McTear v Imperial Tobacco Ltd

JurisdictionScotland
Judgment Date31 May 2005
Date31 May 2005
Docket NumberNo 1
CourtCourt of Session (Outer House)

COURT OF SESSION Outer House

Before Lord Nimmo-Smith

McTear
and
Imperial Tobacco Ltd

Scots law - public health - no duty of care for smoker owed by tobacco manufacturers

Widow loses claim against tobacco company

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 study in which the conclusion was reached that there was a causal connection between cigarette smoking and lung cancer.

The pursuer had also failed to prove that but for Mr McTear's having smoked cigarettes he would probably not have contracted lung cancer.

She had also failed to prove that negligence on the part of the defenders 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.

The evidence had shown that Mr McTear had been aware, in common with the general public, well before 1971, and by 1964, when he had started smoking, of the publicity about the health risks associated with smoking and in particular the risk of lung cancer.

His Lordship said that even if it had been proved that cigarette smoking could cause lung cancer, there was no authority for the pursuer's proposition that as soon as they...

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25 cases
  • Application For A Permanence Order With Authority To Adopt In Relation To The Child L
    • United Kingdom
    • Sheriff Court
    • 27 December 2012
    ...of a permanence order. In approaching their evidence, however, I had in mind what Lord Nimmo Smith said in McTear v Imperial Tobacco Ltd 2005 2SC 1. And I was conscious that in this area, as Lord McCluskey has observed on several occasions, expert evidence should not always be necessary in ......
  • Kennedy v Cordia (Services) LLP
    • United Kingdom
    • Supreme Court (Scotland)
    • 1 February 2017
    ...to ascertain that it complies with the four considerations which we have set out in para 38 above and is otherwise sound. In McTear v Imperial Tobacco Ltd 2005 2 SC 1, para 5.17 Lord Nimmo Smith usefully described the judge's role in these terms: "[I]t is necessary to consider with care, i......
  • Tracey Kennedy Against Cordia (services) Llp
    • United Kingdom
    • Court of Session
    • 19 September 2014
    ...it lay within such area of expertise as Mr Greasly may have: see Main v Andrew Wormald Ltd 1988 SLT 141 and McTear v Imperial Tobacco Ltd 2005 2 SC 1 at paras [5.12] to [5.17]. However, I do not see that as a question that needs to be addressed. Mr Greasly’s consideration of the various art......
  • Appeals Under Sections 103 And 108 Of The Extradition Act 2003 By Zain Taj Dean Against (first) The Lord Advocate And (second) The Scottish Ministers
    • United Kingdom
    • High Court of Justiciary
    • 24 June 2015
    ...is a “territory” for the purposes of the 2003 Act. Judicial knowledge was defined by Lord Nimmo Smith in McTear v Imperial Tobacco Ltd, 2005 2 SC 1; [2005] CSOH 69, as follows: “The judge will take notice of the matters… which can be immediately ascertained from sources of indisputable accu......
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2 books & journal articles

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