A WIDOW whose husband died of lung cancer has failed in her attempt to sue Imperial Tobacco for damages in the first case of its kind in Britain.

Alfred McTear, 48, from Beith, Ayrshire, died in March 1993, having smoked mainly Imperial brands, including John Player, for almost 30 years. He filed a £500,000 damages claim against the company two months before his death and his wife, Margaret, pledged to continue his legal fight, which took ten years to reach court.

Her battle with one of the world’s largest cigarette manufacturers ended in disappointment yesterday when Judge Lord Nimmo Smith ruled against her at the Court of Session in Edinburgh.

His 350,000-word judgment, which took 15 months to reach, was released on World No Tobacco Day. He concluded: “The pursuer’s case failed on every issue on which I would have needed to find in her favour were I to hold the defenders liable to her in damages.”

During the case, which started in October 2003 and lasted 42 days, Mrs McTear, now 60, blamed Imperial Tobacco for her husband’s cancer. She said that he had not been warned of the health risks when he started smoking at the age of 19 in 1964, seven years before health warnings appeared on cigarette packets. He ended up with a 60-a-day habit and by the time he was aware of the dangers was too addicted to give up.

Imperial Tobacco denied liability and said in court that Mr McTear was a knowledgeable user who must have been aware of the public debate about the risks of smoking, which appeared in newspapers as early as the 1950s. The company also painted Mr McTear, the father of three children, as an untrustworthy drunk, a wife beater and a petty criminal.

Lord Nimmo Smith said that there was no dispute that Mr McTear had died of cancer and that he smoked John Player cigarettes, but he had also smoked other brands and roll-ups, and there was no proof that it was the Imperial Tobacco product that caused his cancer.

He said that Mrs McTear would have had to have proved that smoking caused her husband’s cancer; that Imperial Tobacco cigarettes materially contributed to his condition; and that the company had breached a duty of care. This had not been proved, he said.

The judge said that Mr McTear knew what he was doing when he started smoking and dismissed arguments that glamorous advertising had led him to take up the habit. “I am prepared to accept that Mr McTear found it difficult to wean himself off his habit once he had started smoking and in that sense could be described as addicted. I do not accept that he was, for this reason, unable to stop smoking.

“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.

“Mr McTear, like everyone else, was aware of the publicity about health risks. As with many other aspects of his life he chose to ignore it.”

The case is estimated to have cost £2 million. Mrs McTear, who did not have legal aid, said she was disappointed after a traumatic 12-year battle but added: “It was worth it. It has highlighted the dangers of smoking and I think that is a victory in itself. I had not really built up any high hopes so I am not really very disappointed.”

She now faces the prospect of being sued for court costs, which could run into millions of pounds. Cameron Fyfe, her solicitor, who took the case on “no win, no fee”, said that Imperial was unlikely to enforce any such action because of Mrs McTear’s limited financial circumstances.

He said that any future pursuer would have to be a lottery winner and “a Church of Scotland elder with a colourless past”, a reference to Mr McTear’s drinking. He said that 120 similar cases being dealt with by his firm would be dropped.

The anti-smoking group Ash Scotland paid tribute to Mrs McTear’s determination and courage and said that the ruling was a setback.

HARD CASES

• 1988 The family of Rose Cipollone, from New Jersey, a smoker who died from lung cancer, were awarded $400,000 (£220,000) in damages. The award against Liggett was overturned on appeal in 1990. The family eventually gave up in the face of formidable legal costs
  
• October 1997 The world’s first passive smoking lawsuit against big US tobacco companies, brought by 60,000 airline stewards, ended with a $300 million settlement in Miami, Florida. The cash went to fund medical research
  
• February 1999 Patricia Henley, from Glendale, Los Angeles County, was awarded $51 million damages against Philip Morris, whom she accused of targeting young people and concealing the dangers of smoking. She smoked for 35 years after starting at 15 before health warnings appeared on packets and contracted small-cell lung cancer, which is now in remission. The company made repeated appeals and finally agreed to pay a reduced sum of $10.5 million
  
• April 2004 The 1st District Court of Appeal overturned a $28.4 million award to Lesley Whiteley, 40, from California, who died of lung cancer, on the ground that tobacco companies were immune from prosecution during the time of her claim. Her case in March 2000 was the first successful lawsuit involving a smoker who took up the habit after health warnings appeared on packets
  
• May 2004 The longest-running US lawsuit ended with an undisclosed settlement to the family of Peter Rossi, 55, from Newark, New Jersey, who died of lung cancer after smoking for 40 years
  
• March 2005 The first successful European case. An appeal court in Rome ordered British American Tobacco to pay £140,000 damages to the family of Marco Stalteri, who died from lung cancer in 1991. The court said that the company had failed to provide sufficient health warnings on cigarette packets

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