[1.1] In view of the length of this Opinion, it may be helpful if at the outset I set out a list of its contents, by reference to its paragraph numbers, as follows:

[1.2] Alfred McTear died, aged 48, on 23 March 1993. He and his wife, Mrs Margaret McTear, last lived together at 20 Cherrywood Drive, Beith, Ayrshire. He was the original pursuer in this action. After his death his wife, as his executrix-dative, was sisted as the pursuer in his room and place. For convenience I shall refer to them respectively as Mr McTear and Mrs McTear.

[1.3] The defenders are Imperial Tobacco Limited, whom I shall refer to as ITL. They manufacture, market and sell tobacco products in the United Kingdom, particularly cigarettes, including the John Player brand. They supply cigarettes to retail outlets throughout Scotland for onward sale to the public, and have done so for many years.

[1.4] Mr McTear died of lung cancer. In this action Mrs McTear claims that this was caused, at least to a material extent, by his smoking, from 1964 to 1992 cigarettes manufactured by ITL, and that throughout the period during which he smoked them ITL were negligent in selling cigarettes, or in any event in selling them without appropriate warnings, and she seeks an award of damages accordingly.

What the pursuer requires to prove
[1.5] The pursuer can succeed in this case only if she proves all of the following:

Items (1) to (4) are as formulated by Mr Jones. Mr McEachran did not take issue with them. Item (5) takes account of counsel's submissions, discussed paras.[6.2] to [6.29].

[1.6] The burden of proving each of these matters rests on the pursuer. In order to discharge that burden, she must satisfy me, on the balance of probabilities, and on the basis of the evidence led before me and the applicable law, that each of these matters is proved.

[1.7] ITL plead, among other things, that Mr McTear willingly accepted as his own any risk to his health from smoking cigarettes; in doing this, they rely on the maxim volenti non fit iniuria, which I discuss below under that heading. The burden of proving this, on the balance of probabilities, is on ITL. ITL also plead that Mr McTear's illness was caused by his own fault or was contributed to by his fault, but at the hearing on evidence, Mr Jones did not invite me to sustain either of these pleas.

[1.8] I wish to state clearly now, and shall reflect this throughout my Opinion, that:

[1.9] Under our procedure, fair notice must be given by a party in the written pleadings (the final version of which is incorporated in the Closed Record) of any matter of fact about which the party may seek to lead evidence. Subject to the court's discretion to allow amendment at any stage (which may well be refused after a proof has started if it would seriously prejudice the other party) evidence may not be admitted of any matter of fact about which fair notice has not been given in this way.

[1.10] It must be emphasized that our system is evidence-based. My duty as a fact-finder is exactly the same as that of a jury, who in terms of their oath are bound to "give a true verdict according to the evidence". This brings me to a related topic.

Judicial knowledge
[1.11] On at least two occasions Mr McEachran made reference to judicial knowledge. The first was to suggest, at a By Order hearing before the proof, that it lay within judicial knowledge that cigarette smoking could cause lung cancer. The second was a suggestion, during the discussion of an objection at the proof, that the purpose and effect of advertising lay within judicial knowledge. Judicial knowledge must be distinguished from the personal knowledge of an individual judge. It is generally taken as relating to matters which can be immediately ascertained from sources of indisputable accuracy, or which are so notorious as to be indisputable, so that the judge is bound to take notice of them. If a matter does fall within judicial knowledge, a judge may refresh his memory or supplement his knowledge regarding it by consulting recognised works of reference, such as dictionaries or textbooks. Apart from the matters which are recognised as being within judicial knowledge, it is improper for a judge to proceed upon personal knowledge of the facts in issue, or upon personal examination of passages in textbooks. For a discussion of this, and reference to authorities vouching the foregoing proposition, see Walkers on Evidence (2^nd edn., 2000), pp.171-3, para.11.6.

[1.12] No doubt, where there is an issue of general public importance, a judge may have views about it in his or her private capacity. But it is an essential part of the judicial function that these views be put out of mind when hearing a case: otherwise, the judge would simply be at risk of pre-judging the very issue upon which he or she may be called to make a decision judicially. One of the fundamental issues in this case is whether cigarette smoking can cause lung cancer. This is an issue which I am duty-bound to approach with an open mind and to decide on the basis of the evidence led before me. As with all other disputed issues of fact, the burden of proof is on the party who seeks to establish this, in this instance on the pursuer.

[1.13] It is appropriate at this stage to refer to some of the procedural events which have taken place in this action and in a related application for judicial review by Mrs McTear.

[1.14] A claim was intimated on behalf of Mr McTear in July 1992. In early January 1993 an application for legal aid on behalf of Mr McTear was submitted to the Scottish Legal Aid Board for legal aid to fund the conduct of litigation on his behalf. In the application form it was stated that legal aid was sought to raise an action against "Richard Lloyd & Sons (who manufacture Old Holborn tobacco) and John Player & Sons (who manufacture John Players [sic] cigarettes)".

[1.15] The summons in the present action was signeted on 28 January 1993, and was presumably served shortly thereafter. On 3 March 1993 an interlocutor was pronounced granting commission to Mr Bolland, Q.C. to take the evidence of Mr McTear at a time and place to be appointed by the Commissioner. On 16 March 1993 at his home address, 20 Cherrywood Drive, Beith, Ayrshire, Mr McTear was duly sworn, and was examined in chief by his senior counsel, Mr McEachran, Q.C. On the same day Mr Hodge, who acted at that time as junior counsel for ITL, began his cross-examination of Mr McTear. As subsequently reported by the Commissioner, the commission was adjourned in mid-afternoon on that day "due to a deterioration in [Mr McTear's] condition and consequent inability to deal with questions". This followed advice from Mr McTear's general medical practitioner, who examined him at lunch-time. The next day, 17 March, Mr Hodge continued his cross-examination, but after approximately an hour and a half the Commissioner adjourned the commission in order to have Mr McTear medically examined. The view was then taken that Mr McTear was unable to continue giving evidence that day. An attempt was made to reconvene the commission on 19 March, but the doctor's advice was that Mr McTear was unable to resume giving evidence that day. That remained the position until he died on 23 March. At the point when the commission was adjourned on 17 March, Mr Hodge was, as he informed the Commissioner, about to put more contentious questions designed to test credibility and reliability. In the event, these questions were never put to Mr McTear. It appears, therefore, that most of the intended cross-examination was unable to take place. In his supplementary report, the Commissioner explained that he did not consider it appropriate to offer a view on the credibility and reliability of Mr McTear in relation to part of his evidence and not the whole, so he was unable to comply with a request to do so.

[1.16] A transcript of the evidence given by Mr McTear on commission, so far as it went, is available to me and forms part of the evidence in the case. Most of his evidence in chief was read out at the beginning of the proof before me, and in due course Mr McEachran sought to rely on certain passages in it. For reasons which I discuss in detail below, Mr Jones submitted that I should find Mr McTear's evidence to have been incredible and unreliable in certain material respects. I shall therefore have to make an assessment of this evidence as best I can, bearing in mind that it was given by a dying man, and one whose demeanour I have not had the opportunity of observing for myself.

[1.17] On 24 September 1993 the action was sisted pending determination of an application by Mrs McTear to the Scottish Legal Aid Board for civil legal aid to enable her to pursue the action. The tests which required to be satisfied in order for her application to succeed were as set out in section 14 (1) of the Legal Aid (Scotland) Act 1986, which provides inter alia:

Mrs McTear's application was refused as unreasonable by the Board. An application to the Board for review of that decision was also refused. Mrs McTear then applied to this court for judicial review of the Board's decision, alleging that it had acted unreasonably in refusing the application. After a first hearing, at which Mrs McTear and the Board were represented by counsel, the Lord Ordinary, Lord Kirkwood, by interlocutor dated 15 February 1995 dismissed the petition. There was no appeal against Lord Kirkwood's decision. The full history of the matter, including the reasons given by the Board and by Lord Kirkwood for their respective decisions, can be found in the report McTear v Scottish Legal Aid Board 1995 S.C.L.R. 611.

[1.18] At one stage of the procedural discussions before me, when preparations for the proof were being reviewed, Mr McEachran suggested that I might write to the Board, expressing the view that Mrs McTear should be granted legal aid. I declined to do this, because it is not my function to enter into such correspondence, and the appropriate occasion for the court to express its views is when disposing of an application for judicial review of a decision of the Board, as had already happened in the present case. Even then, as explained by Lord Kirkwood, the court cannot substitute its own view on the merits of the application for that reached by the Board, unless the latter had arrived at a perverse or unreasonable decision.

[1.19] As I understand it, counsel and solicitors representing Mrs McTear have conducted this action of her behalf on a speculative ("no win, no fee") basis. Reference will be made hereafter to the voluntary organisations Action on Smoking and Health (ASH) and ASH Scotland. At this stage, I should say that I believe it to be the case that ASH Scotland is in general supportive of the present action, but at no time has given any financial support for it.

[1.20] In these circumstances, ITL enrolled a motion to ordain Mrs McTear to find caution for expenses (in English procedure, security for costs) in respect of the following factors:

On 9 April 1996 Lord Gill refused this motion. In his Opinion, he said that the sixth factor was the aspect of the case that had troubled him most. He referred to newspaper cuttings and broadcast transcripts. These indicated that the pursuer's Glasgow solicitors, Ross Harper who originally acted for Mr McTear, had been "fairly accessible to the media on the subject of this case". It appeared from statements made by these solicitors that they had established a special claims unit to deal with similar claims and had numerous similar actions to follow on this one. According to a broadcast transcript, a partner in the firm, Mr Cameron Fyfe, said that "the world is watching this case" and predicted that if it were to succeed it would "open the floodgates to thousands of others, not only in Scotland, but interestingly in the western world". In addition, Lord Gill said, there had been numerous reports that the present action was being "backed" by an "anti-smoking pressure group", ASH, one of whose spokesmen was reported to have said, with reference to this action, "we just need one breakthrough, we just need one victory. [...] We just have to win one case to win everything". Lord Gill said, at pp.20-21:

[1.21] On 19 July 1996 an Extra Division refused a reclaiming motion against Lord Gill's decision. It was held that he had not misdirected himself and was not plainly wrong. Notwithstanding this, the information provided to Lord Gill and on the basis of which he refused the motion may bear re-examination in light of subsequent events.

[1.22] The case thereafter called in the procedure roll before Lord McCluskey. The purpose of the debate was to determine which of the pursuer's averments should be allowed to go to proof. On 23 October 2001 Lord McCluskey allowed a proof under deletion of certain averments. Subject to this, he reserved all pleas and allowed the parties a proof before answer in respect of the averments that remained. It was on the basis of these averments that the parties made, or should have made, their preparations for the conduct of the case at the proof.

[1.23] After being nominated in 2003 as the judge before whom the proof was to take place, I held a number of By Order hearings to discuss the state of the parties' preparations for the conduct of the proof and to decide any incidental motions.

[1.24] One such motion was at the instance of ITL on a commission and diligence for recovery of documents called for in a specification of documents. After hearing counsel, I granted diligence against havers so far as related to call 1, which was amended at the bar. In brief, this call related to documents showing or tending to show (under deletion of any entry naming or enabling any third party to identify any subject or subjects of the studies)

I am not aware that any documents falling within the terms of this call were among the productions for either party. I am not aware of the reason or reasons for this outcome.

[1.25] As has been apparent throughout, ITL have been prepared to devote considerable resources to the defence of this action. Its outcome is no less important for them than it is for the pursuer and the "third party onlookers". While the respective positions of the parties have thus been very unequal, I see no reason at all to treat this as a criticism of ITL. They are fully entitled to defend their interests as they have done, and, despite occasional complaints by Mr McEachran, there has been no point at which in my view they have unnecessarily protracted the proceedings or have otherwise resorted to tactics designed to exploit Mrs McTear's lack of funds. The inequality is an unavoidable consequence of the decision to continue with the conduct of the action without the benefit of legal aid or any other source of financial support.

[1.26] At one hearing before the proof, Mr McEachran advanced a motion, in terms similar to those of one which had previously been heard and refused by Lord Carloway, that I should restrict the number of days during which evidence would be led at the proof, and restrict the number of expert witnesses to be called on behalf of ITL. I refused this motion on the basis that I had no power to grant it and in any event because I could see no justification for it on the information then available to me. I indicated, however, that there would be scope for intervention during the course of the proof if it appeared that ITL were unnecessarily duplicating evidence or otherwise protracting the proceedings. In the event, as I have said, this did not happen.

[1.27] While there can be little doubt that the case for Mrs McTear would have been conducted differently had more resources been available, Mr McEachran accepted in his closing submissions that it was not open to me to take any account of this in reaching my decision.

[1.28] I emphasise, therefore, that my decision must, in accordance with our usual rules, be based solely on the parties' written pleadings, on the evidence led before me and on the submissions of counsel thereon, subject to the application of the law as I find it to be.

[1.29] The proof itself was conducted in accordance with our usual procedure. What was of great assistance was the use of modern systems. The documentary productions, on an estimate I have been given, extended to about 85,000 pages. At least four sets of paper copies would have been required for use in court; and experience shows how difficult this would have been to manage, and how much time would have been lost, had paper been used. Instead, all the documents were scanned into an electronic database, and the system was operated in court by an operator who was able on request to cause any page to be displayed on screens for all the participants to see. The evidence of witnesses and the submissions of counsel were transcribed by two operators using the LiveNote system, which produced an almost instantaneous transcript on separate screens with a high initial degree of accuracy. The transcript was thereafter edited, so that by the start of the next day's business there were very few remaining errors. Though there were occasions when paper was used for various reasons, the proof was in general conducted on a paperless basis. All of this was provided at the expense of ITL. I regard it as money well spent. I am confident that much time was saved, compared with the use of paper. The evidence of witnesses took thirty days, and counsel's submissions took twelve days. On reviewing the transcript, and the documents which were referred to by witnesses and counsel, I am struck by how much was covered in that time. The use of paper, traditional methods of note-taking, and so on, would have significantly added to the length of the proceedings, and the difficulties of my subsequent task in preparing this Opinion.

[1.30] The following cases and legal textbooks are referred to in this Opinion. Some cases not listed here were mentioned in counsel's written submissions, but not at the hearing on evidence, and I see no need to include them. Since there will be readers of this Opinion who are not lawyers, do not have access to law libraries and are not familiar with the case law, I have decided, where reference is first made to a case, to set out the summary of it from the rubric or headnote in the report, so as to provide some context for the quotations of passages from the opinions or judgments which follow. The quotations are assemblies of all the passages referred to by counsel, albeit at different times.

[1.31] Bogle v McDonald's Restaurants Ltd [2002] E.W.H.C. 490 (Q.B.)

Tomlinson v Congleton Borough Council [2004] 1 A.C. 46

White v Blackmore [1972] 3 All.E.R. 158

[1.32] Lewis, Manual of the Law of Evidence in Scotland (1925)

(2) Non-legal publications
[1.33] I have decided to incorporate in this Opinion a list of references to all the publications, other than cases reported in law reports, which were discussed in the course of evidence and counsel's submissions. Following the general practice adopted by the expert witnesses in their written reports, I shall use the author-date (Harvard) system of reference. Where authorship is attributed to an organisation, rather than to an individual or individuals, I have used an acronym. In most instances, where evidence was given under reference to a passage in a publication, the passage in question was displayed on screens in court. My quotations of such passages have been checked against the original texts as then on view. In a very few instances witnesses in reading from their written reports gave quotations from publications without direct reference being made to the original texts. In these instances I have thought it best to give the author-date references and to check the quotations against the original texts. In general, however, it may be taken that where an author-date reference is given and a text is quoted, the original text was under discussion in the course of evidence. On occasions, witnesses gave evidence about publications without being asked to refer to the original texts. Such publications are in most cases not included in this list of references, and I have attempted to distinguish them from those which are by separating the authors' names from dates by one or more words; i.e. author-date references in the text are to publications included in the list and, except in a few cases where convenience dictated otherwise, no publication is included in the list unless reference was made to the original text at the proof.

[1.34] The citations in the list of references which follows are as complete and accurate as I can make them and are in a style which I believe to be generally acceptable.

(3) Passages in documents not put to witnesses
[1.35] The documentary productions, as I have said, extend to many thousands of pages. Most of them are non-legal publications, of which there are many hundreds, including those in the list of references. At the proof, passages from only some of these publications were put to witnesses. It is open to question whether all of these passages were adopted by the witnesses to whom they were put, and thus became part of their evidence. Leaving that aside for later discussion, I feel obliged to say something at this stage about the question whether it is open to me to take into account any passage in any publication which was not put to any witness.

[1.36] The matter arose in this way. As will be seen, the presentation of the pursuer's case depended to a large extent on reliance on published reports. As Mr McEachran made a point of bringing out, some of these reports extended to hundreds of pages. At the hearing on evidence, he sought to draw to my attention various passages in these reports, some of which had been put to witnesses, and some of which had not. Mr Jones submitted that I should not take notice of any passage which had not been put to a witness. When I took this up with Mr McEachran, he said that he did not agree with the submission that I could only have regard to those passages which were expressly referred to in the evidence. This might be so, he said, where a matter was in dispute between the parties, but not where, as here, ITL's position was that they "just do not know", in particular that cigarette smoking can cause lung cancer. I asked Mr McEachran whether he was saying that it was open to me to pick up any of the reports that he had referred to and rely on any passage that happened to catch my attention. Mr McEachran said that I was entitled to read it, because otherwise I could not make sense of the whole thing. In a situation where ITL were not seeking to set up another case, that lung cancer was not caused by smoking but by something else, I was entitled, he submitted, to look at these documents more widely: "Otherwise, we would be here forever, if we have to go through 600 pages of every document. There has to be some realism about this." There was not an absolute bar to doing this in a situation where the parties had not led evidence which was totally contradictory. In a situation where the other side were not trying to prove the opposite, a witness was entitled to say that he adopted the terms of the full publication.

[1.37] I reject this approach. With a few well-recognised exceptions, the terms of a document which has been lodged as a production are not evidence. There are procedures, such as the joint minutes and notices to admit which have been used in this case, under which the terms of a document may be agreed to be accurate, and in such an event is not necessary for it to be put to any witness. Otherwise, evidence is required to establish its terms. I do not regard it as being open to me to take account of any passage in any document, the terms of which were not agreed, and to which reference was not made in the course of the evidence of any witness. This is because of the fundamental rule that I must decide the case on the basis of the evidence led before me, leaving aside any other considerations. It would risk doing a serious injustice if I were to allow myself to be influenced by, for example, my reading of further chapters in a textbook, other than those to which reference had been made in the course of evidence, just as it would be if I were to read letters in a correspondence file which had not been put to any witness. I refer also to the second passage from the opinion of the Lord President in Davie v Magistrates of Edinburgh, quoted at para.[5.5]. Accordingly, when I come to discuss the evidence, I propose to confine my consideration to those passages in the literature to which express reference was made.

[1.38] The views expressed in the preceding paragraph do not depend on the position of ITL, which I discuss in Part III, in particular on the question whether cigarette smoking can cause lung cancer. For reasons given there, the burden of proof of this averment is on the pursuer, regardless of what may or may not have been said by or on behalf of ITL on other occasions and must be discharged in accordance with the normal rules of evidence.

[2.1] Mr McEachran introduced his submissions on the positions of the parties by saying that it was a tribute to the steadfastness and resolution of Mrs McTear that she had persevered over all these years to get this case into court and to await my judgment. This was in spite of all the "pressure" ITL had "thrown at her", their constant objections to her application for legal aid and, in particular, the way they tried to make her put up "security for costs" (i.e. caution for expenses) in the figure of £2 million. Mr McTear said in evidence "cigarette companies are simply selling poison to make money". This gave one of the reasons as least why he felt strongly enough to bring an action. Mrs McTear gave evidence that this became his purpose and she hoped that it would become his great achievement. It was clear that Mrs McTear was fond of her husband, errant though he was, and was proud that at the end he was "prepared to challenge the big battalions".

[2.2] It is averred by the pursuer that:

The pursuer relies in particular, in support of points 1 and 4, on a series of reports and similar publications which, in chronological order, are MRC 1957, RCP 1962, USSG 1964, RCP 1971, USSG 1971, RCP 1977, IARC 1986, USSG 1988, UKWP 1998, RCP 2000, UKHC 2000 and IARC 2004.

[2.3] Counsel submitted that this was a straightforward product liability case. In Donoghue v Stevenson 1932 S.C. (H.L.) 31 it was decided that a manufacturer was under a duty to take reasonable care for the consumers of his products. If he knew of a health risk involving death, it was his duty to cease production until the problem was dealt with. From the 1950s, there had been reports in the media that doctors had claimed that there were health risks associated with tobacco smoking. By 1957 at least, the tobacco industry and ITL were aware of the health risks from tobacco smoking and accordingly the duty arose then to cease manufacture. If they had done this Mr McTear would not have developed lung cancer because of ITL's products. There would have been none of ITL's products for him to have smoked.

[2.4] On a broad overview of the case, "standing back and trying to see the wood from the trees" and separating the essentials from the days of detailed evidence, counsel submitted:

As will be seen, this approach has not found favour with me; though no doubt, if it had, I might have spared myself, and the reader, many hundreds of the pages which follow.

[2.5] When I asked Mr McEachran why, if all the facts necessary to establish liability were present from the late 1950s and at all material times thereafter, there had been no instance in the United Kingdom of a successful action against a tobacco manufacturer based on grounds similar to those in the present case, Mr McEachran submitted that this was attributable to the power of the tobacco industry. "It is the little man against the big battalions." They were a very well-funded industry who were able to fight off attacks. This was how they had obtained the exemption for tobacco under section 10 of the Consumer Protection Act 1987.

[2.6] In response to this, Mr Jones told me about the position in England. He said that in the summer of 1992 solicitors acting for plaintiffs placed advertisements in two newspapers inviting any persons who believed themselves to be suffering from illnesses caused by smoking to get in touch with them with a view to investigating the possibility of pursuing claims against various tobacco companies on their behalf. As a result, over the course of the next three months or so, some 300 people approached one or other of two firms of solicitors, and applications for legal aid were made on their behalf. In January 1995 the Legal Aid Board made a limited grant of legal aid for a full review of merits, quantum and the total likely costs involved in pursuing an action against the tobacco companies. This was undertaken by the applying solicitors, and the Board then took independent advice from leading counsel. In July 1996 all the applications were refused, the refusal being expressed to be on the merits. In the late summer of 1996 two firms of solicitors offered to fund claims against tobacco companies on behalf of a number of lung cancer sufferers under conditional fee arrangements. Following this, a cohort of about fifty-two plaintiffs who had all suffered lung cancer issued writs in England. Ten of these were selected to act as lead plaintiffs. Of these, it was accepted that eight had not commenced proceedings timeously, having regard to the English law of limitations. They were required to apply to the court to exercise discretionary powers to dispense with the limitation period. Trial of limitation issues was heard before Wright J in 1998, and in February 1999 he refused the applications. Of the fifty-two cases, all but seven dismissed of consent in March 1999. In April 1999 four of the remaining seven cases were also dismissed of consent. The court refused to exercise discretionary powers to dispense with the limitation period in the remaining three cases.

(2) The position of ITL
[2.7] ITL admit that the World Health Organization, the United Kingdom Government and the United States Government have accepted for many years that cigarette smoking can cause lung cancer, that Government health warnings first appeared on cigarette packets in 1971, and that they were aware of the publications relied upon by the pursuer. Otherwise they deny the foregoing averments. They aver that:

[2.8] Mr McEachran submitted that, having regard to the pleadings for ITL and to the position adopted by them over the years, to the effect that that it was not known whether cigarette smoking caused lung cancer, my approach to this factual issue should be different from what it would be if they not only denied that cigarette smoking could cause lung cancer but offered to prove a contrary case.

[2.9] This requires consideration of matters raised principally in the evidence of Mr Gareth Davis, Chief Executive Officer (CEO) of Imperial Tobacco Group plc. Before he was called as a witness, however, the scene was set in the evidence of three of the expert witnesses for the pursuer, Professor Sir Richard Doll, Professor Friend and Professor Hastings. An account of the first of these appears before that of Mr Davis, of the other two after it.

[2.10] Discussion of the position of ITL, as explained by Mr Davis, is more readily understood if I give a brief outline now of proceedings before the Health Committee of the House of Commons in 2000, as set out in UKHC 2000, Vol.II. This was brought out in somewhat fragmentary form in the examination-in-chief of Mr Davis. Prior to a hearing before the Committee on 13 January 2000 written memoranda of evidence were submitted by British American Tobacco, Gallaher Group plc, Imperial Tobacco Group plc, Philip Morris Europe SA and RG Reynolds Tobacco (UK) Ltd. Oral Evidence was given at the hearing by representatives of each of these companies. Mr Davis gave evidence as CEO of Imperial Tobacco Group plc.

[2.11] On 14 January 2000 the Clerk of the Committee wrote to each of these five companies asking for supplementary written evidence in response to five questions. One question was:

In a letter dated 20 January 2000 the Corporate Affairs Director of Imperial Tobacco Group plc replied to this question:

The other four tobacco companies answered this question more or less in the affirmative. Another question was "Does your company believe that nicotine is addictive by reference to each of these criteria: (a) DSM-IV; (b) ICD-10?"

The reply to this question in the same letter was:

[2.12] Under the heading "Research materials" the Corporate Affairs Director referred to a request by the Committee to Mr Davis to send them the documents from scientists and doctors employed by Imperial which had led Imperial to the conclusions which he communicated to the Committee. The letter continued:

[2.13] The letter concluded:

[2.14] Further oral evidence was given by the same five witnesses at a hearing of the Health Committee on 27 January 2000. In his evidence before the Committee, and again in his evidence before me, Mr Davis confirmed that the position of ITL was as set out in the passages from the letter dated 20 January 2000 quoted above.

Professor Sir Richard Doll
[2.15] The first substantive matter about which Sir Richard Doll (whose CV is set out at para.[5.189]) was asked was set out in a letter by him dated 8 September 1997 to Mrs McTear's Glasgow solicitor, Mr Cameron Fyfe. It related to a meeting which took place in London sometime between 1962, when RCP 1962 was published, and 1966, when Sir Richard started an investigation based on something that was said at the meeting. At the meeting there were the members of the Royal College of Physicians Committee on Smoking and Atmospheric Pollution, who had produced RCP 1962, and a couple of representatives of the tobacco industry. At that time ITL were the major tobacco company in the United Kingdom. They were represented at the meeting. There was a discussion about how the tobacco industry would react to the conclusions of RCP 1962. The tobacco industry representatives agreed that they would not contest the idea that cigarette smoking caused cancer of the lung, but said that they would continue selling their product because, in their view, it gave people pleasure. In the letter he wrote:

He had, however, he said, other evidence that this was the case.

[2.16] First, Geoffrey Todd, the statistician to the tobacco industry, had from 1950 onwards tried to disprove the link. He came and discussed the evidence with Professor Bradford Hill and Sir Richard early in the 1950s. He produced several papers trying to disprove the relationship, but he finally came to the conclusion that they were correct, that cigarette smoking did cause cancer of the lung. He told the industry and, as a result, they concluded his contract. Sir Richard remembered this very well because Geoffrey Todd took Sir Richard and his wife out for dinner at a hotel in London and said that this was the last time he would have an expense account, as he was losing his job. A few days later he rang up and said that the tobacco industry had agreed to take him back on his own terms: namely, that they would accept that cigarette smoking caused lung cancer. So he went back to work for them for several more years. He would not work for them unless they accepted that cigarette smoking could cause lung cancer; he said that the evidence was so clear that he could not go on working for them unless they accepted that as the basis. This was in the early 1960s, Sir Richard could not say precisely when. Geoffrey Todd was, he thought, Secretary of the Tobacco Research Council, which had been formed by the members of the tobacco industry, including ITL.

[2.17] Secondly, this was confirmed by Professor Charles Fletcher in Fletcher 1992. He was a physician who worked at the Hammersmith Postgraduate Medical School and had done a lot of research initially into pneumoconiosis but became increasingly interested in smoking. He was a member of and Honorary Secretary to the committee which produced RCP 1962, which he edited. According to Fletcher 1992 he was instrumental, with others, in setting up the campaigning body ASH in 1971. During the interview Fletcher referred to Sir Richard's work on smoking and lung cancer. Sir Richard said that he started doing this work in 1947, and was paid to do it from 1948. This led in the first place to the publication of Doll and Hill 1950. Not so many people were interested in smoking, but there were a number of people interested in epidemiology. English epidemiologists were setting the international scene, and a lot of them were invited to go out and set up departments in America. Sir Richard did not agree with Fletcher's statement that epidemiology was really not regarded as part of medicine, but he said that it was not understood by physicians. Some of the leading physicians at the time embraced epidemiology, but it had not been understood by 90% of working doctors. Sir Richard agreed with Fletcher's remarks that the initial reaction to Doll and Hill 1950 was disbelief, in general, apart from some of the leading people like Sir Harold Himsworth of the MRC. The Medical Research Council's response to requests from the Government to advise them as to what were the causes of the increased mortality from lung cancer was MRC 1957.

[2.18] Fletcher 1992 mentioned the background to the formation of the Royal College of Physicians Committee. Fletcher had approached Sir Robert Platt, the President of the College, who agreed that it should produce a report on smoking and Fletcher suggested that he should invite Avery Jones, Guy Scadding and Bodley Scott to join it. Sir Richard said that Avery Jones was the leading gastroenterologist in the UK and a man with whom he had begun epidemiological research on the causes of gastric and duodenal ulcer in 1947. Guy Scadding was a respiratory physician and was the best doctor Sir Richard had ever known. Bodley Scott was a very well known haematological physician with a special interest in blood disease.

[2.19] According to Fletcher 1992 he was largely responsible for drafting RCP 1962. He had in mind the average Member of Parliament as the audience for this report. The response of the politicians was one of neglect. Enoch Powell was Minister of Health and he accepted the conclusions of the report. Asked what was the response of the tobacco industry, Fletcher said:

Fletcher agreed that the tobacco industry's initial response was that they accepted the evidence but h