17 February 1998
Fanning the flames of litigation
Cheryl Hudson fumes at the latest High Court decision against tobacco
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
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
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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