Evaluation of Scientific Evidence: McTear v Imperial Tobacco Ltd Court of Session [2005] CSOH 69

[6.160] From what I have seen of the scientific literature, it appears possible to divide it into three categories, which I shall call the primary, the secondary and the tertiary literature. The primary literature contains, in Prof Gray’s useful phrase (see para 5.41), the ‘archival data’. In the field of epidemiology, it would be expected no doubt to explain the study design, the measures taken to control for bias and confounding, the statistical techniques used to determine whether or not an association has been found between an exposure and a condition or disease, such as the use of a confidence interval, and the process of reasoning which leads to any conclusions about the significance of the association and any judgment which is formed about a causal connection between the exposure and the condition or disease. There is, as I understand it, an expectation of transparency in the primary literature, so that the authors’work can be subjected to the scrutiny of their peers. Indeed, in many cases a paper is subjected to peer review before being accepted for publication in a learned journal. The scope for such scrutiny is central to the scientific process, because if a conclusion is based on sound research it should be capable of subsequent replication. A good example of this process may be found in Dr Lewis’s discussion of Doll et al (1994) at paras 5.832-5.838, including the statement at para 5.834 that he found the paper difficult to understand because he did not see the numbers behind it.

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[2005] CSOH 69

McTear v Imperial Tobacco Ltd
Court of Session
[2005] CSOH 69
HEARING-DATES:
31 May 2005
31 May 2005

CATCHWORDS: Reparation- Whether manufacturer of cigarettes liable in negligence to smoker

HEADNOTE: Andrew F Stewart

The pursuer was the widow of M, a smoker. She sought to recover damages from the manufacturers of a brand of cigarettes smoked by M. The pursuer averred, inter alia, that:(1) cigarette smoking can cause lung cancer, and the World Health Organization, the UK government and the US government had accepted for many years that cigarette smoking can cause lung cancer;(2) Mquote s lung cancer was caused by his smoking;(3) when M commenced smoking in 1964 he was unaware that smoking could cause fatal diseases;(4) tobacco was addictive, in the sense that it was difficult for smokers to wean themselves off the habit, and was more addictive than cocaine;(5) after commencing smoking M quickly became addicted to cigarettes, so that when in about 1971, following the appearance of government health warnings on cigarette packets, he became aware of the risks to health caused by smoking, he was unable to give up smoking, despite attempts to do so;(6) it was the duty of the defenders before and after 1964 to warn smokers of the facts that smoking was addictive and could cause fatal diseases and the defenders were in breach of that duty;(7) it was the duty of the defenders to take reasonable care not to manufacture tobacco products for sale to members of the public or sell to them; and(8) Mquote s lung cancer was caused by the fault and negligence of the defenders. The defenders admitted that the World Health Organization, the UK government and the US government had accepted for many years that cigarette smoking can cause lung cancer, that government health warnings first appeared on cigarette packets in 1971, and that they were aware of the publications relied upon by the pursuer. The defenders averred that:(1) cigarette smoking had not been scientifically established as a cause of lung cancer and, although various theories had been advanced, the cause or causes of lung cancer were unknown and the mechanism whereby lung cancer develops was unknown;(2) smoking was correctly described as a habit and not an addiction, and while some smokers may find it difficult to stop smoking, smokers who chose to stop smoking were able to do so;(3) assuming that M commenced smoking in 1964, he did so against the background of general public awareness that there were health risks associated with smoking, and in particular general public awareness of the view that smoking could cause lung cancer; and(4) at all relevant times the public at large understood that some smokers might find it difficult to stop smoking, and M shared this understanding. Inter alia, the defenders pled volenti non fit injuria. The cause called before the Lord Ordinary for a proof before answer.

Held that:(1) the action was in no sense a public inquiry into issues relating to smoking and health, but was a proof before answer in which the judge had to consider whether the defenders should be found liable in damages to the pursuer, and the judge required to base his decision adout questions of fact on the evidence and that alone (para 1.8);(2) the burden of proof that cigarette smoking can cause lung cancer was on the pursuer, and must be discharged in accordance with the normal rules of evidence (para 1.38);(3) the terms of a document which had been lodged were, with a few recognised exceptions, not evidence, and it was not open to the court to take account of any passage in a document the terms of which were neither agreed nor put to a witness (paras 1.37, 9.7);(4) judicial knowledge must be distinguished from the personal knowledge of an individual judge; it was generally taken as relating to matters which can be immediately ascertained from sources of indisputable accuracy, or were so notorious as to be indisputable, so that the judge was bound to take notice of them. If a matter fell within judicial knowledge, the judge might refresh his memory by consulting recognised reference works. Apart from the matters in judicial knowledge, it was improper for a judge to proceed on personal knowledge of the facts or personal examination of passages in textbooks (para 1.11). It was not within judicial knowledge that cigarette smoking can cause lung cancer (para 9.7);(5) the purpose of leading the evidence of expert witnesses should have been to impart to the judge knowledge special knowledge of the subject-matter lying within the witnessesquote field of expertise, so as to enable the judge to form his own judgment as to the subject-matter and the conclusions to be drawn from it (paras 5.17, 9.8);(6) M started smoking no earlier than 1964. He did so because it was socially acceptable, not because of advertising (para 4.226). He did not smoke cigarettes manufactured by the defenders until 1971, and thereafter smoked both these and roll-ups made from the tobacco of a different manufacturer (para 4.228). He found it difficult to wean himself off the habit but was not unable to stop smoking (paras 4.229, 6.202-6.208). The pursuer had not proved that tobacco was more addictive than cocaine (para 9.3). M died of lung cancer (para 1.4). At all material times, in particular by 1964, the UK general public was aware of the view that smoking could cause lung cancer (para 3.1). M was so aware by the time he started to smoke the defendersquote cigarettes but chose to ignore it (paras 4.230, 9.2-9.5);(7) the pursuer could succeed only if she proved all of the following: (a) cigarette smoking could cause lung cancer, in the sense that both in the general population and in any individual case it could be said that but for the smoking of cigarettes lung cancer would probably not have been contracted (general causation); (b) cigarette smoking caused Mquote s lung cancer, in the sense that but for his having smoked cigarettes he would probably not have contracted lung cancer (individual causation); (c) M smoked cigarettes manufactured by the defenders 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; (d) M smoked cigarettes manufactured by the defenders because the defenders were in breach of a duty of care owed by them to him; (e) such breach caused or materially contributed to Mquote 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 (fault causation) (paras 1.5, 6.29, 9.5);(8) the pursuer failed to prove general causation (paras 6.149-6.171, 9.9). There was no direct evidence that the defenders had ever accepted that there was a causal connection between smoking and disease (which would require a resolution of the board of directors), nor was there evidence which would allow such an inference to be drawn (paras 2.76-2.78). The fact that the defenders had never sought to challenge the public health message that cigarette smoking causes lung cancer did not constitute such an admission (para 2.78). Accordingly the defenders were entitled to put the pursuer to proof of her averment that cigarette smoking can cause lung cancer (paras 2.80, 9.6). The pursuer failed to discharge the burden of proof in accordance with the requirements of the law of evidence. She relied on epidemiology but failed to sufficiently instruct the Lord Ordinary on that discipline by means of expert evidence (para 9.9). She did not seek to argue that the causal connection between cigarette smoking and lung cancer had been established by any branch of scientific enquiry other than epidemiology (para 6.150), and the case stood or fell on what had been proved about the epidemiological studies which had led to the judgment that the causal connection was proved (para 6.154). A fundamental defect in the presentation of the pursuerquote s case was that no evidence had been led of any epidemiological study in which the conclusion was reached that there was a causal connection between cigarette smoking and lung cancer (para 6.163);(9) in any event, the pursuer failed to prove individual causation (paras 6.172-6.185, 9.10). In order to establish that exposure to a substance has caused a condition, it must be shown on the evidence that on the balance of probabilities the condition would not have occurred but for the exposure (para 6.25). Epidemiology could not be used to establish causation in any individual case, and the use of statistics applicable to the general population to determine the likelihood of causation in an individual was fallacious (para 9.10). Given that there were possible causes of lung cancer other than cigarette smoking, and given that lung cancer can occur in a non-smoker, it was not possible to determine in any individual case whether but for an individualquote s cigarette smoking he probably would not have contracted lung cancer (para 9.10). The court was not in a position to hold that the cancer was not caused by Mquote s cigarette smoking, but was not satisfied on the evidence that it probably was caused by his smoking (para 6.180). The evidence demonstrated that in the state of modern science there was no way of telling whether in an individual case a lung cancer was caused by cigarette smoking, or whether he contracted it from some other cause or would have contracted it even if he had not been a smoker (para 6.184);(10) in any event there was no lack of reasonable care on the part of the defenders at any point at which M consumed their products, and the pursuerquote s negligence case failed. If a consumer of a manufacturerquote s product was harmed by the product, but the consumer knew of the productquote s potential for causing harm prior to consumption of it, there was no breach of a duty of care on the part of the manufacturer. The individual was well enough served if he was given such information as a normally intelligent person would include in his assessment of how he wishes to conduct his life, thus putting him in the position of making an informed choice (paras 7.167-7.181, 9.11). Tobacco had at all material times lawfully been sold to adults in the United Kingdom, supporting a substantial industry, and demand might be related to evidence that smoking gives pleasure and may have social benefits. There was no suggestion that cigarettes manufactured by the defenders contained a substance other than that which the public would expect, so this was not a case of latent defects. The defenders became aware in the same way as the public of the association of smoking and cancer from 1950 onwards. The government relied on health education and apart from measures to prevent the sale to persons other than adults and fiscal measures designed in part to act as a deterrent, the government had left it to individuals to decide whether to smoke (para 7.175). The policy of the law was that adults of full age and capacity were equal in the eyes of the law, and had the responsibility of making reasonable choices not least in matters affecting their safety, health and welfare. This was fundamental to the workings of our society, for example in equality in the electorate and the approach of the criminal law; individuals were assumed to be well informed and reasonable, responsible members of society (para 7.178). The individualist philosophy of the law required that individuals must live with the legal consequences of their own informed decisions (para 7.179). M was not to be regarded as more a victim of circumstances or having less responsibility for his actions because he was in a lower socio-economic class (para 7.177);(11) in any event it had not been established that, if the defenders had not manufactured cigarettes at any material time, so that M did not smoke their products and accordingly their products could not have made a material contribution to his contracting lung cancer, it would have made any difference. The evidence was that M would have started smoking when he did, and would have continued to smoke, for the same length of time and in the same quantities, as he in fact did. Fault causation would therefore not in any event be established (paras 7.182, 7.183, 9.12);(12) where conduct on the part of the defender had given rise to a risk with the pursuer then decided knowingly to take, there was no negligence on behalf of the defender and, even if there had been negligence, in the circumstances the defendersquote plea of volenti non fit injuria would not have succeeded (paras 7.204-7.208, 9.13);and defenders assoilzied.

Observed that:(1) the use of modern systems of document scanning and electronic transcription of oral evidence was of great assistance and saved much time in the proof (para 1.29);(2) if cigarette smoking could cause cancer, there was no support in the authorities for the proposition that as soon as they became aware of that the defenders had a duty to cease manufacture (para 7.173);(3) had the pursuer succeeded, damages would have been assessed as £325,000 in respect of the pursuerquote s distress, grief and loss of support under sec 1(4) of the Damages (Scotland) Act 1976 (cap 13), £345,000 in respect of solatium for Mquote s pain and suffering under sec 2(1), and £38,000 in respect of services by the pursuer to M in his final illness under sec 8(1), together with interest, giving a total of £3138,823.32 (para 8.23).

CASES-REF-TO: Bogle v McDonaldquote s Restaurants Ltd [2002] EWHC QB 490; Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd (1997) V.3 SCR 1210; Cruz-Vargas v RJ Reynolds Tobacco Co V.348 F 3d 271 (1st Cir, 2003); Davie v Magistrates of Edinburgh 1953 SC 34; 1953 SLT 54; Dingley v Chief Constable, Strathclyde Police 1998 SC 548; Dingley v Chief Constable, Strathclyde Police 2000 SC (HL) 77; 2000 SCLR 309; Donoghue v Stevenson 1932 SC (HL) 31; 1932 SLT 317; [1932] AC 562; Elf Caledonia Ltd v London Bridge Engineering Ltd, 2 Sept 1997, unreported; Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32; [2002] 3 WLR 89; [2002] 3 All ER 305; Fowler v Tierney 1974 SLT (Notes) 23; Galbraith v HM Advocate (No 2) 2002 JC 1; 2001 SLT 953; 2001 SCCR 551; Glasgow Corporation v Taylor [1922] V.1 AC 44; Graham Barclay Oysters Pty Ltd v Ryan (2002) V.211 CLR 540; Grant v Australian Knitting Mills Ltd [1936] AC 85; (1934) 50 CLR 387; Hamilton v Fife Health Board 1993 SC 369; 1993 SLT 624; 1993 SCLR 408; Heaven v Pender (1883) V.11 QBD 503; Heine v Reemtsma Cigarettenfabriken GmbH 2 O 294/02, unreported; Herskovits v Group Health Co-operative of Puget Sound V.664 P 2d 474 (1983); Hodge & Sons v Anglo-American Oil Co (1922) V.12 Ll LR 183; Holmes v Ashford [1950] V.2 All ER 76; Hotson v East Berkshire Area Health Authority [1987] AC 750; [1987] 3 WLR 232; [1987] 2 All ER 909; Imperial Chemical Industries Ltd v Shatwell [1965] AC 656;[1964] 3 WLR 329; [1964] 2 All ER 999; Law Hospital NHS Trust v Lord Advocate 1996 SC 301; 1996 SLT 848; [1996] 2 FLR 407; Letang v Ottawa Electric Ry Co [1926] AC 725; L ‘e9tourneau v Imperial Tobacco Ltd (1998) V.162 DLR (4th) 734; Lewis v University of Bristol [1999] EWCA Civ 1569; London Graving Dock Co Ltd v Horton [1951] AC 737; [1951] 2 All ER 1; Lund v JL Tiedemanns Tobaksfabrik AS (HR-2002-00753a), 31 Oct 2003, unreported; McCaig v Langan 1964 SLT 121; McGhee v National Coal Board 1973 SC (HL) 37; 1973 SLT 14; [1973] 1 WLR 1; [1972] 3 All ER 1008; McKillen v Barclay Curle & Co Ltd 1967 SLT 41; McLean v William Denny & Bros Ltd 2004 SC 656; 2004 SLT 422 and 1099; 2004 SCCR 675; McManusquote s Exrx v Babcock Energy Ltd 1999 SC 569; 2000 SLT 655; 2000 SCLR 426; McTear v Scottish Legal Aid Board 1997 SLT 108; 1995 SCLR 611; McWilliams v Sir William Arrol & Co 1962 SC (HL) 70; 1962 SLT 121; [1962] 1 WLR 295;[1962] 1 All ER 623; Main v Andrew Wormald Ltd 1988 SLT 141; Morris v Murray [1991] V.2 QB 6; [1991] 2 WLR 195; [1990] 3 All ER 801; Murphy v Brentwood District Council [1991] V.1 AC 398; [1990] 3 WLR 414; [1990] 2 All ER 908; Murrayquote s Exrx v Greenock Dockyard Co Ltd 2004 SLT 346 and 1104; 2004 SCLR 674; National Justice Compania Naviera SA v Prudential Assurance Co Ltd; The Ikarian Reefer [1993] V.2 Lloydquote s Rep 68; Nettleship v Weston [1971] V.2 QB 691; [1971] 3 WLR 370; [1971] 3 All ER 581; Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd; The Wagon Mound [1961] V.1 AC 388; [1961] 2 WLR 126; [1961] 1 All ER 404; Paugh v RJ Reynolds Tobacco Co V.834 F Supp 228 (ND Ohio 1993); Pelman v McDonaldquote s Corp V.237 F Supp 2d 512 (SD NY 2003); Pierce v HM Advocate 1981 SCLR 783; R v Abadom [1983] V.1 WLR 126; [1983] 1 All ER 364; Reeves v Commissioner of Police of the Metropolis [2000] V.1 AC 360; [1999] 3 WLR 363; [1999] 3 All ER 897; Rhesa Shipping Co SA v Edmunds[1985] V.1 WLR 948; [1985] 2 All ER 712; Roysdon v RJ Reynolds; Roysdon v RJ Reynolds Tobacco Co V.849 F 2d 230 (6th Cir 1988); Shaher v British Aerospace Flying College Ltd 2003 SC 540; 2003 SLT 791; 2003 Rep LR 78; Thompson v Johnson and Johnson Pty Ltd [1991] V.2 VR 449; Thompson v Smithquote s Shiprepairers (North Shields) Ltd [1984] V.1 QB 405; [1984] 2 WLR 522; [1984] 1 All ER 881; Titchener v British Railways Board 1984 SC (HL) 34; 1984 SLT 192; [1983] 1 WLR 1427; [1983] 3 All ER 770; Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46;[2003] 3 WLR 705; [2003] 3 All ER 1122; Tompkin v American Brands V.219 F 3d 566 (6th Cir 2000); Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26; V.1956 SLT 135; [1956] AC 613; [1956] 2 WLR 707; Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 SC (HL) 92; 1960 SLT 321; White v Blackmore [1972] V.2 QB 651; [1972] 3 WLR 296; [1972] 3 All ER 158; Wilsher v Essex Area Health Authority [1988] AC 1074; [1988] 2 WLR 557;[1988] 1 All ER 871; Winnik v Dick 1984 SC 48; 1984 SLT 185; Woods v Multi-Sport Holdings Pty Ltd (2002) V.208 CLR 460; Wright v Dunlop Rubber Co Ltd (1972) V.13 KIR 255

INTRODUCTION: Margaret McTear was the pursuer in an action for damages in the Court of Session against Imperial Tobacco Ltd. On 24 September 1993 the action was sisted pending determination of the pursuerquote s application for Legal Aid, which was subsequently refused. The pursuer brought a petition in the Court of Session for judicial review of the refusal to grant legal aid. On 15 February 1995 the Lord Ordinary (Kirkwood) refused the petition (McTear v Scottish Legal Aid Board 11995 SCLR 611). The defenders enrolled a motion to ordain the pursuer to find caution for expenses. At advising on 9 April 1996 the Lord Ordinary (Gill) refused the motion. The pursuer reclaimed. The cause called before the Extra Division. At advising on 19 July 1996, the reclaiming motion was refused (1996 SC 514). The cause called before the Lord Ordinary (McCluskey) on the procedure roll. At advising on 23 October 2001 the Lord Ordinary allowed a proof before answer under deletion of certain averments.

The cause called before the Lord Ordinary (Nimmo Smith) for a proof before answer on 7, 8, 9, 10, 14, 15, 16, 17, 21, 24, 28, 29 October, 4, 5, 6, 11, 12, 13, 18, 19, 20, 21, 25, 26, 27 November and 2, 3, 5, 9, 10 December 2003, and 27, 28, 29, 30 January and 3, 4, 5, 6, 17, 18, 19, 20 February 2004.

JUDGMENTS: [EDITOR’S NOTE: PART 8 OF 9. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMMODATE ITS LARGE SIZE.]

(1) General Causation

[6.149] I propose to say at this point only a brief word about the expert witnesses. The demeanour of only two of them requires comment. Sir Richard Doll (who, of all the expert witnesses, was the only one not to avail himself of my invitation to be seated while giving evidence), made clear by his demeanour as well as the content of his evidence with what disdain he regarded those individuals who disagreed with his conclusion that the causal connection between cigarette smoking and lung cancer was proved. Prof Hastings, who regarded himself as an advocate for greater measures of tobacco control, carried this into his courtroom manner and his tendency to argue with counsel rather than to answer questions. I am bound to say that none of Prof Friend, Sir Richard Doll and Prof Hastings seemed to me to be mindful of the need to be independent (see para 5.18), and each appeared to me to engage in advocacy to a greater or lesser extent. Beyond these comments, my impression of all of the expert witnesses was that they gave evidence in a manner appropriate to their professional standing and the context of the proof. I propose therefore to concentrate principally on the content of the expert evidence, to the extent necessary to explain the views set out in the paragraphs which follow.

[6.150] Senior counsel for the pursuer did not seek to argue that the causal connection between cigarette smoking and lung cancer had been established by any branch of scientific inquiry other than epidemiology. He accepted that it was established on the evidence that the process by which lung cancer developed was not yet known (see para 6.30). He also accepted in effect, at para 6.56, that the averment for ITL (closed record, p 16) was proved, ‘that over several decades, an enormous research effort has been made to produce in the laboratory the kind of lung cancer reported to be statistically associated with smoking. However, researchers have been unable to produce such cancer in test animals exposed to fresh whole smoke.’

[6.151] To my mind, this means that, despite counsel’s criticisms of him, no issue was taken with the substance of Prof Idle’s examination in chief from paras 5.484-5.694. In the latter para he said that it was his judgment that cigarette smoking had not been established as a cause of human lung cancer. Indeed the cause of cancer was unknown. Moreover, the mechanisms by which lung cancer developed were not known. Researchers had not produced squamous cell lung carcinoma in laboratory animals by inhalation exposure to cigarette smoke. No constituent or group of constituents, as they existed in the complex mixture which was cigarette smoke, had been shown to be a cause of lung cancer in smokers. Provided that it is borne in mind that, as stated at para 5.484, he had been asked to give an opinion based upon his own area of scientific expertise, these appear to me to be inevitable conclusions from his very impressive survey of all the relevant literature. His area of scientific expertise did not extend to epidemiology, and he was not asked to consider epidemiological studies in the course of his investigations. Epidemiology apart, no researcher would in my view have reached a conclusion different from that of Prof Idle.

[6.152] Prof Idle’s research did not appear to me to have omitted reference to any publication (apart from the epidemiological literature and the reports and other publications based on it) which might have served to undermine his conclusions, nor did it appear to me that he misrepresented the substance of any publication to which he did refer. His own conclusions seem to me to have been fairly and objectively based on the literature he had considered. Whether or not they were justified depends, of course, on what a scientist with expertise in the relevant field is to be expected to take into account. What his evidence demonstrates is not simply that there is no basis in the literature relating to any branch of scientific inquiry other than epidemiology for holding that cigarette smoking can cause lung cancer, but that an enormous amount of effort, resources and ingenuity have been devoted to the pursuit of scientific inquiry on this issue, with essentially a negative result. If regard is had to his instructions to give an opinion based upon his own area of scientific expertise, Prof Idle appears to me to have been fully justified in stating that it could not be determined whether or not smoking caused Mr McTear’s lung cancer.

[6.153] No issue was taken at all with the evidence in chief of Dr Cohen, who conducted what I regard as a convincing evaluation of the carcinogenicity studies reported in the scientific literature, in order to determine whether exposure of laboratory animals to cigarette smoke by inhalation or intratracheal administration resulted in the development of squamous cell carcinoma of the lung. As stated at para 5.758, he reported that none of the inhalation and intratracheal carcinogenicity studies in the various animal species there referred to, and as reviewed by him, showed a statistically-significant increase in squamous cell carcinoma of the lung following exposure to cigarette smoke and indeed none of the authors of these studies reported a statistically-significant increase for this carcinoma. I was also impressed by his critique, at paras 5.759-5.764, of Dalbey et al (1980), on which IARC 1986 relied for the statement at p 194 (see paras 5.45 and 5.759) that, in one study involving long-term exposure of rats to cigarette smoke, tumours of the respiratory tract were induced. His view was that on the evidence that was before the working group and discussed in the monograph, they were not entitled to express this conclusion, having regard to the defective reporting of the results in Dalbey et al (1980). As I understood it, Dr Cohen’s evidence on this matter was not disputed by senior counsel for the pursuer. The consequence is that support for the statement in IARC 1986 is no longer there. Dr Cohen’s evidence therefore reinforces what I take from senior counsel for the pursuer’s reliance on the epidemiology alone, which is that, this apart, no scientist with appropriate expertise who studied the relevant literature would conclude that it had been established that cigarette smoking could cause lung cancer, let alone that it caused Mr McTear’s lung cancer.

[6.154] The results of experiments on animals do not necessarily apply to humans, though many in the scientific community must have regarded animal experiments as being capable of yielding results of relevance to the causation of lung cancer in humans, otherwise there could have been no justification for the expenditure of so much money and effort on animal experiments. It appears to me to be well established on the evidence that for many years epidemiological studies were regarded as serving to yield hypotheses, which could then be tested by properly constructed scientific experiments. On my reading of the evidence, it was principally on this basis, to test a hypothesis, that experiments were carried out at the Harrogate Laboratories, and not because it was already accepted by the tobacco industry that the causal connection between cigarette smoking and lung cancer had been established. It was agreed on all sides that, for ethical reasons, no scientific experiment of this kind, which would have involved, as part of a randomised controlled trial, the introduction of a group of randomly selected humans to cigarette smoking, could be conducted. So the animal experiments were of particular importance. The absence of support from the results of experiments on animals is not critical, but it is significant, because proof of the causal connection between cigarette smoking and lung cancer therefore depends solely on the conclusions to be drawn from the epidemiological studies, which on one view of the scientific approach could be regarded as yielding no more than untested hypotheses. Whatever view is taken, however, the pursuer’s case stands or falls on what has been proved before me about the epidemiological studies which have led to the judgment that the causal connection is proved.

[6.155] Everything then depends on the view that I take about the evidence relating to the epidemiology of cigarette smoking and lung cancer. What is clear, from the authorities discussed in paras 5.2 to 5.17, is that I have to consider whether the evidence of any of the expert witnesses has imparted to me special knowledge of the subject-matter of epidemiology, including published material, lying within the witness’s field of expertise, so as to enable me to form my own judgment about it and the conclusions to be drawn from it. This is particularly so because it was agreed by Sir Richard Doll, and (subject to what I have to say about his expertise) by Prof Friend that the determination of the question whether or not the statistical association between cigarette smoking and lung cancer was causal itself required an exercise of judgment to be formed in light of all the available, relevant evidence. There is a statement to this effect in USSG 1964, p 20, quoted at para 5.211 and elsewhere in this opinion. This is: ‘The causal significance of an association is a matter of judgment which goes beyond any statement of statistical probability.’Not only did Sir Richard Doll agree with this, he said, also at para 5.211, that a conclusion had to be formed on the evidence as a matter of judgment, as in a court of law. He said that in addition to the strength of the association all other relevant evidence had to be considered by an epidemiologist, in the same manner as a judge would do. I am satisfied that it is not open to me to form my judgment on the evidence without being taught how to do epidemiology to a sufficient extent, and without being provided with sufficient factual material, to enable me to decide whether it is proved, at least on the balance of probabilities, not only that there is an association between cigarette smoking and lung cancer, but that the proper conclusion to draw from this is that there is a causal connection between them.

[6.156] I cannot say that I have had full instruction in this, but I have picked up some snippets along the way. What is clear to me at the outset is that epidemiology is a discrete branch of scientific inquiry, or academic discipline, with its own peculiar terminology and techniques. It is no more part of medicine than it is of public health or statistics, though it draws on and contributes to all three. I have no reason to think that Sir Richard Doll, for example, who is regarded as one of the leading figures in epidemiology, would regard a consultant physician as being qualified to express views about epidemiology without proper instruction in that discipline.

[6.157] Epidemiology, as I understand it, is in itself the study of patterns of disease occurring in human populations and the factors that influence these patterns. An epidemiologist may collect primary data, by conducting a survey, or secondary data, derived from other researchers’primary data. Consideration requires to be given to bias, such as selection bias, information bias or recall bias, and to confounding, which I understand to be a variable (usually unrecognised) that influences the observed relationship between an exposure and outcome. An exposure may be either exogenous, such as exposure to asbestos at work, or endogenous, such as a genetic defect. An association may be found between an exposure and a disease which may be judged to be statistically significant, after consideration of the confidence interval. This is a range of values likely, with a specified degree of certainty, to contain the true population figure for a variable drawn from a sample study.

[6.158] If an association between an exposure and a condition is judged to be statistically significant, after taking account of the foregoing considerations, that in itself does not constitute a judgment that there is a causal connection between the exposure and the condition. The distinction between association and causation is not always recognised, and clearly gives rise to confusion in the minds of those who are insufficiently instructed in epidemiology. The finding of an association between an exposure and a condition or disease, even if judged to be statistically significant, does not of itself connote that a causal connection between the two is established. This is a matter for a further exercise of judgment, taking account of such criteria as the consistency, the strength, the specificity, the temporal relationship and the coherence of the association (see USSG 1964 (p 20) referred to at para 5.729). This must, I think, especially be so when, in the view of Sir Richard Doll, seen in the passage in Doll (1997) quoted at para 5.205, cigarette smoking is not a necessary cause nor a sufficient cause of lung cancer, and Dr James at para 5.476 agreed with this.

[6.159] The concept of relative risk requires discussion. This, as I understand it, is used to compare the incidence of a disease or condition in a group with a particular exposure to those without it. It is thus related to the concept of association, and is neutral: it does not connote that a causal connection is established. The use of the word ‘risk’in epidemiology appears to have led to some misunderstanding on the part of those unfamiliar with the terminology of this discipline. In ordinary language, ‘risk’in its primary sense refers to exposure to a hazard or danger, and carries the connotation of a potential causal connection between the risk and the subsequent misfortune or loss, should that eventuate. This has, in my view, led to a serious misunderstanding on the part of Prof Friend, who seems to have regarded the relative risk derived from a comparison of the incidence of lung cancer in smokers and non-smokers, which is such as to yield a positive association between the exposure and the disease, as connoting the establishment of a causal connection between the two. This is not so, though the relative risk may be of a magnitude such that a positive association may be judged to be strong enough for a causal connection is established.

[6.160] From what I have seen of the scientific literature, it appears possible to divide it into three categories, which I shall call the primary, the secondary and the tertiary literature. The primary literature contains, in Prof Gray’s useful phrase (see para 5.41), the ‘archival data’. In the field of epidemiology, it would be expected no doubt to explain the study design, the measures taken to control for bias and confounding, the statistical techniques used to determine whether or not an association has been found between an exposure and a condition or disease, such as the use of a confidence interval, and the process of reasoning which leads to any conclusions about the significance of the association and any judgment which is formed about a causal connection between the exposure and the condition or disease. There is, as I understand it, an expectation of transparency in the primary literature, so that the authors’work can be subjected to the scrutiny of their peers. Indeed, in many cases a paper is subjected to peer review before being accepted for publication in a learned journal. The scope for such scrutiny is central to the scientific process, because if a conclusion is based on sound research it should be capable of subsequent replication. A good example of this process may be found in Dr Lewis’s discussion of Doll et al (1994) at paras 5.832-5.838, including the statement at para 5.834 that he found the paper difficult to understand because he did not see the numbers behind it.

[6.161] What I call the secondary literature takes the form of review articles, where data from more than one publication in the primary literature are drawn together and re-evaluated. This process may serve to produce more reliable results, as being derived from a larger dataset which is the aggregate of the data in other studies, and may also serve to demonstrate errors or anomalies in previous studies. What I call the tertiary literature is different from the secondary literature because it involves the examination of both the primary and secondary literature without performing the kind of exercise which is done in the case of a review article. From what I have seen of them, documents such as USSG 1964 and IARC 1986 fall into this category: the authors conducted no original research themselves for the purpose of compiling the reports, nor did they subject data to the kind of process that would be used in a review article. Instead they act as compendia for summaries of numerous publications (as can be seen from the extensive lists of references), and the conclusions are therefore derived from a comprehensive, though not necessarily exhaustive, examination of all the relevant literature.

[6.162] I can say with confidence that no evidence was led about the primary literature which was sufficient to impart to me special knowledge of the relevant subject-matter and to enable me to form my own judgment about it and the conclusions to be drawn from it. This could have been done: it is clear that the survey of British doctors, on which Sir Richard Doll and colleagues have worked for many years, is regarded as a classic of its kind, both because of the pioneering nature of the research, a preliminary report of which was published as Doll and Hill (1950), and because this has been followed up with subsequent papers over several decades. I could at least have been shown these papers, which I assume disclosed the data, the statistical techniques and all the other considerations which led to the authors’conclusions, so that I could see for myself whether these conclusions were soundly based. The opportunity was there, with Sir Richard Doll in the witness box, and indeed Prof Friend for one thought that evidence would be given about this survey. Warning had been given on behalf of ITL, as early as the specification of documents referred to at para 1.24, that Sir Richard Doll’s data were of potential interest to the court. But in the event no attempt was made to show me the data.

[6.163] The fact that I have not been taken to any of the primary literature about the survey of British doctors, or indeed any other epidemiological study in which the conclusion was reached that there was a causal connection between cigarette smoking and lung cancer, appears to me to constitute a fundamental defect in the presentation of the pursuer’s case. As has been seen, many were persuaded about the conclusions of Doll and Hill, but others were not. Those who were must have done so because they had the opportunity of considering what had been published about the data, the statistical techniques and so on and regarded them as sufficient to justify the conclusions. Those who were not persuaded must also have had the opportunity of considering the primary literature. I cannot believe that any scientist of any standing would have reached a view, either in favour of or against Doll and Hill, on the basis of a reading of no more than their conclusions. Yet I have no basis for saying why those who were persuaded were right to be persuaded, and those who were not persuaded were wrong. A mere head count will not do.

[6.164] This is particularly so when regard is had to Sir Richard Doll’s evidence about those who disagreed with him. No attempt was made by him to explain why it was that they were wrong to disagree with him. They were all, on the face of it, people of some degree of professional standing who had put up reasoned objections to his conclusions. A reasoned response would have served to show why they were wrong. Yet Sir Richard relied before me principally on ad hominem arguments of a kind which is surely unacceptable in rational academic debate. His comments about Fisher may be read at paras 5.215-5.221, about Berkson at paras 5.222-5.228, about Seltzer at paras 5.244-5.248, about Yerushalmy at paras 5.229-5.232, about Eysenck at paras 5.233-5.237 and 5.254, about Burch at paras 5.239-5.243, 5.250 and 5.251, about Oldham at para 5.253, about Stern at para 5.255, about Gwynne Jones at para 5.256, about Feinstein at paras 5.258 and 5.259, about Passey at paras 5.260 and 5.261, about Little at para 5.273, about Tokuhata at para 5.274, about Hueper at paras 5.277-5.280 and about Rosenblat at paras 5.268 and 5.269. I can find little in these passages beyond assertions that those who disagreed with Sir Richard were wrong, coupled from time to time with epithets which I quite frankly found it unbecoming for a man of his stature to have chosen to use. If Sir Richard succeeded in winning over any of those whom he had previously failed to persuade, it cannot have been with these words.

[6.165] Great reliance was placed on Doll (1997), and in the course of his evidence in chief Sir Richard was taken over much of the text of this lecture. But I am unable to regard it as anything more than a form of memoir, in terms of self-congratulation no doubt appropriate to the occasion, but unilluminating as to the reasons why Sir Richard was right and those who disagreed with him were wrong. That is to say, he did not purport to publish his research in the lecture. While it was an interesting retrospective overview of the history of the debate, and served to establish that as a matter of fact there had been general acceptance of his conclusions, it did not attempt to enter into the merits of the debate.

[6.166] Senior counsel for the pursuer’s main argument, as I understood it, was that the conclusion that cigarette smoking could cause lung cancer had met with general acceptance in the scientific community by the late 1950s, was accepted by the media in the 1970s, was taught at medical schools and reflected in textbooks, and could be seen stated in a series of substantial multi-disciplinary reports, which he called the ‘multi-doctor studies’, listed at para 6.30, to the extent that the conclusions of IARC 1986 had never been challenged. This is all very well, but I have to say that I am reminded of the Bellman in Lewis Carroll’s The Hunting of the Snark, who said: ‘What I tell you three times is true’. But however often a conclusion may be repeated, it is only as sound as the research on which it is based, and of this I have seen none. However eminent and numerous the authors of a report may be, however many articles they may have read before preparing their texts, however many pages their reports may run to, are to no avail if I am then shown no more than the conclusions reached after all this effort. It is no good to tell me that a report is 400 or 600 pages long, and indeed to ask me to weigh the report in my hand, as counsel at one time asked me to do with UKHC 2000 Vol II, and its list of references extends to several hundred items, without letting me see any of the text on which the conclusions are based. Indeed, as senior counsel for the defenders pointed out, the very length of a report may emphasise the inappropriateness of going simply to its conclusions: the length shows how much ground there was to cover before the conclusions could be stated. The conclusions, taken on their own, are no more than oracular pronouncements.

[6.167] Although evidence was taken from Prof Friend during his examination in chief about the conclusions of some of these reports, it became apparent in cross-examination that he was not qualified to express any view as to whether or not these conclusions were justified. He said repeatedly that he was not an epidemiologist: see paras 5.95, 5.116, 5.119, 5.138 and 5.147. I cannot regard him as being of any assistance in determining the question whether the conclusion that cigarette smoking can cause lung cancer is justified on the basis of the epidemiology. Indeed, for all the reasons given by senior counsel for the defenders in his submissions at paras 6.64-6.85, I am unable to accept his evidence on any other issue of importance in this case. Sir Richard Doll was the only witness led on behalf of the pursuer who was in a position to give evidence which would enable me to form my own judgment about this issue, and for all the reasons I have given I would regard this opportunity as having been missed. I had no more than his ipse dixit. And no doubt it was because of this that the decision was taken by senior counsel for the defenders not to ask Dr Lewis, when in due course he gave evidence, about the issue of general causation: there was by then no case for ITL to answer.

[6.168] Because of these defects in the pursuer’s case as presented to me there is little more that I require to say about the expert evidence bearing on general causation. I should however add that I accept the evidence of Dr James, which was subjected to little challenge, that it could not be determined how much of the apparent rise in lung cancer mortality between 1900 and 1950 was real because of changes in population; in diagnosis and treatment; in medical knowledge and practice; in the role of hospitals; in the availability of medical care and in death certification and general statistical methods. This view was based on what appeared to me to be a comprehensive review of the literature and was shared by other pathologists. In consequence, doubt is cast on any epidemiological study which states that during that period there was a correlation between an increase in cigarette smoking and a subsequent increase in lung cancer mortality. I do not think it necessary to say more about this, because I was never taken to the primary research in which such a claim may have been made.

[6.169] A remaining point is that I accept the evidence of Prof Platz about the defects in the Auerbach studies, Auerbach et al (1957) and Auerbach et al (1961). These may be seen to have had defects, not only for the internal reasons to which Prof Platz pointed, but also because his own knowledge of VA hospitals served to cast doubt on the reliability of Auerbach’s original data. This in turn serves to undermine Dr Kerr’s reliance on Auerbach et al (1961) and subsequent studies, Auerbach et al (1975) and Auerbach and Garfinkel (1991), which essentially repeated the findings in the 1961 paper. Accordingly his view of the significance of squamous dysplasia may be affected. But since this was not ultimately an important part of the pursuer’s case I do not think it necessary to address it further. What Prof Platz’s critique of Auerbach, along with Dr Cohen’s of Dalbey et al (1980), Dr Lewis’s of Colby et al (1995) and Prof Gray’s of Henningfield (1984), which I mention elsewhere, is that there is good reason from these and other examples to think that the tertiary literature cannot necessarily be relied upon. If the conclusions of papers such as these in the primary literature may on critical examination be found to be unsound, then there may be more: and in that event, if the primary literature has been accepted without criticism by the authors of the tertiary literature, the latter may not be as reliable as one would expect.

[6.170] For all these reasons, and in addition for the reasons advanced in detail by senior counsel for the defenders, which I accept, in my opinion the pursuer has failed to discharge the burden of proving, in accordance with the requirements of the law of evidence relating to expert witnesses, that cigarette smoking can cause lung cancer. I am forced to say, following Lord Brandon in Rhesa Shipping Co SA v Edmunds, referred to at paras 6.147 and 6.148, that the state of the evidence is such that I simply cannot decide one way or the other whether cigarette smoking can cause lung cancer. Since the burden of proving this rests on the pursuer, she has failed to discharge this burden, and accordingly this branch of her case fails.

[6.171] I conclude this passage by emphasising that I am in no way finding that cigarette smoking cannot or does not cause lung cancer: I am simply saying that, approaching the evidence with an open mind, as I am bound to do, and applying the law relating to expert evidence, I am unable to find it proved that cigarette smoking can cause lung cancer.

(2) Individual causation

[6.172] I turn now to the question of individual causation, that is to say whether it is proved on the balance of probabilities that cigarette smoking caused Mr McTear’s lung cancer, in the sense that but for his smoking of cigarettes he would not have contracted it. I require to assume, for the purpose of considering this question, that, contrary to what I have held in preceding paras, the evidence led before me is sufficient to establish that cigarette smoking can cause lung cancer, ie I have to assume that the pursuer’s case on general causation succeeds. If so, this would have been because I accepted that sufficient evidence had been led about the epidemiology relating to the association between cigarette smoking and lung cancer to enable me to form my own judgment about it and to conclude that there was a causal connection between them. Nevertheless, I bear in mind that on any view of the matter only a relatively small minority of smokers contract lung cancer: see, for example, Dr Lewis’s evidence at para 5.796.

[6.173] The question then comes to be whether, if a causal connection is established between cigarette smoking and lung cancer in the general population on the basis of epidemiology, that conclusion can be applied to the question whether an individual’s, and in particular Mr McTear’s, smoking of cigarettes caused his lung cancer. Putting it at its simplest, as senior counsel for the pursuer sought to do, the question is whether, if in 90% of cases of lung cancer it was caused by cigarette smoking, it could be said in any individual case that it was more likely than not that his smoking of cigarettes caused his lung cancer.

[6.174] It was not suggested that it could be established by any other means in any individual case that the lung cancer was caused by cigarette smoking. Senior counsel for the pursuer agreed that the presentation of lung cancer was the same whether the individual was a smoker or a non-smoker. There was no evidence that it was possible by physical examination, by biopsy, by post mortem examination or by any other medical or scientific means to establish that in an individual case of lung cancer it was caused by smoking; or, to put it another way, without the taking of a history from the patient, it was not possible to form any opinion about the cause of his lung cancer.

[6.175] As has been seen, counsel were divided on the use of the word ‘diagnosis’. According to the Oxford English Dictionary, ‘diagnosis’in its medical sense means ‘determination of the nature of a diseased condition; identification of a disease by careful investigation of its symptoms and history; also, the opinion (formally stated) resulting from such investigation.’While I can see that the taking of a history may be relevant to the diagnosis of a condition or disease in some cases, this is not such a case, in the absence of any distinguishing features between lung cancers in smokers and lung cancers in non-smokers. I do not overlook that Dr Kerr said (para 5.343) that when specimens were submitted to him for examination, he might or might not be told the smoking history of the patient, and if he was given any history at all, it would more often be in the unusual situation where such a specimen was sent to him in a non-smoker, simply to highlight the fact that he was being asked whether the patient had lung cancer and he ought to know that the patient was a non-smoker. It should be noted, however, that Dr Kerr did not say that the history assisted him in the performance of his task of diagnosis; and it may be doubted, from his account, whether it assisted the physicians. In my opinion what can properly be regarded as diagnosis in the circumstances of the present case, when considering Mr McTear’s lung cancer, was that he had contracted squamous cell carcinoma of the lung. That it may have been caused by his cigarette smoking was no more part of the diagnosis than a history of a skiing accident, for example, as part of the diagnosis of a fracture of a vertebra. A history of cigarette smoking in an individual may of course be added to the statistics upon which epidemiology is based, but it is not part of the diagnosis in the individual.

[6.176] The difficulty of using statistics derived from epidemiological studies in determining causation in individual cases is well-recognised. In Callum (1998), referred to at para 5.802, it was stated:

‘People who have never smoked cigarettes die from diseases that smoking can cause, and to that same extent some cigarette smokers too can die of the disease but not as a result of their smoking. The matters used to estimate the number of deaths caused by smoking are all based on a proportion of deaths caused by smoking, and cannot be traced back to individuals.’Dr Lewis said that he agreed with this statement. In Peto and Doll (1992), referred to in the evidence of Dr McCarroll at para 5.25, the authors stated that for most deaths that were in fact due to tobacco there was no reliable way to know that those particular deaths were due to tobacco. Even though the epidemiologist might be able to say with confidence, in the example given, that about half of the deaths from myocardial infarction were due to tobacco, ‘there would be no way for the medical practitioners certifying those deaths to know which ones to attribute to the habit.’Dr McCarroll accepted this. Dr James’s view, as stated in James et al (1992, see para 5.450) was that the difficulty lay in applying an epidemiological and statistical association between smoking and several potentially fatal diseases to individual cases.

[6.177] As Sir Richard Doll stated in Doll (1997), in the passage quoted at para 5.205, cigarette smoking is not a necessary cause nor a sufficient cause of lung cancer, but it can be an important cause (as few people would have developed the disease if they had not smoked). If that is true in a population, then all the more so is it true in an individual case. It is striking that Sir Richard Doll was not asked for his opinion whether cigarette smoking caused Mr McTear’s lung cancer; I agree with senior counsel for the defenders’submission that the inference is that this was because it was impossible to tell, on the basis of epidemiology, whether or not cigarette smoking had caused any individual case of lung cancer.

[6.178] Having regard to what I have already said about Dr McCarroll, I mean no disrespect to her when I express the view that she was not qualified to conclude that Mr McTear’s lung cancer was probably caused by his cigarette smoking. As I have said, I do not regard the issue of causation as being part of her diagnosis. It may serve the purposes of a general practitioner well enough, particularly when she has been taught at medical school that most cases of lung cancer are caused by cigarette smoking, to reach such a conclusion in an individual case. But she had never had occasion to examine the underlying science, with particular reference to the question whether statistical methods used in epidemiology could be applied to the issue of causation in individual cases.

[6.179] In my view, the pursuer’s case on individual causation depends on the evidence of Prof Friend. As I have said, I have to assume for present purposes that it has been proved before me, on the basis of the epidemiology, that cigarette smoking can cause lung cancer. So I assume that it has been proved that 90% of cases of lung cancer are caused by cigarette smoking. If this is taken as the starting point, then Prof Friend’s clinical experience does no more than bear out the statistics upon which the epidemiology is based: it does not add to the conclusion that there is a causal connection between cigarette smoking and lung cancer. The real question is whether, notwithstanding the views referred to above, Prof Friend was correct in making use of statistics to reach conclusions in individual cases.

[6.180] I find Dr Lewis’s evidence entirely convincing. It is consistent with the above views and gives extensive reasons for concluding that epidemiological data cannot be used to draw conclusions about the cause of disease in any individual. This opinion was hardly subjected to cross-examination, except in a brief passage at para 5.843, the rest of his cross-examination being taken up with epidemiological issues. In senior counsel for the pursuer’s submissions no attempt was made to argue that I should not accept Dr Lewis’s conclusion, still less to discredit the extensive reasons he gave for reaching it. It is accordingly sufficient in my view to state that I accept, for the reasons given by him, and under reference to the literature referred to by him, that epidemiological evidence cannot be used to make statements about individual causation. The information provided in an observational epidemiology is generally such that it can neither confirm nor refute a causal relationship, particularly when the exposure in question is not specifically associated with a certain condition (ie the exposure is always associated with the condition, and vice versa). Epidemiology cannot provide information on the likelihood that an exposure produced an individual’s condition. The population attributable risk is a measure for populations only and does not imply a likelihood of disease occurrence within an individual, contingent upon that individual’s exposure. The fact that cases and non-cases can emerge both from the unexposed and the exposed groups show that the likelihood of the individual occurrence cannot be reliably predicted from his or her exposure group membership alone. The group estimates obscure the underlying heterogeneity of the population, so that it is entirely possible that other group memberships besides exposure, like genetic profile, socio-economic status, workplace, diet and other exposures make a major contribution to disease occurrence. The question of using epidemiological data for individual causation raises the problem of identifying a particular individual who was harmed by the exposure. While models such as the assigned share concept, derived from attributable fractions, have attempted to deal with this, they suffer from the limitations mentioned by Dr Lewis. The attempt to identify exposure as the sole cause of disease in an individual produces a statement counter to fact in that it implies that the individual would have remained healthy if the exposure had not occurred. This, as Dr Lewis said, is not provable and cannot be derived from epidemiological data.

[6.181] There is ample evidence, for which it is sufficient to refer to the papers discussed by Dr Lewis at paras 5.810-5.828, that there are risk factors for lung cancer other than cigarette smoking. Some of these risk factors were present in Mr McTear’s case, as submitted by senior counsel for the defenders at para 6.135: personality traits, family history of lung cancer, stressful lifestyle, viral infections of the respiratory tract, alcohol abuse, vitamin A deficiency, low socio-economic status and residence in an urban area of west Scotland. On the evidence, a non-smoker exposed to any or all of these risk factors can develop lung cancer. Whether or not there is a causal connection between any of these risk factors and lung cancer is a matter of judgment, which I do not require to exercise for present purposes. What is significant is that in Mr McTear’s case these risk factors were present and, if epidemiology can be used, as Prof Friend sought to use it, to determine whether Mr McTear’s cigarette smoking caused his lung cancer, then account requires to be taken of these other risk factors. I do not agree with senior counsel for the pursuer’s submission that it was for ITL to prove that Mr McTear’s lung cancer was due to some cause other than cigarette smoking. The burden of proving individual causation is on the pursuer, and in assessing the evidence of Prof Friend I am entitled to have regard to the extent to which he considered and, if so, found reasons for discounting other possible causes.

[6.182] In the end, it was demonstrated all too clearly in the cross-examination of Prof Friend that he did not understand the concept of attributable fraction and how it could not be used to determine the probability of causation in an individual. This of course was because, as he himself said repeatedly, he was not an epidemiologist; and the cross-examination only served to demonstrate that he had no real understanding of the concepts and techniques used in that branch of science.

[6.183] As senior counsel for the defenders said, no witness gave evidence, apart from that already discussed, that but for Mr McTear’s smoking he would not have developed lung cancer; no witness said that it was more likely than not that his lung cancer was caused by his smoking, except on the basis of Dr McCarroll’s general knowledge and on the basis of Prof Friend’s misapplication of attributable fraction. For the above reasons I do not regard the evidence of either of these two witnesses as constituting an acceptable basis for holding it proved that cigarette smoking did cause Mr McTear’s lung cancer.

[6.184] The problem ultimately is that, as was demonstrated by the evidence, in the state of modern science there is no way of telling whether in an individual case, such as that of Mr McTear, a lung cancer was caused by cigarette smoking. Still less is there any way of telling whether a smoker who has contracted lung cancer has in fact contracted it as a result of some cause other than smoking, or would not in any event have gone on to contract lung cancer even if he had not been a smoker. This last point is necessarily so, when there are risk factors other than smoking which have been identified as being associated with lung cancer, and when on any view of the matter about 10% of cases of lung cancer are found in non-smokers. The fallacy of applying statistical probability to individual causation has already been recognised judicially, in the passage from the opinion of Lord Mackay of Clashfern in Hotson v East Berkshire Area Health Authority quoted at para 6.28.

[6.185] In the result, I am not in a position to hold, and do not purport to hold, that Mr McTear’s lung cancer was not caused by his cigarette smoking. But I am not satisfied, on the basis of the evidence led before me, that it has been proved that it probably was caused by his smoking, in the sense that it is more likely than not that but for his smoking he would not have contracted lung cancer. The pursuer fails on this branch of the case also.

Addiction

[6.186] I turn now to consider the averment for the pursuer that:

‘Tobacco is addictive in the sense that once individuals such as [Mr McTear] have started smoking it is difficult for them to wean themselves off the habit. It is more addictive than cocaine.'(slosed record, p 22D-E) This is supported by a reference in the pursuer’s pleadings to USSG 1988. ITL deny these averments and aver that smoking is correctly regarded as a habit and not an addiction. They go on to aver that people choose to smoke for a variety of reasons, that smokers derive benefits from smoking, that over the years many millions of smokers have stopped smoking through choice, and that while some smokers may find it difficult to stop smoking, smokers who choose to stop smoking are able to do so.

[6.187] It should be noted that there is no reference in the pursuer’s pleadings to DSM-IV or ICD-10. The position of ITL, as stated in the letter by the corporate affairs director of Imperial Tobacco Group plc dated 20 January 2000, was that they agreed that nicotine could be regarded as addictive by reference to DSM-IV and ICD-10 but this did not mean that smokers were unable to stop smoking if they chose to do so (see para 2.11). No evidence was led about the terms of ICD-10, and the terms of DSM-IV were only referred to in the evidence of Prof Friend at para 5.167, where he agreed that the passage in the introduction relating to the use of DSM-IV in forensic settings was in general terms the correct approach to take. This passage urged the use of caution in the drawing of conclusions from the fact that an individual’s presentation met the criteria for a DSM-IV diagnosis. So I am unable to give further content to the position of Imperial Tobacco Group plc before the House of Commons Health Committee, and I must consider the averments for the pursuer on their own terms.

Submissions for Mrs McTear

[6.188] Senior counsel for the pursuer submitted that the averments for ITL were an example of inappropriate pleading, having regard to the position adopted before the House of Commons Health Committee, and by Mr Davis in evidence. He relied on passages in USSG 1988 and RCP 2000. The former were brought out in the evidence of Prof Friend at paras 5.66-5.73 and in the evidence of Prof Gray at paras 5.418, 5.443 and 5.444, and the latter in the evidence of Prof Friend at paras 5.74-5.83 and in the evidence of Prof Gray at para 5.394. Reference was also made by counsel to IARC 2004, of which only the conclusions were available at the time of the proof.

[6.189] Counsel submitted that the evidence showed that it was difficult for smokers to give up smoking. The evidence was that it was nicotine in the cigarette which was the drug which caused the craving. That was the conclusion of ‘these two large multi-doctor reports’. In further discussion counsel submitted that there were two factors working together, ‘the positive side, to get the benefits that smoking gives, and also the withdrawal effects from the removal of the nicotine’.

[6.190] Counsel relied on Prof Friend’s evidence in this regard. This, he submitted, demonstrated that there were many people who found it extremely difficult to give up smoking. They were driven by two features mentioned by Prof Friend, the need to have another cigarette, and the symptoms of withdrawal. The overwhelming evidence was that it was nicotine in the tobacco which caused addiction, the difficulty of giving up. Counsel said that he was unwilling to explore the concept of addiction further than to rely on the fact that many, if not most, cigarette smokers did indeed find it very difficult to give up.

[6.191] Counsel submitted that Prof Hastings, on whose evidence he also relied, came across as an articulate and able Professor of Social Marketing, who was obviously well thought of. He succeeded in getting his message across in a number of areas. Counsel agreed with my impression, that Prof Hastings was rather determined to express a point of view which was not necessarily an answer to the question he was being asked. This was, he said because he had strong views on the matter. Counsel relied on his evidence for the effects of advertising, which encouraged people to keep on smoking when they might otherwise have given up in response to public health campaigns and publicity in the media about the risks to health of smoking. This meant that there was a very confused picture indeed, with different people saying different things. MacAskill et al (2002), of which Prof Hastings was one of the authors, demonstrated why it might be particularly difficult for Mr McTear, having started smoking and being a heavy smoker, to be able to give up.

[6.192] Counsel submitted that Prof Gray was prepared to accept that smoking was addictive in a descriptive sense. If this meant what was averred on behalf of the pursuer, that it was difficult for people who started smoking to wean themselves off the habit, then there was no dispute. But Prof Gray denied that nicotine was the drug which caused the addiction. He was prepared to say that it would have a contributory influence. Prof Gray’s evidence represented a minority view from a tobacco man. He was a psychologist and not a doctor. Some of his research had been funded by the tobacco industry. This meant that I had to look carefully at his evidence to see whether there might be a bias towards that industry. His evidence about addiction needed to be assessed against the admission of ITL to the House of Commons Health Committee, that nicotine could be regarded as addictive by reference to DSM-IV and ICD-10. He accepted that he was out on a limb compared with many distinguished scientists and doctors.

[6.193] Counsel made the point that USSG 1988 was a very impressive document. Over 50 scientists were involved and it extended to 600 pages. Their conclusions were that cigarettes were addicting and nicotine was the drug in tobacco which caused addiction. So Prof Gray was going against the views of a much larger body of scientists and doctors. In any event he accepted that a smoker might find it very difficult to stop smoking, which was the pursuer’s case.

Submissions for ITL

[6.194] Senior counsel for the defenders submitted that it was quite inappropriate on the evidence to seek to dismiss Prof Gray’s evidence, as senior counsel for the pursuer had done, by calling him a ‘tobacco man’. He was the only witness who was qualified to give opinion evidence on the question of addiction. He was in fact a distinguished professor of psychology from a leading academic institution and had researched and published extensively on a range of subjects to do with the brain and its relationship to behaviour. It was not a proper ground of criticism that he was not a doctor: he did not come to give evidence as a doctor but as a research scientist. His evidence was based on a wide reading of the literature. He had plainly given detailed consideration to the issues he was asked to address. He gave good and sufficient reasons for the opinions which he expressed. He could not legitimately be criticised for having sought and received funding from the tobacco industry, in particular for work of potential therapeutic value in relation to Alzheimer’s disease. This was particularly so when he did this at a time when it was not unusual to take funding from the tobacco industry, and at a time when funding from other sources was limited. In any event, while most, if not all, of his research into nicotine received some support from the tobacco industry, this formed only one part of his very extensive body of publications. It was not correct to say that he denied the nicotine effect in tobacco: in his opinion, nicotine affected cognitive function and mood, and it was because of these effects that people chose to smoke, among other reasons. He denied that nicotine, or indeed tobacco, in some way affected the smoker’s ability to choose whether to smoke or not. It was also said of him that he was ‘out on a limb’. There were, however, those who supported his opinion on the addiction model: Warburton (1988a and 1988b), and Frenk and Dar (2000), in a passage which was unchallenged by Prof Friend. Indeed MacAskill et al (2002) lent support to the functional model proposed by Prof Gray. In counsel’s submission, what was important was not the ‘head count’, but the cogency of Prof Gray’s reasoning for his conclusions, which was not effectively challenged either in evidence or in submission.

[6.195] Counsel then turned to senior counsel for the pursuer’s submission that ITL’s pleadings about the addiction issue were inappropriate. After discussion at the procedure roll on the question whether an averment for Mrs McTear that tobacco was addictive was sufficiently specific to give fair notice of the characteristics of tobacco that were relied upon, an amendment was allowed so that the pleadings were now as quoted above. Counsel submitted that, on a proper construction, the averments for ITL meant that it was not true of all smokers that it was difficult for them to wean themselves off the habit. Taking the denial with its qualification, he submitted, it was clear that the defenders’response to the pursuer’s case on addiction was that not every smoker found it difficult to stop and that any smoker who chose to do so could stop.

[6.196] Counsel went on to submit that ITL’s averments were proved. Mr McTear stopped smoking. Mrs McTear stopped smoking. Sir Richard Doll, having been a smoker for 20 years, stopped smoking ‘without difficulty’. USSG 1988 stated (p 466):

‘[T]here are approximately 41 million former smokers in the United States. Approximately 90 percent of former smokers report that they quit smoking without formal treatment programs or smoking cessation devices’.Prof Gray expressed the opinion that different smokers sought different outcomes from smoking, but an individual smoker was likely to smoke for different reasons at different times, and smokers continued to smoke because of the benefits they derived from it, not because they were addicted to it. Prof Gray’s views found empirical support in Prof Hastings’s research in socially deprived areas of Glasgow, which found that smoking met a multitude of needs in the lives of the populations studied by the researchers.

[6.197] Replying to senior counsel for the pursuer’s submission that ITL had admitted to the House of Commons Health Committee that tobacco was addictive, senior counsel for the defenders reminded me that ITL were asked questions in writing, one of which was whether nicotine could be regarded as addictive by reference to DSM-IV and ICD-10. There was no reference to either of these in the pleadings, and objection was taken to references being made to them in the evidence. Although ITL agreed that nicotine could be regarded as addictive by reference to these manuals, they said that this did not mean that smokers were unable to stop smoking if they chose to do so. Because the pursuer had no pleadings about DSM-IV or ICD-10, there was very limited evidence about the significance of the characterisation of nicotine as addictive by reference to the diagnostic criteria, but Prof Friend accepted that the criteria in DSM-IV were meant to be applied in the diagnosis of an individual by those capable of exercising clinical judgment. In addition, DSM-IV stated in terms at p xxxiii:

‘[T]he fact that an individual’s presentation meets the criteria for a DSM-IV diagnosis does not carry any necessary implication regarding the individual’s degree of control over the behaviors that may be associated with the disorder.’Having regard to these considerations, senior counsel for the defenders invited me to reject senior counsel for the pursuer’s allegations that ITL’s pleadings about addiction were inappropriate.

[6.198] Senior counsel for the defenders pointed out that USSG 1988 concluded that nicotine had pharmacological effects similar to drugs such as cocaine and heroin. Reference was made to Henningfield (1984) and a number of other studies using the same methodology, which it was claimed showed similar levels of reported euphoria. RCP 2000 in turn referenced USSG 1988 and Henningfield (1984) for the same purpose. The methodology used in these studies was quite comprehensively criticised by Prof Gray in his evidence, under reference to Warburton (1988a). Accordingly, the conclusions of Henningfield (1984) and other studies adopting the same methodology could not be relied on for the proposition that tobacco had pharmacological effects similar to drugs such as cocaine and heroin. So the conclusions to this effect in the public health reports could not be relied on. Another aspect of this was that Henningfield was one of the scientific editors of USSG 1988 and he was a contributor to RCP 2000. RCP 2000 was also criticised in relation to its use of statistics on quitting.

[6.199] Counsel submitted that the pursuer led no witness who had any expertise on the matter of addiction. Moreover, Prof Hastings was plainly committed to the cause of tobacco control, regarded himself as an advocate for greater measures of tobacco control, and was on record as saying that the tobacco industry was to lung cancer what the mosquito was to malaria. He considered that the world would be a better place if people did not smoke tobacco. He had been an active campaigner for a ban on advertising and was a member of the Advisory Council of ASH. He was almost invariably inclined to respond to questions by making comments that were argumentative rather than by giving a direct answer to the question. His career had been in social marketing, which he described as a discipline the purpose of which was to change behaviour with a view to health benefits. All of this served to explain his perspective. His interest was in factors that might influence people’s smoking behaviour.

[6.200] In any event, as the evidence turned out, and having regard to senior counsel for the pursuer’s submissions, it was clear that there was little, if anything, between the parties on the substance of this part of the pursuer’s case. The only difference of substance in the pleadings appeared to be that, while the pursuer was asserting that anybody who smoked would find it difficult to wean himself or herself off the habit, it had all along been the position of ITL that, while some people might find it difficult, people could, if they chose, stop smoking. Ultimately, in his submission, it was ITL’s position which was made out on the evidence: it was accepted that it might be difficult for some individuals to stop smoking.

[6.201] This left the pursuer’s case deficient in this important respect. It was not now, nor could it be, suggested that if Mr McTear tried to stop smoking and did not stop smoking it was because he was unable to do so. The position might have been different if it were proved that his free will to exercise a decision to stop smoking had been overcome by nicotine or something else in tobacco: one then would have to look at the case in that context. But on the evidence there was nothing left other than that some people found it difficult to stop smoking. Accordingly, counsel invited me to deal with this part of the pursuer’s case by finding that some smokers might find it difficult to stop smoking, but that any smoker, if he or she chose to do so, could stop smoking. He also asked me to reject the suggestion that I should make a finding that tobacco was addictive in any sense. This was because, first, there were a number of different definitions of the word ‘addictive’. If I made a finding that some people might find it difficult to stop smoking when they were smokers, that disposed of the issue between the parties and did not introduce the difficulties and confusion that the use of the word ‘addictive’would introduce. Secondly, counsel asked me expressly to decline to make a finding that ‘tobacco is more addictive than cocaine’on the basis that no evidence had been led in support of this.

Discussion

[6.202] Although counsel claimed that the parties were not far apart on the question of addiction, the foregoing account of their submissions may make them seem to be further apart. I can say at the outset that the averment for the pursuer that tobacco is more addictive than cocaine is not proved: the pursuer led no evidence in support of this apart from the references to heroin and cocaine in the passages in USSG 1988 referred to in the evidence of Prof Friend (paras 5.66, 5.67 and 5.72). Prof Friend was not, however, qualified to express any view about this. As he said himself, at para 5.72, he was not an addiction specialist and not a psychiatrist, he had only had the opportunity to read some of the literature (ie the reports referred to above). He nevertheless said that he believed that nicotine resulted in a very strong addiction for many people, which he clearly regarded as being ‘an intense physical addiction, as a result of a chemical process which had been very carefully studied’. In cross-examination, at paras 5.162-5.171, Prof Friend demonstrated not only a lack of familiarity with the relevant literature, but also a forgetfulness about literature in which he had participated, BTS 1990 and Lennox et al (2001), which would support the conclusions that ability to stop smoking did not appear to be affected by daily cigarette consumption, sex, age, or heaviness of smoking, but there was a significant inverse association with a level of social deprivation. I am not therefore prepared to accept Prof Friend’s evidence about addiction, primarily because this did not appear to me to lie within his field of expertise.

[6.203] By contrast, Prof Gray appeared to me to be well qualified to give evidence about addiction, and I found his evidence to be persuasive. I reject the criticism of him that he was a ‘tobacco man’. I detected no bias in his evidence, which appeared to me to be presented with moderation, internal coherence and appropriate reference to authority. Rose et al (2000) gave support for his view that, as far as the pleasure and satisfaction of smoking were concerned, the principal route did not involve nicotine, but lay somewhere else in the complex behaviour that was smoking a cigarette. Support for the view that smoking had an intrinsic anti-depressant action was found in Kendler et al (1993), and there was laboratory evidence that nicotine could have the effect of reducing anxiety. Accordingly Prof Gray’s overview that nicotine and smoking tobacco had a remarkably broad spectrum of activity in alleviating negative mood and emotion, including depression, irritability and anxiety was supported by the literature. This justified the functional view which he favoured.

[6.204] Prof Gray’s criticisms of the ‘addiction’model appeared to me to have force. I was particularly impressed by the criticism of Henningfield (1984). As had been brought out in Warburton (1988a), Henningfield’s histograms when re-plotted on the same scale did not provide strong support for Henningfield’s conclusion. Nicotine could then be seen to be, at best, a weak euphoriant and did not act like other compounds in the maintenance of other kinds of substance self-administration. Prof Gray also considered the question of tolerance and contrasted withdrawal symptoms from quitting smoking and from quitting heroin. His discussion of these supported the view that the behavioural and psychological changes observed in quitting smokers were more reasonably interpreted as reflecting non-specific dysphoria consequent upon disruption of a habit and loss of the pleasure or other benefits the habit provided.

[6.205] I was impressed above all by Prof Gray’s critique of the mechanistic view embodied in the proposition that smokers did not smoke out of choice but because they became addicted to nicotine. As he pointed out, under the normal humanist view of life people chose to do things. The mechanistic view was not supported by the data about the number of people who had given up smoking. Support for the functional view was found in Warburton (1988b). Among the functional effects of smoking, of particular relevance in Mr McTear’s case were those concerned with mood control. If smoking tobacco alleviated depression, not because it had a direct antidepressant effect, but rather because, for a habitual smoker, deprivation of smoking had a depressant effect, this could explain Mr McTear’s behaviour on the occasions when he temporarily gave up smoking. There was little by the way of direct challenge to this evidence in cross-examination. He said that it was not possible to say why one smoker succeeded in quitting while another did not, though the answer might lie in the smoker’s individual circumstances. He agreed that it could be taken from MacAskill et al (2002) that people in lower socio-economic groups in Scotland were more likely to smoke and less likely to give up. But, as he pointed out, this observation was consistent with the functional model.

[6.206] Prof Gray’s evidence accordingly is consistent with the averment for the pursuer that once individuals such as Mr McTear have started smoking it is difficult for them to wean themselves off the habit. It provides no support for the proposition that tobacco is more addictive than cocaine, or more addictive than heroin for that matter. There is no evidence before me which provides support for the conclusion in USSG 1988 that the pharmacological and behavioural processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine. Indeed, in so far as this relied on Henningfield (1984), it lacked a sound scientific basis.

[6.207] What I take particularly from Prof Gray’s evidence, and his preference for the functional model, is that it retains the element of choice. The ability to choose is a central feature of the individualist philosophy of the common law which I discuss in Pt VII. The word ‘addiction’is of questionable use in describing some forms of repetitive behaviour which the individual may or may not wish to alter. In everyday parlance it has come to be applied to such behaviour as shopping, for example, and even in its more scientific use it appears to be capable of being applied to behaviour such as gambling which does not involve the ingestion of any substance (though no doubt effects on the chemistry of the brain would need to be considered). If ‘addiction’can be applied in such a wide sense it ceases to be useful for any occasion, such as the present, when precision of meaning is required, though it may serve a legitimate purpose in the public health context. Even in that context, the definition of ‘addiction’has changed over time: USSG 1964, in the passage quoted at para 5.163, said that the tobacco habit should be characterised as an habituation rather than an addiction. I prefer to concentrate on the behaviour and thought processes that the word has been used to describe.

[6.208] The evidence of Prof Hastings appears to me to add nothing for present purposes. The fact that individuals may be exposed to advertising, and even influenced by it, does not mean that they are precluded from exercising a free choice. Advertising simply adds to the complexity of the individual’s decision-making process. People are well accustomed to weighing up mixed messages, and to making their own decisions and choices. In any event Prof Hastings himself disclaimed any such mechanistic account of the influences to which an individual such as Mr McTear might be exposed. For an individual to say that he has found difficulty in altering or giving up a habit, as Mr McTear did of his smoking, because he is ‘addicted’, appears to me to be little more than an attempt to absolve himself of individual responsibility for his own decisions and choices. In my view a smoker such as Mr McTear makes a deliberate choice as to whether to start smoking, whether to continue smoking or to stop smoking, and indeed whether or not to smoke a cigarette on any particular occasion. The fact that smokers such as Mr McTear may find it difficult to give up does not appear to me to deprive them of the element of free will which is fundamental to the individualist philosophy of the common law (see paras 7.46 and 7.179).

PART VII: LIABILITY

[7.1] Although I have held that the pursuer has not discharged the burden of proving that cigarette smoking can cause lung cancer and, if so, that it caused Mr McTear’s lung cancer, so that the pursuer’s case on both general causation and individual causation fails, I have nevertheless to consider whether ITL should be found liable on the assumption that, contrary to what I have held, the pursuer has succeeded in both these respects. It should be borne in mind that the remainder of this Part proceeds on this hypothesis.

Negligence

Submissions for Mrs McTear

[7.2] Senior counsel for the pursuer began his submissions on liability by saying that this was a defective product liability case, but the Consumer Protection Act 1987 (cap 43) did not apply because a special exemption was made for cigarettes at sec 10(7)(f). Accordingly the matter proceeded at common law. This was as summarised in Salmond and Heuston, The Law of Torts, p 296:

‘Before 1932 it was extremely doubtful whether there was any liability on the part of a manufacturer of goods to the ultimate consumer or user with whom there was no contractual relationship, when there was no fraud, when he did not know the article to be dangerous, and when it did not belong to the category of things dangerous per se. But in that year the decision of a majority of the House of Lords in Donoghue v Stevenson, an appeal from the Court of Session, established that in such circumstances the manufacturer might owe a duty to the ultimate consumer.’

[7.3] Counsel founded therefore primarily on Donoghue v Stevenson 1932 SC (HL) 31. In this case the pursuer brought an action of damages against a manufacturer of ginger beer, averring that she had been poisoned by ginger beer, which was bought from a retail dealer in an opaque sealed bottled in which it had left the manufacturer’s premises, and which contained a decomposed snail. The House of Lords held, by a majority, that where the manufacturer of a product intended for human consumption sent it out in a form which showed that he meant it to reach the ultimate consumer in the form in which it left his factory, with no reasonable possibility of intermediate examination by the retailer or consumer, and with the knowledge that want of reasonable care on his part in the preparation of the product might result in injury to the consumer, the manufacturer owed a duty to the consumer to take such care, and would be liable to the consumer in damages if he or she suffered injury through the failure to take such care.

[7.4] Lord Atkin said (p 43):

‘The sole question for determination in this case is legal. Do the averments made by the pursuer in her pleadings, if true, disclose a cause of action? I need not restate the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.’

[7.5] Lord Atkin said (p 57):

‘If your Lordships accept the view that this pleading discloses a relevant cause of action, you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.’

[7.6] Lord Thankerton said (pp 59, 60):

‘There can be no doubt, in my opinion, that, equally in the law of Scotland and the law of England, it lies upon the party claiming redress in such a case to show that there was some relation of duty between her and the defender which required the defender to exercise due and reasonable care for her safety. …The special circumstances from which the appellant claims that such a relationship of duty should be inferred may, I think, be stated thus, namely, that the respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact, and that she has been injured by the harmful nature of the article owing to the failure of the manufacturer to take reasonable care in its preparation prior to its enclosure in the sealed vessel, will be entitled to reparation from the manufacturer.

In my opinion, the existence of a legal duty under such circumstances is in conformity with the principles of both the law of Scotland and the law of England.’

[7.7] Lord Macmillan said (p 72):

‘It must always be a question of circumstances whether the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. I can readily conceive that, where a manufacturer has parted with his product and it has passed into other hands, it may well be exposed to vicissitudes which may render it defective or noxious, for which the manufacturer could not in any view be held to be to blame. It may be a good general rule to regard responsibility as ceasing when control ceases. So, also, where between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer’s product before he re-issues it to the actual user. But where, as in the present case, the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer, and the manufacturer takes steps to ensure this by sealing or otherwise closing the container so that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. The intervention of any exterior agency is intended to be excluded, and was in fact in the present case excluded.’

[7.8] Counsel said that he referred to Donoghue v Stevenson as establishing that in such circumstances the manufacturer might owe a duty to the ultimate consumer. He founded particularly on the speech of Lord Atkin as effectively applying the wider ‘neighbourhood’principle propounded in this case to manufacturers. Counsel submitted that the manufacturers’duty had been given a broad interpretation and was not limited to food and drink, but extended to any item capable of causing damage, such as an article of clothing (Grant v Australian Knitting Mills Ltd [1936] AC 85). The appellant in this case contracted dermatitis of an external origin as a result of wearing a woollen garment which, when purchased from the retailers, was in a defective condition owing to the presence of excess sulphites which, it was found, had been negligently left in it in the process of manufacture. The presence of the deleterious chemical in the garment was a hidden and latent defect, and could not be detected by any examination that could reasonably be made; nothing happened between the making of the garment and its being worn to change its condition; and the garment was made by the manufacturers for the purpose of being worn exactly as it was worn in fact by the appellant. It was held, applying the principle of Donoghue v Stevenson, that these facts established a duty to take care as between the manufacturers and the appellant for the breach of which the manufacturers were liable in tort. In delivering the judgment of the Privy Council, Lord Wright said (p 105):

‘The principle of Donoghue’s case can only be applied where the defect is hidden and unknown to the consumer, otherwise the directness of cause and effect is absent: the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief follows, because it follows from his own conscious volition in choosing to incur the risk or certainty of mischance.’

[7.9] Counsel submitted that cigarettes were themselves defective because they had elements in them which caused death. Knowledge by the manufacturer that there was a risk of serious injury to the health of the consumer was obviously vital to establish liability: there was no need to prove exactly how that risk came about. So far as lung cancer was concerned, it was enough to establish that serious scientists were raising significant concerns that tobacco smoking was liable to cause damage to health, especially lung cancer: to hold otherwise would be to put the consumer at the mercy of the ‘flat earther’, because otherwise the manufacturer could wait until all scientists were convinced before taking action.

[7.10] Sir Richard Doll had given unchallenged evidence that by about the date of MRC 1957 at least the great majority of scientists accepted the link between tobacco smoking and lung cancer. ITL founded on evidence that some scientists did not accept the Doll thesis, but he had described them as mistaken and eccentric. Considering that no challenge had been put forward to IARC 1986 and later reports, it was clear that he was right, even though in 1964 there were a few who did not accept the hypothesis. ITL employed scientists and they were aware of the state of knowledge, both in the industry and among scientists. ITL were aware of the early reports. In addition there was the evidence about Dr Bentley’s report following a meeting in 1958. So it was established that ITL were aware in the late 1950s of the risk of lung cancer. At the latest by 1957 ITL were aware that their product was liable to cause lung cancer to smokers and accordingly to cause death. It was their duty to cease manufacture, at least until they had managed to remove the carcinogen or carcinogens from the tobacco smoke that led to lung cancer. They seemed, despite this duty, to have continued with the manufacture for reasons of profit. They thus became liable to anyone like Mr McTear who suffered injury when he started smoking after that time. ITL had to take their victim, Mr McTear, as they found him. No doubt many smokers of their products were drinkers, were unemployed, were depressed, and had been convicted of drink-related offences. ITL would be aware of the level of smoking in the socio-economic class to which Mr McTear belonged.

[7.11] Counsel next referred to Wright v Dunlop Rubber Co Ltd (1972) 13 KIR 255. The plaintiffs in this case commenced employment with the first defendants (Dunlops) in December 1946 and March 1947 respectively. They alleged that they had contracted cancer of the bladder as a result of being exposed, during the course of their employment, to Nonox S, a chemical containing carcinogenic substances manufactured by the second defendants, Imperial Chemical Industries Ltd (ICI) and sold to the first defendants. In May 1949 Dunlops were warned that they might have a grave problem of bladder cancer. They stopped using Nonox S. In 1966 the plaintiffs were diagnosed as suffering from the disease. In actions for damages the plaintiffs alleged negligence against both defendants, and further alleged breaches of sec 47 of the Factories Act 1937 (1 Edw 8 & 1 Geo 6, cap 67) against Dunlops. Both defendants denied negligence, breach of duty and causation. O’Connor J gave judgment for the plaintiffs against both defendants. He held, inter alia, that ICI should have withdrawn Nonox S before the end of 1946 and that Dunlops enhanced the risk of injury to the plaintiffs by failing from 1960 onwards to advise all employees employed before 1949 to submit themselves for screening. ICI appealed as to liability.

[7.12] The Court of Appeal held, dismissing the appeal, that the manufacturer of a chemical product owed to the purchaser’s employees a duty to take all reasonable steps to satisfy himself that the product was safe in the sense that there was no substantial risk of any substantial injury to health on the part of persons who were likely to use it or to be brought into contact with its use, the method of use being such as was at least reasonably to be expected as normal and proper; that ICI knew, or ought to have realised, before either of the plaintiffs entered the employment of Dunlops, that Nonox S was, or contained, a carcinogenic substance involving a real risk of causing cancer of the bladder to persons working in rubber factories in which it was used; and that, in failing to cease manufacturing and supplying Nonox S at that time, ICI were negligent. The following passages in the judgment of the court, read by Sachs LJ and Lawton LJ, were referred to in the discussion before me.

[7.13] The court summarised the contentions of the parties on the negligence issue as follows (p 266):

‘The plaintiffs’argument, broadly stated, is that at all material times (which in the circumstances of this case means the 1940s) ICI knew: first, that the A and B amines, particularly the B amine, were dangerous carcinogens in both bulk and trace; secondly, that the free amines in Nonox S included the A and B amines; thirdly, that the free amines in Nonox S would volatilise at temperatures over 102[degrees]C; fourthly, that in Dunlops’factories Nonox S would be under heat at temperatures over this figure; fifthly, that in the course of production in those factories dust would be dispersed into the atmosphere when bags of Nonox S were emptied and when the Banbury mixers were charged with raw rubber and Nonox S; and, sixthly, that the rubber-making processes would give off a large amount of fumes. Knowing what they did, it was submitted, ICI should have appreciated the nature and extent of the risks to which they were subjecting Dunlops’workers and should have either withdrawn Nonox S or, at the very least, have given them a warning about its carcinogenic properties. Their failure to do either was alleged to be negligence.

ICI did not dispute that they had this knowledge. What has been in issue was the inferences which could, or should, have been drawn from it. Their main contention has been that at no time before 1949 did they know, or could have been reasonably expected to have known, that the free amines in Nonox S could cause bladder cancer amongst workers in Dunlops’factories.’

[7.14] After considering the evidence as to ICI’s knowledge, the court concluded (p 266) that the contemporaneous documentary evidence proved that from about 1942 onwards ICI knew that very small amounts of amine in the atmosphere, whether as dust or fumes, were a grave hazard to the health of those who came into contact with them. The court turned to the question (p 267):

‘Having this knowledge, would ICI, if they had given positive thought to the matter, have appreciated the risks to which Dunlops’workers would be exposed in handling Nonox S? If yes, what should they have done?’After reviewing the evidence bearing on this question the court said (p 268):

‘It follows, in our judgment, that the warnings given in the medical literature in the 1920s and the 1930s should have made ICI think about risks in use; and they may probably have had this result because, as we have found, they did consider the risks to which their own workers were exposed in handling Nonox S.’

[7.15] The court reached the following conclusions on the negligence issue (p 271):

‘In the judgment of this court, ICI long before 1949 were in a position to appreciate that Dunlops’workers were at risk. It is difficult to say when, on balance of probabilities, they should have appreciated this. The trial judge put the date at 1940, which is perhaps earlier than we would feel able to put it on the evidence before us. The date to which we are disposed is by the year 1943; though we cannot rule out an earlier date as a possibility. Clearly, they were in that position well before either of the plaintiffs entered their employment with Dunlops. Had they given thought to the risk to Dunlops’workers, as manifestly they should have done, some action by them was called for. The least they should have done was to have warned Dunlops of the suspicions which they had. The giving of a warning would probably have resulted in Dunlops giving up buying Nonox S: this is what happened in July 1949 as soon as ICI had told them about the risks. ICI in fact did nothing; and the two plaintiffs worked in an atmosphere contaminated with the A and B amines without any protection of any kind, with the result that they both, years later, were found to be suffering from bladder cancer.

In coming to this conclusion we have gone further than O’Connor J., who found for the plaintiffs on the basis that had ICI at any time after 1940 asked themselves whether it was safe for workmen in the rubber industry to be exposed to the B amine they would have been obliged to admit that they did not know and on that narrower ground were liable in negligence. We agree with that approach; but we have founded our conclusions on the basis that ICI actually had the relevant knowledge.’

[7.16] The court then turned to consider the relevant law, in these terms (pp 271-273):

‘What, then, are the consequences in law? The relevant principle of law by which the question whether or not ICI were in breach of a duty owed to the plaintiffs falls to be decided seems to be clear, viz., that the duty of the manufacturer to the purchaser’s workmen in a case such as this is the same as the duty of a manufacturer towards his own workmen, subject only to one proviso. That proviso is that the manufacturer knows how the goods are going to be used by the purchaser. So far as the present case is concerned, the proviso creates no difficulty for the plaintiffs. While ICI did not know all the details of the processes of rubber manufacture in which Nonox S was used by Dunlops, they were not unaware of anything which was material for present purposes. There was no suggestion that Nonox S was used by Dunlops in any unexpected or unusual way, or that any of the relevant factors, such as the temperatures at which the processes were conducted, were not known or could not readily have been discovered by ICI. No problem arises in this appeal in connection with the opportunity for intermediate inspection by Dunlops. Thus, we do not have to consider the question which has sometimes arisen in the application of the Donoghue v Stevenson …principle. For ICI have not raised any suggestion, and in this appeal have expressly disclaimed the suggestion that, if ICI ought to have foreseen the risk to the plaintiffs arising from the use of Nonox S by Dunlops, Dunlops should also have foreseen that risk. We do not, therefore, have to consider what, if any, effect such a contention, if it were established, would have on the question of ICI’s liability to the plaintiffs.

ICI, then, owed a duty to Dunlops’employees in respect of Nonox S. What was the extent of the duty? It was a duty to take all reasonable steps to satisfy themselves that Nonox S was safe: ‘safe’in the sense that there was no substantial risk of any substantial injury to health on the part of persons who were likely to use it or to be brought into contact with its use, the method of the use being such as was intended or contemplated or was at least reasonably to be expected as a normal and proper use.

It is obvious that the answer to the question: ‘What are reasonable steps?’must depend upon the particular facts. It is obvious, also, that the duty is not necessarily confined to the period before the product is first produced or put on the market. Thus, if, when a product is first marketed, there is no reason to suppose that it is carcinogenic, but thereafter information shows, or gives reason to suspect, that it may be carcinogenic, the manufacturer has failed in his duty if he has failed to do whatever may have been reasonable in the circumstances in keeping up to date with knowledge of such developments and acting with whatever promptness fairly reflects the nature of the information and the seriousness of the possible consequences.

If the manufacturer discovers that the product is unsafe, or has reason to believe that it may be unsafe, his duty may be to cease forthwith to manufacture or supply the product in its unsafe form. It may be that in some circumstances the duty would be fulfilled by less drastic action: by, for example, giving proper warning to persons to whom the product is supplied of the relevant facts, as known or suspected, giving rise to the actual or potential risk. Factors which would be relevant would be the gravity of the consequences if the risk should become a reality, and the gravity of the consequences which would arise from the withdrawal of the product. In the present appeal, we do not, however, have to consider that question: for it is not suggested on behalf of ICI that, if they ought to have realised the carcinogenic qualities of Nonox S before the time when the plaintiffs were exposed to it, they could, or would, have refrained from at once ceasing its manufacture and supply, as they in fact did in August 1949.

The principal issue with which we are concerned in this appeal is thus essentially simple. It can be simply stated, and, as we think, simply and shortly answered. The question is whether ICI, before the end of 1946, when the plaintiff Mr Wright was first employed by Dunlops, knew or ought to have realised that Nonox S was, or contained, a carcinogenic substance involving a real risk of causing cancer of the bladder to persons working in rubber factories in which Nonox S was used.

If the plaintiffs fail to establish that the answer to that question is ‘Yes’, their claim fails. If the plaintiffs succeed on that issue, then, subject to the question of causation, their claim succeeds. O’Connor J held that the plaintiffs succeeded on that issue. We agree with him. Our own examination of the evidence has led us to the same basic findings of fact as he made; indeed, as already stated, we have made an important additional finding about knowledge. This means that negligence has been proved.’

[7.17] Counsel submitted that, while the tobacco manufacturers would not have any knowledge that their product was carcinogenic until the work done by Sir Richard Doll and others, starting in 1950, there were risks of a significant number of deaths, and the only reasonable step which reasonable manufacturers would have taken in the 1950s would have been to cease manufacture until the problem had been dealt with. This submission applied to all tobacco manufacturers in the United Kingdom, who all ought reasonably to have ceased production by 1957. If the tobacco manufacturers had ceased manufacture, this would have focused everybody’s minds on getting a solution to the problem. What had happened was that it had been allowed to continue and there were now more than 120,000 deaths a year from smoking, on the basis of the unchallenged public health figures. It was not relevant, in looking to see what a reasonable manufacturer would do, to consider what the government position was as a matter of public health. The complaint was that ITL continued to manufacture, and if cigarettes had not been available in 1964 Mr McTear would not have been able to smoke them. The risks had been established by epidemiology, and were accepted by the scientific and medical community by 1957. This was an extremely dangerous product, and if it was going to kill people, then the duty was to cease production. It was not legitimate to say in response that smoking was socially acceptable and regarded as a source of pleasure, nor that it had beneficial effects primarily in the area of mental health.

[7.18] Counsel accepted that the scope of a duty of care had to be examined according to the standards at the time, and what might be reasonable for a manufacturer to do now was not necessarily the same as would have been reasonable for the manufacturer to have done 50 years before. But given that the risk was the same then as now, he submitted that the duty on the manufacturer was no different. It was not reasonable for a manufacturer who found that his product was capable of causing such serious harm to leave it to the public authorities to make it unlawful for him to sell the product or restrict its sales, and unless and until they did that to continue selling the product. Wright v Dunlop Rubber Co Ltd was an example of a case where an obligation fell on the manufacturers to take action once they discovered that a substance was carcinogenic, and the action was to withdraw it. In Thompson v Smith’s Shiprepairers (North Shields) Ltd [1984] 1 QB 405 it was held that the test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not extraordinarily solicitous for his workers’safety in the light of what he knew or ought to have known at the time. This afforded an example of the focus on the date when the defender should reasonably have foreseen a risk of injury, which in the present case was in the 1950s and in particular 1957.

Submissions for ITL

[7.19] Senior counsel for the defenders started his submissions by saying that if I was with him on either general or individual causation, then it was not necessary to go further. But it was nevertheless necessary to consider all of the issues, including the legal issues, so he proceeded to address me on them. Even if I were persuaded that Mr McTear’s lung cancer was caused by his smoking of ITL’s cigarettes, the real issue was whether or not he suffered injury as a result of a breach of a duty of care owed to him by ITL, that is to say whether, but for the breach of a duty of care owed to him by ITL, he would not have contracted lung cancer. There was no such thing as negligence or liability in the air (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388 (p 425)). Liability could not be isolated from its context. There had to be a complete picture of cause and effect before negligence or breach of duty could be discussed.

[7.20] In addressing the central issue, he invited me to consider two preliminary questions to help clarify the two key issues of fact. The first of these was the relevance of knowledge of the health risks associated with smoking; and the second was the relevant date for assessing whether or not Mr McTear suffered injury as a result of a breach of a duty of care owed to him by ITL. On the first question, if Mr McTear smoked ITL’s cigarettes, knowing of the link between smoking and lung cancer that was being talked about, then he could not blame ITL if in fact he contracted lung cancer as a result of smoking in that state of knowledge. In those circumstances one could say either that ITL did not owe him any relevant duty of care, or that they were not in breach of any duty of care owed to him, or that any breach of their duty of care to him did not cause his injury, or that he was volens. In the cases these various possibilities crossed over and sometimes excluded each other, but ultimately they arrived at the same point, which was the absence of liability on the part of the defenders.

[7.21] I observed that it could not be said that ITL did not owe a duty of care to Mr McTear as they would to any ultimate consumer of their products, but what needed to be looked at was the content of the duty. Counsel said that this raised an interesting jurisprudential point. In the cases sometimes the result was that a defender or defendant was absolved from blame because there was no liability. This result was variously described as coming about sometimes because there was no duty of care in the circumstances; or sometimes because there was a duty of care, but there was not a breach of the particular formulation of that duty. It could be put either way. For his purposes, ultimately in this case it really did not matter, because he would be concentrating on the content of any duty of care. His hesitation in accepting my way of putting it was that we came back to the problem of there being no such thing as negligence in the air. One might say that as a matter of principle there was a duty to avoid acts and omissions which it was reasonably foreseeable would be likely to injure one’s neighbour, but this only had any practical application when one came to determine whether a breach of a duty of care had caused injury. This might be a rather impractical philosophical answer, but it was a reflection of the views that were expressed in some of the cases. Ultimately it was necessary to identify just what particular duty was to be performed in any case, without looking at the broader question, because that ultimately was what the court was concerned with.

[7.22] Counsel submitted that there was a breach of a duty of care in Donoghue v Stevenson because there was no opportunity for intermediate inspection of the contents of an opaque sealed bottle, so that the purchaser was not aware that there was a snail in the bottle. If the purchaser bought the bottle knowing that there was a snail in it, there would be no action for breach of any duty to take care to avoid a snail getting into the bottle during manufacture. If there was an opportunity prior to consumption for becoming aware of whatever the harmful defect might be, there was no breach of duty. Counsel referred to Grant v Australian Knitting Mills Ltd.

[7.23] Reference was next made to Titchener v British Railways Board 1984 SC (HL) 34. According to the report, the Occupiers’Liability (Scotland) Act 1960 (8 & 9 Eliz 2, cap 30), sec 2, provides, inter alia:

‘(1) The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger…

(3) Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care.’

[7.24] In this case a girl aged 15 was struck by a train while crossing a railway line. She raised an action of damages against British Railways Board averring that they had failed in terms of sec 2 of the 1960 Act to take reasonable care to maintain a fence made of sleepers, which separated the public street from the embankment on which the line was situated. It was established after proof that there had been gaps in the fence through which persons could easily reach the line and that the defenders had known that persons did walk across the line by that route. The pursuer admitted in evidence that she had so crossed the line on several previous occasions with her boyfriend. She had known that it was dangerous to do so and that she should have looked out for trains on the occasion of the accident, as she had done previously. The Lord Ordinary disbelieved her when she said that she would have been prevented from crossing the line by an ordinary post and wire fence. The Lord Ordinary (Lord Ross) assoilzied the defenders. In the course of his opinion the Lord Ordinary quoted a passage from the cross-examination of the pursuer in the course of which she said (pp 40, 41):

‘Well, before my accident I never ever thought that it would happen to me, that I would never get hit by a train, it was just a chance that I took.’He added the comment:

‘A person who takes a chance necessarily consents to take what comes.’

[7.25] The pursuer reclaimed and an Extra Division adhered to the Lord Ordinary’s interlocutor. The pursuer appealed. The House of Lords held:

(1) That the duty of the occupier of premises under sec 2(1) of the 1960 Act was to show such care as in all the circumstances was reasonable to see that the person entering on them would not suffer injury; in the case of the operator of a railway the existence and extent of a duty to maintain a fence beside the line depended on the circumstances, including the age and intelligence of the person entering on to the line and the nature of the locus.

(2) That, in relation to the appellant, the Lord Ordinary was entitled to hold that the respondents owed no duty to her to maintain the fence in a better condition than it was on the grounds that she was aware of the danger, that on-coming trains could be seen for a quarter of a mile and that she had not averred any complaint as to the way in which the train had been operated.

(3) That the Lord Ordinary and the Extra Division were also correct in holding that even if the respondents had failed in their duty to maintain the fence the appellant had failed to prove as a matter of probability that the accident would have been prevented had the fence been maintained.

(4) That the Lord Ordinary was also correct in holding that the respondents had established a defence under sec 2(3) of the 1960 Act which merely stated the principle of volenti non fit injuria in that the appellant was well aware of and accepted the risk of crossing the line while trains were being operated properly.

[7.26] The Lord Chancellor (Lord Hailsham of St Marylebone) said (p 52):

‘To my mind the crucial fact in this appeal was that no averment was or could have been made against the respondent Board that the train which struck the appellant was being driven otherwise than in a perfectly proper manner. If such an averment had been made and proved the respondent Board would have been liable on the lines of the well-known passage of Denning L.J.’s judgment in Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264 at p. 271. But, on the facts and evidence in this case, once it was accepted that there was no negligence on the part of the driver of the train, it seems to me that the pursuer’s claim, which was based solely on the condition of the fence, was doomed to failure, if only because, on her own admissions, she had voluntarily accepted the risk whatever it was which she incurred by crossing the line, provided only that it was a ‘risk of danger from the running of the railway in the ordinary and accustomed way’.On this analysis of the facts it is possible to formulate the result either by saying that, at the critical moment, that is when the appellant crossed the line, the respondent Board owed no duty to the appellant, or that the duty they owed to the appellant had been discharged by the time she crossed the boundary fence, or that the accident was not caused by any breach of duty on the part of the respondent Board, or alternatively that, having assumed the risk involved, the respondent Board was covered by the doctrine volenti non fit injuria.’

[7.27] Lord Fraser of Tullybelton said (pp 54, 55):

‘The duty under section 2(1) was considered by your Lordships’house in McGlone v British Railways Board 1966 S.C. (H.L.) 1 where Lord Guest said at p. 15 ‘The duty is not to ensure the entrant’s safety but only to show reasonable care. What is reasonable care must depend ‘on all circumstances of the casequote’. One of the circumstances is the age and intelligence of the entrant. That appears from the provision in section 2(1) that the duty is to show ‘such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury'(emphasis added). The question in each case relates to the particular person who has entered upon the premises. The submission of counsel for the respondents was that they did more than enough to discharge their obligations to this appellant because the fences along the north and south sides of the line, notwithstanding that they had gaps, gave her warning that if she went on she would be entering upon railway premises. She was well aware, as she admitted, of the danger of walking across or along the line, and she said that when doing so she normally kept a lookout for trains. By giving her that warning, the respondents were, said [senior counsel for the respondents], doing more than they were obliged to do, because this appellant already knew that the railway was there, and therefore needed no warning. Counsel accepted that the logical conclusion of this argument was that, as the appellant had no need of a warning, the respondents could have left their premises near the bridge completely unfenced without being in breach of any duty towards her. A fortiori they had no duty to do more than they did.

The Lord Ordinary accepted that argument, and in the Division Lord Hunter agreed, although only with some hesitation.

I must emphasise that the question in this appeal is not whether the respondents, and other operators of railways if any there be, have as a general rule a duty to the public to maintain fences beside their lines in good condition or at all. The existence and extent of a duty to fence will depend on the circumstances of the case including the age and intelligence of the particular person entering upon the premises; the duty will tend to be higher in a question with a very young or a very old person than in the question with a normally active and intelligent adult or adolescent. The nature of the locus and the obviousness or otherwise of the railway may also be relevant. In the circumstances of this case, and in a question with this appellant, I have reached the opinion that the Lord Ordinary was well entitled to hold, as he did, that the respondents owed no duty to her to do more than they in fact did to maintain the fence along the line. I reached that view primarily because the appellant admitted that she was fully aware that the line existed, that there was danger in walking across it or along it, that she ought to have kept a lookout for trains, and that she had done so when crossing the line on previous occasions.’

[7.28] Lord Fraser went on to consider additional features of the case which he regarded as important. He then said (p 55):

‘There was therefore no special danger peculiar to the locus of the accident, and no criticism was made by the appellant of the way in which the particular train was being operated. …Taking all these circumstances together I consider that the respondents did not owe the appellant a duty to maintain the fence in better condition that it was. If it were necessary to do so I would hold that they owed her no duty to provide any fence at all.’

[7.29] Lord Fraser went on to consider additional grounds on which the Lord Ordinary and the Division had based their decisions (pp 55-57). First, he held that the Lord Ordinary had correctly decided that, even if the respondents were at fault in failing to maintain the fence and to repair the gaps in it, the appellant had failed to prove, as a matter of probability, that if the respondents had performed their duty in those respects, the accident would have been prevented. He then said:

‘Secondly, the Lord Ordinary held that the respondents had established a defence under section 2(3) of the 1960 Act by proving that the appellant had willingly accepted the risks of walking across the line. As Lord Reid said in McGlone, supra, subsection (3) merely puts in words the principle volenti non fit injuria. That principle is perhaps less often relied upon in industrial accident cases at the present time than formerly, but so far as cases under the 1960 Act are concerned, the principle is expressly stated in section 2(3) and there is no room for an argument that it is out of date or discredited. If the Lord Ordinary was entitled to sustain this defence, the result would be that, whether the respondents would otherwise have been in breach of their duty to the appellant or not, the appellant had exempted them from any obligation towards her. …On this matter I am of opinion, in agreement with Lord Hunter, that the Lord Ordinary was well-founded in sustaining this defence. The reasons for doing so are in the main the same as the reasons for holding that the respondents were not in breach of their duty. The appellant admitted that she was fully aware that this was a line along which trains ran, and that it would be dangerous to cross the line because of the presence of trains. She said in cross-examination ‘it was just a chance I took’, and the Lord Ordinary evidently accepted that she understood what she was saying. She was in a different position from the boy in McGlone, supra, who did not have a proper appreciation of the danger from live wires – see Lord Reid at p. 13 and Lord Pearce at p. 18. As I said already the appellant did not suggest that the train which injured her had been operated in an improper or unusual way. The importance of that is that the chance which she took was no doubt limited to the danger from a train operated properly, in the ‘ordinary and accustomed way’- see Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264, per Denning L.J. at p. 271. Had there been evidence to show that the train which injured the appellant was driven negligently, like the train in Slater’s case, the risk which materialised would not have been within the risks that the appellant had accepted. But there is nothing of that kind here. In my opinion therefore the defence under section 2(3) is established.’

[7.30] Counsel submitted that the duty of a manufacturer of goods was to show such care as in all the circumstances was reasonable, so there was no distinction to be made between that duty and the duty of an occupier of premises. The pursuer in Titchener voluntarily accepted the risk, whatever it was, which she incurred by crossing the line. In a case involving a manufacturer and consumer, the duty was not to ensure the consumer’s safety, but it was only to show reasonable care, and that depended on all the circumstances of the case. Likewise, the occupier of premises had no duty to ensure the safety of a person coming on to land and effectively, once that person knew of the existence of danger, there was no duty on the part of the occupier to do more. Senior counsel for the pursuer had submitted in effect that warnings might not have been heeded by Mr McTear, so that it was the duty of ITL to erect an ‘impenetrable barrier’by ceasing production. This was analogous to what was being argued for the pursuer in Titchener. But the duty was to exercise reasonable care, having in mind the reasonable person as the person to whom that duty was owed, an adult who on an objective view would act reasonably in all the circumstances. So, even although in Titchener an impenetrable barrier might have had the effect of keeping her off the railway, there was no duty to erect one when her knowledge was that she was ‘taking a chance’by going onto the line.

[7.31] It was important, counsel submitted, to consider the factual basis upon which all of the judges in the House of Lords held either that there was no breach of duty, or that the maxim volenti non fit injuria applied, because the pursuer had taken a chance. This was consistent with the policy of the law, that once an individual was aware that there was a risk in what they were doing, then the consequences of the risk fell on him, because he could choose whether or not to take the risk. The cases on volenti non fit injuria, where the acceptance was of a future risk, where there had not yet been negligence, such as driving carelessly, could be contrasted with the type of circumstance found in Titchener, where the alleged fault had already taken place, in that case the state of the fence. These circumstances were important in determining as a matter of fact whether the pursuer had accepted a risk, waived a claim and so on. It was sometimes very difficult to get to volenti non fit injuria, because by the time one was looking at that one had already decided that there was no breach of a duty of care. Counsel submitted that Titchener afforded an insight into the general policy of the common law, which was founded on the notion of individual freedom, and the notion that the individual took responsibility for his own actions. The common law recognised that individuals were entitled to do things which involved risk to their health or well-being, but if they did so they must accept responsibility for the consequences of their actions.

[7.32] These principles could be seen in action in Tomlinson v Congleton Borough Council [2004] 1 AC 46. In a country park owned and occupied by the first defendant and managed by the second defendant (Cheshire County Council) was a lake that had formed in a disused quarry. It was meant to attract many visitors in hot weather. Swimming in the lake was prohibited, and the defendants displayed prominent notices reading ‘Dangerous Water: No Swimming’and employed rangers with the duty of giving oral warnings against swimming and handing out safety leaflets. The first defendant, aware that the notices were frequently ignored and had little effect in preventing visitors to the park from entering the water and that several accidents had resulted from swimming in the lake, intended planting vegetation around the shore to prevent people from going into the water but had not yet done so because of a shortage of financial resources. On a hot day the plaintiff, aged 18, went into the lake and from a standing position in shallow water dived and struck his head on the sandy bottom, breaking his neck. He claimed damages against the defendants, alleging that the accident had been caused by their breach of the duty of care that they had owed to him as a trespasser under sec 1 of the Occupiers’Liability Act 1984 (cap 3). The judge, on a preliminary issue as to liability, found that there had been nothing about the lake that made it any more dangerous than any other ordinary stretch of open water and that the danger and risk of injury from diving in it where it was shallow had been obvious. He dismissed the plaintiff’s claim. The Court of Appeal by a majority allowed an appeal by the plaintiff.

[7.33] On appeal by the defendants, the House of Lords held, allowing the appeal, that (Lord Hutton dubitante) any risk of the plaintiff suffering injury had arisen not from any danger due to the state of the defendants’premises or to things done or omitted to be done on them within sec 1(1)(a) of the 1984 Act but from the plaintiff’s own misjudgment in attempting to dive in too shallow water; that that had not been a risk giving rise to any duty on the defendants; and that, in any event, it had not been a risk in respect of which the defendants might reasonably have been expected to afford the plaintiff some protection under sec 1(1)(c).

[7.34] Lord Hoffmann said (pp 81-86):

’32 That leaves paragraph (c) [of sec 1(3) of the Occupiers’Liability Act 1984 (cap 3)]. Was the risk one against which the council might reasonably be expected to offer the plaintiff some protection? The judge found that ‘the danger and risk of injury from diving in the lake where it was shallow were obvious’. In such a case the judge held, both as a matter of common sense and following consistent authority (Staples v West Dorset District Council (1995) 93 L.G.R. 536, Ratcliff v McConnell [1999] 1 W.L.R. 670 and Darby v National Trust [2001] P.I.Q.R. P372), that there was no duty to warn against the danger. A warning would not tell a swimmer anything he did not already know. Nor was it necessary to do anything else. ‘I do not think,’said the judge, ‘that the defendants’legal duty to the plaintiff in the circumstances required them to take the extreme measures which were completed after the accident.’Even if Mr Tomlinson had been owed a duty under the 1957 Act as a lawful visitor, the council would not have been obliged to do more than they did.’

[7.35] After summarising the opinions delivered in the Court of Appeal, Lord Hoffmann went on:

’34 My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to ‘such care as in all the circumstances of the case is reasonable’depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and to the cost of preventative measures. These factors have to be balanced against each other.

35 For example, in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No. 2)) [1967] 1 A.C. 617, there was no social value or cost saving in the defendant’s activity. Lord Reid said, at p. 643:

‘In the present case there was no justification whatever for discharging the oil into Sydney Harbour. Not only was it an offence to do so, but it involved considerable loss financially. If the ship’s engineer had thought about the matter, there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately.’

36 So the defendants were held liable for damage which was only a very remote possibility. Similarly in Jolley v Sutton London Borough Council [2000] 1 W.L.R. 1082 there was no social value or cost saving to the Council in creating a risk by leaving a derelict boat lying about. It was something which they ought to have removed whether it created a risk of injury or not. So they were held liable for an injury which, though foreseeable, was not particularly likely. On the other hand, in The Wagon Mound (No. 2) [1967] 1 A.C. 617 Lord Reid, at p 642, drew a contrast with Bolton v Stone [1951] A.C. 850 in which the House of Lords held that it was not negligent for a cricket club to do nothing about the risk of someone being injured by a cricket ball hit out of the ground. The difference was that the cricket club were carrying on a lawful and socially useful activity and would have had to stop playing cricket at that ground.

37 This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care or in which Parliament, as in the 1957 Act, has decreed that there should be. And it may lead to the conclusion that even though injury is foreseeable, as it was in Bolton v Stone, it is still in all the circumstances reasonable to do nothing about it.’

[7.36] After contrasting the 1957 and 1984 Acts, Lord Hoffmann turned to the balance under the 1957 Act. He said (para 39): ‘I accept that we are concerned with the steps, if any, which should have been taken to prevent any kind of water accident.’He also said that ‘there is obviously some degree of risk in swimming and diving, as there is in climbing, cycling, fell-walking and many other such activities.’He decided that the financial cost of taking preventative measures was not a significant item in the balancing exercise. Then he said (para 41):

‘There are two other related considerations which are far more important. The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the council should be entitled to allow people of full capacity to decide for themselves whether to take the risk.’

[7.37] After discussing the social value of the activities, Lord Hoffmann, under the heading ‘Free will’said:

’44 The second consideration, namely the question of whether people should accept responsibility for the risks they choose to run, is the point made by Lord Phillips of Worth Matravers M.R. in Donoghue v Folkestone Properties Ltd [2003] Q.B. 1008, 1024, para. 53 and which I said was central to this appeal. Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk. By contrast, Miss Bessie Stone (Bolton v Stone [1951] A.C. 850), to whom the House of Lords held that no duty was owed, was innocently standing on the pavement outside her garden gate at 10 Beckenham Road, Cheetham when she was struck by a ball hit for six out of the Cheetham Cricket Club ground. She was certainly not engaging in any activity which involved an inherent risk of such injury. So compared with Bolton v Stone, this is an a fortiori case.

45 I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may …think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.

46 My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley L.J. [2003] 2 W.L.R. 1120, 1135, para. 45, that it is ‘only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability’. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] A.C. 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Comr of Police of the Metropolis [2000] 1 A.C. 360.

47 It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law.’

[7.38] Lord Hoffmann referred to defensive measures taken by the council officers to prevent the council from being held liable to pay compensation (paras 48, 49). He said that ‘local authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers’. In any event there was little evidence that defensive measures had had much effect on diving injuries. He then concluded by saying:

’50 My Lords, for these reasons I consider that even if swimming had not been prohibited, and the council had owed a duty under section 2(2) of the 1957 Act, that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious. If that is the case, then plainly there can have been no duty under the 1984 Act. The risk was not one against which he was entitled under section 1(3)(c) to protection.’

[7.39] Lord Hutton said (pp 88-91):

’57 I thought for a time that [the reasoning of Ward L.J. in the Court of Appeal] was persuasive, but I have concluded that it should not be accepted because I consider that it is contrary to a principle stated in the older authorities which is still good law. In Stevenson v Glasgow Corporation 1908 S.C. 1034, 1039 Lord McLaren stated:

‘in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law.’

58 In Glasgow Corporation v Taylor [1922] 1 A.C. 44, 61 Lord Shaw of Dunfermline stated:

‘Grounds thrown open by a municipality to the public may contain objects of natural beauty, say precipitous cliffs or the banks of streams, the dangers of the resort to which are plain.’ Lord Shaw then cited with approval the words of Lord McLaren in Stevenson v Glasgow Corporation 1908 S.C. 1034, 1038 that ‘in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures’. I think that when Lord McLaren referred to physical features against which ‘it is impossible to guard by protective measures’he was not referring to protective measures which it is physically impossible to put in place; rather he had in mind measures which the common sense of mankind indicates as being unnecessary to take. This statement echoed the observation of the Lord President, Lord Dunedin, in Hastie v Edinburgh Magistrates 1907 S.C. 1102, 1106 that there are certain risks against which the law, in accordance with the dictates of common sense, does not give protection – such risks are ‘just one of the results of the world as we find it’.

59 Stevenson v Glasgow Corporation and Hastie v Edinburgh Magistrates (which were not concerned with trespassers) were decided almost a century ago and the judgments are couched in old-fashioned language, but I consider that they express a principle which is still valid today, namely, that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff and to impose a duty on him to do so. In my opinion this principle, although not always explicitly stated, underlies the cases relied on by the appellants where it has been held that the occupier is not liable where a person has injured himself or drowned in an inland lake or pool or in the sea or on some natural feature.’

[7.40] After referring to other cases in which the judgment of Lord Shaw in Glasgow Corp v Taylor had, expressly or implicitly, been applied, Lord Hutton concluded by saying:

’65 Therefore I consider that the risk of the plaintiff striking his head on the bottom of the lake was not one against which the defendants might reasonably have been expected to offer him some protection, and accordingly they are not liable to him because they owed him no duty. I would add that there might be exceptional cases where the principles stated in Stevenson v Glasgow Corporation 1908 S.C. 1034 and Glasgow Corporation v Taylor [1922] 1 A.C. 44 should not apply and where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, for example where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen. But the present is not such a case’.

[7.41] In the course of his opinion Lord Hobhouse of Woodborough said (p 94):

’74 Returning to the facts of this case, what more was it reasonable to expect of the defendants beyond putting up the notices and issuing warnings and prohibitions? It will not have escaped your Lordships that the putting up of the notices prohibiting swimming is the peg which the claimant uses to acquire the status of trespasser and the benefit of the suggested more favourable duty of care under the 1984 Act. But this is a case where, as held by the judge, all the relevant characteristics of this mere were already obvious to the claimant. In these circumstances, no purpose was in fact served by the warning. It told the claimant nothing he did already know … There was no danger; any danger did not arise from the state of the premises; any risk of striking the bottom from diving in such shallow water was obvious; the claimant did not need to be warned against running that risk; it was not reasonable to expect the occupier to offer the claimant (or any other trespasser) any protection against that obvious risk.’

[7.42] Lord Hobhouse said (pp 96, 97, para 81):

‘[I]t is not, and never should be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? Does the law require that attractive waterside picnic spots be destroyed because of a few foolhardy individuals who choose to ignore warning notices and indulge in activities dangerous only to themselves? The answer to all these questions is, of course, no. But this is the road down which your Lordships, like other courts before, have been invited to travel and which the councils in the present case found so inviting. In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of this country. The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.’

[7.43] Counsel submitted that when it came to the alleged duty to cease manufacture, the court had to look at all the facts and circumstances of the case and determine what was reasonable in that context. The principle that the individual should be free to choose risks, and if he did so that he must take the responsibility if harm resulted, applied even where the risk was one of death. The balance between risk on the one hand and individual autonomy on the other was recognised by the courts in Scotland, like those in England, and reflected the individualist values of the common law here. The principles of the English common law of tort and the Scottish common law of delict were likely to be the same, as for example in the field of employment law. Tomlinson was an example of a case where there was not even a duty to warn against risks which were obvious. An individual’s responsibility required that it was for the individual, when he made his choices, to satisfy himself whether or not there was a risk, and if so what it was, and then to decide whether he was going to run it.

[7.44] Reference was next made to Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. The deceased in this case was held in a police cell in the custody of the defendant’s officers, who had been alerted to the risk that he might commit suicide, although a doctor who examined him soon after his arrival at the police station stated that he showed no evidence of any psychiatric disorder or clinical depression. Taking advantage of the officers’inadvertence in leaving the flap of the cell door open, the deceased tied his shirt through the spy-hole on the outside of the door and hanged himself. In an action for negligence begun by the plaintiff as administratrix of his estate, the defendant raised the defences of, inter alia, novus actus interveniens and contributory negligence under the Law Reform (Contributory Negligence) Act 1945 (8 & 9 Geo 6, cap 28). The judge found that the defendant’s officers were in breach of a duty of care to take reasonable steps to prevent the deceased’s suicide but held that since he was of sound mind his deliberate act entitled the defendant to rely on the suicide as a novus actus interveniens, and accordingly dismissed the action. On the issue of contributory negligence the judge assessed the deceased’s responsibility at 100%. The Court of Appeal, by a majority, allowed the plaintiff’s appeal on the grounds that the duty of care to the deceased existed irrespective of his state of mind, that his suicide, being the very act against which the defendant had been required to guard, did not constitute a novus actus interveniens, and that in all the circumstances it was inappropriate to reduce the award of damages to reflect the deceased’s responsibility for his loss.

[7.45] On the defendant’s appeal, a majority of the House of Lords held that a deliberate and informed act intended to exploit a situation created by a defendant did not negative causation where the defendant was in breach of a specific duty imposed by law to guard against that very act; that those entrusted with the custody of prisoners had a duty to take reasonable care for their safety while in custody whether they were of sound or unsound mind; and that, accordingly, since the defendant was admittedly in breach of duty, the deceased’s act in taking his own life did not entitle the defendant to rely on the defences of novus actus interveniens or volenti non fit injuria. The House, however, held, in allowing the appeal, that ‘fault’within the meaning of sec 4 of the Act of 1945 could include intentional acts as well as negligence; that the deceased had responsibility for his own life and since his intentional act while he was of sound mind was a substantial cause of his death, the defence of contributory negligence succeeded; and that, having regard to all the circumstances, responsibility for the suicide should be apportioned equally between the deceased and the defendant and the damages reduced accordingly.

[7.46] Lord Hoffmann said (pp 367, 368):

‘The commissioner appeals to your Lordships’House. [Counsel] argued two points on his behalf. The first was the question of causation: was the breach of duty by the police a cause of Mr Lynch’s death? The way he put the answer was to say that the deliberate act of suicide, while of sound mind, was a novus actus interveniens which negatived the [causal] connection between the breach of duty and the death. He said at first that he was going to argue the application of the maxim volenti non fit injuria as a separate point. But when it came down to it, he accepted that if the breach of duty was a cause of the death, he could not succeed on volenti non fit injuria. I think that is right. In the present case, volenti non fit injuria can only mean that Mr Lynch voluntarily caused his own death to the exclusion of any [causal] effect on the part of what was done by the police. So I think it all comes to the same thing: was the breach of duty by the police a cause of the death?…

On the first question, [counsel] relied upon the general principles stated in Hart and Honore, Causation and the Law, 2nd ed. (1985), p. 136:

‘the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by a defendant, negatives [causal] connection.’ However, as Hart and Honore also point out, at pp. 194-204, there is an exception to this undoubted rule in the case in which the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being. It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss. This principle has been recently considered by your Lordships’House in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] 2 W.L.R. 350. In that case, examples are given of cases in which liability has been imposed for causing events which were the immediate consequence of the deliberate acts of third parties but which the defendant had a duty to prevent or take reasonable care to prevent.

[Counsel] accepted this principle when the deliberate act was that of a third party, but he said that it was different when it was the act of the plaintiff himself. Deliberately inflicting damage on oneself had to be an act which negatived causal connection with anything which had gone before.

This argument is based upon the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself.’

Lord Hoffmann added (p 369):

‘The duty, as I have said, is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives.’

[7.47] Lord Hope of Craighead said (pp 379, 380):

‘It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury. As a general rule the common law duty of care is directed towards the prevention of accidents or of injury caused by negligence. The person to whom the duty is owed is, of course, under a corresponding duty to take reasonable care for his own safety. If he is in breach of that duty, his damages may be reduced on the ground of his contributory negligence. But if he injures himself by intentionally doing deliberately the very thing which the defendant is under a duty to prevent him doing negligently, he may find that he is unable to recover any damages. He may be found to have assumed the risk of injury, on the principle of volenti non fit injuria. Or it may be held that the chain of causation was broken by his deliberate act, in which case his claim will be defeated on the principle of novus actus interveniens. Or it may simply be that his loss, injury and damage will be held to have been caused wholly by his own fault with the result that there will be no room even for a reduced award on the ground of contributory negligence.’

[7.48] Counsel said that he referred to this case because of the emphasis on the individualist philosophy of the common law and the principle that people of full age and sound understanding must look after themselves and take responsibility for their actions. In a case such as that of Reeves, the duty arose because of the special relationship which existed and was a reflection of the nature of that special relationship. The relationship between a manufacturer and a consumer did not fall into this type of special category.

[7.49] Counsel submitted that this was consistent with Scottish authority. In Law Hospital NHS Trust v Lord Advocate 1996 SC 301 a patient suffered from irreversible damage to the cerebral cortex and fell into a persistent vegetative state in 1992. Permanently insensate, the patient remained alive only because feeding and hydration were provided to her artificially and because of the nursing care she received in a hospital. Medical experts opined that her case was useless and that there were no useful avenues of treatment to explore. The patient was unable to consent to treatment ceasing and her family agreed with the experts that the treatment should stop. The hospital raised an action, concluding for declarator that the proposed course of terminating nutrition and hydration and all other life sustaining treatment to the patient would not be unlawful. In the course of his opinion the Lord President (Lord Hope) said (p 306):

‘It may be helpful if I were to describe at the outset what I consider to be the function of the Court in a case of this kind. It belongs to a group of cases which have been recurring with increasing frequency in recent years where the courts are being asked to give their authority to actions to be taken by medical practitioners which raise acute questions of moral or ethical principle. Medical science has now advanced to such a degree that many techniques are now possible which only a generation ago would have been unthinkable. The ability to prolong life by artificial means has reached such a stage that it is possible to nourish the body and preserve it from disease so that life in the clinical sense may be continued indefinitely. Invasive techniques such as those of sterilisation are also possible without the slightest risk of any other physical injury than that which is to be inflicted deliberately. Where the patient is of full age and capable of understanding and consenting to the procedures which on medical advice are for his or her benefit, or decides to refuse medical treatment, the right of self determination provides the solution to all problems, at least so far as the court is concerned. It is not in doubt that a medical practitioner who acts or omits to act with the consent of his patient requires no sanction or other authority from the court. The patient’s consent renders lawful that which would otherwise be unlawful. It is not for the court to substitute its own views as to what may or may not be in the patient’s best interests for the decision of the patient, if of full age and capacity.’Counsel submitted that this was an example of the court’s recognition of the fundamental right of self determination. This was consistent with the ‘individualist philosophy’of the law described by Lord Hoffman.

[7.50] Against this background, counsel submitted, in the present case it was critical for the pursuer to establish, first, that Mr McTear was not aware of the health risks associated with smoking when he started smoking and, secondly, that by the time he became aware of these risks something irrevocable had happened. This was that there must have been some change which had occurred within him that was eventually going to lead to a diagnosis of lung cancer: this was to be regarded as the moment when he suffered damage. Counsel referred to this as the time when he contracted lung cancer, although it might have been, so far as the evidence disclosed, at any time, long or short, before he was actually diagnosed as having lung cancer. Without establishing these two things, the pursuer’s case inevitably failed, because she failed to establish that there was any breach of duty on the part of ITL which caused Mr McTear’s lung cancer.

[7.51] This brought counsel on to a preliminary question, which was to do with establishing the relevant date for assessing whether or not Mr McTear suffered injury as a result of breach of duty on the part of ITL. Senior counsel for the pursuer had submitted that the date of breach should be 1957, but senior counsel for the defenders submitted that this was just wrong. It was wrong to consider the question of duty in the abstract. The correct question was whether or not Mr McTear suffered injury as a result of any breach by the defenders of a duty of care owed to him and then, if so, to consider when he suffered injury. That then was the moment of the breach.

[7.52] Counsel referred to Hamilton v Fife Health Board 1993 SC 369 in support of this submission. A child was born in 1976 and died three days later in consequence of injuries sustained by it while in utero which were allegedly caused by negligent acts on the part of the doctors attending the child’s mother. The parents of the child brought an action against the health board seeking damages for loss of the child’s society. The defenders argued that the action was irrelevant as the child had not been a person for the purposes of the 1976 Act at the time when the injuries were sustained. The Lord Ordinary held that personal injuries could only be sustained by a person and that the child had not been a person at the relevant time. The pursuers reclaimed.

[7.53] It was held by the First Division, reversing the judgment of the Lord Ordinary, that the case depended on the construction to be placed upon sec 1(1) of the Damages (Scotland) Act 1976 (cap 13), that there could be no liability until both damnum and injuria concurred, but once the child was born and became a person the necessary concurrence was established and the child acquired the right to sue the person whose breach of duty resulted in its loss; and it followed that the defenders were liable to pay damages to the pursuers in accordance with sec 1(1) of the 1976 Act. Lord McCluskey said (p 382):

‘As the act or omission must be one giving rise to liability to pay damages, there can be no liability until both damnum and injuria concur. There can be no liability to pay damages until there is a person in respect of whose loss the claim to damages arises.’Lord Caplan said (p 388):

‘However the duty is not breached nor does a right of action arise at the point when the careless act is committed (assuming there were such an act). The duty which rests on a person charged with taking care is not the academic responsibility of not being negligent but rather the duty not to cause harm by negligence. The delict is only committed when the initial negligent act actually causes harm. That is to say the concurrence of injuria and damnum is required. Thus as Lord Reid said in Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 S.C. 92 at p. 109:

‘The ground of any action based on negligence is a concurrence of duty and damage and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs.’ As Phillips J. puts it in de Martell v Merton & Sutton Health Authority [1993] Q.B. 204 at p. 218:

‘The duty in the law of negligence is not a duty to exercise reasonable care to avoid risk of causing injury. It is the duty not to cause injury by want of reasonable care.quote’

[7.54] Counsel also referred to Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 SC (HL) 92. In this case a workman, who had been injured through the breaking of a defective part in the machine with which he was working, brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had supplied it to his employers, on averments to the effect that the accident had been caused by the fault of the manufacturers in that they failed to supply his employers with a machine which was safe for use by their servants. The machine had been supplied on 7 July 1955 and the accident had happened on 9 August 1956, but the manufacturers were not convened in the action until 25 March 1959. The House of Lords held that the three-year limitation period provided by sec 6(1)(a) of the Law Reform (Limitation of Actions etc) Act 1954 (cap 36) ran from the date when the workman suffered the injury and that, accordingly, the action against the manufacturers was not time-barred.

[7.55] Lord Reid said (pp 109, 110):

‘It appears to me that default in the sense of breach of duty must persist after the act or neglect until the damage is suffered. The ground of any action based on negligence is the concurrence of breach of duty and damage, and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs. Suppose that the damage occurred a year or two years after the manufacture and sale of the article: then undoubtedly the injured person can sue. But how could he sue if the manufacturer could say that his default had ceased a year before the injured person ever came near the dangerous article? Whatever be the true view with regard to the act or neglect, I think that the appellant is entitled to say that the respondents”default giving rise to the action’existed at the time when he suffered his injuries.’

[7.56] Lord Keith of Avonholm said (pp 112, 113):

‘Now this is a Donoghue v Stevenson type of case, and such a case undoubtedly introduces specialities into the law of negligence. But, on any view, I see difficulty in saying that there was negligence at the date of supply. At that date on the pursuer’s pleadings there was no reason why the manufacturers should have known of the dangerous state of the strut. It can hardly be expected that they had a legal duty to take it to pieces and inspect it before sending it out. Undoubtedly there was an act of carelessness on the part of some workman when the pin was welded to the strut and the manufacturers would be vicariously responsible for that carelessness. But can it be said that at either date there was an act of negligence in the legal sense? The manufacturers owed a duty to anyone who should handle the machine to take reasonable steps to see that it was safe. They owed a duty not to injure, but until someone was injured there was no breach of duty. Only then could it be said that an act of negligence had been committed. That, I think, necessarily follows from the judgment of this House in Donoghue v Stevenson.’Then, after analysing the decisions in Heaven v Pender (1883) 11 QBD 503, Donoghue v Stevenson and Grant v Australian Knitting Mills Ltd, Lord Keith said (p 113):

‘Applying the ratio of these decisions there was, in my opinion, no act, neglect or default within the meaning of the statute affecting the pursuer until he was injured. A fortiori there was no act, neglect or default giving rise to his action before that date. It was then for the first time that there arose a breach of duty which made its impact on the pursuer. Time, in my opinion, commenced to run against the pursuer under the statute from that date.’

[7.57] Lord Denning, under reference to Donoghue v Stevenson, said (pp 115, 116):

‘I think the true principle is contained simply in this: ‘You must not injure your neighbour by your fault.’It is the doing of damage to him which, in my opinion, is the breach of duty giving rise to the action. It is no doubt correct to say, as Lord MacMillan did say (p. 71), that the manufacturer ‘is under a duty to take care in the manufacture of these articles.’That is a duty which he owes to all those who may have occasion to use the article: and it is a duty which is broken at the time when he is negligent in making the article. But it is not a breach of duty to any particular individual. And it is not that breach of duty which gives rise to the action. There is another duty also to be considered: and that is the duty which Lord Atkin put in this wise (p. 44): ‘You must not injure your neighbour’: which I would expand so as to say that there is a duty on every man not to injure his neighbour by his want of reasonable care. This is a duty which he owes, not to the world at large, but to his neighbour. It is broken only when his neighbour is injured and not before. Then, and then only, is there a breach of duty giving rise to an action.’

[7.58] Senior counsel for the defenders said that the intriguing question which arose in this case was that Mr McTear might or might not have started smoking in 1964. If he did, then that clearly was the earliest date on which he could have suffered injury as a result of any breach of duty on the part of ITL. At some time, which in counsel’s submission was when he started smoking, but even if it was not, he became aware of the health risks said to be associated with smoking. At that moment there was no breach of duty on the part of ITL, even assuming that there had earlier been some breach because of a failure to warn. This was because the authorities showed that once he knew of the risks then there was no need to warn him. In counsel’s submission, it would have to be found that Mr McTear contracted lung cancer before the moment when any putative breach on the part of ITL came to an end, because unless there was that concurrence of damnum and injuria, there was no liability on their part.

[7.59] This of course proceeded on the assumption, contrary to counsel’s primary submissions on the facts, that it was held that smoking could cause lung cancer and caused Mr McTear’s lung cancer. In that event, I would be relying on the epidemiology, and the evidence was that after about 15 years’cessation, the risk returned to normal. So I could not find that by the time that the breach of duty ceased, Mr McTear had inhaled enough cigarette smoke to constitute a material contribution to a subsequent development of lung cancer, unless the ‘guilty exposure’occurred within about 15 years before Mr McTear was diagnosed as having contracted lung cancer. Even assuming that senior counsel for the pursuer was correct in his submission that Mr McTear became aware of the risks to health associated with smoking in 1971 by reason of the government health warnings appearing on cigarette packets, and attempted to stop smoking then, any contribution made by the hypothetical negligence of ITL would have ceased to have effect between 1981 and 1986. Mr McTear was diagnosed as suffering from lung cancer in 1992, and there was reason to suppose that he might have had diagnosable lung cancer in 1991. If he had stopped smoking at any time up to 1975, on that evidence the risk would have returned to normal.

[7.60] Counsel’s main submission, however, was that it could not be determined on the evidence when there was a concurrence of injuria and damnum. Without such evidence, there could be no liability. There was no evidence that when Mr McTear consumed his first cigarette or packet of cigarettes, or had smoked for the first month after he began, that made any material contribution to his subsequent lung cancer. Without such evidence, it was not possible to determine when he contracted lung cancer in the sense counsel had advanced. It could not be determined that he contracted lung cancer at any time before he became aware of the health risks said to be associated with smoking, and it could not therefore be decided that his lung cancer was attributable to any breach of duty on the part of ITL, because the date of the concurrence of alleged breach and injury could not be determined.

[7.61] Senior counsel for the defenders accepted that, if I were to hold that Mr McTear was unaware of the risks to health associated with smoking until some time after he started smoking, and that from the outset a material contribution was being made to the lung cancer he eventually contracted, then he would be in more difficulty. But, he submitted, there was no evidence to that effect. Indeed the evidence was to the opposite effect, that the risk returned to normal after about 15 years. On any view, Mr McTear was aware of the risk long before 1975, so there was no breach of duty after that date and therefore there could not have been a concurrence of injury and breach of duty when he first contracted his lung cancer. On this basis, there came a time when there was no continuing breach of duty on ITL and from that moment on Mr McTear took the risk of injury. The causal connection between the breach and the lung cancer was, in these circumstances, broken.

[7.62] The test, counsel submitted, was whether, but for Mr McTear’s smoking up until the moment he became aware of the risks to health, he would not have contracted lung cancer. The idea of individual responsibility carried with it the freedom to choose among various options. The law proceeded on the basis that the consumer to whom a manufacturer might have to have regard was a reasonable man, because that was the only way in which the law could sensibly operate. Such a man would do what was reasonable in the circumstances. The moment that Mr McTear contracted his lung cancer was the moment at which it fell to be determined whether there existed any duty owed by ITL to Mr McTear, and if so what was its nature. It was essential for the pursuer to prove, not only that Mr McTear was unaware of the health risks associated with smoking when he started, but also that prior to the date when he became aware of the health risks he had already contracted lung cancer or a material contribution had already been made to his contracting lung cancer. Mr McTear’s continuing smoking once he was aware of the health risks was entirely his responsibility. ITL could have no liability to Mr McTear from the moment that he became aware of the health risks associated with smoking unless in some sense the damage was already done. It could not be said that they were at fault thereafter unless it was established that, when Mr McTear started smoking, the nature of cigarettes was such that he would not be able to stop, ITL knew this, Mr McTear did not and therefore they were in breach of a duty to warn him of it.

[7.63] None of that was made out in the present case. There was no evidence that ITL had any reason to believe that anybody who started smoking might be unable to stop. On the evidence, some people might find it difficult to stop, but there was no evidence that Mr McTear did not know that when he started smoking. Without that foundation, any case based on inability to stop smoking simply failed. On the evidence, the pursuer’s case was periled on showing that Mr McTear was damaged by the time he first became aware of the health risks said to be associated with smoking. The very earliest date for that would be 1964, and there was nothing on the evidence that would allow the court to hold that to be proved.

[7.64] Counsel then turned to look at the content of any duty of care. It followed from the individualist philosophy that the common law did not in general impose a duty on manufacturers not to produce or sell goods, the use or consumption of which involved risks to health. The legislature might intervene to regulate or even prohibit the manufacture and sale of particular commodities, but that did not trench upon the individualist assumptions of the common law. The policy of the common law in the context of product liability was not that all risk should be eliminated but, consistently with the underlying principle of individual autonomy, that consumers should not be exposed to dangers of which they could not reasonably be expected to be aware. In Donoghue v Stevenson the manufacturer was in breach of duty, not simply because there was a snail in the ginger beer bottle, but because the bottle was opaque and the dangerous snail was unlikely to be discovered by any intermediate inspection before the consumer poured the ginger beer into her glass. If the risks associated with the use of the product were patent, it was up to the consumer to decide whether or not he or she wished to use or consume the product.

[7.65] Counsel referred to the speeches of Lord Atkin, Lord Thankerton and Lord MacMillan in Donoghue v Stevenson, quoted at paras 7.4-7.7. Counsel submitted, on the basis of these passages, that the absence of any reasonable opportunity for inspection or intermediate examination was an essential feature of the type of liability identified in that case. If the policy of the law were to eliminate risk to the consumer, the possibility or the opportunity for intermediate inspection would be an irrelevant consideration in determining the existence and scope of a duty of care owed by the manufacturer to the consumer, because the opportunity for inspection could not be said necessarily to eliminate the risk. Because the consumer should be free to choose whether or not to run risks, then the opportunity for intermediate inspection became relevant. Until the decision in Donoghue v Stevenson in the Court of Session, the only line of authority which permitted recovery where a consumer was injured by a product was where it was established that the product was dangerous in itself. Donoghue v Stevenson introduced for the first time the possibility of recovery where injury was caused by a defective product. The decision assimilated this area of the law, so that liability for defective products and liability for dangerous products moved forward together, according to the same principles; and the duty then of the manufacturer was to take such care as was reasonable in the whole circumstances. This could be seen from the speech of Lord Atkin in particular.

[7.66] The scope of the principle in Donoghue v Stevenson was stated by Lord Wright in Grant v Australian Knitting Mills Ltd and by Lord Keith of Kinkel in Murphy v Brentwood District Council [1991] 1 AC 398. In the latter case the House of Lords held, inter alia, that, while the principle in Donoghue v Stevenson applied to impose a duty on the builder of a house to take reasonable care to avoid injury or damage, through defects in its construction, to the persons or property of those whom he ought to have in contemplation as likely to suffer such injury or damage, that principle as stated extended only to latent defects.

[7.67] Lord Keith of Kinkel said (p 464):

‘[A]n essential feature of the species of liability in negligence established by Donoghue v Stevenson was that the carelessly manufactured product should be intended to reach the injured consumer in the same state as that in which it was put up with no reasonable prospect of intermediate examination: see per Lord Atkin, at p. 599; also Grant v Australian Knitting Mills Ltd [1936] A.C. 85, 103-105, per Lord Wright. It is the latency of the defect which constitutes the mischief. There may be room for disputation as to whether the likelihood of intermediate examination and consequent actual discovery of the defect has the effect of negativing a duty of care or of breaking the chain of causation … But there can be no doubt that, whatever the rationale, a person who is injured through consuming or using a product of the defective nature of which he is well aware has no remedy against the manufacturer.’

[7.68] Lord Jauncey of Tullichettle said (p 492):

‘In the 40 years after Donoghue v Stevenson it was accepted that the principles enunciated by Lord Atkin were limited to cases where there was physical damage to person or to property other than the property which gave rise to the damage and where there was no reasonable opportunity of discovering the defect which ultimately caused the damage: Grant v Australian Knitting Mills Ltd [1936] A.C. 85, Farr v Butters Brothers & Co [1932] 2 K.B. 606.’Lord Jauncey said (pp 494, 495) that two matters emerged clearly from Lord Atkin’s speech in Donoghue v Stevenson, one of which was ‘that the duty only extended to articles which were likely to be used before a reasonable opportunity of inspection had occurred.’

[7.69] Counsel then turned to consider the duties of a manufacturer who produced a product, the use or consumption of which involved inherent risks. He submitted that such a manufacturer had a duty to act reasonably in all the circumstances. Reference was made first to Holmes v Ashford [1950] 2 All ER 76. In this case a hairdresser treated the plaintiff’s hair with a dye, and as a result the plaintiff contracted dermatitis. The dye had been delivered to the hairdresser in labelled bottles together with a small brochure of instructions. Both the labels and the brochure contained a warning that the dye might be dangerous to certain skins, and a recommendation that a test should be made before it was used. The hairdresser had read the labels and the brochure and was aware of the danger, but he made no test and did not warn the plaintiff. The plaintiff claimed damages against the hairdresser and the manufacturers, and was awarded judgment against both. On appeal by the manufacturers, the Court of Appeal held that a manufacturer who put a dangerous article on the market must take reasonable steps to prevent any person coming into contact with it from being injured, but it was not necessary in every case that precautions should be taken to ensure that the ultimate recipient of the article was warned of the danger; in the present case the manufacturers had given the hairdresser a warning which was sufficient to intimate to him the potential danger of the dye, and it was not necessary that they should have warned the plaintiff; and, therefore, they had discharged the duty which was on them.

[7.70] Tucker LJ said (p 77):

‘A number of authorities have been cited to us by counsel for the plaintiff in support of the proposition that a manufacturer who puts a dangerous article on the market must take reasonable precautions to ensure that the ultimate recipient is warned of the danger. I think that that is not the correct way of stating the proposition. Every person who puts on the market a dangerous article (and the learned judge has found this to be a dangerous article) must take reasonable steps in all the circumstances. This is not an article the nature of which can be ascertained by intermediate examination, and, therefore, it is an article which requires some warning. The question in this case is: Was the warning attached to this bottle a sufficient and adequate warning to be given in cases where the material is supplied to hairdressers for use on their customers? We must presume that the material is supplied to reasonable people, and the first defendant has said that he read the warning, appreciated what it meant, and ignored it. I find it, therefore, impossible to hold that the warning which was, in fact, given in the present case was insufficient.’

[7.71] Counsel submitted that this case yielded the proposition that the manufacturer must take such steps as were reasonable in all the circumstances, and the presumption that the product was supplied to reasonable people. If people did not act responsibly, then that was their choice and they must take the consequences. As a general proposition, where it could reasonably be presumed that the consumer knew or ought to know of a risk inherent in using a product, there was no duty on the manufacturer either to warn or to withdraw the product. Provided that the ordinary consumer was in a position to make an informed choice, the law left him to make that choice: he was free to consume or not to consume the product in question.

[7.72] Counsel contrasted the position of the ordinary consumer with that of an employee. He submitted that Wright v Dunlop Rubber Co Ltd did not yield the general proposition that if a manufacturer learned that his product was associated with the risk of contracting fatal diseases and death, he had a duty to withdraw the product from the market until he had eliminated the risk. The statement that the duty of the manufacturer to the purchaser’s workmen in a case such as Wright was the same as the duty of a manufacturer towards his own workmen, subject to the proviso that the manufacturer knew how the goods were going to be used by the purchaser, put Wright into the category of cases where there was a relationship between the alleged wrongdoer and the claimant such as to affect the content of the duty of care and consequently the exercise of the duty of care. As in Tomlinson, the relationship was in a special category, because the employee was not free to choose whether or not to use the substance, and in any event had no knowledge of its nature. An employee did not have freedom to exercise choice. He had to do the work that his employer instructed him to do. As it was put in Tomlinson, where there was a relationship of a particular nature which brought particular duties, there might be a duty to protect the other person even against obvious risks or self-inflicted harm.

[7.73] Wright v Dunlop Rubber Co Ltd was considered by the Supreme Court of Victoria in Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449. The plaintiff sued the defendants, who were manufacturers and distributors of a particular brand of tampon manufactured in New Zealand, and purchased by the plaintiff in November or December 1980 in Australia and used by her soon after, alleging negligence resulting in personal injuries to her in the form of toxic shock syndrome. In dismissing the plaintiff’s appeal against the decision of Vincent J, the Appeal Division of the Supreme Court of Victoria held: (1) The duty of care in such a case as the present could not be categorised as being merely a duty to warn or alternatively to withdraw a product from the market. The duty was a duty to take reasonable care to avoid injury or harm being suffered by those using the product as intended. In each case it would be necessary for the tribunal of fact to determine whether in all the circumstances those marketing the goods failed to take reasonable care and whether that failure was a cause of the injury suffered by the user. (2) After a reported case of toxic shock syndrome in New Zealand in October 1980, the first defendant’s position in Australia was still not to be equated with that of the manufacturer of the equivalent tampon in the United States. (3) The recommendation of the National Health and Medical Research Council (NHMRC) whether or not to give a warning was a relevant fact to be taken into account when determining whether reasonable care had been exercised. (4) It had not been established that within the relevant period of time the defendants were in breach of their duty of care by failing to give warning on or in packets of their tampons or by paid advertisement through the means of the print and electronic media. (5) Having regard to all relevant matters including the evidence of reluctance on the part of the Health Department in New Zealand to forward a draft letter prepared on behalf of the American manufacturer to medical practitioners in New Zealand, but rather a preference for handling such communications itself, the trial judge was in error in concluding that the defendants were in breach of their duty of care by failing to write to all Australian medical practitioners before the plaintiff’s illness advising them of the risk of a relationship of toxic shock syndrome to the use of the tampons.

[7.74] The Appeal Division considered a submission on behalf of the appellant that the trial judge should have found, and erred in not finding, that in the circumstances of the case the respondents were not in breach of any relevant duty of care owed by them to the appellant (p 488). The court said:

‘The threshold question in considering the matter is to determine the scope of the duty of care owed by the respondents as distributors and manufacturers of Carefree Super tampons used by the appellant being one of the class of persons who could be reasonably foreseen to be purchasers and users of that product.

That a duty of care was owed by the respondents to the appellant was not disputed by the respondents. The tampons used by the appellant and manufactured by the second respondent and distributed by it to the first respondent and by it in turn to the public for purchase by that section of them using the same was of a nature, kind and composition as designed and intended. It was not part of the appellant’s case that it suffered from any defect of fault brought about in its preparation or distribution as to give rise to consideration of that type of duty of care as was considered, for example, in Donoghue v Stevenson [1932] A.C. 562 and Grant v Australian Knitting Mills Ltd [1936] A.C. 85.

However, where the manufacturer and/or distributor of the product ought reasonably to have foreseen that there was a risk of injury, which was not far-fetched, in the sense referred to by Lord Reid in The Wagon Mound (No. 2) [1967] A.C. 617, at pp. 643-4, and by Mason J., as he then was, in Wyong Shire Council v Shirt (1980) 146 C.L.R. 40, at pp. 46-7, there exists a relationship between the respondents and the appellant as a member of the class of persons likely to purchase and use the products so manufactured and distributed which gave rise to a duty of care by the respondents to the appellant.

The question is, ‘what is the scope of that duty of care?’Is it to take reasonable care to avoid injury to the appellant from her use or continued use of the product? If such is the duty then in determining whether the respondents were in breach of their duty it is necessary to evaluate the magnitude of that risk and all other relevant circumstances and matters in order to determine whether the respondents’response to the risk was reasonable or whether it was such as to constitute a breach of the duty owed: see Wyong Shire Council v Shirt, at p. 47. If, however, as was contended for on behalf of the appellant the scope of the duty was to warn the appellant as being a member of the class of persons to whom the duty was owed, of the risk involved in using or continuing to use Carefree Super tampons then, putting aside any question of causation in the event of a breach of their duty, the appellant would be entitled to succeed.’

[7.75] The court then went on to consider a number of previous decisions, including Wright v Dunlop Rubber Co Ltd before continuing (pp 490-492):

‘It is a question of fact in each case whether the duty owed has been breached. It is not a question of law. The manufacturer and retailer must act reasonably in placing its product on the market. The almost infinite variety of circumstances forbid any categorical exegesis of the manner of performance of the relevant duty of reasonable care.

Accordingly the duty of care cannot be categorised in the circumstances of such a case as this as being merely a duty to warn or alternatively to withdraw the product from the market. The duty is a duty to take reasonable care in the Donoghue v Stevenson sense to avoid injury or harm being suffered by those using the product as intended. In some circumstances a discharge of such duty of care might require and demand that the product be withdrawn from the market so as to prevent it being used. In other circumstances in order to discharge the duty it might be necessary to give adequate warning as to the risks involved in its use. It does not follow that the failure to warn with respect to those risks will necessarily constitute a breach of duty. In each case it will be necessary for the tribunal of fact to determine whether in all the circumstances those marketing the goods failed to take reasonable care and whether that failure was a cause of the injury suffered by the user.

It follows that the fact that no warning was given in all the circumstances of this case must be examined in the light of the duty of the manufacturer and distributor to take reasonable care. In Wyong Shire Council v Shirt, at pp. 47-8, Mason J. said:

‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.’ In his judgment the learned trial judge said, [1991] 2 V.R. 449, at p. 468:

‘Lying at the heart of this matter, however, is the necessity to ensure, as far as possible, that consumers are not unnecessarily or, through no fault of their own, unknowingly exposed to the risk of injury or other adverse consequences being suffered by reason of their use of products available to them in the marketplace.’ Again he said, at p. 469:

‘As a general proposition it appears to me to be obvious that where possible consequences of the contraction of a condition include death, even though the risk of any contraction may be very small, a potential purchaser is, at least, entitled to know of the existence of that risk and to be able to choose whether or not it will be accepted.’ If by those expressions his Honour meant that a manufacturer and/or distributor of goods to which such a risk as last referred to is attached and which risk would not ordinarily be apparent …has a duty or an obligation in order to satisfy that entitlement to warn of such risk as distinct from a duty to take reasonable care, we would disagree. If such was the case it would promote the duty to take reasonable care to an absolute duty to warn of such risk. The consequences of risk, which possibly may result in death, does not of itself give rise to a duty or obligation to warn of the risk. However, it would be a very material consideration to be regarded along with other material considerations when assessing whether the duty to take reasonable care in all the circumstances had been fulfilled.’

[7.76] The court then went on to consider what they regarded as material considerations. Among these was the position of the NHMRC, of which the court said (p 494):

‘Whether or not the NHMRC recommended that a warning be given was not determinative of the question of reasonable care, for to accept that proposition would permit the respondents to abrogate the duty of reasonable care owed by them. It is not the response of such a body which determines whether a person in the position of the respondents is or is not negligent. That is for the courts to decide. However, it is a relevant fact to be taken into account when determining whether reasonable care has been exercised.’

[7.77] The Appeal Division concluded this passage of their opinion in these terms (p 494):

‘The evidence was that in October and November 1980 there was much publicity about the matter of toxic shock syndrome. The fact was that the appellant was a reader of newspapers and regarded herself as having a fair general knowledge through the media but nevertheless she was unaware of toxic shock. These facts were relevant to the question whether a reasonable response by the respondents to the knowledge of the risk concerned called for the placing of advertisements in newspapers and/or advertising by means of the electronic media and whether a failure to do so constituted negligence.

Having regard to all these matters we have concluded that it was not established on the evidence that within the time frame in the circumstances of this case the respondents were in breach of the duty of care owed by them to the class of persons of whom the appellant was a member, by failure to give warning on or in packets of Carefree Super tampons or by paid advertisements [through] the means of the print and electronic media of the risk of the use of such tampons being associated with the onset of toxic shock syndrome.’The Appeal Division also decided that the trial judge was in error in concluding that the respondents who were the manufacturers and distributors of the product were in breach of the duty owed by them by failing to write to all medical practitioners in Australia before the plaintiff’s illness advising them of the risk of the relationship of the onset of toxic shock syndrome to the use of tampons by menstruating women.

[7.78] Counsel submitted that this case demonstrated that a duty to warn was imposed where a danger was unknown; but it was a duty simply to warn adequately and not to insure against it. This duty might arise if the manufacturer knew or ought to know something which the consumer did not know and could not reasonably be expected to know, but if the existence of a risk was common knowledge as a result of information which was in the public domain, then the manufacturer might not be under any duty even to give a warning. In all cases it was for the consumer to make an informed choice. The authorities established that a manufacturer of consumer goods produced to meet a demand would not normally be acting unreasonably in continuing to produce and sell them, even if they involved risk, unless the risk was hidden from the public. It was enough to give a warning of risks to health. There was a duty on the manufacturer to warn, in the sense of giving information; the consumer should be made aware of any risk inherent in the use of the product so that he could exercise the choice whether to use the product or not. There was no authority for the proposition that the manufacturer had any duty to do more than inform, and in particular to persuade or shock or cajole. On the evidence in the present case, insofar as ITL were under a duty to give warnings of risks to health, they fulfilled this duty from 1971 onwards when government health warnings first appeared on cigarette packets. These were not only sufficient for this purpose in general, but were in fact sufficient in the case of Mr McTear, who became aware of the risks to health caused by smoking in 1971, if not before.

[7.79] Counsel submitted that Wright v Dunlop Rubber Co Ltd laid down no strict rule about cessation of manufacture, it simply reiterated that a manufacturer should do what was reasonable in the whole circumstances of the case. Counsel next referred to Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. A representative action was brought in the Federal Court of Australia on behalf of a group of consumers who had contracted the hepatitis A virus after eating oysters harvested from the waters of Wallis Lake in New South Wales. The waters had been polluted by human faecal contamination which in turn contaminated the oysters. The applicants alleged that the grower of the oysters (GBO), the distributor (GBD), the local government authority for the area in which Wallis Lake was located (the council), and the State government were liable in negligence for the harm suffered. They also claimed that GBO and GBA were liable under various provisions of the Trade Practices Act 1974 (Cth), and an individual applicant brought a personal claim against GBO under secs 74B and 74D of that Act. The representative applicants succeeded against each respondent in negligence but failed in respect of claims based on secs 52, 71, 74C and 75AD of the Trade Practices Act. The individual succeeded in his personal claim under the Act. On appeal by the State and the council to a Full Court on the issue of existence of a duty of care to consumers of the oysters and by GBO and GBD on the issue of breach of the relevant duty of care and of secs 74B and 74D of the Act, all but the council’s appeals were dismissed. On further appeal to the High Court of Australia, it was held, inter alia, by a majority that neither GBO nor GBD had breached its duty of care to the consumers.

[7.80] In the course of his opinion, Gaudron J said (p 571, para 64), contrasting the provisions of the Trade Practices Act 1974 and the general law of negligence:

‘Although different concepts inform the law of negligence, ordinarily there is a duty to warn only if there is a foreseeable risk that a person will be led to believe that something is safe when it is not.’

[7.81] McHugh J said (p 583, para 101):

‘The Barclay companies accepted that they owed oyster consumers a duty of care to ensure that the oysters were safe for human consumption. The issues in relation to the Barclay companies related to the scope of the duty of care that they owed to oyster consumers and whether there was a breach of that duty.’In the course of his consideration of these issues McHugh J said (p 585, para 106):

‘The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer [footnote reference to Donoghue v Stevenson [1932] A.C. 562 at 599, per Lord Atkin]. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. But, as Wyong Shire Council v Shirt [footnote reference to (1980) 146 C.L.R. 40 at 47-48, per Mason J., Stephen and Aickin J.J. agreeing] shows, the question of breach is far more complex than an affirmative or negative answer to the question whether the defendant carried out the duty as formulated. It involves evaluating and weighing a number of competing considerations.’

[7.82] After discussing the competing considerations, McHugh J concluded (p 587, para 113):

‘In my opinion, the steps that the Barclay companies took [in suspending the harvesting of oysters for a period of several days during and after the heavy rain which led to the human faecal contamination] were a reasonable response to a very low risk of viral contamination. Reasonable care did not require them to go to the expense of conducting sanitary surveys – even if they could have done so effectively – or shutting down their business indefinitely or labelling their oysters with a warning concerning the risk of viral contamination. In nearly a century, no previous outbreak had occurred. What they did was in accordance with industry practice and at the time was a reasonable response to the slight possibility that consumers would suffer harm because of viral contamination caused by the heavy rain that occurred in November 1996.’

[7.83] Gummow and Hayne JJ said (pp 611, 612, para 192):

‘A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach [footnote reference to Brodie v Singleton Shire Council (2001) 206 C.L.R. 512 at 627-628 [309]]. That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk. As Isaacs A-CJ observed in 1924, ‘[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done'[footnote reference to Metropolitan Gas Co v Melbourne Corporation (1924) 35 C.L.R. 186 at 194]. The trial judge and the majority of the Full Court in the present case failed to identify with the necessary precision, by reference to considerations of the nature of those indicated in Wyong Shire Council, the reasonable response to the risk of harm that existed. In so failing, their Honours fell into an error of law.’

[7.84] After discussing various courses of action, Gummow and Hayne JJ said (p 614, para 201):

‘Therefore, in practical terms, the alternatives open to the Barclay companies were (i) to cease harvesting and selling oysters after the November 1996 rainfall event until a sanitary survey was conducted and testing revealed an acceptable risk; or (ii) to sell oysters with a warning as to their possible viral contamination; or (iii) to cease growing oysters at Wallis Lake entirely, and, perhaps, to establish operations in pristine waters elsewhere. Given the attitude of both the Council and the State, and the apparent similarity between the November 1996 rainfall and previous rainfall events, option (i) effectively would have required the cessation of harvesting for an unspecified, potentially indefinite, period following any such heavy rainfall. Option (ii) is likely to have had the same effect as ceasing to sell oysters altogether. Option (iii) was not explored in any detail during argument and would have required relocation to some unspecified waterway isolated from human beings. Each of the three courses of action would have been either entirely destructive of, or highly disruptive to, the business of the Barclay companies. Each represents alleviating action of the most difficult, expensive and inconvenient type. According to the settled principles propounded in Wyong Shire Council, such alleviating action can only be required by the law of negligence if the magnitude of the risk and the degree of probability of its occurrence are great indeed.’Gummow and Hayne JJ said (p 615, para 202):

‘Notwithstanding the significant magnitude of the risk of harm that eventuated in this case, the degree of probability of its occurrence cannot be said to justify the difficult, expensive and inconvenient alleviating action contended for by the consumers.’

[7.85] Counsel submitted that this case afforded an example of the reinforcement in another jurisdiction of the correct approach, which was that there was no absolute duty to warn or to cease manufacture. Both that case, and Wright v Dunlop Rubber Co Ltd, were entirely consistent with the general proposition that a manufacturer of a product, the consumption of which might involve risk, had a duty to act reasonably in all the circumstances, but this did not dictate any particular result. On the contrary, a manufacturer of consumer goods would normally not be acting unreasonably in continuing to produce and sell them, even if consumption of them should involve risk, unless the risk was hidden from the public.

[7.86] Counsel went on to submit that the starting point in considering whether or not there was a duty to warn was to articulate the proposition about the risks or dangers attaching to the use of a product which it would be proper to make on the basis of the current state of the science. It was only against such a background that one could assess whether or not in all the circumstances it was incumbent upon the manufacturer to issue a warning. Once the risks were properly articulated, the extent to which knowledge of them was already in the public domain was an important consideration in determining whether or not a manufacturer who had not issued a warning had fulfilled his duty to act reasonably in all the circumstances. The cases established that there was in general no duty to warn in respect of risks which were patent or which one could reasonably anticipate would be discovered by intermediate inspection. In general, a manufacturer had no duty to warn of risks of which it would be reasonable to expect an ordinary consumer to be aware.

[7.87] Counsel referred to Bogle v McDonald’s Restaurants Ltd [2002] EWHC 490 (QB). In a trial of generic issues arising from the pleaded cases of a group of claimants suing for personal injuries caused by the spillage of hot drinks served by the defendant (McDonald’s), the generic issues included:

‘(5) Whether there was a duty upon the defendant to warn its customers as to the risk of scalding from hot drinks.

(6) If there was such a duty, whether the defendant was in breach of it.’Field J discussed these generic issues at paras 63-69 of his opinion. At para 64 he noted the contentions for the claimants that there was a duty to warn for various reasons, including:

‘(5) Whilst some customers might be aware of the risk, the duty to warn arises because some may not be aware of the risk.’

[7.88] Field J said (para 65):

‘I think it a fair inference that small children very rarely buy or intentionally consume coffee and tea in McDonald’s Restaurants. (It is certainly the case that in all the claims that have been brought, the hot drinks were bought by an adult.) In my opinion, McDonald’s could therefore expect that the great majority of those who bought hot drinks in their restaurants would be in their teenage years or above. In my judgement, these customers could be taken to know that the coffee and tea they were buying was hot and could cause a nasty scalding injury if it spilled on someone. Most customers would not know precisely how hot the drink was, but they would know that tea and coffee is made with very hot water. Nor would most customers know just how severe the scalding injury could be, but they would know that it could be very painful and serious. They would also know that drinks occasionally get spilled in restaurants such as those run by McDonald’s.’

[7.89] He said (para 67):

‘Whether McDonald’s were negligent in not warning their customers depends on an objective assessment of all the circumstances, including the risk of injury and the customers’appreciation of those matters that gave rise to the risk. As I have said, I am quite satisfied that those who bought coffee and tea could be taken to know that such drinks sometimes get spilled and are served at temperatures which cause serious and painful injury if they come into contact with someone’s skin. I accordingly find that there was no duty on McDonald’s to warn their customers about the risk posed by the temperatures at which tea and coffee were served, notwithstanding the warnings they gave to their employees and the fact that from 1995 a warning has been printed on the cups.’

[7.90] Counsel submitted that in this case the court adopted the approach of what it was reasonable to do in the whole circumstances. This was consistent with the general approach in the leading authorities. Reference was next made to Hodge & Sons v Anglo-American Oil Co (1922) 12 Ll LR 183. In the first action the plaintiffs who were barge repairers in London claimed damages arising out of an explosion on the Anglo-American Oil Co’s oil tank barge Warwick, when she was being repaired by the plaintiffs, to whom she had been sent for that purpose by the defendants Messrs Miller & Co. As a result of the explosion several lives were lost and considerable damage done. In the second action, which was in the nature of a test action, the plaintiff, a boilermaker employed by Messrs Hodge & Sons, claimed damages for personal injuries caused by the explosion.

[7.91] In the course of his opinion Bankes LJ said (pp 184, 185), after narrating the circumstances:

‘It is in these circumstances that the question of liability arises. The Anglo-American Oil Co were, in my opinion, under a double duty, (a) the duty of using reasonable means for securing the efficient cleaning out of the tank, and (b) the duty of giving any necessary warning of the dangerous character of the tank even after a proper and sufficient cleaning. The first duty, in my opinion, extended to all those who necessarily came into contact with the tank in the course of carrying out the repairs, including therefore the plaintiff Willmott. With regard to the second duty, a warning would not, in my opinion, be required where the person who would otherwise be entitled to warning was already aware of the danger, or …might reasonably be assumed to be aware of it. Messrs Miller obviously required no warning; they were perfectly well aware of the danger. Messrs Hodges were in relation to the Anglo-American Oil Co in a different position to Messrs Miller: but I assume that the Anglo-American Oil Co were aware that the barge was being sent to Messrs Hodges for repair. If so, Messrs Hodges would be entitled to a warning unless they, like Messrs Miller, are to be taken to have been aware of the danger. Having regard to what must be the state of knowledge among ship and barge repairers on the Thames as to the danger of dealing with cleaned petrol tanks, I think that the Anglo-American Oil Co were entitled to assume that Messrs Hodges needed no warning as to that danger…

I do not think that the present is a case in which the Anglo-American Oil Co were under any duty to Messrs Hodges’workmen to give them any individual warning. Whether a warning to an employer of the dangerous character of an article sent to him for repair is a sufficient warning to the workmen directed by the employer to carry out those repairs must be a question of fact depending upon the particular circumstances of each case. There are in this case, in my opinion, no such special circumstances as placed the Anglo-American Oil Co under any duty to give any warning to the plaintiff Willmott or to the other employees of Messrs Hodges.’

[7.92] In the course of his opinion Scrutton LJ reviewed the cases bearing on the question whether a warning ought to have been given, and he said (p 187):

‘But all the cases cited distinguish the case of a thing in its nature dangerous without warning, described by Lord Shand in Caledonian Railway Co v Mulholland [1898] A.C. 216, at p. 292, citing the argument of the present Lord Dunedin, then Lord Advocate, as ‘an instrument noxious or dangerous in itself which might produce an accident from the mere handling of it,’and by Lord Dunedin himself in Dominion Natural Gas Co v Collins [1900] A.C. 646:

‘What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that in the case of articles dangerous in themselves such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity.quote’

[7.93] Scrutton LJ went on to say (p 188):

‘The law, therefore, seems to be:

(1) That if the barge which has carried petrol is an article dangerous in itself, it is the duty of the owners to take proper and reasonable precautions to prevent its doing damage to people likely to come into contact with it. These precautions may be fulfilled by entrusting it to a competent person with reasonable warning of its dangerous character, if that danger is not obvious. If such precautions are not taken, the owner will be liable to third persons with whom he has no contact for damage done by the barge, which they could not have avoided with reasonable care.

(2) If the barge which has carried petrol is not dangerous in itself, but becomes dangerous because it has been insufficiently cleaned, and the owner is ignorant of the danger, the owner is not liable for damage caused by it to persons with whom he has no contract. (Earl v Lubbock [1905] 1 K.B. 253)

(3) In the case of a thing dangerous in itself, where either the danger is obvious or the owner has given proper warning to the person entrusted with it, not being his servant, the owner is not liable for negligence of such person causing injury to a third party; such negligence is nova causa interveniens.’

[7.94] Counsel submitted that a distinction could be drawn between Hodge & Sons and Wright v Dunlop Rubber Co Ltd, because in Hodge & Sons the employers could be assumed to know of the danger, whereas in Wright the employers in fact did not know of the danger and could not be assumed to know of it. If the consumer had the relevant knowledge, then there might be no duty to give a warning; and Hodge & Sons demonstrated that there was a distinction between the relationship between a manufacturer of a product and the consumer, and that of an employer and an employee. Tomlinson supported the submission that it was not necessary that the claimant should know the precise nature and extent of the risk, and once he appreciated that there was some risk it fell to him to satisfy himself as to its nature and extent, and it was assumed that he would do so.

[7.95] Applying these considerations to the present case, counsel submitted, it would suffice if it could reasonably be assumed by ITL by the relevant date, that is the date when Mr McTear started smoking, whenever that was, that the ordinary consumer would be aware of a link between smoking and lung cancer, because he would then know that by smoking he was running a risk of fatal disease. By contrast with an employee, if a consumer was aware that the product which he was contemplating consuming was linked with a fatal disease, then that was sufficient to place the onus on him to decide whether or not he was prepared to ‘take a chance’, in the expression used in Titchener, without seeking further advice or information about the precise nature and extent of the risks. If the manufacturer could reasonably take it that consumers in general were aware that the product was linked with a fatal disease, then it was sufficient for them reasonably to assume that the onus was on ultimate consumers to determine whether they were prepared to take a chance and consume the product. This was consistent with what was said in Grant v Australian Knitting Mills Ltd, and with Titchener. It was also consistent with Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460.

[7.96] In the latter case a player was struck in the eye by the ball when batting in a game of indoor cricket. He suffered serious injury and sued the owner/operator of the facility at which the game was played. It was not disputed that the defendant owed a duty to take reasonable steps to avoid the risk of injury to players arising from the dangers involved in playing indoor cricket. The plaintiff contended that the defendant was in breach of that duty in failing to warn him or to display signs warning of the dangers of the game, in particular of the risk of serious eye injury, and in failing to provide him with eye protection equipment. The High Court of Australia held, by a majority, that there were no grounds for rejecting the trial judge’s finding (a) that the defendant’s duty of care did not require it to provide the plaintiff with a helmet that would have protected him against the risk of injury to his eyes; or (b) that the risk of a player being struck was so obvious that reasonableness did not require the defendant to warn players about the specific risk of eye injury.

[7.97] It is sufficient to ‘from the opinion of Gleeson CJ. In discussing the appellant’s complaint of a failure to provide a sign to warn of the dangers of indoor cricket, and, in particular, the risk of serious eye injury, he referred at p 470, para 31 to the dangers of indoor cricket, and at p 471, para 32, to the expression ‘inherent risks’used by the trial judge to describe risks which are ‘by their nature obvious to persons participating in the sport’, and described the risk of being hit by a cricket ball during the course of play as a risk of that kind. At para 34, Gleeson CJ referred to the heightened risk of a particular type of eye injury because of the more malleable quality of the ball used in indoor cricket, by comparison with that used in outdoor cricket, which would allow it to impact on the eye surface rather than injure the bones around the socket. He referred to the conclusion of the trial judge that reasonableness did not require a warning, which was expressed in these terms:

‘I do not consider that in these circumstances, where being hit in any part of the body including the head, is an obvious risk, that there is any duty to warn of the specific risk of serious eye injury.’

[7.98] Gleeson CJ said (p 472, para 39):

‘Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of duty of care speak in terms of balancing the magnitude of the risk with the cost of inconvenience of preventing it. But, as Mason J. pointed out in Wyong Shire Council v Shirt [footnote reference to (1980) 146 C.L.R. 40 at 47], ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk.’

[7.99] Gleeson CJ said (pp 473, 474):

’43 As to the matter of the warning, the trial judge dealt with the appellant’s case as it was put to her. The case was that there should have been a warning of the dangers associated with indoor cricket and, in particular, the danger of serious eye injury. It is useful to reflect upon what exactly might have been the content of the warning. There was no reason to limit it to the risk of head injury, much less eye injury. There was one particular respect in which the type of eye injury suffered at indoor cricket can be different from the type suffered at outdoor cricket, but there were probably also a number of respects in which the risk of back injury, or concussion from collisions, might be different from the risks associated with outdoor cricket. The risk that, in the confined space in which the game was played, any player, batsman or fielder, might receive a severe blow to any part of the head, including the eye, was, the trial judge found, obvious and well known to the appellant. It was argued that the appellant was not aware of the precise nature, and full extent, of the risk. But warnings of the kind here in question are not intended to address matters of precision. Judge French concluded that the risk of a player being struck in the face by a cricket ball was so obvious that reasonableness did not require the respondent to warn the players about it.

44 Judge French, and the Full Court, were criticised in argument for their reliance on what Judge French described as the comment of Kirby J. in Romeo v Conservation Commission (N.T.) (1998) 192 C.L.R. 431 at 478 that:

‘Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.’

45 It is right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case. Reasonableness would not ordinarily require the proprietor of an ice skating rink to warn adults that there is a danger of falling; but there may be some skaters to whom such a warning ought to be given. Nevertheless, as a generalisation, what Kirby J. said is, with respect, fair comment. That is how Judge French and the Full Court understood it, and they did no more than indicate that they regarded it as apposite to the present case. There is no error in that.

Copyright 2004 Scottish Council of Law Reporting