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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McTear v Imperial Tobacco Ltd [2001] ScotCS 239 (23 October 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/239.html Cite as: [2001] ScotCS 239

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[1] In this action the pursuer the pursuer seeks damages in respect of the death of her husband in 1993. The case has been put on Procedure Roll in order to determine which of the pursuer's averments should be allowed to go to Proof before Answer.

[2] The pursuer avers that the deceased was diagnosed in 1992 as suffering from inoperable lung cancer. The lung cancer was caused, she avers, by his smoking; and he died as a result of that condition. The deceased started smoking in or about 1964; he "smoked, and ... continued until 1992 to smoke 'John Players' cigarettes, manufactured and marketed by the defenders". The deceased, it is averred, attempted to give up smoking in about 1971, at about the time when the defenders began printing on packets of cigarettes manufactured by them a notice stating "Warning by H.M. Government; Smoking can damage your health". He was, however, unable to give up smoking because, though by then aware of "the risks to health caused by smoking", he had become addicted to cigarettes.

[3] The pursuer's case of fault against the defenders is presented in a number of averments, commencing in Condescendence IV with the claim, "Cigarette smoking can cause cancer including lung cancer." In Condescendence V she avers that the defenders "were aware of this prior to 1964". In support of that assertion she makes reference in Condescendences VI and X to various reports and studies dating from 1957 to 1964. She refers to research made by Sir Richard Doll, which led to the conclusion that smoking was a cause of carcinoma of the lung and says that his conclusion was accepted by the British Government in 1957 and universally accepted by scientists by 1964. In that year a Report was published by the US Surgeon General coming to similar conclusions. She adds that in the mid 1960s, at a meeting attended by Sir Richard Doll and representative of British tobacco interests including the defenders, "the causal role of tobacco in causing cancer was accepted and it was agreed that the industry including the defenders would not attempt to deny it publicly."

[4] In the course of the Procedure Roll debate on the relevancy of the pursuer's averments, the pursuer sought and was given leave to amend certain of those averments. Condescendence X, as thus amended, now reads:

[5] It should also be noted that the pursuer avers, in Condescendence VII, that in 1964 the defenders knew that smoking was "addictive" in the sense that once individuals have started smoking it is difficult for them to "wean" themselves off "the habit". Originally, the defenders criticised the pursuer's various averments relating to the use of the term "addiction" and its cognates; but, after the averments had been amended, the defenders accepted that that criticism had been met; but there remained a submission about imputed knowledge, which is considered later in this Opinion.

[6] The defenders lodged in process a Note of Argument and a Supplementary Note of Argument, to which reference may be made. For the record, it should be noted that the pursuer accepted the criticism contained in paragraph 1 of the Note and was allowed to delete the averment there criticised [Condescendence X, page 42D-E]. The argument (cf. the Note, paragraph 2) pertaining to the averments about addiction and the defenders' imputed knowledge was advanced but was met in part by amendment; the criticism that remains is dealt with later. The criticism contained in paragraph 3 of the Note was not advanced by the defenders at the Procedure Roll hearing. In consequence, the points still at issue were narrow; but they are important.

[7] The points articulated in the Supplementary Note of Argument relate to those of the pursuer's averments that refer to alleged health risks from smoking, being risks other than the risk of lung cancer. The defenders draw attention to the fact that the deceased is averred to have died of lung cancer; it is not suggested that he suffered from any other illness as a result of his smoking. Thus the pursuer's case was expressly and properly confined to loss caused by the deceased's death from lung cancer; and references to other illnesses were irrelevant. The Proof, on the relevant facts of this case, was not to be a general inquiry into all possible smoking and health issues. Furthermore, such references as there were to other illnesses, or to ill health in general terms, were so lacking in specification that the defenders could not possible know what case they had to meet. The issue in this respect was a fundamental one of fair notice. The irrelevancy of the averments criticised lay in the lack of specification. It might be that the pursuer would wish to amplify her averments so as to give further specification of illnesses said to be caused by cigarette smoking; only then would the defenders be able to judge if amplified averments relating to alleged links between cigarette smoking and illnesses other than lung cancer raised what were truly collateral issues. As the pleadings now stood it was impossible to make that judgment; but the possibility of collateral issues was there in the background. In the absence of the specification necessary to give fair notice the defenders would have the greatest difficulty in preparing for the Proof. The precise averments attacked were those identified in the Supplementary Note of Argument. If the pursuer were allowed probation in respect of the averments that the Supplementary Note identifies (viz. 'cancer, including' [page 17], 'dangerous to health and' and 'inter alia' [page 41D-E] and, in any event, 'inter alia' [page 41D-E]) the result would be that the defenders would have to prepare to meet the possibility that the pursuer would seek to adduce evidence relating not only to other cancers which might be said to be caused by smoking, but also to other diseases whether of the lungs, like bronchitis or emphysema, or diseases of the cardiovascular system or even other forms of ill health. The use of the term "dangerous to health" opened up the possibility that the pursuer might seek to adduce evidence about health risks not connected with cancer or with smokers' lungs; this point was underlined by the fact that the averment at 41D/E referred to the imputed knowledge of the defenders that smoking cigarettes was "dangerous to health and could cause inter alia lung cancer". The importance of this criticism fell to be judged in light of the obvious fact that the issues necessarily raised in this case (which might be one of many such cases) involved several matters of scientific complexity, especially in relation to proof of a link between smoking and lung cancer generally, but also in relation to the cause or causes of the deceased's lung cancer. If the defenders had to prepare for the Proof on the basis that they might have to cross examine expert witnesses on the causation of stomach cancer or cancer of the mouth or of the oesophagus or the like then the complexities would be multiplied to an extent that was quite unnecessary, given the true character of the pursuer's case, namely that smoking caused her husband to contract and die of lung cancer. The same considerations applied to the proof of what the defenders should have known about such causal links at different times. If the defenders should have known of a link between smoking and, say, cancer of the stomach, then adequate notice had to be given in the pleadings of what the source of such knowledge was said to be. The studie

[8] In relation to the pursuer's averments relating to the defenders' knowledge that smoking was addictive, in the sense in which the pursuer was now using that term, the position, as a matter of pleading and fair notice, was similar. There was nothing in the pleadings to provide a basis for the assertion that the defenders "ought to have been aware" in, or before, or even after, 1964 of the alleged fact that smoking was addictive. The sentence at page 42, beginning with the words, "In addition" was not based upon or supported by any averments of facts, or of studies or reports said to have warned of the alleged addiction risks.

[9] For the pursuer, Mr. McEachran drew attention to the history of the case, including the fact that the deceased's evidence had been taken on commission. I do not think that bears upon the relevancy of the pleadings under scrutiny. He also referred to what is described as a "Memorandum Opinion" from the District of Columbia, USA. I found that document to be of no value in assessing the relevancy and specification of the pursuer's pleadings in this case. The parts to which I was referred appeared to contain a summary of the assertions, on matters of fact, of the plaintiffs in a litigation to which the present defenders were not a party. It seemed to me that what counsel was suggesting was that certain 'facts' about smoking and cancer were so notorious that the defenders were being disingenuous in seeking specification in the present case of matters that the tobacco industry had been aware of for decades. I do not consider that it is legitimate for this court to presume knowledge of such matters, however widely they have been discussed in the media or in other litigations. If a pursuer seeks to prove a material fact then, unless it is within judicial knowledge, or there are other exceptional circumstances, the 'fact' should be expressly averred; I see no reason to depart from that rule of practice in the present case. Even if a pursuer seeks to found upon a fact as being very widely known it is necessary to say not only what the alleged fact is but that it is or was very widely known. It is not necessary, of course, to plead the evidence; but it is necessary to plead the fact and the means by which it did, or should have, come to the attention of the defenders.

[10] Counsel also drew attention to certain of the defenders' pleadings, notably to those averments in Answer 2, in support of a plea of volenti non fit injuria, referring to extensive media coverage in the 1950s and 1960s "which reported that there were risks to health from smoking cigarettes, including the risk of lung cancer". Thus the defenders had averments that were said to be of a similar character to those that they now criticised in the pursuer's pleadings. It is, however, quite clear, as the defenders submitted, that the purpose of these averments in Answer 2 is to provide a basis for a finding that the deceased must have been aware when he started smoking that it was being widely 'claimed' that smoking posed various risks to health. It is the deceased's awareness of material risks to health that may be of significance to the defenders' pleas of volenti and contributory negligence; not the actual existence of specific risks. These averments also have an obvious bearing upon the pursuer's averment that if the defenders had warned the deceased in time of the risks of smoking he would not have stated to smoke, would not have become addicted and would not have contracted lung cancer. In any event, it appears to me that I must judge the relevancy of the pursuer's averments by applying to them the usual tests, and in particular the test of whether or not they give fair and adequate specification of the case that the defenders have to meet. A failure by the pursuer to give adequate specification of her averments cannot be redeemed by pointing to alleged comparable failures by the defenders, especially when the pursuer has taken no plea to the relevancy and specification of those averments by the defenders.

[11] In relation to the criticism that averments such as "Cigarette smoking can cause cancer, including lung cancer", and "dangerous to health and could cause inter alia lung cancer" Mr McEachern asserted that these averments gave adequate notice that he was intending to prove both a general risk to health and that the defenders should have been aware of that risk at the material time. When first invited by the court to say whether or not such wide and unspecific averments would enable him, for example, to lead evidence from an oncologist or epidemiologist that smoking could cause stomach cancer and was known to be a potential cause of stomach cancer, he submitted that he would be able to lead such evidence founded upon such averments. However, when he returned to this question in his second speech he expressly departed from that submission; he now considered that he would not be able to lead such evidence about other forms of cancer; nor did he wish to do so. Accordingly, he intimated that he wished to delete from his pleadings at page 17A the words "cancer, including". That deletion will be made. It appears to me inevitable by parity of reasoning that the words "inter alia" must also be deleted from the sixth and seventh lines of Condescendence X on page 41 and the first line on page 43. The removal of these averments meets the well justified criticism that the defenders would otherwise have had to be prepared to meet a wholly unspecified line of evidence about the causation, and knowledge of the causation, of cancers other than lung cancer.

[12] No such offer was made in relation to the words" dangerous to health" in the same sentence in the pleadings. I do not consider that these words present the same problem. They take matters no further than a number of other averments to which no exception has been taken, notably, in Cond. 2 , "... the deceased was unaware that smoking could cause fatal diseases [in the plural]." and "He then became aware of the risks to health from smoking" [page 7A] and also [ in Cond. VIII] "They took no independent steps to warn smokers or potential smokers about the risks of disease to their health until....". Nor was any criticism made by the defenders of the pursuer's (amended) averment at page 42A referring to the publication of a Report by the Royal College of Physicians on smoking and health, or of the averment following, viz "Said report demonstrated in detail a massively enhanced death rate for smokers and a causal link with lung cancer." (emphasis added). These various averments provide a sufficient basis for establishing a general awareness in the tobacco industry at the dates condescended upon that smoking posed potential danger to the health of smokers; but they do not open the door to any detailed inquiry into the possible relationship between smoking and particular illnesses, other than lung cancer. Accordingly, in my opinion, and as they now stand following amendment and deletion, these averments are not vulnerable to the criticism of lack of specification and fair notice that the defenders advanced.

[13] In relation to the defenders' criticism of the passages beginning with the words "In addition" in line 12 of page 42, being passages designed to enable the pursuer to establish that the defenders ought to have known in and prior to 1964 that cigarettes were addictive [ the adverb 'highly' was deleted at the bar], I can find absolutely nothing in the pursuer's averments of the facts that she seeks to prove that would enable the court to draw the inference that the defenders "ought to have known" in and prior to 1964 that cigarettes were addictive. The amendment made at the bar, to insert after "1964.", in line 5 of Condescendence VII, the words, " Reference is made to the Reports and Studies set out in Condescendence X."; takes matters no further, because nothing is referred to in, or quoted from, these Reports or Studies that deals with addiction to smoking. These documents are not incorporated into the pleadings; but, even if they were, there is ample warrant in authority and practice for not regarding reference to documents brevitatis causa as a means whereby their entire contents fall to be read as if they were positive averments of the party making such reference. There may well be ample information in the public domain to the effect that there was widespread knowledge at the material times about smoking habits or addiction; but that is not a matter that falls within judicial knowledge. If the pursuer seeks to rely on such matters she must aver them as matters of fact. Apart from anything else, the making of the necessary averments would allow their relevancy to be assessed; they could raise irrelevant collateral issues. But first and foremost they must be specific enough to give fair notice of the case that has to be met. It might have been argued that a similar criticism could be made of the bald averment that the defenders "knew" of the addictive properties of cigarette smoking; for the defenders, as an incorporated company might be held to have known only what its directing minds knew, and there are no averments about that. However, I did not understand that any such argument was presented; it is not mentioned in the Notes of Argument lodged.

[14] It follows in my opinion that the words "or ought to have been" must be deleted from the 12^th line on age 42, at 42C. The alleged duty to warn about the risk of "addiction", introduced by the word, "separatim" in the fourth last sentence of Condescendence X, thus rests upon proof that the defenders actually knew of that risk at the material time.

[15] For these reasons, I shall uphold the defenders' first plea to the effect of deleting from the pursuer's pleadings the averments that I have indicated in this Opinion fall to be deleted. Quoad ultra I shall reserve that and all other pleas and allow the parties a Proof before Answer in respect of the averments that remain.