Smoking case fails

The claimant’s husband had died from lung cancer and she said that this was caused to a material extent by, from 1964 to 1992, smoking cigarettes manufactured by the defendants who were negligent in selling cigarettes, or in any event in selling them without appropriate warnings.

She accepted that the process by which lung cancer developed was not known. She relied on evidence from medical experts who had, in turn, relied on epidemiological literature (the study of patterns of disease in populations) relating to the association between cigarette smoking and lung cancer to support their conclusions that smoking was a cause of lung cancer in general and had specifically caused the deceased's cancer.

HELD: (1) There was no direct evidence that the manufacturer had ever accepted a causal connection between smoking and disease, especially lung cancer, and the evidence did not show that such an inference should be drawn. Whether smoking cigarettes could cause lung cancer was not within judicial knowledge. Therefore, the burden was on the widow to establish on the balance of probabilities that lung cancer in the general population and in the deceased would not have occurred “but for” the smoking of cigarettes.

It was not open to the court to form its judgment on the evidence without being taught how to do epidemiology to a sufficient extent, and without being provided with sufficient factual material for it to decide whether it was proved not only that there was an association between cigarette smoking and lung cancer, but that the proper conclusion to draw was that there was a causal connection between them.

The claimant had failed to provide evidence about the primary epidemiological literature on which its experts had relied and had therefore failed to impart to the court special knowledge of epidemiology to enable it to form its own judgment about it and the conclusions to be drawn from it. Therefore the widow had failed to discharge the burden, in accordance with the requirements of the law of evidence relating to expert witnesses, that cigarette smoking could cause lung cancer.

(2) Epidemiological evidence could not be used to draw conclusions about the cause of disease in an individual. The statistical risk of disease in a population did not imply a likelihood of disease occurrence within an individual. The claimant had not proved that smoking was probably the cause of the deceased's lung cancer.

(3) The deceased, in common with the general public, had been aware of the association between cigarette smoking and lung cancer before he started to smoke the tobacco company’s products in 1971 and he was in a position to make an informed choice about whether to smoke. There had been no lack of reasonable care by the manufacturer. The evidence showed that the deceased would have continued to smoke even if the company had stopped manufacturing cigarettes and therefore, even if the defendants had been negligent, it would have made no difference to whether the deceased contracted lung cancer.

Margaret McTear -v- Imperial Tobacco Ltd (2005)

Second breakdown stress case fails

The claimant was a teacher with the defendant school for a number of years, and was promoted to assistant head teacher. Shortly afterwards, a new head was appointed and the claimant felt that she was being sidelined and undervalued by the new head, particularly in relation to changes introduced as part of a Government voucher scheme. An inspection of the school criticised the teaching of her class, and the claimant increased her working hours significantly to cope.

The claimant visited her GP and was diagnosed with depression as a result of the problems in her employment. She was off sick from work for eight months.

She returned to work gradually on the recommendation of her GP, working part-time hours for the first two weeks of term. The defendant recognised the risk of a relapse, and held support meetings to help the claimant cope with her workload, and the new teaching methods. Staff noticed that the claimant was not coping and had become withdrawn. Shortly afterwards she left the school and did not return. The claimant sued for both episodes of severe clinical depression. The judge held that there had not been any breach of duty by the defendant. The claimant appealed. 

She argued the defendant should have supported her fully when she returned to work and considered whether, in the light of her health, she was fit to work; that it should have sought further medical assistance when she deteriorated; and that in the light of her obvious failure to cope, the defendant should have sent her home on full or sick pay. 

The appeal was dismissed. The defendant had not failed to support the claimant in her return to employment, and it had not been for it to dismiss the claimant in her own interests, when she had wanted to return.

The defendant had allowed the claimant to return to work gradually, initially on a part-time basis, and it had held three separate support meetings. It was reasonable for the staff to take the claimant’s reassurances of her medical health at face value, and to have questioned her further about this would have been intrusive and would have suggested dishonesty on her part. If the defendant had suggested that the claimant left her job, she might have perceived it as hostile, and such a reaction could have caused a relapse.

Vahidi -v- Fairstead House School Trust Ltd (CA), Civ Div, 9 June 2005.


n.b the Judge's comments on the need for mediation in such cases in the procedure section below