Pou v British American Tobacco (New Zealand) Ltd HC Auckland CIV-2002-404-1729

[2006] NZHC 451

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2002-404-1729

BETWEEN   BRANDON POU AND KASEY POU Plaintiffs

AND   BRITISH AMERICAN TOBACCO (NEW ZEALAND) LIMITED AND W D & H O WILLS (NEW ZEALAND) LIMITED Defendants

Hearing:         7-10, 13-17, 20-24, 27 & 28 February 2006, 8-10 and 13 March 2006

Appearances:  Mr D B Collins QC, Mr B Corkill, Mr J French and Ms J Herschell for plaintiffs

Mr M R Camp QC, Mr M R Bos, Mrs V Lobao and Mr S O'Sullivan for defendants

Judgment:      3 May 2006 at 2 pm

JUDGMENT OF LANG J

Counsel:

D B Collins QC, Lambton Chambers, 101 Lambton Quay, Wellington B Corkill, L 8, Central Chambers, 114-118 Lambton Quay, Wellington M R Camp QC, P O Box 10048, Wellington

Ms J Herschell, P O Box 905, Wellington

Solicitors:

French Burt Partners, 110 Don Street, Invercargill

Phillips Fox, P O Box 160, Auckland

POU V BRITISH AMERICAN TOBACCO (NEW ZEALAND) LIMITED AND W D & H O WILLS (NEW ZEALAND) LIMITED HC AK CIV-2002-404-1729 [3 May 2006]

TABLE OF CONTENTS

Introduction  [1] The claim  [5] Issues  [7]

Summary of findings  [8]

1. Is the plaintiffs’ claim barred by virtue of section 4(7) of the

Limitation Act 1950?

[10]

Duty of Care   [19]

2. Could any duty of care owed by a manufacturer of cigarettes in 1968 include a duty to completely cease the manufacture and distribution of its products?

3. Was there a prima facie duty to warn consumers of the potential hazards of cigarette smoking when Mrs Pou began smoking in 1968?  If so, is the existence of the duty otherwise negated by virtue of the fact that

the dangers of smoking were common knowledge at that time?

[20]

[30]

The duty of a manufacturer to take reasonable care  [31] The duty to warn  [33] The impact of obvious danger or common knowledge of the danger     [44] Consideration of common knowledge of risks  [63]

(i) History and development of smoking in New Zealand          [65]

(ii) Information as to public awareness of the risks of smoking during the 1960s

Conclusions relating to public awareness of the risks of smoking

during the late 1960s

[114]

[163]

Conclusion regarding the issue of common knowledge  [196] (a) Addiction / difficulty in giving up smoking  [196] (b) Potential injury to health  [199]

4. Did Mrs Pou know of the risks when she began smoking in 1968?            [205]

5. What impact, if any, should policy issues have in determining the scope of the duty to take reasonable care?

[214]

Causation   [253]

6. Can Wills be liable given that Mrs Pou has not smoked cigarettes produced by it since approximately 1969?

[254]

7. Have the plaintiffs established that the defendants’ failure to provide the appropriate warnings in 1968 and 1969 can be causally linked to Mrs Pou’s decision to commence smoking and   to continue smoking

thereafter?

[264]

The direct evidence  [264] Mrs Pou’s circumstances in 1968  [272] Mrs Pou’s personality  [280] The manner in which Mrs Pou responded to warnings  [291] Objective factors  [301]

Conclusion  [316]

8. Should the Court apply the principles referred to by the House of

Lords in Chester v Afshar in deciding the issue of causation?

9. If Mrs Pou was not aware of the dangers of smoking in 1968, what would be the position if she subsequently became aware of those angers?

When, at the very latest, would Mrs Pou have appreciated the risks

of smoking?

[318] [326]

[327]

The wording of the initial warnings  [334] The defendants’ advertising campaigns and use of sponsorship           [337] Statements made by the defendants  [340] The relevance of Mrs Pou’s awareness of the risks of smoking            [346] The relevance of addiction: could Mrs Pou have given up smoking?    [359] Did Mrs Pou take reasonable steps to give up smoking?  [374]

An alternative approach: the individualist philosophy of the law         [390]

Conclusions regarding the relevance of Mrs Pou’s failure to quit smoking

Defences

[399]

10. The defences of volenti non fit injuria and contributory negligence        [401] Result  [403] Costs  [404]

Introduction

[1] Janice Pou died on 24 September 2002 at the age of 52 years.    She had been a heavy smoker since the age of 17.

[2] In 1968 Mrs Pou began smoking Capstan cigarettes, manufactured and supplied by W D & H O Wills (NZ) Limited (“Wills”).   About a year later she switched to Pall Mall, a brand manufactured by Rothmans, now British American Tobacco (NZ) Limited (“BAT”).   Later she smoked Winfield cigarettes, also a Rothmans product.

[3] Mrs Pou discovered that she had lung cancer in June 2001.    She took the view that her illness  had been caused by the defendants  in this proceeding,  Wills and BAT.     She therefore issued this proceeding in June 2002, alleging that each had breached duties of care owing to her in relation to the sale and distribution of their cigarettes.   She contends that these breaches caused her to take up smoking and that she contracted lung cancer as a result.    She therefore claims that she is entitled to substantial damages against them.

[4] Mrs Pou was survived by her adult children, Brandon and Casey.   They are the executors of her estate.     They have continued this proceeding in order to honour their mother’s wish that it be seen through to a conclusion.

The claim

[5] The statement of claim in its original form contained two separate claims.    The first was a claim brought by the plaintiffs on behalf of their mother’s estate under s 3 of the Law Reform Act 1936.   The plaintiffs also sought damages in their own right under s 6 of the Deaths by Accidents Compensation Act 1952.   Their ability to bring the  second  claim  was  challenged  in  a strike-out  application  that  was  upheld  by

Harrison  J.      The  Court  of  Appeal  reversed  that  decision,  but  the  plaintiffs

subsequently elected not to pursue their cause of action under the 1952 Act.    The only matter now to be determined is the claim by the estate.

[6] The allegations contained in the current version of the statement of claim can be summarised as follows:

a)       Mrs Pou was diagnosed with metastatic small cell cancer of the left lung (lung cancer) in June 2001.   The lung cancer caused her death in September 2002.

b)At the time of her death Mrs Pou was aged 52 years and was living on an Invalid’s Benefit.

c)        Mrs Pou commenced smoking in 1968 when she was 17 years of age.

When she began smoking she smoked “Capstan Navy Cut Medium Corked Tip”, “Pall Mall’s King Size” and “Pall Mall Filter Tipped” cigarettes.   Capstan cigarettes were manufactured by Wills whilst Pall Mall  cigarettes  were  manufactured   by  BAT.     She  subsequently smoked Winfield, also a brand manufactured by BAT.

d)Mrs Pou commenced smoking cigarettes because she “read, saw and believed” advertisements that glamorised cigarettes.    These included advertisements that she saw in the print media circulating in the Southland  area,  in movie  theatres  in Invercargill  and in shops  and billboards in and around Invercargill.     In addition, Mrs Pou was impressed  by the manner  in which  Wills  and BAT promoted  their products  through  the sponsorship  of sporting  figures  such  as Peter Snell and Don Clarke.

e)       The   advertisements   that   Mrs   Pou   saw   were   promoted   by   the defendants (and other manufacturers and distributors of cigarettes) to persuade   young   people   to   commence   smoking   cigarettes   by representing that smoking was “glamorous, socially acceptable, associated with success, sophisticated and sexy”.

Similarly,  the  promotion  of  cigarette  smoking  through  the  use  of leading  sports  figures  was  designed  to  persuade  persons  in  the

position of Mrs Pou that smoking was linked with success and was not harmful.

f)Within approximately  12 months of commencing  smoking Mrs Pou became  addicted  to cigarettes.     Her addiction  was established  and measured against several well-known diagnostic procedures.

g)As   a   consequence   of   her   addiction   Mrs   Pou   smoked approximately 30 cigarettes per day until the date of her death, notwithstanding  the  fact  that  she  was  diagnosed  with  lung cancer caused by smoking.

h)Both   Wills   and   BAT   manufactured   and   supplied   tobacco products with the intention that the public would purchase and smoke them.    In doing so they knew, or ought reasonably to have known, prior to 1968 that the cigarettes that they manufactured and distributed contained substances which:

i)Caused   some   consumers   of   cigarettes   to   become addicted to smoking cigarettes, or

ii)Made   it  extremely   difficult   for  some   consumers   of cigarettes to stop smoking, and/or

iii)       Caused, or were likely to cause, serious illness to those who smoked cigarettes, and in particular lung cancer.

i)         Notwithstanding   their   knowledge   about   the  nature   of  the

cigarettes that they manufactured and distributed, and the risks that those cigarettes posed for the health of those who smoked them, BAT and Wills:

i)Promoted     the     smoking     of     cigarettes     through advertisements   designed   to   persuade   children   and young persons to commence smoking cigarettes.

ii)Failed to cease manufacturing  or distributing  cigarettes of which they knew or ought reasonably to have known the dangers  to the health  of consumers  including  Mrs Pou.

iii)      Failed   until   1974   to   place   notices   on   packets   of cigarettes  warning  about  the  potential  risks  to  health from smoking cigarettes.

iv)Advertised  and marketed  their cigarettes  in a way that negated the value of any warnings placed on cigarette packets from 1974 onwards.

v)Publicly made disparaging remarks about research and comments  from various  sources,  including  the medical

community,    that     warned     of    the     risks     of     smoking

cigarettes.

vi)By  their  advertisements   reinforced  to  Mrs  Pou  that smoking was a glamorous and pleasurable activity.

j)In those circumstances BAT and Wills owed Mrs Pou a duty of care to warn her, prior to the date upon which  she became addicted to smoking cigarettes, of the possibility that she might become addicted to smoking cigarettes and/or that she might find it extremely difficult or impossible to stop smoking and/or that she might suffer injury to her health if she continued  to smoke cigarettes.

k)Alternatively, BAT and Wills owed Mrs Pou a duty to stop manufacturing  and distributing  cigarettes  when they knew, or ought   reasonably   to   have   known,   that   cigarettes   were dangerous to the health of consumers such as Mrs Pou.

l)The defendants breached both duties of care by failing to warn Mrs Pou of the likely consequences of smoking cigarettes and by failing to stop manufacturing and distributing cigarettes.

m)       As a result of those breaches Mrs Pou took up smoking and

became addicted to smoking cigarettes within about twelve months.      By  virtue  of  her  addiction  Mrs  Pou  continued  to smoke the defendants’  products,  and as a consequence  she developed  lung  cancer  which  caused  her  death.     The  lung cancer developed as a direct result of the fact that she smoked the defendants’ cigarettes.

n)As a result of developing lung cancer Mrs Pou suffered financial losses   in   the   form   of   medical   and   treatment   expenses ($1,211.85), funeral expenses ($5,579.99) and loss of earnings ($4,174.33).

o)In addition, Mrs Pou endured pain and suffering for which the plaintiffs  seek damages  in the sum of $200,000.     She also suffered a loss of amenity in the form of a loss of enjoyment of life and a loss of the ability to enjoy walking in the company of friends.     The plaintiffs seek damages in the sum of $50,000 under this head.

p)The plaintiffs also seek damages in the sum of $50,000 for loss of expectation of life.

Issues

[7] As  refined  by  counsel  during  their  closing  addresses,  the  proceeding

gives rise to the following principal issues:

A.       Duty of care

1.Did the defendants know, or ought they reasonably have known, by 1968 that smoking cigarettes:

a)        was a major cause of lung cancer; and b)        could be addictive, or hard to give up.

2.If they did, was there any duty on them to cease producing cigarettes and to withdraw them from sale?

3.        If there was not, was any duty to warn of those risks negated by the fact that:

a)        the dangers of smoking cigarettes were obvious; or

b)        the dangers of smoking cigarettes were common knowledge in 1968.

B.       Breach of Duty

1.The defendants accept that, if they had a duty in 1968 to provide warnings regarding  the  risk  posed  by  smoking  cigarettes,  they  breached  that  duty. They also accept that, if at any time there was a duty to cease manufacturing cigarettes,   they   breached   that   duty   because   they   have   continued   to manufacture cigarettes.

C.       Causation

1.Have  the  plaintiffs  established  that,  if  the  defendants  had  provided  the appropriate   warnings   in  1968,   Mrs   Pou  would   not  have   commenced smoking?

2.If they have not, should the Court nevertheless apply the principles referred to by the House of Lords in Chester v Afshar [2005] 1 AC 134?

3.If Mrs Pou did not become aware of the dangers of smoking until after 1968, was she able to stop smoking in sufficient time to prevent her lung cancer from developing?

4.Can Wills be held to have contributed materially to Mrs Pou’s death given that she only smoked Wills’ cigarettes in the early 1970s?

D.       Limitation Act 1950

Is any part of the proceeding barred by s 4(7) of the Limitation Act 1950?

E.       Volenti non fit injuria

Did Mrs Pou accept the risks inherent  in smoking  cigarettes  and waive her legal rights arising from any resultant harm?

F.       Contributory negligence

To what extent,  if at all, was Mrs Pou negligent  herself  in continuing  to smoke cigarettes after warnings first appeared on cigarette packets in 1974?

Summary of Findings

[8] My findings, expressed in my own order rather than the order set out above, are as follows:

1.The plaintiffs’ claim against the defendants is not statute barred by virtue of the provisions of the Limitation Act 1950.

2.There has never been a duty on a manufacturer of cigarettes to cease the manufacture and distribution of cigarettes and to withdraw its products from sale on the basis that they are dangerous, nor is there any basis for such duty in the present case.

3.Even assuming that a duty to warn existed, liability would have been negated in the present case by the fact that the dangers inherent in smoking cigarettes were a matter of common knowledge when Mrs Pou began smoking in 1968.

4.On  the  balance  of  probabilities  Mrs  Pou  herself  would  also  have known of those dangers at the time that she took up smoking.

5.In deciding  the scope of a duty to take reasonable  care in a novel situation  the  Court  is  entitled  to  take  into  account  policy  factors. These would necessarily  relate to the circumstances  that existed in

1968.  Although the legislative and executive branches of government were fully aware of the dangers of smoking in 1968, they elected to address those issues in a manner that did not involve the imposition of a duty to warn until 1974.   This approach  must have involved  the balancing of policy factors that had particular relevance at the time, and those branches of Government were in a much better position to carry  out that exercise  in the 1960s than the Court is today.   The Court  would  therefore  be  reluctant  to  substitute  its  own  view  by holding   retrospectively   that   manufacturers   of   cigarettes   had   a common law duty to warn consumers in 1968.

6.The claim against Wills fails on the basis that the plaintiffs have not established  on  the  balance  of  probabilities  that  the  smoking  of cigarettes produced by Wills caused Mrs Pou’s lung cancer.

7.        Mrs Pou’s claim against BAT also fails on the ground of causation.

This is because, even assuming that manufacturers of cigarettes had a duty in 1968 to warn consumers of the dangers of cigarette smoking,

the plaintiffs have failed to establish on the balance of probabilities that Mrs Pou would not have begun or continued  smoking  if such warnings had been given.

8.The principles enunciated by the House of Lords in the recent case of Chester  v  Afshar  should  not  be  applied  in  deciding  the  issue  of causation in the present case.

9.The claim against BAT would also have failed because, even if Mrs Pou was not aware of the dangers of smoking in 1968, she must have been aware of those risks by 1974 at the latest.  Thereafter she elected to keep  smoking  and did not take reasonable  steps  to quit despite having the ability to do so.  Any causative effect stemming from an initial  breach  of  duty  would  at  that  point  be  supplanted  by  the causative impact of her free and informed autonomous conduct.

10.      Given the finding that negligence has not been established, it is not necessary to consider the defences of volenti non fit injuria and contributory negligence.

[9] I propose to consider these issues, which coincide largely with those posed by counsel in closing, in the order in which they are listed above.

1.        Is the plaintiffs’ claim barred by virtue of section 4(7) of the Limitation Act

1950?

[10]     The defendants contend that the plaintiffs’ claim is barred, to the extent that it alleges a breach of a duty to warn of addiction, by s 4(7) of the Limitation Act 1950, which requires any action in respect of a bodily injury to be brought within two years from the date on which the cause of action accrued.   It provides as follows:

(7)     An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date:

Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly,  subject  to  such  conditions  (if  any)  as  it  thinks  it  is  just  to impose,  where  it  considers  that  the  delay  in  bringing  the  action  was occasioned by mistake of fact or mistake of any matter of law other than the provisions  of this subsection  or by any other reasonable  cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.

[11]     This submission proceeds on the basis that the plaintiffs have alleged that the harm,  or  injury,  that  Mrs  Pou  suffered  was  her  addiction  to  cigarettes.      The defendants point out that, on Mrs Pou’s own evidence, she was addicted to smoking cigarettes by 1969 and she was aware of her addiction between 1975 and 1980.  As a result, they say that the plaintiffs’ claim has been brought out of time.

[12]     The leading New Zealand authority in relation to the issue of limitation in respect of claims arising out of personal injury is that of the Court of Appeal in G D Searle  &  Co  v Gunn  [1996] 2 NZLR 129. In that case the Court of Appeal considered earlier authorities and said at 133:

The law in that regard is now settled.    The corresponding  problem of what may be described as latent injury or latent disease in actions for bodily injury has only comparatively  recently been called into question in this Court, and was referred to but left open in an asbestos-related  cancer case, McKenzie v Attorney-General [1992] 2 NZLR 14. It should now be resolved in a similar way. To hold that a plaintiff who has not discovered that a bodily injury is attributable to the wrongful action of another, and who could not reasonably have discovered that fact, is barred from suit if the injury in fact occurred outside the statutory period is effectively to deny a person the right of action. We do not see that consequence as being required by the legislation. We would therefore hold that for the purposes of s 4(7) of the Limitation Act

1950, a cause of action accrues when bodily injury of the kind complained of was discovered or was reasonably discoverable as having been caused by the acts or omissions of the defendant.

[13]     A similar approach was taken by Venning J in Marshall v British American Tobacco   HC AK CIV-2003-404-454  30 October 2003.    The plaintiff in that case was a long-term smoker and had been forced to have heart bypass surgery as a result of being diagnosed with severe coronary heart disease.    He took the view that his heart disease was caused by smoking cigarettes manufactured by the defendant.   He therefore   sought   leave  under   the  Act  to  commence   proceedings   against   the defendant.    In considering the application of the reasonable discoverability  test in

this context, Venning J held (at [12]) that the cause of the action arose at the latest on the date at which the plaintiff was unequivocally and clearly told of the connection between his smoking and his illness.

[14]     The plaintiffs aver that the defendants owed Mrs Pou a duty to warn her of three separately pleaded matters.   These include the possibility that Mrs Pou might become addicted to smoking cigarettes, and that she might be unable to give them up or that she might find it very difficult to do so. Although the statement of claim does not contain a pleading to the effect that Mrs Pou suffered an injury in the form of addiction, that is the only damage that Mrs Pou could realistically suffer as a result of any breach of those alleged duties.   The allegations do not depend in any way upon the fact that Mrs Pou later succumbed to lung cancer.   An alleged failure to warn of the risks of injury to her health is the subject of a separate pleading.

[15]     To the extent that they are pleaded as claims in their own right, I consider that these particular causes of action accrued when Mrs Pou became aware that she was  addicted  and  that  she  could  not give  up,  or found  it very  hard  to give  up, smoking  cigarettes.    Mrs  Pou told Associate  Professor  Sellman  that she became aware that she was addicted to smoking cigarettes when she was in her mid to late

20’s.   This gives a date range of between 1975 and 1980.  The causes of action must therefore  have accrued  at that time.   Given that Mrs Pou did not commence  this proceeding  until  2002,  these  particular  claims  would  be  statute  barred  by  the provisions of s 4(7) of the Act.

[16]     The plaintiffs  have not, however,  framed  and developed  their case on the basis  that  the  failure  to  warn  of  addiction  gave  rise  to  damage  in  the  form  of addiction.   The addiction is not pleaded as the harm or injury in respect of which damages are sought.    Rather, the plaintiffs refer in the statement of claim to Mrs Pou’s addiction being part of an unbroken chain of events connecting  the alleged breaches of duty with the subsequent diagnosis that Mrs Pou was suffering from lung cancer.  The harm, or injury, that is pleaded is the lung cancer and not the addiction. They say that the failure to warn led to Mrs Pou becoming  addicted  to smoking cigarettes  and that this inevitably  led to the injury  that she suffered,  namely  the development of lung cancer.

[17]     In some cases it might be possible to suggest that an addiction has created an effect that could properly be categorised as a form of harm or injury.    I consider, however,  that it would  be contrary  both to common-sense  and to the manner  in which the plaintiffs have formulated and developed their claim in this case to suggest that Mrs Pou’s addiction was the injury flowing from the alleged breaches of duty by the defendants.    Mrs Pou’s lung cancer is the harm upon which the plaintiffs rely. Their  pleadings   are  formulated   on  that  basis  and  they  have  run  their  case accordingly.   For this reason I consider that the plaintiffs ought to be able to rely on the harm referred to in the pleadings, namely Mrs Pou’s lung cancer and not her addiction.

[18]     Mrs Pou’s evidence is to the effect that, other than suffering a minor cough from time to time, she enjoyed good health throughout her life.    She first became aware that something might be amiss when she suffered severe chest pain in May

2001.     The fact that she was suffering  from lung cancer was discovered  shortly thereafter.     In those circumstances I consider that Mrs Pou’s lung cancer was reasonably discoverable in May 2001.    Given that the proceedings were issued in June 2002, no limitation issues arise.

Duty of Care

[19]     Counsel agreed that in certain circumstances a manufacturer may owe a duty of care to potential consumers of its products.  The existence of the duty flows from the landmark decision of the House of Lords, and particularly the speech of Lord Atkin, in Donoghue v Stevenson [1932] AC 562. The debate in this case has not challenged the general principle that a manufacturer of products may owe a duty to potential consumers to take reasonable care. Instead, it has focussed upon whether the defendants owed any such duty in the circumstances of the present case.

2.  Could any duty of care owed by a manufacturer of cigarettes in 1968 include a duty to completely cease the manufacture and distribution of its products?

[20]     The plaintiffs’ primary claim is that the defendants breached a duty to warn

Mrs Pou of the dangers of smoking  cigarettes.   In the alternative,  however,  they

contend  that  the  defendants   were  under  a  duty  “to  stop  manufacturing   and distributing  cigarettes  which they knew or ought reasonably  to have known were dangerous to the health of consumers such as Mrs Pou”.

[21]     In  fairness  to  the  plaintiffs,  they  did  not  place  great  emphasis  on  this particular  ground in either their opening or closing submissions.   Nevertheless,  it remains part of their case and must be determined.   I consider, however, that it can be disposed of in relatively short order.

[22]     As Mr Camp stressed in his submissions for the defendants, the imposition of this particular duty could be viewed as being draconian, because it would effectively amount to a judicial prohibition of a product that, to this day, has always been sold legally.

[23]     I  accept  that,  in  theory  at  least,  a  manufacturer  might  be  found  to  have created a product that is so dangerous to consumers or users that the only means of ensuring their safety is to require the manufacturer to stop making and distributing it. Dicta to that effect can be found in Wright v Dunlop Rubber Co ltd [1972] 13 KIR

255 (CA) at 272 and in Thompson v Johnson & Johnson [1991] 2 VR 449 (Supreme

Court of Victoria) at 491.

[24]     Counsel  were  not,  however,  able  to  refer  me  to  any  case  in  England, Australia or Canada in which a court has upheld a claim based on an alleged duty to cease   to   manufacture   a  product   that   was   being   lawfully   manufactured   and distributed.

[25]     Such a claim was made,  but rejected,  in McTear  v Imperial  Tobacco  Ltd [2005] CSOH 69, a recent decision of the Scottish Court of Session.   In that case Lord  Nimmo  Smith  dismissed  a claim  for  damages  brought  by  the  widow  of  a cigarette smoker against a cigarette manufacturer.   The case raised some issues that are also present in this case, and for that reason I refer to some of the conclusions reached by Lord Nimmo Smith on several occasions in this judgment.   The circumstances and issues raised in McTear also differ, however, from those in this case in several important respects.  In particular, one of the issues that Lord Nimmo

Smith was required to decide was whether the plaintiff had established that Mr McTear’s lung cancer had been caused by smoking cigarettes manufactured by the defendant.   Apart from the claim brought against Wills, that is not an issue I am required to consider in the present case.

[26]     In dealing with the plaintiffs’ claim that the defendant had an obligation to cease manufacturing its cigarettes, Lord Nimmo Smith noted at [7.171] that although Donoghue v Stevenson was of fundamental importance in establishing that a duty of care may be owed by a manufacturer to a consumer, it did not establish the content of the duty beyond stating that it is to take reasonable care.  As a result, the content of any duty that might be owed needed to be considered.   On this point he said at [7.172]:

Assuming for present purposes that cigarette smoking can cause lung cancer, and that tobacco can therefore  be described  as a dangerous  product,  I can find no support  in the authorities  for the proposition  that as soon as they became aware of this ITL [the manufacturer] had a duty effectively to cease manufacture.  They could only have had such a duty if the law held that a manufacturer  must  ensure  the safety  of the consumer.    The  cases  do not support this approach.   In Holmes v Ashford…the  Court of Appeal went no further than to hold that every person who put on the market a dangerous article must take all reasonable steps in all the circumstances.

[27]     The difficulty with this aspect of the plaintiffs’ claim is that, if it is upheld, it would   amount   to   an   order   prohibiting   the   manufacture   of   cigarettes   on   a retrospective basis.  The plaintiffs would have the Court make that order despite the fact  that  even  now,  and  notwithstanding  all  that  is  known  about  the  dangers  of smoking, the manufacture and distribution of cigarettes remain perfectly legal.  The sale and use of cigarettes is also legal, so long as the consumer is aged at least 18 years.

[28]     The feasibility and practicality of making such an order was not explored at all during the evidence or in closing submissions.   The order could not bind other manufacturers, but a total prohibition on manufacture and distribution would be the only way in which consumers of cigarettes could be prevented from gaining access to them.  And, as Lord Nimmo Smith asked in McTear at [7.183], what would have prevented  tobacco  from  being  brought  into  the  country?     That  would  require effective Government action and, as experience has shown, “attempts at prohibition

of substances which people enjoy using and strongly desire to use are notoriously ineffective.”

[29]     To date there has never been any suggestion in New Zealand that tobacco or cigarettes ought to be completely  banned or prohibited.   The ramifications  would undoubtedly  be very significant  given the fact that, even now, many  people  still smoke and, presumably, enjoy doing so.  It would be foolhardy for this Court to even contemplate taking such a step unless the probable consequences of the suggested order had been properly explored.  Those consequences would need to be considered by a body that had the ability to weigh all the competing considerations.  In my view the only body competent to undertake such a complex and, in all probability, controversial task – and be accountable for the consequences – is Parliament.  Even now, I consider that such a far-reaching step could only properly be undertaken by way of legislation, and not by order of the Court in a case such as this.  I certainly do not  accept  that  in  1968  any  duty  of  care  that  might  have  been  owed  by  a manufacturer of cigarettes included a duty to completely cease the manufacture and distribution of that product.

3.    Was there a prima facie duty to warn consumers of the potential hazards of cigarette smoking when Mrs Pou began smoking in 1968?  If so, is the existence of the duty otherwise negated by virtue of the fact that the dangers of smoking were common knowledge at that time?

[30]     As foreshadowed,  the plaintiffs’  primary  contention  is that the defendants owed a duty of care to warn consumers of the dangers inherent in their products.

The duty of a manufacturer to take reasonable care

[31]     I have already referred to the fact that the development of the duty of care owed by a manufacturer to the consumer of its products can be traced back to the decision of the House of Lords in Donoghue v Stevenson.  The crux of that decision is captured in the following passage from the speech of Lord Atkin at 599:

My Lords, 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.

[32]     The scope of the duty, namely what amounts to reasonable care in any given case, will depend  on the circumstances  of each case.   As the Supreme  Court  of Victoria noted in Thompson v Johnson & Johnson Pty Limited at 490, “the almost infinite variety of circumstances  forbid any categorical  exegesis of the manner of performance of the relevant duty of reasonable care”.

The duty to warn

[33]     In  the  realm  of  product  liability  the  principles  set  out  in  Donoghue  v Stevenson  have been applied  and developed  over subsequent  decades.   It is now widely accepted that, in certain circumstances, the duty to take reasonable care may include a duty to warn potential consumers or users about the product’s potentially harmful qualities or dangerous propensities.

[34]     While a duty to warn has been held to exist in numerous different situations, the underlying rationale that can be extracted from the authorities is clear.  A duty to warn assumes a degree of imbalance between the information, and hence knowledge, held by the manufacturer on the one hand and the consumer on the other, regarding risks  or  dangers  that  may  be  inherent  in  using  the  product.  More  than  mere imbalance is required, because the manufacturer will almost always possess greater knowledge about the product than the consumer.   For this reason the duty to warn has traditionally  been held to arise in circumstances  where  the manufacturer  has knowledge about the danger that the consumer could not reasonably be expected to possess.  The purpose of the duty to warn is to address, or ameliorate, this imbalance.

[35]     Counsel cited numerous cases as authority for this proposition.  In Lambert v Lastoplex  Chemicals  Co  [1972] SCR 569, for example, the Supreme Court of Canada held a manufacturer of a fast drying lacquer sealant liable for damage arising from a fire set off by a pilot light in a piece of machinery whilst a floor nearby was being lacquered. Although the product did contain warnings, these were held to be insufficient to discharge the defendant’s duty to users given the inherently dangerous nature of the product. The court in Lambert thus recognised that the scope of any duty to warn must be proportionate to the potential probability and extent of harm.

[36]     Similarly, in Vacwell v B.D.H [1971] 1 Q.B. 88 a manufacturer of chemicals was held liable for failing to warn of the hazard of the risk of serious explosion if the chemicals came into contact with water. Liability was also found to exist in Hobbs (Farms) Ltd v Baxenden Chemicals Ltd [1992] 1 Lloyd’s Rep. 54, where damage by fire was caused in circumstances where a wall-coating product contained no warning or indication of its combustibility.

[37]     A  duty  to  warn  has  been  recognised  in  numerous  other  cases,  including Watson v Buckley [1940] 1 All ER 174 (risk of serious reaction from using hair dye); Carroll v Fearon & Others [1998] P.I.Q.R 146 (likelihood of tyres exploding); Bow Valley Husky v St John Shipbuilding  Bo [1997] SCR 1210 (flammability of pipe

cladding sold for use on oil-rigs); and Hollis v Dow Corning (1995) 129 DLR (4th)

609 (breast implants likely to rupture after installation).

[38]     The danger posed by the smoking of tobacco does not arise as the result of any defect in the cigarette  or tobacco  itself.   Rather,  it flows from the addictive nature of the nicotine that is a constituent of tobacco, coupled with the inherently dangerous nature of tobacco smoke that is inhaled into the lungs.  The danger arises from the risk, which  even now can only be expressed  in statistical  terms,  that a person who smokes tobacco is much more likely to develop lung cancer or heart disease than a non-smoker.

[39]     I accept, however, that that risk is sufficient to give rise to the prima facie conclusion  that  there  is  (and  always  has  been)  a  significant  element  of  danger involved in smoking tobacco.  The risk may or may not become reality, because not

all smokers  will develop lung cancer, or indeed any other ailment,  as a result of smoking cigarettes.  Nevertheless, the risk is there.

[40]     I also proceed on the basis that it is probable that the defendants, in common with other major manufacturers  of tobacco  products,  kept abreast of the growing concern during the 1960s that there was likely to be a link between smoking tobacco and the incidence  of lung cancer.   Those developments  are considered  in greater detail later in this judgment.  In particular, I have no doubt that they were aware of the principal conclusions reached in 1962 by the Royal College of Physicians in the United  Kingdom  and  in  1964  by  the  advisory  committee  to  the  United  States Surgeon  General.  Those  conclusions  were  expressed  in  clear  and  unmistakable terms,  and  were  also  the subject  of significant  comment  in the  media  when  the reports were released.  The reports, and the publicity that followed, would have been of obvious and immediate relevance to all the major players in the tobacco industry throughout the world at that time.   They of all people would have appreciated the potential ramifications of these matters both from their own perspective and that of the industry as a whole.

[41]     In the present  case  the plaintiffs  contend  that  the knowledge  held  by the tobacco manufacturers  was such that they owed a duty to warn consumers of the dangers inherent in smoking cigarettes.  They say that the scope of that duty was “to fully and fairly warn Mrs Pou” of the possibility that she might become addicted to smoking cigarettes, that she would not be able to stop smoking or that she would find it extremely difficult to stop smoking and that she would suffer injury to her health if she smoked cigarettes.

[42]     Given the level of knowledge that the tobacco manufacturers, including the defendants, must have had in 1968, I am satisfied that a prima facie duty to warn is likely to have existed at common law by that time.  The duty to warn would include a requirement to warn consumers that smoking cigarettes may be very hard to give up and that it could  be injurious  to health.   I stop short of saying  that the duty extended to a requirement that consumers be warned that smoking cigarettes created a risk that they would develop specific ailments, although I accept that the reports and subsequent publicity focussed primarily on the risk that smokers might develop

lung  cancer.   Smokers  were,  however,  also  at risk of developing  other  diseases, including heart disease.  I consider that warnings would have been sufficient if they drew the attention  of consumers  to the possibility  that the smoking  of cigarettes could endanger or damage their health.  As it happens, this was the nature of the first warnings that appeared on cigarette packets between 1974 and 1987.

[43]     It is probable, however, that there was no duty in 1968 to warn that smoking cigarettes was addictive.   This is because the report issued in 1964 by the advisory committee  to the United  States  Surgeon  General  did not classify  dependence  on tobacco as an addiction.  Rather, the report classified it as an habituation.  It did say, however, that this classification did not mean that smoking tobacco was not difficult to give up.  Subsequently, in or about 1988, dependence on tobacco was re-classified by the US Surgeon General as an addiction.

The impact of obvious danger or common knowledge of the danger

[44]     The possibility  that  a duty  may  be negated  where  the risks  are patent  or observable  is implicit in the judgment in Donoghue  v Stevenson  itself, where the requirement of a hidden danger, unlikely to be discovered by intermediate inspection, was emphasised by Lords Atkin, Thankerton and Macmillan at 599, 602-

3 and 622 respectively.

[45]     Once equipped with knowledge of the danger, however, the consumer may elect to use the product nonetheless.   Therefore, in assessing the existence or scope of a duty to warn, it is necessary to consider the extent to which, if at all, the danger is either obvious or known to the reasonable user.  If the consumer already possesses knowledge or awareness of those risks, any need to warn is logically rendered otiose.

[46]     Where a prima facie duty to warn exists, liability may therefore not arise in two situations.  The first is where the risk or danger is obvious on its face; the second is where the risk is known to consumers generally.

[47]     In New Zealand, the Court of Appeal in Fraser v Jenkins [1968] NZLR 816 determined that a bailor was not liable for failing to warn a bailee that he might cut his fingers if he put them near a circular saw, given the obviousness of that risk. In Tomlinson  v  Congleton  Borough  Council  [2004] 1 AC 46 the House of Lords similarly held a Council not to be liable for injuries resulting from the plaintiff diving into a shallow area of a lake, given that the dangers of doing so were perfectly obvious.

[48]     The principle that a duty to warn does not exist where the risk is obvious or known has been applied in the realm of product liability.   For example, in Bogle v McDonald’s Restaurants Ltd [2002] EWHC 490 (QB) the Court held that no duty existed to warn consumers of the risk of scalding from hot drinks, given that those who buy such drinks would be well aware that they sometimes get spilled, and when they do it can result in scalding. In Raines v Colt Industries 757 F. Supp. 819 (E.D. Mich. 1991) the District Court of Michigan held that a manufacturer was not under a duty to warn of the dangers presented by a loaded gun, given that the risks were well known and obvious to a reasonable user.

[49]     In the context of tobacco liability claims any risks arising from the smoking of cigarettes cannot be said to be “obvious” in a superficial sense.    The defendants contend, however, that any duty in the present case is negated by the fact that by

1968 the dangers inherent in smoking tobacco were matters of common knowledge. The  issue  of common  knowledge  has been  central  to tobacco  liability  claims  in several jurisdictions.

[50]     Although  there  is  now  a  reasonably  large  body  of  American  authority regarding the liability of tobacco manufacturers, the decisions are limited in value by the fact that the crucial issue of liability is decided by juries, who are not obliged to give reasons for their decisions.   There are, however, several American decisions confirming  that  liability  will  not  arise  in  circumstances  where  knowledge  that cigarette  smoking  is  harmful  to  health  can  be  considered  part  of  the  common knowledge of the community:   see eg Roysden v R J Reynolds Tobacco Company

849 F.2d 230 (6th Cir. 1988) and Paugh v R J Reynolds Tobacco Company 834 F.

Supp.228 (N.D. 1993).

[51]     A Commonwealth  case  that  provides  some  assistance  is that  of the  Civil Court of Quebec in Létourneau v Imperial Tobacco Ltd (1998) 162 DLR (4th) 734. In that case the plaintiff had begun smoking in 1964, and had attempted unsuccessfully to give up in 1973 and 1980. On her third attempt, in 1996, she succeeded with the aid of nicotine patches. She then sued two tobacco companies for the cost of the patches. The evidence showed that in 1964 smoking was

considered to be a habit rather than an addiction.   The claim was dismissed on the basis that the tobacco  companies  were not obliged in 1964 to warn either of the danger of addiction or of the fact that smoking was habit forming, since this was well known at the time.   The plaintiff’s loss had not in any event been caused by the failure to warn, because she continued to smoke with knowledge of the risks.

[52]     The Court considered the rationale of the duty to warn at 744-5:

This duty to warn and provide information aims to compensate for the consumer’s  lack of knowledge  with respect to the true nature of products, how to use them, or certain consequences arising out of use which the manufacturer is presumed to know.

The  objective  is  to  place  the  customer  in  the  position  of  the  normally prudent, knowledgeable and well-informed person. If the substance or object is universally  recognised  as being  dangerous  or the  user  is aware  of the dangerous  nature of a product or has used it for a sufficiently  long period that any additional information would be superfluous, the failure to warn or inform will not be a deemed fault of the manufacturer.

In other words, manufacturers  are under no obligation to warn end users of their products  with respect  to facts which are generally  known,  that is so well known in the community that they are more or less beyond dispute.

[53]     Similar  outcomes  have  occurred  in  other  European  jurisdictions:  See  eg Heine v Reemtsma Cigarettenfabriken GmbH 2 O 294 / 02 (Higher Regional Court of Hamm, 3rd Civil Court of Appeal) and Lund v J.L. Tiedemanns Tobaksfabrik A.S., HR-2002-00753a, 31 October 2003 (Supreme Court of Norway).

[54]     In McTear, after canvassing the information relating to the risks of smoking reported  in governmental  statements,  articles from within the medical  profession, and the media publications  Lord Nimmo Smith determined at [9.4]:

I am satisfied that at all material times, and in particular by 1964, the general public  in the United  Kingdom,  including  smokers  and  potential  smokers,

were  well  aware  of  the  health  risks  associated   with  smoking,  and  in particular of the view that smoking could cause lung cancer.

[55]     This was one of the bases upon which he found that the tobacco manufacturer was not liable in respect of Mr McTear’s decision to begin smoking.

[56]     As the above case law demonstrates, the principle that “common knowledge” will operate  to negate a duty to warn has been applied  in the context  of several claims against tobacco companies in other jurisdictions.  I see nothing controversial about  applying  the same  principle  to the present  case.   Informed  consumers  are entitled to exercise an autonomous right to purchase and consume products that are lawfully sold, notwithstanding  the fact that such products may be harmful to their health.  The purpose of a duty to warn is not to prevent or preclude consumers from purchasing or using products that carry the risk of danger.  Rather, it is to place them in an informed position so that they can exercise their right to purchase products of their choice with knowledge of those risks.

[57]     As I have already indicated, the duty to warn is based on the premise that the manufacturer  may possess information  regarding the dangers inherent in using its products that the consumer cannot reasonably be expected to possess.   If potential consumers of the product can reasonably be expected to already possess that information,   the   rationale   underlying   the   need   for   any   warning   necessarily disappears.     In my view,  and as a matter  of common  sense,  a duty to warn of specific  risks should  not be held to exist in circumstances  where  those  risks are already well known, or are common knowledge, to potential consumers.

[58]     Any assessment  of whether  the risks or dangers  inherent  in a product are within the “common  knowledge”  of potential  consumers  must necessarily,  in my view, be undertaken on an objective basis.    This point was helpfully enunciated by the Ontario Court of Appeal in Deshane v Deere & Co (1993) 106 DLR (4th) 385 at

394 - 395, where  the duty  to warn was considered  in relation  to the concept  of

“obvious danger”:

It is often said that there is no duty to warn of obvious dangers. It is clear that there should  be no liability  for failing  to warn  someone  of a risk or hazard which he appreciated  to the same extent as a warning  would have

provided. This could easily be explained on the ground that the failure was not a cause of any harm to the plaintiff or on the ground that there was no breach  of duty  to the  claimant  under  the  circumstances.  But  courts  have usually meant by "obvious danger" a condition that would ordinarily be seen and  the  danger  of  which  would  ordinarily  be  appreciated  by  those  who would be expected to use the product. This objective approach to the issue of warning about obvious dangers may be regarded as reasonable, if the court is willing  to find obvious  dangers  defective  when there is a feasible  way to make the design safer. The practical difficulties of litigating about whether an obvious danger was actually appreciated by a particular claimant justifies either an objective  test of an obvious  danger (thereby  ruling out failure to warn as a basis for recovery)  or simply regarding  the obvious nature of a danger as a factor that is relevant on the issue of negligence.

[59]     Mr Camp also referred to another formulation of the rule in Eimers v Honda Motor Company Ltd 785 F.Supp 1204 (W.D. Pa 1992) where the District Court of Pennsylvania stated at [19]:

If a danger is obvious, there is no duty to warn against it…  This inquiry into the obviousness of the danger depends not on actual knowledge of the user, but upon whether the danger was sufficiently obvious that it would be unreasonable  to impose  a duty  to warn  on  the  manufacturer…  Thus,  the focus of the ‘obviousness’  inquiry  is upon the objective  reasonableness  of the supplier’s judgment about whether users will perceive danger.

[60]     In  my  view  similar  reasoning  should  be  applied  in  determining  how  the factual question of common knowledge should be ascertained.    Just as the “obviousness”  of a risk must objectively  be assessed  from the perspective  of the reasonable consumer, so must the existence of “common knowledge” of that risk.

[61]     This conclusion flows from the fact that cigarette manufacturers have always distributed  their  products  to  a  mass  market.    They  do  not  deal  with  individual customers.   It would therefore be both unreasonable and unrealistic for any duty to warn  to require  cigarette  manufacturers  to ensure  that each  and every  individual consumer   was  aware  of  the  risks  inherent   in  smoking   cigarettes.     In  such circumstances the duty should be no more than to warn of those risks in a manner that could  be expected  to come  to the attention  of the reasonable  consumer.    It follows  from  this  that  the issue  of common  knowledge  must  fall to be assessed against the level of knowledge likely to be held by reasonable persons who were potential consumers of cigarettes.

[62]     I therefore  proceed  on the basis that the defendants  would  not have been under a duty to warn of the risks inherent in smoking cigarettes if the existence of those  risks  was  common  knowledge  in  1968  to  reasonable  persons  who  were potential consumers of cigarettes.  Whether or not that was the case is the issue that I now need to consider.

Consideration of common knowledge of risks

[63]     It is not possible to view the state of the community’s knowledge in 1968 in a vacuum.   That knowledge will have been shaped and developed by the events that occurred before then.  For that reason it is necessary to consider events that occurred well before 1968.

[64]     I propose  to approach  this undertaking  in two  parts.   First,  I will briefly traverse the history and development of smoking in New Zealand.  Given the manner in which events in this country have always been affected by events overseas, it is also necessary to refer briefly to salient events that occurred outside New Zealand during the years leading up to 1968.  Secondly, I will consider the information that was in the public arena in New Zealand during the 1960s.   I do so because I take the view that events that occurred during the period from 1960 to 1968 are likely to provide the best indication regarding the level of knowledge that was in the public domain as at 1968.

(i) History and development of smoking in New Zealand

[65]     During the trial there was substantial evidence relating to the introduction and history of tobacco smoking in New Zealand.  That evidence was contained primarily in a very lengthy and comprehensive  report produced by Dr Jennifer Carlyon, an Auckland historian with impressive qualifications and experience.   Dr Carlyon was asked  by  the  defendants’  solicitors  to  conduct  historical  research  “into  the  New Zealand public’s knowledge of the health hazards of cigarette smoking and the difficulties of quitting in the period 1900 to 2000”.  She was also asked to research knowledge of those issues in Southland in order to determine whether knowledge in that region differed from that in the rest of New Zealand.

[66]     I consider that Dr Carlyon’s evidence provides a useful historical and social context  for Mrs  Pou’s  claim.     It demonstrates  that  tobacco  use,  and  the  public perception of tobacco smoking, has had a long and chequered history in this country. Long  before  New  Zealand  was  settled,  however,  smoking  was  widespread  in England and Europe, and the habit had provoked debate there at an early stage.

[67]     As early as the 17th century, the smoking of tobacco gave rise to comment in prominent  quarters.    In 1604,  for instance,  King  James  I issued  his well known “Counterblaste  to Tobacco”,  in which  he deprecated  the  then  widespread  use of tobacco.  He described the habit of smoking as being “loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs, and in the black, stinking fume thereof nearest resembling the horrible Stygian smoke of the pit that is bottomless.”   However, despite such public denouncements, the report produced by

Dr Carlyon noted that tobacco consumption was widespread in the 17th  century and

lauded in some quarters for its medicinal benefits.

[68]     Whilst debate regarding the evils of tobacco waned in the eighteenth century, the nineteenth century again saw a rise in opposition to tobacco use.  The renewed debate rose as the result of an increased understanding of the pharmacological basis for  the  effects  of  tobacco.    Towards  the  end  of  the  19th  century,  anti-tobacco societies grew in Britain, France, the United States and in some European countries. Temperance movements and religious groups publicly condemned tobacco smoking for its perceived medical and “moral” effects, and they campaigned for restrictions on its use.

[69]     Tobacco arrived in New Zealand with the first settlers.  Thereafter, the public use and perception of tobacco largely mirrored developments in Britain, the United States and Australia.   Although  the evidence  does not suggest that any specialist anti-smoking   unions   were   established   in   New   Zealand   at   this   early   stage, organisations such as the Salvation Army, the Seventh Day Adventists and the Women’s Christian Temperance Union (WCTU) publicly criticised tobacco consumption.   The WCTU in particular made anti-smoking  pronouncements  in its own  magazine  throughout  the last  decade  of the nineteenth  century.    In 1898  it

presented  a petition to Parliament  seeking prohibition  of cigarette sales to people under 16 years of age.

[70]     The  official  gazette  of  the  Salvation  Army  propounded  a  similar  anti- smoking message, and in 1910 the Salvation Army formed the Anti-Gambling and Smoking League.   It urged young people to join up, and to sign a covenant stating that they would not smoke or gamble and that they would dissuade  other people from doing so.  Young people were also targeted through groups such as Boy Scouts, which advised its members not to smoke for health reasons.

[71]     The issue of juvenile smoking was debated in England from the middle of the nineteenth century, and in 1908 the first legislative steps were taken there to prohibit the sale of tobacco to young persons.   In Australia, Tasmania had passed a similar law in 1900 and other states followed suit over the next decade.  In New Zealand, the first attempt to legislate against juvenile smoking was made by Mr H Chamberlain, MP for Auckland, who petitioned for legislation to combat the physical harm and moral corruption caused by juvenile tobacco use.  However, his motion failed to gain sufficient support.

[72]     Further bills were introduced in 1901, 1902 and 1903, drawing upon both the perceived social ills of smoking, as well as contemporary medical opinion attesting to the harm caused by smoking.   Finally, in 1903, an “Act to Prohibit the Sale or Supply of Cigarettes, Cigars, or Tobacco to, and the Smoking of Cigarette, Cigars, or Tobacco   by,  Persons  under  Fifteen  Years  of  Age”  –  the  Juvenile  Smoking Suppression Act – was passed.

[73]     At this time the overall focus remained  on the risks of smoking  so far as young people were concerned. Parliamentary Debates of the age suggest that most people did not consider tobacco smoking to pose any significant harm to adults.  The view expressed by the Prime Minister, the Right Hon. Richard Seddon, illustrates what was perhaps a common perspective at that time: “As far as smoking is concerned…I think that smokers live just as long as anybody else, and I do not think that in moderation it will do any harm at all.”

[74]     The  Juvenile  Smoking  Suppression  Act  1903  represented  a  response  to escalating  rates of tobacco smoking at the turn of the century. During the 1800s, advances in cigarette production technology had led to an extensive rise in the consumption of “ready-made” cigarettes.  Articles in the New Zealand Herald from that time made reference  to the pernicious  effects of cigarette smoking on young boys, and suggested that the large-scale production of carbon dioxide produced by smoking would lead to “mental degeneration and dilation of the heart”.  In 1903 an article  in  that  newspaper  noted  that  “[t]he  victim,  moreover,  almost  inevitably develops a peculiar kind of asthma, and becomes very susceptible to lung trouble of all sorts.”

[75]     In the 1920s medical experts warned of the dangers of smoking, although the basis for these proclamations  were variable.   They ranged from the irritation that smoking caused to the eyes and skin, to suggestions that women smokers began to suffer from “smoker’s heart”.  At this time growing numbers of women commenced cigarette  smoking,  and  the  smoking  of  cigarettes  by  females  become  socially acceptable during the First World War.  As women left the household and joined the workforce in greater numbers, smoking in public became increasingly common, and accepted, amongst New Zealand women.   During this period any debate tended to focus upon the peculiar risks that smoking posed to women, given their “delicate” constitutions.

[76]     The role and effect of nicotine in tobacco cigarettes was also the subject of consideration amongst the medical profession at the turn of the century, and it was regarded in some quarters as a “poison” by the end of the nineteenth century. In 1899 the  New  Zealand  Herald  published  an  article  entitled  “The  Use  and  Abuse  of Tobacco”, in which reference was made to nicotine poisoning.

[77]     The risk of cancer  caused  by the smoking  of tobacco  was also discussed within the medical profession in the early 1900s.  However, this related largely to the smoking of pipes, and the possibility that it might cause cancer of the lip, mouth and tongue.   The link between  pipe smoking  and such cancers  was canvassed  in the Christchurch Press in the period from 1923 to 1925.  However, in 1929 the Grand Council of the British Empire Cancer Campaign  issued a report stating that after

several experiments it had been found “impossible to prove that tobacco smoking has any effect as a cancer-producing agent, either on the tongue, from pipe-smoking, or on the lungs,  from cigarette  smoking.”  The British Ministry  of Health  expressed similar sentiments in 1930.

[78]     Throughout this period, tobacco smoking was also linked to other injurious effects on health, such as deteriorating eyesight.  In 1890 the New Zealand Medical Journal published an article on “tobacco amblyopia” – a loss of eyesight attributed to the effects of nicotine.   Suggestions of a link between tobacco smoking and degenerating eyesight persisted into the early 1920s.  Comments made in the public arena also touched upon the addictive or habit-forming nature of nicotine.

[79]     Despite the emergence of various objections to tobacco smoking, cigarettes were regularly sent to New Zealanders during the First World War in order to soothe soldiers’   nerves.      Contemporaneously,    however,   articles   published   in   the Christchurch Press indicated a concern by some that this was causing harm among the soldiers, especially those suffering from tuberculosis and chest complaints. Cigarettes  were again sent to troops during the Second World War, although  the evidence  provided  by Dr Carlyon  indicates  an absence  of objections  based  upon health concerns at that stage.   During that period articles about cigarette smoking tended to focus upon the difficulties in supplying troops abroad given the shortage of tobacco in New Zealand and increasing tobacco prices.

[80]     The  Second  World  War  was  clearly  an  important  period  so  far  as  the development of smoking patterns in New Zealand is concerned.  A large number of personnel in the various services smoked, and smoking was also the norm within the civilian population.   As a result, by the end of the war in 1945 a very significant proportion of the New Zealand population, both male and female, smoked cigarettes.

[81]     The period after 1945 saw a further significant increase in tobacco smoking. By the 1950s, smoking patterns in New Zealand had begun to change.   Men and women were now smoking both regularly and in public, as opposed to in particular settings and on special occasions. Although no official figures were kept at that time, it seems likely that by the end of the 1950s approximately 50 per cent of men and 35

per cent of women  in New  Zealand  smoked.   Tobacco  imports  into the country increased, while the local tobacco industry also expanded.

[82]     Women’s  smoking  habits  during  the  period  from  1920  to  1960  were influenced  by  the  fact  that  increasing  numbers  of women  entered  the  workforce during the inter-war period, and this led to an increase in both independence  and disposable income. During the 1920s and 1930s British and American tobacco companies had begun to specifically target women in cigarette advertisements.  With the onset of the Second World War, women played an important role in both the armed  services  and  in  the  civilian  workforce.    As  a result,  the  tone  of  tobacco advertisements changed from depicting attractive, fashionable women, to portraying the “emancipated female patriot.”

[83]     In the 1950s, advertisements  in New Zealand women’s magazines depicted female movie stars, politicians and members of the royal family smoking cigarettes. By  the  mid  1960s  the  rate of smoking  amongst  women  had  climbed  to 45%  in Britain, and it was widely accepted that New Zealand smoking patterns generally mirrored those in other western countries.

[84]     Throughout  the  1950s,  the  prevalence  of  smoking  amongst  males  also continued to climb.  Soldiers during both World Wars had been provided with cheap tobacco,  and  Government  agencies  such  as  the  National  Patriotic  Fund  Board facilitated  shipments  of  millions  of  cigarettes  to  troops  abroad.    After  the  war, Returned Servicemen’s clubs were allowed extra rations of cigarettes.  When the so- called ‘black budget’ in 1958 doubled import duties on tobacco, alcohol and cars in an effort to restore economic equilibrium, the public outcry resonated loudly.

[85]     The  evidence  suggests  that  the  1950s  also  saw  a  further  resurgence  of medical concern relating to the negative health effects of smoking.  In 1950 Doctors Ernst Wynder and Evarts Graham published results in the United States indicating that out of 605 men with lung cancer, over 96% had smoked at least half a packet of cigarettes per day over the past twenty years.   In Britain, also in 1950, Dr Richard Doll and Professor A. Bradford Hill published preliminary  findings in the British Medical Journal under the title “Smoking and Carcinoma of the Lung”.   This was

probably the first significant work in the post-war period to postulate the likelihood of a link between smoking and lung cancer.  By the end of the 1950s, seven further medical studies carried out in Europe and the United States suggested that there were increased levels of lung cancer amongst tobacco smokers.

[86]     The results of such studies were widely published, although at that stage the existence of any direct causal connection between tobacco and lung cancer was not a matter of widespread acceptance.   However, following the publication of a further report  by Doll and Hill in 1956,  the British  Medical  Research  Council  (BMRC) issued a special report in 1957 on the link between smoking and lung cancer.   The report accepted that the link was one of “direct cause and effect”.   In the United States, American Cancer Society researchers Doctors E Cutler Hammond and Daniel Horn published a report in 1957 suggesting that cigarette smokers had significantly increased mortality rates.   This report was widely published in periodicals such as Time  and  Newsweek.       In  1960,  the  World   Health   Organisation   issued   an international press release stating that “cigarette smoking is a major cause of lung cancer”.  In the early 1960s, the debate finally prompted central government in both Britain and the United States to undertake public health initiatives.

[87]     In New Zealand, daily newspapers  covered the debate that followed major events such as the Doll & Hill study, the BMRC report and the American Cancer Society report in the 1950s.  At the same time, members of the New Zealand medical profession  also  expressed  their  views  regarding  the  link  between  smoking  and cancer, several of which were also published in the major daily newspapers.

[88]     The discussion continued through the 1950s but, whilst a growing number of medical   reports   suggested   a   connection   between   smoking   and   lung   cancer, alternative arguments were also widely presented by tobacco manufacturers.   In particular,  the lack of any conclusive  evidence to establish a causal link between smoking  and lung  cancer  was stressed,  as well  as the alternative  possibilities  of atmospheric pollution and other confounding variables.

[89]     The 1950s saw the first public health initiatives taken by the Government in

New  Zealand  in relation  to smoking.  Ministerial  communications  from  the early

1950s suggest a very cautious approach towards taking any anti-smoking measures. However, by the mid 1950s, public statements  by the Minister of Health and the Deputy Director-General  of Health indicate that the Department of Health (DOH) accepted the existence of a clear statistical link between smoking and lung cancer. Statements  by  the  Department  from  the  late  1950s  indicate  that  by  that  stage causality - the existence of a direct link between smoking and lung cancer - was accepted by it.

[90]   Given the virtual impossibility of persuading the general population to immediately  cease  smoking,  the  DOH  adopted  a preventive  focus,  concentrating primarily on the education of young persons.  The evidence indicates that for some time during the 1950s DOH anti-smoking initiatives took place on an ad hoc basis. It initially  involved  messages  published  in the Departmental  Magazine,  Health,  and also via radio messages,  advertisements  and posters.   The first co-ordinated  anti- smoking campaign by the DOH did not eventuate until 1958, when it began to make preparations  for a campaign  aimed  primarily  at school  children.    This  campaign officially commenced in the early 1960s.

[91]     The 1960s were marked by two significant international developments.   In March  1962  the  Royal  College  of  Physicians  released  its  report  “Smoking  and Health”,  which represented  the culmination  of three years’ evaluation  of existing medical  data.    The  report  concluded  that  “cigarette  smoking  is  a  cause  of  lung cancer”  and  that  “heavy  smokers  were  thirty  times  more  likely  to  contract  lung cancer than non-smokers”.

[92]     Following instructions given in 1962 to undertake a comprehensive review of all data on smoking and health, an expert advisory committee to the US Surgeon General released  its landmark  report on the health effects of tobacco  smoking  in

1964.    The  report  concluded  that  “cigarette  smoking  is  causally  related  to  lung cancer” and that it “far outweighs all other factors”.  The report also recognised that tobacco  use  could  lead  to  habituation   and  dependence,   and  it  recommended “immediate appropriate remedial action.”

[93]     During this period and in response to these two watershed events, both the British and American governments took steps towards instigating nation-wide, comprehensive   anti-smoking   campaigns.      The   first   restrictions   on   cigarette advertising  appeared  in Britain  during  the 1960s  and in both  countries  warnings began  to  appear  on  cigarette  packets.      In 1967  the  First  World  Conference  on Smoking  and Health was held in New York to address appropriate  governmental action to combat smoking,  and in 1968 the World Health Organisation  issued its special report “Smoking and the Heart”.

[94]     In this country,  cigarette  advertising  was banned  on TV and radio  before

7.30pm  from October  1962 and from April 1963 the New Zealand  Broadcasting Corporation   stated  that  it  would  not  broadcast  any  cigarette  advertising   that encouraged young people to smoke.  In response, the New Zealand tobacco industry unilaterally  withdrew  all forms  of radio  and  television  advertising.    A voluntary agreement in 1973 subsequently reaffirmed this decision.   However, tobacco sponsorship of prominent sporting events, and media coverage of those events, continued and in fact escalated during the 1960s and 1970s.    Rates of spending by tobacco companies  on advertisements  in the print media also climbed during this period.

[95]     1970  saw  the  World  Health  Organisation   adopt  its  first  anti-smoking resolution, stating that cigarette smoking was the largest single avoidable cause of death  in several  industrialised  countries.   The following  year,  the Second  World Conference on Smoking and Health was held in London, reinforcing the comments made in the first conference in 1967.

[96]     In 1971 a second report was published by the Royal College of Physicians, calling for stronger anti-smoking measures and concluding that there was “no doubt that smoking  caused  lung cancer,  chronic  bronchitis,  emphysema,  coronary  heart disease and coronary thrombosis.”  A voluntary agreement was reached in the same year  between  the  government  and  the  tobacco  industry  in Britain.    The  tobacco companies agreed to place governmental health warnings on cigarette packets, whilst a legislative ban was placed on cigarette advertising on radio and television.  Also in the same year, the US Surgeon General issued a review of the entire field of research

into smoking,  included  in which  were observations  about the effects  of smoking during pregnancy, such as effects on foetal growth.

[97]     Thereafter, the Surgeon General continued to issue smoking related reports on  a  biennial  basis.     The  World  Health  Organisation  also  continued  to  urge governments to take stronger anti-smoking measures throughout the 1970s.  By the

1980s, World Conferences on Smoking were also held biennially.

[98]     In 1972 the DOH engaged in an ongoing dialogue with the tobacco industry in order to reach agreement on the issue of health warnings on cigarette packets.  A voluntary agreement was signed in March 1973.  This agreement, set to last for three years, confirmed the existing ban on radio and television advertising and stated that in six months all cigarette adverting  would be banned in cinemas, billboards  and posters that were not at the point of sale.   Advertisements  in the print media were also to be limited in size.

[99]     The agreement also required the words “Government warning: Smoking may damage your health” to be displayed on all cigarette packets after January 1974.  The agreement was renewed in 1976 for a further two years.  In 1979 a further agreement was signed, extending the warning-label  requirements,  and requiring tar ratings to appear on all press and media advertisements.   A fourth agreement was signed in

1981 after difficult negotiations, changing the wording on the label from “smoking can endanger your health” to “smoking may endanger your health.”

[100]   The  1970s  and  1980s  were  marked  by  the  rise  of  more  prominent  anti- smoking  campaigns.    By  the late  1970s,  individual  companies  and  retailers  also undertook  anti-smoking  measures  on a voluntary  and ad hoc basis. For instance, Woolworths  supermarkets  requested  in  1977  that  their  customers  refrain  from smoking  whilst  in  the  store.    Foodtown  supermarkets  followed  suit  in  the  early

1980s.   In 1971 the DOH adopted an internal policy that departmental staff should not   smoke   during   meetings,   or   when   in   public   representing   a   government department.

[101]   Following the Third World Conference on Smoking and Health in 1975, the DOH, in conjunction with the Cancer Society and the National Heart Foundation, formed a governmental steering committee to consider the WHO Expert Committee Report on Smoking and how it could be applied to public health in New Zealand. Based on the recommendations by the steering committee, the Government formed the Advisory Committee on Smoking and Health (ACSH) in November 1976.

[102]   In 1977 ACSH indicated an intention to “do away with the association  of cigarettes  with  sport”.    This  resulted  in  immediate  objection  from  both  sporting bodies and tobacco companies.  The strength of the opposition forced ACSH to shift its focus from stopping sponsorship entirely to limiting the visible advertising associated  with  such  sponsorship.      Attempts  to  reach  a  voluntary  agreement regarding the sponsorship of sport by tobacco companies were unsuccessful.

[103]   In 1979 the Toxic Substances Act listed tobacco as a toxic substance, thereby making provision for regulations  governing advertising  and marketing.   However, the government  did not consider  it necessary  to promulgate  further legislation  so long as the voluntary agreements remained in place.

[104]   Throughout  this  period,  non-governmental   agencies  such  as  the  Cancer Society and the National Heart Foundation continued to run concerted anti-smoking campaigns.     Concurrently,   while  sponsorship   of  sporting  events  continued  to increase in response to the bans in respect of television and radio advertising, spokespeople  from  the  tobacco  industry  also  issued  their  own  information  and reports.  By way of example, in 1979 the tobacco industry released a booklet entitled “The Smoking Question”.   This continued to highlight the lack of a proven causal connection between smoking and lung cancer.  In May that year, the DOH produced a point-by-point refutation of the points made in the booklet.   In that same month, the   Tobacco   Manufacturers   Association   invited   Dr   Carl   Seltzer   of   Harvard University to tour New Zealand stating his belief that “cigarette smoking was not one of the principal contributors to coronary heart disease.”   Again, the DOH and various heart specialists issued immediate responses.

[105]   Pressure  on  the  Government  mounted  during  the  1980s,  in  line  with  a worldwide trend.   In 1986 a further US Surgeon General’s report was issued, this time focussing upon the effects of passive smoking.  Another report by the Surgeon General in 1988 concluded that cigarettes and other forms of tobacco were addictive. The report isolated nicotine as the drug that caused the addiction, likening the pharmacological processes involved to those that occur in addiction to drugs such as heroin and cocaine.  The report noted that the earlier 1964 report had relied upon a semantic  distinction  between  habituation  and addiction,  a distinction  that was no longer valid.

[106]   In 1986, after the Thirty-Ninth World Health Assembly, the WHO launched an international public health campaign against tobacco use, encouraging countries to aim for smoke-free societies by the year 2000.  In 1987, the date of 31 May was designated as the annual World No-Smoking Day.

[107]   International trends in the 1980s were echoed in New Zealand. In 1984, Dr Murray  Laugesen,  a principal  medical  officer  at  the  DOH  was  appointed  to  the Health Promotions Unit.   His role was to focus solely on tobacco monitoring and control.   In conjunction with the Toxic Substances Board (TSB) and the Action on Smoking and Health group (ASH), Dr Laugesen worked towards replacing the voluntary agreements with legislative controls.

[108]   Throughout the late 1980s, successive Ministers of Health also continued to work towards such legislation. Numerous publications were issued by governmental agencies such as the DOH and other groups such as the TSB and ASH.    In 1986, taxation on tobacco was increased by 55 per cent.

[109]   In  1989  the  Minister   of  Health,  the  Hon  Helen  Clark,  launched   the publication  “Health or Tobacco: An End to Tobacco Advertising  and Promotion” authored by Dr Laugeson and produced with the support of the TSB.   The report presented  comparative  statistics  relating  to  tobacco  advertising  and  sponsorship across 33 countries and canvassed evidence regarding the impact of advertising bans. The report recommended that tobacco advertising and sponsorship in all their forms be  totally  eliminated  in  New  Zealand.    In  response  to  this  paper,  the  Tobacco

Institute  of  New  Zealand  filed  a  216-page  report.    Thereafter  the  government proceeded with a Bill to restrict tobacco advertising and sponsorship.

[110]   The Bill became the Smoke-Free  Environments  Act, which was passed in

1990.  The Act had three primary purposes.  First, it aimed to prevent the detrimental effects  of  smoking  on  the  health  of  people  in  workplaces,  or  in  certain  public enclosed  areas.   The Act prohibited  smoking  in passenger  aircraft  and passenger service vehicles, and required all employers to have a written policy on smoking. Employers were also required to provide smoke-free areas.   Secondly, the Act controlled the marketing and distribution of tobacco products.  Its passage resulted in an effective ban on most advertising and sponsorship by tobacco manufacturers, and required  health  warnings  and  constituent  labelling  to  be  displayed  on  cigarette packets.   Thirdly, the Act established the Health Sponsorship Council to fund organisations that had previously received and been reliant on tobacco sponsorship.

[360]  The fact that experts such as these could not agreement upon this issue demonstrates,  in  my  view,  the  artificiality  of  attempting  to  predict  in  hindsight whether any given person could have quit smoking.  As the evidence  in this case showed, it is extremely difficult at any stage to predict whether a person will be able to successfully give up smoking.  Those difficulties are exacerbated if the person in question is no longer alive.

[361]   The only means by which such an exercise can be undertaken at all is for the circumstances  of  the  person  to  be  considered  against  statistical  data  relating  to persons who have successfully given up smoking.    The existence of some circumstances, or factors, will support the proposition that the person may have been able  to  give  up  smoking.    Others  may  suggest  the  opposite.    In  all  likelihood, however, the factors will not be conclusive either way.  The end result may leave the enquirer with more questions than answers.

[362]   In the present case, for instance, there is no dispute that Mrs Pou was a heavy smoker  and that she had been  so for a very  long time.   She obviously  found  it difficult to resist the physical and psychological cravings that any abstinence from

smoking  inevitably  produced.     Even  short  periods  of  abstinence  rendered  her extremely irritable.  It is virtually inevitable that she would have found any sustained attempt at cessation to be difficult in both physical and psychological terms.   Such attempts  as  she  did  make  to  restrict  her  intake  or  to  give  up  smoking  were unsuccessful,  although  in making  these she never experienced  the benefits  that a structured cessation programme might provide.   All of these factors would tend to suggest that the likelihood of Mrs Pou being able to give up smoking would have been extremely low.

[363]   Surprisingly,   however,   the   experts   agreed   that   these   factors   are   not particularly  useful indicators, or predictors, of Mrs Pou’s ability to stop smoking. Research has shown that the fact that a person may have been a heavy smoker for a very long time is not a reliable predictor of the ability to quit.   Many people with such histories are still able to quit smoking.  The fact that a person may score highly on clinical tests designed to establish nicotine dependence,  a factor that Professor Sellman relied on as suggesting inability to quit, is in my view therefore of limited assistance.   By definition all heavy smokers will score highly on such tests. That does not mean, however, that they are unable to quit.

[364]   In addition, although heavy smokers are often afflicted by severe withdrawal symptoms, these do not provide a reliable guide to the ability to quit either.  This is because  many  persons  who  suffer  such  symptoms  are  eventually  able  to  stop smoking.   Similarly, little weight can be placed on the fact that a person has made unsuccessful  attempts  to give up smoking  in the past, because  most people only succeed in giving up smoking after several prior unsuccessful attempts.   Moreover, participation in a recognised and structured cessation programme is no guarantee of success, because long term cessation rates for such programmes are often quite low. An overall cessation  rate of 20 to 25 per cent at the end of twelve months after finishing a structured programme is apparently not unusual.  The statistics show, in fact, that most smokers give up of their own accord and without assistance  from outside agencies.

[365]   There are some factors in the present case that do suggest that Mrs Pou may have  been  less likely  to be able  to give  up smoking  than  other  persons.   These

include the fact that she had separated  from her husband  and that, possibly  as a result, she was in a lower socio-economic group than many people who are able to quit.   The correlation between these factors is based solely on statistics, however, and few would deny that many people in these two categories have been able to give up smoking in the past.

[366]   Although  they  probably  go without  saying,  two  factors  that  appear  to be fundamental  to  any  successful  attempt  to quit  are  motivation  and  determination. Without the motivation, or desire, to quit it is difficult to see how success will ever be achieved.  Motivation alone, however, may not be enough given the physical and psychological effects that withdrawal from nicotine may produce.  Determination is therefore essential to a successful attempt to quit smoking, particularly if it is to be undertaken by a heavy smoker.   I have already held, in the context of Mrs Pou’s decision   to  start  smoking,   that  Mrs  Pou  was  a  person   of  strong   will  and determination.   The question that remains, however, is whether she was sufficiently motivated to rid herself of her reliance on cigarettes to put herself through the trauma that quitting was sure to involve.

[367]   In the end, and as the experts agreed, Mrs Pou’s ability to quit smoking is not one that can now be predicted with any degree of accuracy.   As matters presently stand, even experts are not equipped to carry out the exercise with any degree of confidence.   A comparison between the formal qualifications or experience held by the experts who gave evidence in this case does nothing to resolve the issue; neither does comparing the nature and quality of the articles that each has written or read in scientific journals.  Rather, a different approach is required.

[368]   The appropriate starting point, in my view, is the proposition with which all the experts agreed.  This is that it was not impossible for Mrs Pou, any more than it may  be  for any  other  person,  to have  given  up  smoking.    If that  proposition  is correct,  can it seriously  be suggested  that the law does not expect a person who learns of the dangers of smoking to do nothing at all to guard against them?

[369]   For myself, I do not accept that this can be correct.  It could only be correct if, once Mrs Pou began smoking, it was impossible for her to stop.  In some cases of

dependence, or addiction, that may be the result of beginning to consume a particular substance.  That is not the case, however, with tobacco.  The corollary of the fact that it was not impossible for Mrs Pou to stop smoking is that it was possible for her to quit.  It may have been extremely difficult given the obvious and undisputed level of her dependence,  but it was possible.    And it is not insignificant  that people  are regularly required, for all kinds of reasons, to give up doing things that they greatly enjoy in circumstances where it will be extremely difficult to do so.

[370]   Moreover, liability for the voluntary actions of an individual is not likely to be passed to a defendant unless there is a high degree of impairment: see for example Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52. Although a person may be addicted to smoking cigarettes, the experts agreed that this does not mean that cognitive functions are impaired in any way or that the power of self-control is lost. Viewed in this light, each and every cigarette that is consumed is the result of a conscious and voluntary act.

[371]   Although  there  are  differences,  there  are  also  some  similarities  between addiction to cigarettes and addiction to gambling.   It would be difficult to suggest, however,  that a person  could seek to place the responsibility  for an addiction  to gambling  at  the  door  of  a gaming  establishment.    Such  a claim  was  made,  but rejected, in Reynolds v Katoomba RSL All Services Club Ltd (2002) 189 ALR 510. In that case the plaintiff was diagnosed by clinical tests as being a “pathological gambler.” Previous attempts to stop gambling had failed, and he said that once he started gambling he could not stop. He alleged that the gaming establishment that he frequented had negligently failed to warn him about the lack of prudence involved in gambling.

[372]   The New South Wales Court of Appeal upheld the trial judge’s conclusion that the fact that the plaintiff was a “problem gambler” did not mean that he had been deprived of the ability to control his own actions.  He was able to appreciate the risks involved in gambling, he had the ability not to gamble excessively and he also had the ability to refrain from gambling at all.

[373]   It follows that, whilst I accept that Mrs Pou’s addiction was such that she was not under an absolute duty to immediately cease smoking once she became aware of the dangers of smoking, it was nevertheless incumbent on her at that point to immediately  take reasonable  steps to do so.   If she did not, she must accept the consequences that follow.  Those consequences would not be caused by any failure to warn, but rather by her deliberate decision to continue smoking in the face of the risks of which she had knowledge.

Did Mrs Pou take reasonable steps to give up smoking?

[374]   Mrs Pou’s evidence, which I accept, was that she often wished that she could give up smoking.   I also accept that Mrs Pou felt that cigarettes had a degree of control over her that amounted in her own mind to an addiction.  The feeling that she was controlled by the need to smoke is a signal feature of her evidence.  I therefore have no difficulty in accepting that, from time to time at least, Mrs Pou desperately wished to rid herself of this aspect of her life.  The issue is whether that desire led her  to  take  what  could  objectively  be  regarded  as  reasonable  steps  to  give  up smoking.

[375]   Mrs  Pou  said  that  she  had  made  20  or  30  attempts,  some  of  which  she categorised as “intentions”, to give up smoking. She described these as being “spectacular failures”.

[376]   Mrs  Pou’s  evidence  regarding  all  but  two  of  these  failed  attempts  was, however, quite vague.   She said that most of them were so short that nobody else would  even  have  known  that  they  had  occurred.    She  said  that  they  generally consisted of trying to ration the number of cigarettes that she smoked every hour or every day.  Mrs Pou did not say exactly when these attempts occurred.  For present purposes, however, I am prepared to accept that they are likely to have begun reasonably soon after Mrs Pou became aware of the dangers of smoking.

[377]   Mrs Pou was only able to describe two periods during which she was actually abstinent for any length of time.  The first occurred shortly after her separation, at a time when she did not have sufficient money to be able to purchase both cigarettes

and Christmas presents.  Mrs Pou described the severe depression and irritability that this period of enforced abstinence, which appears to have lasted for two days, caused her.  It ultimately ended when a friend gave her a packet of cigarettes.   It is clear, however,  that this particular  incident  was not an attempt  by Mrs Pou to give up smoking.  Rather, it occurred as a result of the fact that Mrs Pou had no money.  It was therefore totally unrelated to any desire by Mrs Pou to give up smoking. For this reason it would not qualify as a failed attempt to give up smoking at all.

[378]   The second  period  of abstinence  occurred  on an occasion  when  Mrs Pou obtained  some  nicotine  patches  from  a  friend.     She  did  not  have  access  to instructions as to how to use the patches.  She wore the patches for a day or so, and continued  to smoke whilst wearing  them.   On or about the second  day Mrs Pou experienced unpleasant sensations in her chest and arms, and she took the patches off.  She did so because she took the view that the patches “were not working”.

[379]   In summary, all but two of Mrs Pou’s attempts to give up smoking resulted in her being abstinent for no more than a few hours.  On her own evidence, they would not have been noticed by those around her.   I consider that these are more aptly described as “serious intentions” rather than serious attempts to give up smoking.  In order for these episodes to qualify as reasonable  attempts, Mrs Pou would in my view have needed to go much further than she did on each occasion.   At the very least, she needed some sort of plan or strategy.  Without that, the chances of success were very low.   The plan would not need to go so far as a structured  cessation programme, because she may not have been able to afford that.  It would need more, however, than a self-imposed decision – not communicated to anyone else - that she would ration herself to a certain number of cigarettes per day or per hour.

[380]   Mrs Pou must also have known that it was unlikely that she would be able to achieve her objective unless she took some sort of advice regarding the process that she should follow, and the manner in which she could deal with the stresses and difficulties  that she was likely  to encounter.   She could  easily  have sought  such advice from her doctor or a chemist, or even from a friend or relative who had been down the path that she was contemplating.   The most that Mrs Pou appears to have

done is to call Helpline on one occasion.  When she was unable to get through on the first attempt, she did not call again.

[381]   If Mrs  Pou  had  spoken  to  others  she  could  also  have  ensured  that  those around her would be in a position to provide her with the encouragement and support that she would undoubtedly need in the times ahead.   Mrs Pou said in cross- examination, however, that she never sought help from her family because “it was harder  if you told people,  because  they watched”.   I consider,  however,  that the reasonable person in Mrs Pou’s position would have discussed their desire to give up smoking with those around them.

[382]   Moreover, Mrs Pou’s motivation for giving up smoking clearly waxed and waned.   She told Dr Goodwin that she often thought “No, I won’t try [to give up] today.  I will smoke up large today, and I may try to give up tomorrow.”  In cross- examination she also said this:

No.   Sometimes  I would have to have morning ones.   And I would think, “Right, now, I can do it.  I will get busy”.  But the minute I knew I couldn’t smoke, the clock was in my face all the time.  The clock.  So, then it would become, “Well, I went as long as I can.  If I can cut it by so many today, then maybe I can do it gradually.

And  then  something  –  I  might  read  something,  and  see  something,  or anything  could happen,  and I might  go, “Start  next Monday,  Monday’s  a good day”.

[383]   This passage will, no doubt, strike a chord with many who have tried to give up smoking or who have resolved to lose weight.  It demonstrates, in my view, that unless such an attempt is accompanied  by an appropriate  degree of planning  and support, it is highly unlikely to succeed.

[384]   I  consider  that  the  way  in  which  Mrs  Pou  approached  her  attempts,  or intentions, meant that they were doomed to fail.   They failed without anyone else even  knowing  that  they  had  occurred.     They  cannot,  in  my  view,  qualify  as reasonable efforts to give up smoking.

[385]   Of the remaining attempts, the enforced abstinence caused by a lack of funds can immediately be put to one side.   It was not, and was never intended to be, an attempt to give up smoking.

[386]   The attempt involving the nicotine patches is in a different category, because it demonstrates that Mrs Pou had a general plan when she set out to use them.   It therefore had the potential to amount to a serious attempt to give up smoking.  The problem  with this attempt,  however,  lay in its execution.   Mrs Pou obtained  the patches from a friend who had already used several of the patches from the packet. The friend had ripped the packet when opening it, and had thereby obliterated half of the instructions.   Mrs Pou said that the friend “basically just told me what he remembered.”    Mrs  Pou  then  proceeded  to use the  patches  without  seeking  any further advice or instruction as to how they might be used to best effect.

[387]   She said that she kept one patch on for 24 hours, and then replaced it with a new patch.   Although Mrs Pou thought that she had used the patches correctly, she said that she “couldn’t refrain from still having a cigarette at the same time”.  Had she been able to read the instructions,  she would have seen that they included  a direction not to smoke or use any other nicotine product while on the programme. The instructions also warned that users might suffer an overdose of nicotine if they smoked or used any other product containing nicotine while using the patches. Mrs Pou subsequently experienced discomfort and pain in her chest and arms. She sought no advice regarding these symptoms, and instead concluded that nicotine patches did not work for her.  She then removed the patch and never tried a similar programme again.

[388]   Whilst  the incident  involving  the nicotine  patches  started  out as a serious attempt to give up smoking, I consider that it was hamstrung from the outset by a lamentable lack of planning.  It seems that Mrs Pou was prepared to use the patches without reading the instructions and without seeking advice about how to use them from a reliable source.   She therefore had absolutely  no idea of how the patches worked, or what she should do to ensure that the best chance of success.   She was also prepared  to smoke whilst wearing  the patches when she did not know what effect that might have.  She did not know whether, or to what extent, smoking might

impair the effectiveness of the patches or whether it could produce side effects.  She did not seek advice when she experienced the pain in her chest and arms.  In effect, Mrs Pou was  “flying blind’ when she used the patches.   It is therefore no surprise that the experiment did not work.  Mrs Pou’s attempt to use the nicotine patches was, in my view, so poorly executed that it could not realistically be classified as a serious attempt to give up smoking.

[389]   The end result of the matters to which I have referred is that I do not consider that Mrs Pou ever made any reasonable attempts to give up smoking.   As a result, she must be taken to have accepted the risks inherent in smoking once she became aware of those risks. The causative effect of any initial breach by the defendants was superseded  by  Mrs  Pou’s  own  conduct.  Any  breach  of duty  could  no  longer  be considered as the operative cause of Mrs Pou’s injury, and the chain of causation was  broken.      It  was  therefore  not  open  to  Mrs  Pou  to  seek  redress  from  the defendants once she developed lung cancer, because the possibility that she might develop lung cancer was one of the risks that she had assumed.

An alternative approach : the individualist philosophy of the law

[390]   Although I have decided this aspect of the case on a different basis, the result coincides with a concept that has been described as “the individualist philosophy of the law”.  This philosophy is based on the principle that individuals are autonomous beings who are taken to be responsible for their own actions.

[391]   In Tomlinson v Congleton Borough Council Lord Hoffmann noted (at 85F) that “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.”

[392]   Described in that way, the philosophy could be taken to have some relevance to the issue that I have just decided.   Counsel for the plaintiffs submitted that the theory should not be extended into the field of product liability.  Although I am not required to decide the point, it seems to me that it may in fact apply with equal force

in the area of product liability.   There is no reason why individuals who have the ability to control their own actions should not also be responsible for them.

[393]   Lord Nimmo Smith applied the concept in McTear.   He considered that Mr McTear was actually aware of the risks of smoking, but failed to take adequate steps to quit.   In considering  the impact of Mr McTear’s own conduct on the potential liability   of   the   cigarette   manufacturer   in   negligence,   Lord   Nimmo   Smith conceptualised the issue as one of personal responsibility.

[394]   Lord   Nimmo   Smith   rejected   (at   [7.177]   and   [7.178])   an   “insidious” suggestion that because Mr McTear was from a lower socio-economic class, he was thereby “somehow to be regarded as more a victim of circumstances and as having less than full responsibility for his own choices and actions”.  Although the learned Judge accepted that the prevalence of smoking may be higher among members of lower socio-economic groups, he did not accept any approach that would accord less individual responsibility to such people as Mr McTear.  This was because the policy of the law views all adults of full age and not suffering from mental incapacity as being  equal.    As  such,  each  “is  presumed  to  be  reasonable,  and  to  have  the responsibility of making reasonable choices, not least in matters affecting his or her safety, health and welfare”.   His Lordship described this approach as being “fundamental to the workings of our society”.

[395]   Lord Nimmo Smith then went on to say (at [7.179]):

At the centre of my thinking is the individualist philosophy of the common law,  described  by  Lord  Hoffmann  in  Tomlinson  v  Congleton  Borough Council, in the passage quoted at para. [7.46].   As he said, people of full age and sound understanding  must look after themselves and take responsibility for their actions.   There is no duty to save people from themselves.    If they are, or may reasonably be supposed to be, in possession of information about harm which they may suffer if they choose to follow a particular course of action, the responsibility is theirs alone.     They have the right of self determination  which  was  recognised  in  Law  Hospital  NHS  Trust  v Lord Advocate,  quoted at para. [7.49].     If, in knowledge  that they are taking a chance,  as  the  pursuer  did  in  Titchener  v  British  Railways  Board,  they expose themselves to a risk of harm, there is no breach of any duty of care. As was said in Grant v Australian Knitting Mills Ltd (para. [7.8], “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 uncertainty  of mischance.”     In Murphy v Brentwood  District Council Lord Keith, in the

passage quoted at para. [6.67], said that a person who was injured through consuming or using a product of the defective nature of which he was well aware had no remedy against the manufacturer.     It is not difficult to find instances today of people who, rather than blaming themselves for the consequences   of  their  own  decisions,  seek  to  negate  responsibility   by claiming that a condition, such as obesity or addiction to a controlled drug, has  just  happened  to  them,  independently   of  their  own  volition,  or  is someone else’s fault, as was claimed in Pelman v McDonald’s Corporation, referred to at paras. [7.130] to [7.132].    For sound reasons the law gives no countenance to such a tendency.    The individualist philosophy requires that individuals  must  live  with  the  legal  consequences  of their  own  informed choices.

[396]   His  Lordship   noted  (at  [7.180])  that  this  approach   is  consistent   with Australian  authority  and that it is likely to underlie the basis upon which similar claims have been rejected in the United States.  He then said that “all of these cases support the view that the individual is well enough served if he is 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”.

[397]   Lord Nimmo Smith also said (at [6.208]):

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 like 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.

[398]   With respect, I consider that the passages to which I have referred could be applied with equal effect in the present case.

Conclusions regarding the relevance of Mrs Pou’s failure to quit smoking

[399]   I therefore conclude that, even if Mrs Pou had not initially been aware of the risks of smoking when she first started, she must have been fully aware of those risks by 1974 at the latest.   The expert  evidence  in this trial has indicated  that while quitting  smoking  may involve  various levels of discomfort  or difficulty,  it is not

impossible  to  do  so.   Mrs  Pou  was  therefore  under  a duty  to  immediately  take reasonable steps immediately to stop smoking, but she did not do so.

[400]   As  a  result,  the  law  presumes  that  Mrs  Pou  continued  to  smoke  in  the exercise of her own free and informed choice.   From the point when she became fully aware of the risks of smoking and failed to take reasonable steps to quit, the causative effect of any initial breach of duty was superseded by the effect of Mrs Pou’s own conduct. This is particularly significant given the evidence that after 15 years of abstinence even a heavy smoker will have the same chance of developing lung cancer as a non-smoker.   As a consequence, no redress is available to Mrs Pou for any injury that she suffered as a consequence of continuing to smoke.

Defences

10.      The defences of volent non fit injuria and contributory negligence

[401]   For the reasons set out above I have found that the defendants are not liable to the plaintiffs  in negligence.   For this reason  I do not propose  to consider  the defences that I would have needed to consider in the event that I had found liability in negligence to have been established.

[402]   I merely  record  in relation  to the issue of volenti  that a logical  difficulty would arises in any attempt  to consider  it in light of the factual  findings  I have already made in relation to the issue of negligence.   This difficulty is discussed in McTear  [7.206] and [7.207].  Like Lord Nimmo Smith, I prefer to leave matters on the basis that in a case such as this the factual issues that arise in relation to the issue of  negligence  also  necessarily  encompass  the  issues  that  arise  in  considering  a volenti  defence.    It is not logically  possible  to assume  that negligence  has been established in this particular context and then to ascertain whether a volenti defence (in  which  the  defendants  would  bear  the  onus)  has  also  been  established.    It is sufficient to say that, if I had found that negligence had been established, the defence of volenti non fit injuria would not have been established.

Result

[403]   For  the  reasons  I  have  given  the  plaintiffs’  claim  cannot  succeed  and  is dismissed.

Costs

[404]   Ordinarily  costs  would  follow  the  event.    I am  aware,  however,  that  the plaintiffs are legally aided.   If the defendants wish to advance submissions on the issue of costs counsel should file a memorandum no later than 2 June 2006.  Counsel for the plaintiffs will then have a further month to file a memorandum in response. In the absence of any request for a hearing, I will then deal with the issue of costs on the papers.

Lang J