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17 February 1998

Fanning the flames of litigation

Cheryl Hudson fumes at the latest High Court decision against tobacco companies

The High Court in London has ruled that lawyers acting for cancer victims are not liable for their opponents' court costs if they lose. In other words, in the suit being filed against them, tobacco companies Imperial Tobacco and Gallaher must pay their own court costs, win or lose. The judgement is being hailed as an empowering breakthrough for cash-strapped cancer victims seeking compensation for smoking-related illnesses.

Tobacco companies are not having a good press at the moment. On both sides of the Atlantic, public opinion is not so much turning against them as sweeping them away in a flurry of compensation claims and health moralism. When American tobacco companies made their huge settlement agreement with lawyers and state governors last year, see Who killed the Marlboro Man, it appeared to many that such a development was unlikely to happen in Britain. The United States, for one, is far more litigious than Britain and the American anti-smoking lobby is far more powerful.

Yet the High Court's decision is likely to create a free-for-all in British courts, as smokers who have developed diseases as a result of the habit rush to demand compensation from the companies who sold them the killer weed. The campaigning group, ASH (Action on Smoking and Health), is actively encouraging lung cancer sufferers to join the current class action suit. What makes matters worse for the tobacco industry is that the same day as the High Court reached its decision, the Cancer Research Campaign announced that cancer had become Britain's biggest killer. This, it seems, is proof that the tobacco companies have to be taken to task.

However, what is lost in all the moralistic attacks on the tobacco companies is the fact that nobody is ever forced to smoke a cigarette, much less buy and smoke two packets a day for over fifty years. Ernest Jones, one of the plaintiffs in the case against Gallaher and Imperial Tobacco, did just that and has scars from 35 operations and a predicted life span of less than a year to prove it. His story is a sad one, but sympathy should not substitute for reason in this debate.

People who smoke adopt the habit because it gives them pleasure - although indisputably it is now proven to also cause them pain, or at least to increase their likelihood of experiencing pain. Smoking is indeed bad for your health but it is a decision freely taken. Smokers are not victims of the tobacco companies' evil quest for profit, they are conscious choice-makers who should rightly take responsibility for their own choices and actions.

The reason that ex-smokers are being encouraged to take their case against the tobacco companies to court has in fact very little to do with the state of medical knowledge, or even increased health awareness. That both these areas have expanded greatly over the last century is certainly true. A hundred, even fifty years ago, it is unlikely that Ernest Jones would be alive to take his case to court. Indeed, the most striking reason why cancer is now the biggest killer in Britain is due to the fact that people generally live longer and do not die of other diseases. Although cancer has overtaken heart disease as claiming the most lives annually, both diseases are actually on the decline - it is just that heart disease is declining more rapidly.

But while Mr. Jones's and other smokers' increased longevity and raised awareness of health issues explain how they can take the case to court, they do not explain why they are doing so. The answer to that lies in the realm of politics, not medicine. Tobacco companies may be the scapegoats in this present drama, but the only beneficiaries are the plaintiff's lawyers. Smokers are encouraged to celebrate their supposed helplessness, the tobacco companies shell out, and the rest of us are told that our lives can only be negotiated through appeal to the courts.

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