Imperial’s successful defence of a cancer claim puts ‘personal responsibility’ to the fore

Lord Nimmo Smith delivered his judgment in the long-running case of Margaret McTear v Imperial Tobacco Ltd this month. In the action for damages, McTear alleged that her husband’s death from lung cancer had been caused by smoking Imperial’s products. The 1,121-page judgment concluded that McTear failed on every issue she needed to establish to succeed in her action against Imperial.

Some of the press comment has focused on the difference in the resources available to the parties. Lord Nimmo Smith acknowledged that the pursuer’s case would no doubt have been conducted differently had more resources been available. However, that is not to say that more resources would have resulted in a different outcome. The case faced fundamental difficulties which could not have been remedied by additional resources.

A key difficulty was the issue of individual responsibility and the fact that Alfred McTear smoked in the knowledge of the risks associated with doing so. McTear’s own expert concluded that in 1964, when her husband started to smoke, he, like the rest of the general public, was aware of the “considerable publicity about the health consequences of smoking during the 1960s”. In light of that fact alone, the pursuer’s case had no prospect of success.

Imperial’s defence included the argument that the fundamental policy of the law is to allow the individual the right of self-determination. Once aware of a risk they have a duty to consider their options and take responsibility for informed choices. This fundamental principle applies in other circumstances involving risk.

Lord Nimmo Smith accepted this argument. He concluded that “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 on matters affecting his or her safety, health and welfare. This approach is fundamental to the workings of our society… 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, the responsibility is theirs alone.”

The duty of the manufacturer is therefore not, as argued by the pursuer, to cease manufacture of a product associated with risk, but rather to ensure that the consumer is able to make an informed choice about whether to consume the product.

Lord Nimmo Smith concluded: “[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”.

The claim had many fundamental difficulties, but this alone was sufficient to prevent any prospect for McTear or other, similar claimants. That is recognised by McTear’s solicitor’s statement, which says the claims of others represented by him will not proceed.

The individualistic policy of the law in this case has implications beyond tobacco litigation. Others who may have feared consumer claims can take comfort from the conclusions on individual responsibility and from Lord Nimmo Smith’s words: “It’s not difficult today to find instances 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… The law gives no countenance to such a tendency. The individualistic philosophy requires that individuals must live with the legal consequences of their own informed choices.”