Mrs. Margaret Mctear V. Imperial Tobacco Limited
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith |
| Neutral Citation | [2005] CSOH 69 |
| Date | 31 May 2005 |
| Court | Court of Session |
| Published date | 27 May 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 69 | |
|
| OPINION OF LORD NIMMO SMITH in the cause MRS MARGARET McTEAR Pursuer; against IMPERIAL TOBACCO LIMITED Defenders: ________________ |
Pursuer: McEachran, Q.C., Divers, Locke; Drummond Miller, W.S.
Defenders: Jones, Q.C., Wolffe; McGrigor Donald
31 May 2005
List of contents
[1.1]In view of the length of this Opinion, it may be helpful if at the outset I set out a list of its contents, by reference to its paragraph numbers, as follows:
| Paragraph | ||
| PART I: | ||
| [1.2] | ||
| [1.5] | ||
| [1.11] | ||
| [1.13] | ||
| [1.30] | ||
| [1.31] | ||
| [1.32] | ||
| [1.33] | ||
| [1.35] | ||
| PART II | ||
| [2.1] | ||
| [2.7] | ||
| [2.10] | ||
| [2.15] | ||
| [2.23] | ||
| [2.52] | ||
| [2.54] | ||
| [2.55] | ||
| [2.62] | ||
| [2.75] |
| PART III: | ||
| [3.2] | ||
| [3.6] | ||
| [3.11] | ||
| [3.28] | ||
| [3.45] | ||
| [3.54] | ||
| [3.58] | ||
| [3.61] | ||
| [3.63] | ||
| [3.66] | ||
| PART IV: | ||
| [4.3] | ||
| [4.67] | ||
| [4.85] | ||
| [4.95] | ||
| [4.112] | ||
| [4.124] | ||
| [4.169] | ||
| [4.174] | ||
| [4.194] | ||
| [4.200] | ||
| [4.222] | ||
| [4.226] | ||
| PART V: | ||
| [5.2] | ||
| [5.12] | ||
| [5.15] | ||
| [5.20] | ||
| [5.24] | ||
| [5.27] | ||
| [5.100] | ||
| [5.184] | ||
| [5.189] | ||
| [5.211] | ||
| [5.304] | ||
| [5.305] | ||
| [5.326] | ||
| [5.339] | ||
| [5.349] | ||
| [5.370] | ||
| [5.373] | ||
| [5.435] | ||
| [5.447] | ||
| [5.448] | ||
| [5.475] | ||
| [5.480] | ||
| [5.698] | ||
| [5.739] | ||
| [5.745] | ||
| [5.766] | ||
| [5.772] | ||
| [5.829] | ||
| [5.844] | ||
| [5.847] | ||
| [5.859] | ||
| PART VI: | ||
| [6.1] | ||
| [6.2] | ||
| [6.22] | ||
| [6.24] | ||
| [6.25] | ||
| [6.30] | ||
| [6.57] | ||
| [6.149] | ||
| [6.172] | ||
| [6.186] | ||
| [6.188] | ||
| [6.194] | ||
| [6.202] | ||
| PART VII: | ||
| [7.2] | ||
| [7.19] | ||
| [7.167] | ||
| [7.182] | ||
| [7.184] | ||
| [7.185] | ||
| [7.199] | ||
| [7.204] | ||
| PART VIII: | ||
| [8.6] | ||
| [8.14] | ||
| [8.17] | ||
| [8.19] | ||
| PART IX: | ||
| [9.1] | ||
| [9.15] |
PART I: PRELIMINARIES
[1.2]Alfred McTear died, aged 48, on 23 March 1993. He and his wife, Mrs Margaret McTear, last lived together at 20 Cherrywood Drive, Beith, Ayrshire. He was the original pursuer in this action. After his death his wife, as his executrix-dative, was sisted as the pursuer in his room and place. For convenience I shall refer to them respectively as Mr McTear and Mrs McTear.
[1.3]The defenders are Imperial Tobacco Limited, whom I shall refer to as ITL. They manufacture, market and sell tobacco products in the United Kingdom, particularly cigarettes, including the John Player brand. They supply cigarettes to retail outlets throughout Scotland for onward sale to the public, and have done so for many years.
[1.4]Mr McTear died of lung cancer. In this action Mrs McTear claims that this was caused, at least to a material extent, by his smoking, from 1964 to 1992 cigarettes manufactured by ITL, and that throughout the period during which he smoked them ITL were negligent in selling cigarettes, or in any event in selling them without appropriate warnings, and she seeks an award of damages accordingly.
What the pursuer requires to prove
[1.5]The pursuer can succeed in this case only if she proves all of the following:
(1)that cigarette smoking can cause lung cancer;
(2)that cigarette smoking caused Mr McTear's lung cancer;
(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; and
(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.
Items (1) to (4) are as formulated by Mr Jones. Mr McEachran did not take issue with them. Item (5) takes account of counsel's submissions, discussed paras.[6.2] to [6.29].
[1.6]The burden of proving each of these matters rests on the pursuer. In order to discharge that burden, she must satisfy me, on the balance of probabilities, and on the basis of the evidence led before me and the applicable law, that each of these matters is proved.
[1.7]ITL plead, among other things, that Mr McTear willingly accepted as his own any risk to his health from smoking cigarettes; in doing this, they rely on the maxim volenti non fit iniuria, which I discuss below under that heading. The burden of proving this, on the balance of probabilities, is on ITL. ITL also plead that Mr McTear's illness was caused by his own fault or was contributed to by his fault, but at the hearing on evidence, Mr Jones did not invite me to sustain either of these pleas.
[1.8]I wish to state clearly now, and shall reflect this throughout my Opinion, that:
(1)This is in no sense a public inquiry into issues relating to smoking and health; it is a proof before answer in which I have to consider, having regard to the facts and the law, whether ITL should be found liable in damages to Mrs McTear.
(2)I must base my decision about questions of fact on the evidence, and that alone.
[1.9]Under our procedure, fair notice must be given by a party in the written pleadings (the final version of which is incorporated in the Closed Record) of any matter of fact about which the party may seek to lead evidence. Subject to the court's discretion to allow amendment at any stage (which may well be refused after a proof has started if it would seriously prejudice the other party) evidence may not be admitted of any matter of fact about which fair notice has not been given in this way.
[1.10]It must be emphasized that our system is evidence-based. My duty as a fact-finder is exactly the same as that of a jury, who in terms of their oath are bound to "give a true verdict according to the evidence". This brings me to a related topic.
Judicial knowledge
[1.11]On at least two occasions Mr McEachran made reference to judicial knowledge. The first was to suggest, at a By Order hearing before the proof, that it lay within judicial knowledge that cigarette smoking could cause lung cancer. The second was a suggestion, during the discussion of an objection at the proof, that the purpose and effect of advertising lay within judicial knowledge. Judicial knowledge must be distinguished from the personal knowledge of an individual judge. It is generally taken as relating to matters which can be immediately ascertained from sources of indisputable accuracy, or which are so notorious as...
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...in a schedule prepared by Miss Outhwaite, on which I have based the Appendix to this judgment. 23 I should mention that in McTear v Imperial Tobacco Ltd [2005] CSOH 69, Lord Nimmo Smith had more extensive evidence of public awareness than was put before me. I have not taken account of his s......