McTear v Imperial Tobacco Ltd
| Jurisdiction | Scotland |
| Judgment Date | 31 May 2005 |
| Date | 31 May 2005 |
| Docket Number | No 1 |
| Court | Court of Session (Outer House) |
COURT OF SESSION Outer House
Before Lord Nimmo-Smith
Scots law - public health - no duty of care for smoker owed by tobacco manufacturers
A manufacturer of cigarettes whose products were smoked by a person who was aware of the health risks associated with smoking did not owe that person a common law duty of care to see that he was not injured by its products.
Lord Nimmo-Smith so held in the Outer House of the Court of Session when rejecting a claim by Margaret McTear against the defenders, Imperial Tobacco Ltd, for damages under section 1 of the Damages (Scotland) Act 1976 in connection with the death of her husband, Alfred McTear.
Mr McTear died of lung cancer, aged 48. Mrs McTear claimed that the lung cancer was caused, at least to a material extent, by his smoking, from 1964 to 1992, cigarettes manufactured by the defenders, and that throughout the period during which he smoked them the defenders were negligent in selling cigarettes, or in any event in selling them without appropriate warnings.
Mr Colin McEachran, QC, Mr Barry Divers and Miss Luise Locke for Mrs McTear; Mr Mike Jones, QC and Mr James Wolffe for Imperial Tobacco.
LORD NIMMO -SMITH, said that the pursuer had, on the evidence, failed to prove that cigarette smoking could cause lung cancer.
A fundamental defect in the presentation of the pursuer's case had been the failure to present the primary literature about any epidemiological...
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