McTear v Imperial Tobacco Ltd: OHCS 31 May 2005

The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not proved that the smoking of cigarettes was the cause of the lung cancer, and it was not within judicial knowledge that this was the case. The deceased had been aware of the risks, and it was not the case that a vendor of materials which might be dangerous would always be responsible for the consequences of their use. The deceased had continued to smoke despite the warnings. The court reviewed decisions from several jurisdictions.
Lord Nimmo Smith described the judge’s role as to expert witnesses: ‘. . it is necessary to consider with care, in respect of each of the expert witnesses, to what extent he was aware of and observed his function. I must decide what did or did not lie within his field of expertise, and not have regard to any expression of opinion on a matter which lay outwith that field. Where published literature was put to a witness, I can only have regard to such of it as lay within his field of expertise, and then only to such passages as were expressly referred to. Above all, the purpose of leading the evidence of any of the expert witnesses should have been to impart to me special knowledge of subject-matter, including published material, lying within the witness’s field of expertise, so as to enable me to form my own judgment about that subject-matter and the conclusions to be drawn from it.’

Lord Nimmo-Smith
[2005] ScotCS CSOH – 69, Times 14-Jun-2005
Bailii, Scottish CS
See AlsoWyong Shire Council v Shirt 1-May-1980
(High Court of Australia) Mason J: ‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk . .
CitedDonoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
CitedCruz-Vargas v R J Reynolds Tobacco Company 2003
(United States Court of Appeals, 1st Circuit) Relatives of a deceased smoker brought a negligence and strict liability suit against a tobacco company, alleging that it was responsible for his death. The action was brought in the District Court for . .
CitedDingley v The Chief Constable of Strathclyde Police OHCS 9-Oct-2002
. .
CitedBogle and Others v Mcdonalds Resturants Ltd QBD 25-Mar-2002
A group of claimants sued for personal injuries caused by the spillage of hot drinks served by the defendant, McDonald’s. The issues included: ‘(5) Whether there was a duty upon the defendant to warn its customers as to the risk of scalding from hot . .
CitedDingley v Chief Constable of Strathclyde Police HL 11-May-2000
The officer had been injured in an accident in a police van. He developed multiple sclerosis only a short time afterwards. The respondent denied that the accident caused the MS.
Held: There is no proof of what causes MS, but it was common . .
CitedElf Caledonia Ltd v London Bridge Engineering Ltd and Northern Industrial and Marine Services Co Ltd and British Telecommunications Plc and Wood Group Engineering Contractors Ltd and Eastman Christensen Ltd and Kelvin International Services Ltd and Sten SCS 2-Sep-1997
. .
CitedDingley v The Chief Constable, Strathclyde Police 1998
The court was asked whether the development of multiple sclerosis had been caused by physical injury sustained in a motor accident. Medical science was not able to demonstrate the connection between the two, and reliance was placed on . .
CitedDavie v Magistrates of Edinburgh 1953
Issues arose in relation to the expert evidence which had been led.
Held: The court rejected a submission that, where no counter evidence on the science in question had been adduced for the pursuer, the Court was bound to accept the . .
CitedBow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd 1997
(Supreme Court of Canada) Saint John Shipbuilding Limited (SJSL) constructed an oil rig for Bow Valley Husky (Bermuda) Limited (BVHB) which was to conduct drilling operations off the east coast of Canada. A heat trace system was required in order to . .
CitedNational Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
CitedMcCaig v Langan 1964
A car passenger suffered serious injuries in an accident while the car was being driven by a friend. He brought an action of damages against the driver of the car who admitted that the accident was caused by his fault. The defender averred that when . .
CitedFowler v Tierney 1974
A young woman was injured in a collision with a motor car when she was travelling as a pillion passenger on a motor scooter. She brought an action claiming damages against the driver of the motor scooter. The defender pleaded, inter alia, volenti . .
CitedGrant v Australian Knitting Mills PC 21-Oct-1935
(Australia) The Board considered how a duty of care may be established: ‘All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, . .
CitedGraham Barclay Oysters Pty Ltd v Ryan 9-Aug-2000
Austlii (Federal Court of Australia) TORT – Negligence – non-feasance by public authorities – non-exercise by local government council and State government to minimise faecal contamination of lake where oysters . .
CitedWatson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
CitedB v Islington Health Authority; De Martell v Merton and Sutton Health Authority CA 6-May-1992
A doctor’s duty of care to an unborn child is an established duty in common law despite some cases apparently to the contrary. Phillips J: ‘The duty in the law of negligence is not a duty to exercise reasonable care to avoid risk of causing injury. . .
CitedHamilton v Fife Health Board 1993
A child was born but with injuries incurred while in utero alleged to have been caused by the negligence of the doctors attending the mother. The parents sued the health board for loss of the child’s society. The Board argued the action to be . .
CitedHeine v Reemtsma Cigarettenfabriken GmbH 14-Nov-2003
(Second Chamber for Civil Matters of the Arnsberg Regional Court, Germany) The Plaintiff claimed damages and compensation for pain due to harm to his health from smoking cigarettes manufactured by the Defendant. He also sought information about the . .
CitedLund v JL Tiedemanns Tobaksfabrik A.S 31-Oct-2003
(Supreme Court of Norway) A request was made for a declaratory judgment finding that a tobacco manufacturer was liable for damages on a strict liability basis with respect to an injured party who after over 40 years of cigarette smoking developed . .
CitedCaledonian Ry Co v Mulholland or Warwick HL 1898
The appellant company were held not liable for injuries caused by a defective brake on a coal wagon conveyed by the railway company to a point in the transit where their contract ended, and where the wagons were taken over for haulage for the last . .
CitedDominion Natural Gas Co Ltd v Collins 1909
The defendants had installed a gas apparatus to provide natural gas on the premises of a railway company. They had installed a regulator to control the pressure and their men negligently made an escape-valve discharge into the building instead of . .
CitedHodge and Sons v Anglo-American Oil Co 1922
The plaintiffs, London barge repairers claimed after an explosion on the Anglo-American Oil Company’s oil tank barge Warwick, when she was being repaired by the plaintiffs, to whom she had been sent for that purpose by the defendants. As a result of . .
CitedLetang v Ottawa Electric Railway Co 1926
To accept a plea of non fit injuria, there has to be a finding that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. . .
CitedLewis v University of Bristol and Ultra Violet Products Ltd CA 14-Jun-1999
The plaintiff was a research assistant employed by the defendant. She was an experienced molecular biologist, and was using an ultra violet transilluminator to photograph DNA gel in a laboratory when she was exposed to an excessive dose of ultra . .
CitedHolmes v Ashford CA 1950
A hairdresser treated the plaintiff’s hair with a dye, and as a result the plaintiff contracted dermatitis. The dye came to the hairdresser in labelled bottles together with instructions. Both the labels and the brochure warned that the dye might be . .
CitedLaw Hospital NHS Trust v Lord Advocate and Another IHCS 20-May-1996
The patient suffered from irreversible damage to the cerebral cortex and fell into a persistent vegetative state in 1992. Permanently insensate, she remained alive only because feeding and hydration were provided to her artificially and because of . .
CitedImperial Chemical Industries Ltd v Shatwell HL 6-Jul-1964
The respondent was employed as a shot firer in a quarry, and was to test the electric wiring connecting explosive charges. Contrary to instructions that testing must be done from a shelter, the respondent and another shot firer carried out a test in . .
CitedHotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
CitedWilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
CitedLondon Graving Dock Co Ltd v Horton HL 1951
An experienced welder had for a month been carrying out work on a ship as an employee of sub-contractors engaged by ship-repairers in occupation of the ship. He was injured, without negligence on his part, owing to the inadequacy of certain staging, . .
CitedJosephine Murray and others v Greenock Dockyard Limited SCS 4-Jun-2003
The deceased contracted mesothelioma from exposure to asbestos, and died. He and the pursuer had married in 1959 at 21. They were married over 41 years, and had one child. The marriage had its ups and downs, and for a time during the 1980s was . .
CitedMurphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
CitedMcWilliams v Sir William Arrol and Co Ltd HL 1962
A steel erector had fallen seventy feet to his death from a steel lattice tower. The employers had not provided a safety harness, but the judge found that he would not have used a security belt even if provided, and that the onus was on the pursuer . .
See AlsoMcTear v Imperial Tobacco Limited SCS 23-Oct-2001
The pursuer sought damages from the defenders after her husband had died, she said, after suffering injury smoking their cigarettes. . .
CitedOverseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .
CitedMohammed Ali Shaher and others v British Aerospace Flying College Limited IHCS 29-May-2003
The pursuers claimed for the death of their son, a trainee pilot aged 19, in a flying accident. The defenders reclaimed against the Lord Ordinary’s awards of andpound;35,000 to each parent. In the course of the reclaiming motion the pursuers invited . .
CitedNettleship v Weston CA 30-Jun-1971
The plaintiff gave a friend’s wife driving lessons. An experienced driver himself, he checked her insurance first. The learner crashed into a lamp-post, and he was injured. She was convicted of careless driving, and he sought damages. The judge held . .
CitedGirvan v Inverness Farmers Dairy and Another HL 13-Nov-1997
(Scotland) A second re-trial in order to obtain a jury assessment of damages more in line with that assessed by judges would be wrong. Lord Clyde: ‘In a system in which damages may be assessed in different cases either by a jury or by a judge it is . .
CitedJohn Pierce v Her Majesty’s Advocate 1981
A forensic scientist had been called as an expert witness at a criminal trial. He had made an unjustified assumption but had not disclosed the making of the assumption to the court.
Held: The court concluded that the witness had been . .
CitedRegina v Abadom CACD 1982
A properly qualified expert is entitled to rely on what might otherwise be considered as hearsay, that is to say findings by other experts in the same field in support of an opinion on any given set of facts. ‘In the context of evidence given by . .
CitedRhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
Appeal fromMcTear v Imperial Tobacco Ltd IHCS 30-Sep-1996
The pursuer sought damages from the tobacco company following the death of her husband.
Held: A first instance decision on caution for expenses should be set aside only if plainly wrong. . .
See AlsoMcTear v Scottish Legal Aid Board 1995
The court refused the pursuer’s claim for judicial review of the board’s refusal of legal aid to pursue a claim for negligence against tobacco manufacturers following the death of her husband. . .
CitedMain v Andrew Wormald Ltd 1988
A reclaiming motion challenged the entitlement of the medical witnesses in a case relating to asbestosis to rely on epidemiological literature.
Held: ‘In my opinion, the medical witnesses in this case were entitled to refer to medical . .
CitedMorris v Murray CA 3-Aug-1990
The plaintiff agreed to be flown by the defendant in his light aircraft though he knew the defendant was inebriated. The plaintiff drove the car which took them to the airfield and he helped to start and refuel the aircraft, which was piloted by the . .
CitedPaugh v RJ Reynolds Tobacco Company 1993
(United States District Court, N.D.Ohio, E.D) A tobacco company was sued in negligence.
Held: ‘The dangers posed by tobacco smoking have long been within the ordinary knowledge common to the community. In fact, tobacco is specifically . .
CitedPelman v McDonald’s Corporation 1993
(United States District Court, S.D. New York,) Customers sued McDonald’s for the excess sale of fatty fast food products to children.
Held: The action was dismissed. the defendants owed no duty to warn consumers of the products’ well-known . .
CitedThompson v Smiths Shiprepairers (North Shields) Ltd QBD 1984
The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not . .
CitedTitchener v British Railways Board HL 24-Nov-1983
A 15 year old was hit by a train as she crossed a railway line. She said the defender had not maintained a fence separating the street from the railway. The defenders knew that people went through the gaps walked across. She had crossed several . .
CitedWinnik v Dick 1984
The respondent, was a passenger in a motor car who was injured in an accident. He raised an action of damages against the driver, the appellant, who had been convicted of an offence under the Road Traffic Act 1972. The men had been drinking together . .
CitedTomlinson v Congleton Borough Council and others HL 31-Jul-2003
The claimant dived into a lake, severely injuring himself. The council appealed, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s appeal . .
CitedWilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
CitedSlater v Clay Cross Co Ltd 1956
The plaintiff was injured walking down a narrow railway tunnel. The tunnel had been regularly used by locals as a short cut.
Held: Though there was a risk in doing so, that did not mean that she had accepted also the risk that the train driver . .
CitedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .

Cited by:
CitedBadger v The Ministry of Defence QBD 16-Dec-2005
The widow of the deceased sought damages after his exposure to asbestos whilst working for the defendant. He had contracted lung cancer. The defendant argued that the deceased had continued to smoke knowing of the risks, and that he had made a . .
CitedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.225341