchase, the Government have left it to individuals to decide whether or not to smoke cigarettes. It is not irrelevant that by section 10(7)(f) of the Consumer Protection Act 1987 tobacco is excluded from the expression "consumer goods" and thus from the general safety requirement under the Act.
[7.176] While it could hardly be disputed, and indeed was accepted by Professor Hastings, that the general public would be aware, because of all the publicity referred to in Part III, of the association between cigarette smoking and lung cancer, or at least of the serious risks to health attributed to smoking, I understood Mr McEachran to submit that the impact of this publicity was lessened by the continued appearance of advertisements for cigarettes and by statements made by the tobacco industry that it had not been proved that the association amounted to a causal connection between cigarette smoking and lung cancer. As has been seen, the issue was by no means as open-and-shut as Sir Richard Doll, for example, believed it to be. If Sir Ronald Fisher and other critics seriously disagreed with him, this would quite properly be taken into account by ITL, and it would be part of the normal process of press coverage that opposing views be reported. I have no reason to think that the general public in the United Kingdom were not well aware that both sides of an argument might appear in the media - indeed they might well expect this to happen - or were unable to weigh up the competing arguments and decide what to make of them. Although, at para.[5.337], Professor Hastings spoke of the difficulty of making such decisions, he also accepted that readers of newspapers might be expected to have a certain degree of sophistication. What is important is that the information about the association between cigarette smoking and lung cancer was available to the general public, and each individual could decide what to make of it and how, if at all, to act upon it. In my view, each individual at all material times was in a position to make an informed choice whether to start, to continue or to stop smoking; and Mr McTear in particular not only made such an informed choice but could be seen to have acted on it on occasions when he chose to stop smoking on various occasions from 1971 onwards and then chose to start smoking again.
[7.177] I reject the insidious suggestion which, if not expressly advanced, was at least implicit in aspects of the pursuer's case based on the evidence of Professor Hastings, to the effect that because he was in a lower socio-economic class Mr McTear was somehow to be regarded as more a victim of circumstances and as having less than full responsibility for his own choices and actions. This lay behind Mr McEachran's submission that ITL had to take their victim as they found him. No doubt, as brought out in MacAskill et al. 2002 and the evidence of Mr Davis and Professor Hastings, the prevalence of smoking is, for whatever reason, higher among members of lower socio-economic classes. But that does not, in my view, support an approach which would accord less individual responsibility to such people as Mr McTear. In Holmes v Ashford, quoted at paras.[7.69] to [7.70], it was held that a person to whom a product is supplied for consumption may be presumed to be reasonable. There is a statement to similar effect in McWilliams v Sir William Arrol & Co, referred to at paras.[7.154] to [7.156]. Likewise, a subjective view by an individual that it may be difficult for him to give up smoking does not absolve him of his responsibilities under the common law.
[7.178] The policy of the law in a society such as ours seems to me to be entirely clear. Adults of full age and not suffering from legal incapacity are equal in the eyes of the law. They have equal rights and duties, freedoms and responsibilities. Each of them is presumed to be reasonable, and to have the responsibility of making reasonable choices, not least in matters affecting his or her safety, health and welfare. This approach is fundamental to the workings of our society. It is reflected, for example, in the equality of individuals as members of the electorate, and in the approach of the criminal law, which is to treat all individuals as having full criminal responsibility in the absence of special circumstances (see Galbraith v HM Advocate (No.2), referred to at para.[7.166]). Individuals are assumed to be reasonably well informed and reasonably responsible members of society.
[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. They have the right of self determination which was recognised in Law Hospital NHS Trust v Lord Advocate, quoted at para.[7.49]. If, in knowledge that they are taking a chance, as the pursuer did in Titchener v British Railways Board, they expose themselves to a risk of harm, there is no breach of any duty of care. As was said in Grant v Australian Knitting Mills Ltd (para.[7.8]), "the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief follows, because it follows from his own conscious volition in choosing to incur the risk or certainty of mischance." In Murphy v Brentwood District Council Lord Keith, in the passage quoted at para.[6.67], said that a person who was injured through consuming or using a product of the defective nature of which he was well aware had no remedy against the manufacturer. It is not difficult to find instances today of people who, rather than blaming themselves for the consequences of their own decisions, seek to negate responsibility by claiming that a condition, such as obesity or addiction to a controlled drug, has just happened to them, independently of their own volition, or is someone else's fault, as was claimed in Pelman v McDonald's Corporation, referred to at paras.[7.130] to [7.132]. For sound reasons the law gives no countenance to such a tendency. The individualist philosophy requires that individuals must live with the legal consequences of their own informed choices.
[7.180] The approach of the common law in the United Kingdom is consistent with the approach in the Australian cases to which reference was made, Thompson v Johnson & Johnson Pty Ltd, referred to at paras.[7.73] to [7.77], Graham Barclay Oysters Pty Ltd v Ryan, referred to at paras.[7.79] to [7.84] and Woods v Multi-Sport Holdings Pty Ltd, referred to at paras.[7.96] to [7.99]. I agree with counsel's reasons for distinguishing the Canadian case of Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, referred to at paras.[7.100] to [7.103]. It is not without significance that the view I have formed about the effect of public awareness of the publicity about the health risks associated with smoking, particularly lung cancer, has led to similar results in actions against tobacco manufacturers in other jurisdictions, in the cases referred to at paras.[7.112] to [7.128]. As counsel put it, all of these cases support the view that 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.
[7.181] For these reasons in my opinion 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 would accordingly fail.
(2) Fault causation
[7.182] Since I have held as a matter of fact 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, and since I am not prepared to hold it proved that it was ITL's products that he smoked at any time prior to 1971, so that 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, it does not appear to me to be necessary to consider the issue of fault causation in relation to the pursuer's warnings case. I propose therefore only to consider the issue of fault causation in relation to the averment that it was the duty of ITL to take reasonable care not to manufacture tobacco products, including John Player cigarettes, for sale to members of the general population such as Mr McTear and that it was their duty to take reasonable care not to sell such products directly or indirectly to consumers such as Mr McTear. For this purpose I require to assume, contrary to what I have held in preceding paragraphs, that ITL were negligent in this regard. I also require to assume that but for smoking cigarettes Mr McTear would not have contracted lung cancer, and that ITL's cigarettes made a material contribution to his contracting lung cancer. The latter assumption is fraught with difficulty, because even if I were to hold it established, on the basis of the epidemiology, that cigarette smoking can cause lung cancer, there is still no evidence as to the process by which smoking causes lung cancer in an individual: but I assume for present purposes that the process is cumulative. On this assumption, if an individual smokes the products of more than one manufacturer over many years, the products of any one manufacturer which he smokes for more than a negligible period and in more than a negligible quantity may be regarded as making a material contribution to his contracting lung cancer.
[7.183] But the main problem for the pursuer is that 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. It could only be said that ITL's products made a material contribution if, by not smoking them, Mr McTear would have reduced his overall consumption. 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. I cannot see that anything other than the impossibility of buying tobacco in the United Kingdom would have prevented him from doing this. It is not part of the pursuer's case on Record that the other tobacco manufacturers should or would have followed suit, though Mr McEachran advanced a somewhat improvised submission to this effect. The result was that it was not explored at all in the evidence whether such a result could have been feasible, even if desirable. And what would have prevented tobacco from being brought into the country? This would have required effective Government action. Attempts at prohibition of substances which people enjoy using and strongly desire to use are notoriously ineffective. On the evidence I am satisfied that, even if ITL were negligent in the manner alleged, this would have made no difference to Mr McTear's contracting lung cancer, and as a result he would have been in the same position as the pursuer in McWilliams v Sir William Arrol & Co.; failure to provide a safety belt is not negligence if it would not in any event have been used.
[7.184] I turn finally to consider the fourth plea-in-law for ITL which, so far as material, is in these terms:
"The deceased having willingly accepted as his own any risk to his health from smoking cigarettes, the defenders should be assoilzied."
This plea invokes the maxim volenti non fit iniuria. This maxim has featured in some of the cases and submissions discussed in the previous section, but I was also separately addressed on it by counsel, and I think it appropriate to treat it as a separate topic. Although, for convenience, Mr McEachran addressed me on it first, it was not in dispute that the burden of proving it is on the defenders.
[7.185] Mr McEachran submitted that this expression meant that a legal wrong was not done to someone who was willing. The onus of proving that Mr McTear was volens rested on ITL. For the defence to apply, they required to show that Mr McTear, with full knowledge of the nature and extent of the risk that he ran, freely and voluntarily agreed to incur it. He must be both sciens et volens: there must be both knowledge of the risk and evidence of acceptance of the risk. ITL must be able to show that there was full appreciation of the danger of the situation. Counsel submitted that there was a long line of established authority to vouch these propositions. He referred to five cases.
[7.186] (1) In McCaig v Langan 1964 S.L.T. 121 a passenger in a motor car suffered serious injuries in an accident while the car was being driven by a friend. He brought an action of damages against the driver of the car who admitted that the accident was caused by his fault. The defender averred that when the pursuer entered the car he knew that the defender's ability to drive had been so affected by drink as to endanger his passengers' safety and he also knew that the car was so overcrowded as to render the safe steering and control of the car difficult. The defender further averred that the pursuer knew that because of both the drunkenness of the driver and the overcrowding of the car he ran a risk of grave injury by allowing himself to be driven in the said car, and by entering the car he voluntarily accepted the said risk. In these circumstances, the defender pleaded inter alia that the pursuer had voluntarily accepted the risk of sustaining such injuries as he did sustain. It was held by Lord Kilbrandon that these averments were relevant.
[7.187] At p.124 Lord Kilbrandon said:
"I now turn to the plea of volenti non fit iniuria. I will adopt, from the many explanations of that maxim, a passage from the opinion of Lord MacDermott in Kelly v Farrans Ltd [1954] N.I. 41 quoted in Charlesworth, 4th edition, section 1156:
'The question raised by a plea of volenti non fit iniuria is not whether the injured party consented to run the risk of being hurt, but whether the injured party consented to run that risk at his own expense so that he and not the party alleged to be negligent should bear the loss in the event of injury. In other words, the consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk.'
Whether the inference ought to be drawn in the absence of express consent that a person must be supposed to have given the relevant consent can only be decided as a question of fact [...]. If a person steps into a car in order to be driven by a driver who is, to his knowledge, so drunk as to be unable to drive the car safely, as is averred here by the defender, it may be proper to draw the inference that that person must appreciate that the driver is incapable of exercising reasonable care, and so he consents to the lack of it. That would satisfy Lord MacDermott's test, and the plea would be established."
Lord Kilbrandon then went on to hold that it was plain from the authorities that the plea might, in suitable circumstances, be established in a case such as that before him.
[7.188] (2) In Nettleship v Weston [1971] 2 QB 691 the plaintiff, an experienced driver, agreed to give a friend's wife some driving lessons in her husband's car, after satisfying himself that the car was insured against risk of injury to a passenger. During the course of one driving lesson the learner lost control of the car which collided with a lamp standard. The learner was shortly afterwards convicted of driving without due care and attention. The plaintiff, who was injured in the collision, brought an action for damages in respect of the learner's negligence. The trial judge dismissed the plaintiff's claim on the grounds inter alia that he had voluntarily assumed the risk of injury. The Court of Appeal, in allowing the appeal, held inter alia that the plaintiff, by checking on his position under the car insurance before agreeing to give the lessons, had shown expressly that he did not consent to run the risk of injury which might occur through the learner's known lack of skill, so that she could not rely on the defence of volenti non fit iniuria to bar his claim.
[7.189] At p.701 Lord Denning M.R. said:
"This brings me to the defence of volenti non fit iniuria. Does it apply to the instructor? In former times this defence was used almost as an alternative defence to contributory negligence. Either defence defeated the action. Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit iniuria has been closely considered, and, in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or, more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him."
[7.190] (3) In White v Blackmore [1972] 3 AllER 158 the deceased, an experienced "jalopy" racing driver, was participating in jalopy races. During one race, in which he was not participating, he stood next to the spectators' enclosure rope. The rope became entangled in the rear wheel of a car and it, and the stakes to which it was attached, were pulled out. The deceased was catapulted into the air, and subsequently died of his injuries. The trial judge held that the defendants were negligent in tying all the ropes to one stake, and were therefore in breach of the common duty of care owed by an occupier of land to visitors under section 2 of the Occupiers' Liability Act 1957. The trial judge, however, dismissed the claim on the ground that the defence of volenti non fit iniuria applied, having regard to the terms of warning notices about the dangers of motor racing which were displayed at the entrance and around the track. On appeal, the Court of Appeal held that the doctrine of volenti non fit iniuria did not apply to a case where the risk of injury arose, not from participation in the dangerous sport of motor racing, but from the organisers' failure to take reasonable precautions for the safety of visitors to the meeting. A visitor to a motor race meeting did not willingly accept the risk of injury due to the organisers' defaults in ensuring his safety; since the deceased did not have full knowledge of the risk he was running from the faulty layout of the ropes, he had not willingly accepted the risk of injury arising from the defendants' default; accordingly the doctrine did not afford a defence to the wife's claim.
[7.191] Lord Denning M.R. said at p.164:
"No doubt the visitor takes on himself the risks inherent in motor racing, but he does not take on himself the risk of injury due to the defaults of the organisers. People go to race meetings to enjoy the sport. They like to see the competitors taking risks, but they do not like to take risks on themselves. Even though it is a dangerous sport, they expect, and rightly expect, the organisers to erect proper enclosures, and to do all that is reasonable to ensure their safety. If the organisers do everything that is reasonable, they are not liable if a racing car leaps the barriers and crashes into the crowd: see Hall v Brooklands Auto-Racing Club [1933] 1 K.B. 205. But, if the organisers fail to take reasonable precautions, they cannot excuse themselves from liability by invoking the doctrine of volenti non fit iniuria; for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care: see Slater v Clay Cross Co. Ltd [1956] 2 Q.B. 264, Wooldridge v Sumner [1963] 2 QB 43 at 69, Nettleship v Weston [1971] 2 QB 691 at 701.
In this case Mr White was quite unaware that the organisers had been negligent. He never willingly accepted the risk of injury due to this default. They cannot rely on volenti non fit iniuria."
[7.192] (4) In Fowler v Tierney 1974 S.L.T. (Notes) 23 a young woman was injured in a collision with a motor car when she was travelling as a pillion passenger on a motor scooter. She brought an action claiming damages against the driver of the motor scooter. The defender pleaded, inter alia, volenti non fit iniuria. The Lord Ordinary, Lord Maxwell, held it proved that the defender did evince an initial reluctance to give the pursuer a lift, but he did inform her that he had only a provisional licence, either by using those actual words or words to equivalent effect, and that something was said by the defender relating to the pursuer taking a risk or to it being her fault if anything happened.
[7.193] In repelling the defender's plea of volenti non fit iniuria Lord Maxwell, at p.24, after referring to various authorities, including McCaig v Langan, said:
"In the normal volenti case there is required, I think, proof that the pursuer has knowingly submitted himself to some special or exceptional risk in such circumstances that the court can infer from the whole facts that he is consenting to run the risk of the other party's negligence at his own expense or, to put the matter in another way, that he is consenting to lack of reasonable care on the part of the other party. While not of itself sufficient to make such a case, it is, I think, an essential element of such a case that there should be knowledge of the nature and extent of the special or exceptional risk. [...] I have held that the pursuer knew that the defender was a learner-driver and, to that extent, no doubt knew that he was of limited experience. But there is no suggestion on the pleadings or in evidence that the pursuer knew, or had reason to know, that he was unable or unlikely to exercise normal standards of reasonable care [...]."
[7.194] (5) In Winnik v Dick 1984 SLT 185 the respondent, a passenger in a motor car who was injured in an accident, raised an action of damages against the driver, the appellant, who had been convicted of an offence under the Road Traffic Act 1972. The men had been drinking together in public houses for most of the day and when the respondent entered the appellant's car to return home, he knew that the appellant was drunk. The appellant contended that he was not liable in damages to the respondent inter alia because the respondent had voluntarily accepted the risk of an accident.
[7.195] The Lord Justice-Clerk, Lord Wheatley, at pp.187-188, reviewed the Scottish cases, including McCaig v Langan and Fowler v Tierney, before concluding:
"From these expressions of view as to what is involved in the maxim so far as the law of Scotland is concerned, I can find no support for, but rather refutation of, the contention that its effect here is to establish that on this journey there never was any duty on the defender as the driver of the car to take reasonable care quoad the pursuer [...]. In my opinion the effect of the maxim was not to relieve the defender from any duty to take care quoad his passengers. On the contrary the maxim proceeds on the basis that there is duty to take care and not be negligent, but the successful establishment of the maxim means that the pursuer has accepted the risk of the defender's negligence in the exercise of his legal duties and has absolved the defender from the consequences arising from that negligence."
[7.196] On the basis of these authorities Mr McEachran submitted that the plea would only succeed if Mr McTear had agreed expressly or impliedly to waive any claim for any injury that might befall him. While the cases referred to related to accidents, the same considerations arose where what was alleged was continuous negligence having a cumulative effect. It was necessary to identify the risk and to see whether there was evidence that Mr McTear consented to a lack of reasonable care on the part of ITL. As was said in Letang v Ottawa Electric Railway Co [1926] AC 725, there had to be a finding that he freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.
[7.197] In order to succeed ITL would need to show that Mr McTear, when he started smoking, knew not just that it was possibly bad for him, but that there was a real risk that he would contract lung cancer. Counsel founded on a concession by Mr Davis that Mr McTear might know about the risks associated with smoking, but not about the causation of lung cancer. There must be real difficulty in demonstrating that when Mr McTear started smoking he knew that it could cause lung cancer. Mr McTear denied that when he gave evidence on commission. This was supported by the evidence of Professor Hastings: the picture was of an evolving new line of argument, and there was a big difference between views and arguments being offered to the public and an acceptance by the manufacturers and the Government that the product could bring with it a risk. Taken at its highest, what was present here was the possibility of knowledge on the part of Mr McTear of a view that "smoking might not be good for you". The manufacturers of a product, counsel submitted, could only rely on volenti non fit iniuria when they themselves had taken steps to warn a user of the possible risk associated with the product, by putting a warning on cigarette packets such as "Smoking kills" and something to the effect that liability was excluded. It was unacceptable for ITL to have spent millions of pounds promoting a positive image of their product and encouraging smokers to continue to smoke products and then rely on the plea. The "clean hands" doctrine pointed the other way.
[7.198] On the evidence, it was not generally accepted in 1964 that there was a risk. At best the public were aware of the debate about smoking and health. The manufacturers did not accept that any risk had been proved, they did not give any warning of it and they spent huge sums on advertising and promotion. While much would come down to the view which the court took of the level of public awareness at this time, in order to allow the plea to stand it would have to be accepted, on the balance of probabilities, that when Mr McTear started smoking he knew that he was running the risk of contracting lung cancer. By the time warnings were placed on cigarette packets in 1971, Mr McTear was addicted and finding it difficult to stop. It could not be said that he had freely given consent thereafter. The plea could only succeed if it was shown that at the time of starting to smoke Mr McTear was aware of the risk and, as was established by Fowler v Tierney, that there was a lack of reasonable care by ITL. There was no basis for saying that he showed consent to such a lack of reasonable care. For the plea to succeed ITL had to show that Mr McTear took the risk of lung cancer, that he accepted that risk, and that he consented to their negligence by waiving any rights to make a claim. Warnings of the type that appeared in 1971 were not enough, because there was no reference made to lung cancer or the risk of death, such as now appeared on cigarette packets.
Submissions for ITL
[7.199] Mr Jones submitted that the issue of the volenti non fit iniuria only came into play if I were to hold that ITL had a duty to withdraw their products from the market and that if they had done so Mr McTear would not have contracted lung cancer. This was so because if the duty only was to warn, then on counsel's approach to the case (with which, as I have already stated, I agree) ITL were not in breach of their duty for reasons he had advanced. Therefore one did not reach the question of volenti non fit iniuria, one stopped at the point of there being no breach of a duty of care. Counsel said he could see that volenti non fit iniuria might be a live issue if there had been a breach of a duty to withdraw the product from the market. In that event, I should sustain the plea for ITL. The questions to be considered were, first, whether Mr McTear knew of the health risks associated with smoking; and, secondly, whether or not he accepted the risks. The knowledge in question was knowledge that Government and public health authorities were warning that smoking carried with it a risk of lung cancer.
[7.200] Counsel referred to Imperial Chemical Industries Ltd v Shatwell [1965] AC 656. The respondent in this case was employed as a shot firer in a quarry. There was to be a test of the electric wiring connecting explosive charges. Contrary to instructions that testing must be done from a shelter, the respondent and another shot firer carried out a test in the open and in the result they were both injured. The House of Lords held that where two fellow-servants combined to disobey an order deliberately though they knew the risk involved, volenti non fit iniuria was a complete defence if the employer was not himself at fault and was only liable vicariously for the acts of the fellow servant. At p.673, Lord Reid said:
"It was argued that in this case it has not been shown that George [Shatwell] had a full appreciation of the risk. In my view it must be held that he had. He knew that those better qualified than he was took the risk seriously. He knew that his employers had forbidden this practice and that it had then been prohibited by statutory regulation. And he knew that his employers were taking strong measures to see that the order was obeyed. If he did not choose to believe what he was told I do not think that he could for that reason say that he did not fully appreciate the risk. He knew that the risk was that a charge would explode during testing, and no shot firer could be in any doubt about the possible consequences of that."
Counsel submitted that this was authority for the proposition that it was not necessary that Mr McTear should have had any more precise knowledge of the risks involved than that the Government and public health authorities were warning that smoking carried with it a risk of lung cancer. This could be related to Titchener v British Railways Board, where it was held to be sufficient to know that one was taking a chance, without knowing of the precise chain of possible events or precise nature of the outcome.
[7.201] On the question of acceptance of risk, counsel submitted, under reference to the authorities referred to by Mr McEachran, that where the negligence which finally came about was prospective, something like a waiver of liability was necessary before it could be said that the injured person was volens. So, where a passenger got into a motor car with a driver who had been drinking, at that moment there had been no negligent driving, but it was possible to infer a waiver of liability from the whole facts and circumstances of the case. Counsel submitted, however, that this was not such a case: this was a case like that of Titchener, where the alleged negligence had already been committed, the act had been done and there was nothing more to happen by way of negligence. This was why in Titchener their Lordships were at pains to point out that there was no question of the train having been negligently driven, for example. In Grant v Australian Knitting Mills Ltd it was said that the man who consumed or used the thing which he knew to be noxious could not complain in respect of whatever mischief followed, because it followed from his own conscious volition in choosing to incur the risk or certainty of mischance. In counsel's submission, this would be the case even if the dangerous nature of the product was attributable to some negligence during manufacture. So a person who bought a bottle of ginger beer knowing that it had a snail in it could not complain, even if the snail was only in the bottle because of the negligence of the manufacturer.
[7.202] From the time that Mr McTear became aware of the health risks, no later than 1971, he continued to smoke cigarettes. His continued smoking from then on, in knowledge of the health risks, was volens. In the absence of evidence that his smoking of ITL's cigarettes during the period when he was unaware of the risk caused or materially contributed to his lung cancer, the pursuer's case failed. In Reeves v Commissioner of Police for the Metropolis the House of Lords held that a police authority could not rely on volenti non fit iniuria to resist liability for breach of a duty to take reasonable care to prevent a prisoner, while in police custody, from taking his own life deliberately, but Lord Hope said that it was unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately: on the whole, people were entitled to act as they pleased, even if this would inevitably lead to their own death or injury.
[7.203] As counsel had already submitted, it was not alleged that ITL had a duty to prevent Mr McTear from smoking. He might for example have obtained tobacco products from other sources, including other manufacturers or foreign sources or even illicit sources. What was averred in the pleadings was that they had a duty to refrain from marketing their products, so to give effect to a plea of volenti non fit iniuria in this type of case would not be inconsistent with the existence of the duty.
[7.204] The maxim volenti non fit iniuria, literally translated, means, as Mr McEachran submitted, that a legal wrong is not done to one who is willing (or, perhaps preferably, one who consents). Invocation of the maxim is predicated on the assumption that negligence has otherwise been established and that if the defender's plea fails the pursuer must succeed. It is for this reason that the burden of proving it is on the defender who invokes it.
[7.205] The authorities do not seem to me to permit an entirely confident exposition of what must be proved in order for the plea to succeed. As can be seen from the cases referred to by Mr McEachran, it may be variously stated that the pursuer has voluntarily assumed the risk of the defender's negligence; or he has consented to a lack of reasonable care on the part of the defender that may produce the risk of injury; or he has agreed, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defender; or he has willingly accepted the risks arising from the want of reasonable care on the part of the defender, in awareness of the defender's negligence; or that he is consenting to lack of reasonable care on the part of the defender and to run the risk of the defender's negligence at his own expense; or that he has accepted the risk of the defender's negligence in the exercise of his legal duties and has absolved the defender from the consequences arising from that negligence. All of these ways of giving effect to the maxim may amount to the same thing, which is consent to the lack of reasonable care on the part of the defender and acceptance of the risk of harm arising therefrom. The consent may of course be inferred from the whole circumstances. I do not take it from the authorities that the pursuer need have expressly in mind the concept of negligence on the part of the defender, but he must knowingly consent to such conduct as may objectively be held to amount to negligence.
[7.206] I can see that the maxim may readily be applied in a situation where the pursuer's consent precedes the defender's negligent conduct, as in the road traffic and similar cases referred to by Mr McEachran, and Shatwell's case referred to by Mr Jones. There is, however, much greater difficulty where the conduct has taken place already before the pursuer becomes aware of it. I recognise that in Titchener's case, for example, Lord Hailsham in particular was willing to consider that the maxim applied where the pursuer was aware of the circumstances giving rise to the risk and decided to take a chance in going onto the railway. But it appears to me to be a more correct analysis that where conduct on the part of the defender has given rise to a risk which the pursuer then decides knowingly to accept as his own and to take a chance on it, there is no negligence on the part of the defender. This is what was meant in Grant v Australian Knitting Mills Ltd by saying that a man who had consumed or used the thing which he knew to be noxious could not complain in respect of whatever mischief followed. So if in Donoghue v Stevenson the pursuer knew, because the bottle was transparent or for some other reason, that there was a snail in the ginger beer, any harm that ensued would be attributable, not to the negligence of the defender, but to her own conscious volition in choosing to incur the risk or certainty of mischance. This is, in essence, the approach which has found favour with me on the main issue of liability: there is no liability in negligence for the supply of a potentially harmful product if the consumer, in knowledge of its potential for harm, nevertheless chooses to consume it.
[7.207] It is very hard to see in what circumstances it would be open to me to hold that ITL had been negligent, but that the plea of volenti non fit iniuria should nevertheless succeed. Most obviously, consideration of the plea would arise on the basis that, notwithstanding the printing of warnings on cigarette packets and awareness on the part of the general public of the risks to health associated with smoking, ITL were negligent in not ceasing to manufacture cigarettes and to supply them for sale to the public. (This is of course contrary to what I have already held.) But in that event the very circumstances relied on in support of the plea of volenti non fit iniuria would already have been discounted in deciding that there was negligence. On this necessary hypothesis, I do not see how the plea could effectively be engaged, separately from consideration of the question whether ITL were negligent, let alone succeed. It is this paradox which is central to the difficulty I perceive.
[7.208] For these reasons I prefer to take the view that, as can be seen from my summary of counsel's submissions, the issues I have been asked to consider under this heading are the same as those which arise and of which I have already taken account in the context of the question whether ITL were negligent; and if I had found that they were, I would not have been disposed to sustain the defenders' fourth plea-in-law.
PART VIII: DAMAGES
[8.1] Regardless of the outcome of this action, I must assess the damages which it would have been appropriate to award to Mrs McTear in the event of success. As I have said, this action was originally raised by Mr McTear, and after his death Mrs McTear was sisted in his room and place. Since then she has been the pursuer in this action as an individual and as executrix of Mr McTear. She claims damages under three heads.
[8.2] The relevant statutory provisions are contained in the Damages (Scotland) Act 1976 (as amended) and the Administration of Justice Act 1982. Section 1 of the 1976 Act (as amended by section 1 of the Damages (Scotland) Act 1993) provides inter alia:
"(1) Where a person dies in consequence of personal injuries sustained by him as a result of an act or omission of another person, being an act or omission giving rise to liability to pay damages to the injured person or his executor, then, subject to the following provisions of this Act, the person liable to pay those damages (in this section referred to as 'the responsible person') shall also be liable to pay damages in accordance with this section to any relative of the deceased, being a relative within the meaning of schedule 1 to this Act.[...]
(4) If the relative is a member of the deceased's immediate family (within the meaning of section 10(2) of this Act) there shall be awarded [...], such sum of damages, if any, as the court thinks just by way of compensation for all or any of the following -
(a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death;
(b) grief and sorrow of the relative caused by the deceased's death;
(c) the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died,
and the court in making an award under this subsection shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) above."
In terms of section 10(2) and schedule 1 Mrs McTear, who immediately before his death was Mr McTear's wife, is a member of his immediate family.
[8.3] Had Mr McTear survived and pursued the action to a successful conclusion, he would have been entitled inter alia to an award of solatium at common law, i.e. compensation for pain and suffering and loss of the amenities of life. Section 2 of the 1976 Act (as substituted by section 3 of the 1993 Act) provides inter alia:
"(1) Subject to the following provisions of this section, there shall be transmitted to the executor of a deceased person the like rights to damages in respect of personal injuries (including a right to damages by way of solatium) sustained by the deceased as were vested in him immediately before his death. [...]
(3) In determining the amount of damages by way of solatium payable to an executor by virtue of this section, the court shall have regard only to the period ending immediately before the deceased's death."
Section 2A of the 1976 Act (as inserted by section 4 of the 1993 Act) makes provision inter alia for the executor (or in this case executrix) of a deceased person to be sisted as pursuer in an action brought by the deceased before his death. It may be noted that while the provisions of the 1993 Act referred to above came into force on 18 April 1993, i.e. after the date of Mr McTear's death on 23 March 1993, section 6(6) of the 1993 Act gave these provisions retrospective effect to July 1992, so that instead of being extinguished by his death Mr McTear's claim for solatium transmitted to Mrs McTear as his executrix.
[8.4] Finally, section 8 of the 1982 Act provides inter alia:
"(1) Where necessary services have been rendered to the injured person [defined by section 7 as including a person who has died in consequence of personal injuries sustained] by a relative in consequence of the injuries in question, then, [...] the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith."
[8.5] Mr McEachran invited me to make awards under three heads, which I shall refer to respectively as "the section 1(4) claim", "the section 2(1) claim" and "the section 8(1) claim". It may be noted that while on Record there is a claim for expense incurred in connection with Mr McTear's funeral, which would have fallen within the provisions of section 1(3) of the 1976 Act, this was not pursued before me and I was not invited to make any award under this head. I should perhaps also note that in his submissions Mr McEachran, in addressing me on the section 2(1) claim, erroneously referred to section 1A of the 1976 Act (as inserted by section 2 of the 1993 Act), which is not concerned with the transmission to an executor of a deceased person's right to damages by way of solatium. At one point in his submissions Mr McEachran sought to rely on section 9A of the 1976 Act (as inserted by section 5 of the 1993 Act), but in subsequent discussion he accepted that it was not open for him to do so and he departed from this part of his submissions.
Submissions for Mrs McTear
[8.6] In addressing me on the section 1(4) claim Mr McEachran took as his starting point the decision of the Extra Division, delivered by Lord Marnoch, in Shaher v British Aerospace Flying College Ltd 2003 S.C. 540. The pursuers in that action made section 1(4) claims for the death of their son, a trainee pilot aged 19, in a flying accident. The defenders reclaimed against the Lord Ordinary's awards of £35,000 to each parent. In the course of the reclaiming motion the pursuers invited the Extra Division to take account of recent jury awards in deciding whether the Lord Ordinary's awards should stand. In the course of their opinion, at pp.542-543, para.[6], the court said:
"As it seems to us, there is clearly a huge gulf not only between the level of judicial awards and the level of two recent jury awards in respect of the loss of an adult child but between the level of judicial awards and the level of recent jury awards so far as bereavement generally is concerned. This, in turn, is reflected by a similar gulf as between the submissions advanced on behalf of the defenders and appellants, on the one hand, and, on the other hand, those advanced on behalf of the pursuers and respondents. We would be less than frank if we did not immediately concede very real difficulty in finding a way to bridge that gulf. In attempting to do so, however, we remind ourselves at the outset that, since the decision of the House of Lords in Girvan v Inverness Farmers' Dairy 1998 SC (HL) 1, there can be no doubt whatever that the court is encouraged to look for guidance to jury as well as to judicial awards of damages. I refer, in particular, to what is said by Lord Clyde at p.25:
'In a system in which damages may be assessed in different cases either by a jury or by a judge it is essential, not only for the profession, but also for the court both in the making of awards and in the consideration of awards which have been made, for there to be available a convenient record of awards by juries as well as by judges.'
Indeed, as Lord Hope of Craighead makes clear at p.7 of the Report, the 'overall philosophy' of Scottish practice is that the assessment of damages is first and foremost a matter for a jury. We, ourselves, might go further and suggest that it is this very philosophy which gives to awards of damages in this area their essential legitimacy. These awards, as it seems to us, should in the end reflect the expectation of the society which the legal profession serves and represents, rather than be simply an invention of that profession. On the other hand, we see immediately the force of Lord Kingarth's observations [in McManus's Executrix v Babcock Energy Limited 1999 S.C. 569] anent the danger of relying on only one jury award and the desirability of finding some consistent pattern as between a number of such awards. In this connection, a wide disparity between jury and judicial awards was not, it seems, foreseen by the House of Lords in Girvan and, indeed, the assumption made by Lord Hope of Craighead at p.17 of the Report is that jury and judicial awards would fall within the same 'relatively narrow range of figures'."
[8.7] The Extra Division decided that recent jury awards for bereavement demonstrated that judges had become "out of touch with awards made by juries in the exercise of their proper function", but they did not go so far as to establish that awards to parents of adult children under section 1(4) should be taken to lie between £30,000 and £35,000 for each parent, which was the basis upon which the Lord Ordinary had proceeded; that there was the possibility that other jury awards in this area might disclose a broader and different pattern which could prove more reliable and the sums awarded should not be regarded as representing any sort of tariff; and that a fair and proper award to each parent was £20,000. Mr McEachran invited me to take account of the cases referred to in Shaher in which jury awards were made.
[8.8] Reference was next made to the decision of Mr J Gordon Reid, Q.C., sitting as a temporary judge of this Court, in Murray's Executrix v Greenock Dockyard Co Ltd 2004 S.L.T. 346. The deceased in that case died as a result of mesothelioma caused by exposure to asbestos. The deceased and the pursuer married in 1959 when they were both 21, having met when they were about 17. When he died, they had been married over 41 years, and had one child. The marriage had its ups and downs, and for a time during the 1980s was difficult. The deceased was drinking heavily and the pursuer had left the matrimonial home with their daughter to give him a "wee fright", but returned after two weeks. He undertook to cut back on his drinking and normal married life was resumed. The temporary judge was satisfied that the marriage was generally happy and that there was a close loving relationship between them. Over the last ten years before his death she looked after the deceased and was devoted to him and in his last year organised her day so that she could be with him. The deceased was a heavy smoker and had a breathless turn in 1999. During the course of subsequent investigation the mesothelioma was diagnosed. He underwent radiotherapy (three fractions). His GP subsequently recorded that pain did not seem to be a problem. The temporary judge took the view that in the last year of his life the deceased was less unfortunate than some mesothelioma sufferers. He did not suffer quite as much pain and discomfort as some did. The temporary judge awarded £20,000 to the pursuer in respect of her section 1(4) claim, and £47,500 to her as executrix in respect of her section 2(1) claim for solatium.
[8.9] In McManus's Executrix v Babcock Energy Ltd 1999 S.C. 569 the deceased died of mesothelioma caused by exposure to asbestos. He was aged 55 when he died, and prior to the onset of any symptoms he had a close family relationship with his wife and two sons. About nine months before his death he developed shortness of breath which caused him to go to his general practitioner. Shortly thereafter he was told that he had mesothelioma and that he had been six and eighteen months to live. He had operative treatment in May 1996 to try and reduce the size of the tumour. He underwent chemotherapy between June and September 1996, with unpleasant side effects, and when it ended he suffered considerable pain. Lord Kingarth inter alia awarded his widow £20,000 in respect of her section 1(4) claim, and £50,000 in respect of her claim as the deceased's executrix for solatium under section 2(1).
[8.10] Finally, Mr McEachran referred to the decision of Lord Cameron of Lochbroom in McLean v William Denny & Bros Limited 2004 S.L.T. 422. In that case the deceased died at the age of 75 from mesothelioma. He developed symptoms of breathlessness, coughing and tiredness before the mesothelioma was diagnosed a few months before his death. The Lord Ordinary was satisfied that there was substantial distress and anxiety endured by his widow in contemplation of the deceased's suffering before his death, and that this included an appreciable period of time prior to the actual intimation of a confirmed diagnosis. He was also satisfied that the nature of the death itself and the loss of her husband did cause and continue to cause her very substantial grief and sorrow. Finally, he took into account that the deceased appeared to be a fit and reasonably healthy man prior to the obvious symptoms of mesothelioma, and that his widow and he enjoyed a very close and happy relationship which would have continued in the normal course for a reasonable length of time but for his death. He decided that an appropriate award of damages in respect of the section 1(4) claim was £28,000.
[8.11] In respect of the section 2(1) claim, Mr McEachran referred to evidence from Mr McTear that Mrs McTear forced him to go the doctor when he first started to feel the effects of the lung cancer in about April 1992. He was sent to Crosshouse Hospital where a bronchoscopy was carried out. This and other tests led to the diagnosis of cancer in May 1992. He received one course of chemotherapy, but no radiotherapy. He also said that he was put on painkillers, but was not initially suffering from pain, the pain just gradually came with the months. By the time he was giving evidence he was taking morphine and steroids. By that time also he was wearing a pulser to help alleviate the pain. His sleep was disturbed. He went to Bristol and to Edinburgh Royal Infirmary in search of treatment. It was at Edinburgh that the radiotherapy was carried out in November 1992. It helped his breathing.
[8.12] Mrs McTear's evidence was that she caused her husband to go to the GP because he was not eating regularly, he was losing weight and was off-colour. When his cancer was diagnosed her husband was unhappy. He underwent courses of chemotherapy and radiotherapy. Thereafter there was shortness of breath and pain, for which he required morphine. The pain appeared gradually months after the diagnosis, maybe about September 1992, and from then onwards he required morphine. He required nursing attendance in the later stages. By the end he needed help and was brought his food and medication. He was mostly bed-ridden. I was also reminded of the evidence of Dr McCarroll, who said that in the months leading up to his death Mr McTear experienced an unusual amount of pain, which was difficult to control. She confirmed that Mrs McTear provided services to her husband, particularly in the last months of his life. Reliance was also placed on Professor Friend's report, referred to at paras.[4.85] to [4.94].
[8.13] Having regard to the authorities and jury awards referred to above, and to this evidence, Mr McEachran invited me to award £35,000 in respect of the section 1(4) claim and £47,500 in respect of the section 2(1) claim for solatium. He also invited me to award £8,000 in respect of the section 8(1) claim.
[8.14] Mr Jones addressed me first on the section 1(4) claim. On behalf of ITL he acknowledged that Mrs McTear was fond of Mr McTear and loyal to his memory. He invited me, however, to take into account a number of features of her life with him. First, throughout their marriage, Mr McTear drank to excess. Only in the 1990s, and indeed the late 1990s, and at the insistence of Mrs McTear, did he take positive steps to bring his drinking under control. Secondly, he regularly assaulted her and their children, and did damage to property at the family home. In addition to incidents which led to his being convicted for criminal offences, there were occasions when the police had to be called to deal with domestic incidents involving Mr McTear. Thirdly, he was in prison at least during the periods from 6 August 1984 to 5 December 1984, from 18 September 1986 to 14 October 1986, from 10 November 1986 to 26 November 1986, from 16 March 1987 to 24 April 1987, from 30 April 1987 on a sentence of three months' imprisonment and from 24 July 1987 on a sentence of six months' imprisonment. Fourthly, there were in addition periods during the 1980s when Mr and Mrs McTear lived apart. At one point she obtained an interim interdict to exclude him from the family home. Fifthly, Mr McTear blamed Mrs McTear when he was accused of benefit fraud. He lied to her and repeatedly broke promises which he had made to her about his behaviour. Sixthly, the nature of their relationship was, he submitted, perhaps illustrated by the fact that, when Mrs McTear started work, she did not tell Mr McTear and felt it necessary to conceal from him that she was doing so. Over the years, she worked in order to support herself and her family, and also to pay for Mr McTear's drink, cigarettes and fines. He made little effort to support his family, regularly giving up employment without apparently having any new job to go to. He regularly behaved in such a manner as to lead to dismissal. Mr Jones recognised that, after Mr McTear's illness had been diagnosed, this brought him and Mrs McTear together. No doubt, in their earlier married life, she was fond of him to the extent that she stuck with him, but that had to be counterbalanced by the fact that she had him excluded from the house.
[8.15] In respect of the section 2(1) claim for solatium, Mr Jones asked me to take into account features of Mr McTear's illness which distinguished the present case from McManus's Executrix. First, he submitted, unlike the deceased Mr McManus, Mr McTear did not undergo any operation to treat his cancer. He received a single dose of mustine at the time of his diagnosis. In November 1992 he underwent a course of radiotherapy at the Western General Hospital in Edinburgh. There was no evidence that he suffered from any unpleasant side effects as a result of the radiotherapy. Secondly, from the date of his diagnosis until October 1992, his principal physical symptom was breathlessness and any pain was well controlled by drugs. In October 1992 he required to be admitted to hospital for six days for treatment of an infection. In January 1993 he was again admitted to hospital, this time for five days for treatment of a further chest infection. Thirdly, on 11 February 1993 he was pain free on the particular drug treatment then prescribed for him, and in that month he was well enough to go for a two week holiday to Malta. Following his return from holiday on 8 March 1993 he suffered a sudden collapse and dyspnoea after lifting a television set. Fourthly, he died in Ayrshire Hospital on 23 March 1993, having been admitted on the previous day after being bed-ridden from 19 March. Mr Jones did not suggest any alternative figures, and he did not direct any submission specifically to the section 8(1) claim.
[8.16] Mr McEachran invited me to assess interest at 4% per annum on 75% of the figure to be awarded in respect of the section 1(4) claim and at 8% per annum on the figures to be awarded in respect of the section 2(1) and section 8 claims, in each case from the date of Mr McTear's death to the date of decree. Mr Jones did not advance any contrary submission.
[8.17] After I had made avizandum it came to my notice that the First Division had decided reclaiming motions against the section 1(4) awards in McLean v William Denny & Bros Ltd 2004 S.C. 656 and Murray's Executrix v Greenock Dockyard Co Ltd 2004 S.L.T. 1104. The former was the leading case. The First Division held, affirming Lord Cameron's judgment, that he had not erred in law and in particular was entitled to proceed on the basis that judicial awards for bereavement had been too low, and that the "base figure" in McManus's Executrix required to be considered afresh. There was no inconsistency between his findings and his decision, and no ground for interfering with his award. The award of £28,000 was accordingly upheld. The court observed, under reference to Shaher v British Aerospace Flying College Ltd that, if there were a number of jury awards which indicated a level or range of awards a jury might be expected to make, that would be important evidence for a judge making an assessment. In general, judicial awards in bereavement cases had been on the low side, including awards to widows, but because of the paucity of jury awards, no definite conclusion could be drawn from them as to the extent to which judicial awards should be increased; however, the "base figure", in the case of sudden death, that is without allowing for head (a) of section 1(4), should in the absence of special features be in the region of £25,000. In Murray's Executrix v Greenock Dockyard Co Ltd it was held that the award to the pursuer in respect of a section 1(4) claim was unreasonably low and that £28,000 would be more appropriate, it having been unnecessary to distinguish between her and the widow in McLean. There was no reclaiming motion against the award in respect of the pursuer's section 2(1) claim for solatium, which accordingly remained at £47,500.
[8.18] In view of the decisions of the First Division, I put the case out By Order for further discussion. Mr McEachran submitted that the matter had to be looked at from the point of view of the widow. All the evidence was that Mrs McTear was devoted to her husband and it was this loss on which the court had to put a figure. He submitted that, having regard to her loss of society, having to observe her husband going through all the stages of death and all the events leading up to that, I should award £28,000 under this head. Mr Jones adhered to a written supplementary submission, in which it was pointed out that the marriage in McLean was described by the court as "very happy". Likewise, apart from a difficult period in the 1980s, the marriage in Murray was also described as "generally a happy one". It was submitted that the present case exhibited "special features", such as were contemplated in McLean, which were those features to which attention had been drawn in counsel's previous submissions. These features, taken together, would justify the view that an appropriate award in the present case under section 1(4) should be materially lower than the awards in Murray and McLean.
Discussion
[8.19] In deciding what would be an appropriate award in respect of the section 1(4) claim, I recognise that it is appropriate to take account of jury awards in comparable cases. I note, however, that all the jury awards which Mr McEachran relied upon were before the Extra Division in Shaher, and for that matter before the temporary judge in Murray and the Lord Ordinary in McLean, and two of them before the Lord Ordinary in McManus's Executrix. I have already mentioned the figures which it was thought appropriate to award in each of those cases. I also bear in mind that, as was pointed out in Murray and in McLean, jury awards to a parent for the death of a child or to a child for the death of a parent are not directly relevant when considering a claim by a widow for the death of her husband. In any event, the figure of £28,000 which the First Division thought appropriate in McLean and Murray for an award to a widow under all three of heads (a), (b) and (c) of section 1(4), in the absence of special features, must now be my starting point. In the end, however, my award must be based on my assessment of the considerations which emerge from the evidence in the present case.
[8.20] In the first place, in considering the section 1(4) claim, I accept that Mrs McTear was genuinely fond of her husband, despite his serious ill-treatment of her. This is a feature of many such marriages, and since Mrs McTear's affections are a subjective matter for her, I see no need to make any further comment about it. I accept also that she experienced grief and anxiety in contemplation of Mr McTear's suffering before his death and grief and sorrow caused by his death. He was only 49 years old at the time of his death, and I have no reason to suppose that the marriage would not have persisted, no doubt with ups and downs as before, for many years. It is accordingly appropriate to recognise that Mrs McTear has lost such non-patrimonial benefit as she might have derived from Mr McTear's society and guidance if he had not died. I am not, however, able to place as much weight on this as I would have done if the marriage had been continuously happy. I believe that a jury would adopt the same approach. Overall, in my opinion, an award of £25,000 under this head would be appropriate.
[8.21] Turning now to the section 2(1) claim for solatium, I have the benefit of comparative figures derived from McManus's Executrix and from Murray's Executrix. Lung cancer is often a painful and distressing terminal illness. In Mr McTear's case, I am satisfied that he suffered from breathlessness and a progressive decline in his strength. I am also satisfied that he experienced pain, even though it may, to a significant extent, have been controlled by drugs. He also had to undergo the various treatments I have mentioned. There is some force to Mr Jones's submissions, and I accept that Mr McTear suffered to a lesser extent than did Mr McManus, on whose case Mr McEachran principally relied. Nevertheless, I think it appropriate that the pain, suffering and loss of the amenities of life experienced by Mr McTear should be reflected in a substantial award of solatium, which I would assess at £45,000.
[8.22] I am satisfied that Mrs McTear rendered services to Mr McTear during his final illness and it is appropriate that they be recognised by an award under section 8. I see no reason to differ from the figure suggested by Mr McEachran, so I assess the award under this head at £8,000. I also accept that interest should be awarded as proposed by Mr McEachran, which appears to me to be in accordance with the usual practice.
[8.23] My assessment of damages, with interest to 31 May 2005, is therefore as follows:
|
Section 1(4) claim |
£25,000.00 |
|
Interest thereon |
9,141.78 |
|
Section 2(1) claim for solatium |
45,000.00 |
|
Interest thereon |
43,880.55 |
|
Section 8 claim for services |
8,000.00 |
|
Interest thereon |
7,800.99 _________ |
|
Total damages |
£138,823.32 |
PART IX: CONCLUSIONS AND RESULT
[9.1] I now set out my main conclusions, which should be read in conjunction with the passages of discussion to which cross-references are given.
[9.2] It is not in dispute that Mr McTear died of lung cancer (para.[1.4]). I accept that he smoked the John Player brand or brands of cigarettes manufactured by ITL for many years, as part of his consumption of cigarettes. I am not, however, prepared to hold it proved that it was ITL's products that Mr McTear smoked at any time prior to 1971. I do not accept that he smoked John Player brand cigarettes exclusively from the early 1970s onwards until the last few years of his life. I conclude that he smoked a significant quantity of roll-ups made from Old Holborn tobacco along with his smoking of John Player brand cigarettes for many years, perhaps as many as twenty years, but I am not able to decide in what proportion he divided his smoking between John Player brand cigarettes and roll-ups. They both made a material contribution to his total consumption from about 1971 onwards (para.[4.228]).
[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.
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