Widow loses fight to sue tobacco company

A widow today lost her bid to sue Imperial Tobacco in a landmark case following the death of her husband from lung cancer in 1993.

Lord Nimmo Smith has spent the past 15 months considering his decision in the long-running case at the Court of Session in Edinburgh, in which Margaret McTear, 60, from Ayrshire, was seeking £500,000 in damages.

Alfred McTear, a former telephone installer who was diagnosed with terminal lung cancer in 1992 first instigated legal action in January 1993 and after his death in March that year, at the age of 48, his wife pledged to continue the fight.

Reading his opinion summary in court, the judge said: "The pursuer's case failed on every issue on which I would have needed to find in her favour were I to hold the defenders liable to her in damages."

The landmark case of Mrs McTear versus Imperial Tobacco was the first of its kind in the UK to go the full distance in court.

Lord Nimmo Smith has spent the past 15 months writing his decision in the long-running case, which only reached court in October 2003.

Mr McTear started the proceedings against Imperial Tobacco after he was diagnosed with terminal lung cancer.

Following his death, Mrs McTear took on the tobacco giant, which she claimed had failed to warn her husband of the dangers of smoking cigarettes.

The battle took more than 10 years to reach the full evidence-hearing stage before Lord Nimmo Smith, which lasted more than 40 days.

The firm, represented by Michael Jones QC, always denied blame and insisted Mr McTear was aware of the health risks involved in maintaining his habit.

The family's legal team, led by Colin McEachran QC, argued that when the father-of-three started smoking in 1964, there were no warnings on cigarette packets and by the time they appeared in 1971 he was already addicted.

But today Lord Nimmo Smith ruled: "It is not in dispute that Mr McTear died of lung cancer.

"I accept that he smoked the John Player brand or brands of cigarettes manufactured by ITL (Imperial Tobacco) for many years, as part of his consumption of cigarettes.

"I am not, however, prepared to hold that it was ITL's products that Mr McTear smoked at any time prior to 1971.

"I do not accept that he smoked John Player brand cigarettes exclusively from the early 1970s onwards until the last few years of his life."

During the earlier evidence hearing, Mrs McTear said smoking was advertised as being glamorous in the 1960s.

But Lord Nimmo Smith said today: "Mr McTear started smoking no earlier than 1964.

"I am satisfied that advertising had nothing to do with his reasons for starting to smoke.

"He started smoking because it was socially acceptable and most young people started smoking as part of becoming adults.

"I am prepared to accept that Mr McTear found it difficult to wean himself off his habit once he had started smoking and in that sense could be described as addicted.

"I do not accept that he was, for this reason, unable to stop smoking."

Mr McTear smoked up to 60 cigarettes a day at the height of his habit.

The court heard Mr McTear's health deteriorated quickly as the cancer took hold and that he became bed-ridden, partially lost his speech and had to use a commode before being admitted to a hospice.

But today, the judge ruled Mr McTear had been aware of the health risks.

He said: "I am satisfied that at all material times, and in particular by 1964, the general public in the United Kingdom, including smokers and potential smokers, were well aware of the health risks associated with smoking, and in particular of the view that smoking could cause lung cancer.

"I am also satisfied that Mr McTear was aware, in common with the general public, well before 1971 of the publicity about the health risks associated with smoking, and in particular the risk of lung cancer.

"Therefore by the time he is shown by acceptable evidence to have started smoking the John Player brand of cigarettes, he was already aware of the publicity about the health risks.

"As with many other aspects of his life, he chose to ignore it."