Did smokers consent to the risk? Is Big Tobacco liable?

Published June 1992
When Rose Cipollone began smoking 44 years ago, there were no health warning on cigarette packets. Rose is now dead. She died of lung cancer caused by smoking in 1984.

Her family sued and a jury awarded her family $400,000. Last week the US Supreme Court upheld the award.

The ruling caused some wild speculation about the legal liability of tobacco companies for the thousands of deaths caused by tobacco each year in Australia. Anti-smoking groups imagined an orderly queue of bereaved families at the courtroom door seeking damages for the death of loved ones who foolishly smoked their lives away.

But it is not so easy. The foolishness of the smoker becomes the legal issue. It is best illustrated by taking the emotional hype away. Let’s look at rugby league. Everyone knows it is a dangerous game. Sport pages publish injury lists every week like war casualties. Off the pitch, these would be actionable assaults. There is a neat Latin phrase for it: volenti non fit injuria. Translated into English it means: if you consent to the risk you cannot complain about the injury. Translated into Australian it means: if you are silly enough to play rugby league you cannot complain about getting cauliflower ears or a nose that resembles an airport runway.

Coming back to smoking, Rose Cipollone did not know of the risks when she started smoking. Once addicted it was too late to hear of the risks later on. She didn’t know the risks because the tobacco companies actively conspired to hide them or worse promote cigarettes as “”just what the doctor ordered”, as one company did before 1966.

Now the risks are better known, though it is ironic that the tobacco companies are still resisting bigger warnings. They should be welcoming them. Earlier this month they walked out of a meeting with health ministers which recommended warnings that would cover 44 per cent of the packet. With that sort of warning it will be difficult for someone to come to court saying: “”I didn’t know smoking could kill me from lung cancer, stunt my baby or cause my heart to collapse.”

This was the nub of the US case. The US Supreme Court is the supreme interpreter of US federal and constitutional law. It has no jurisdiction (like the Australian High Court) as the supreme interpreter of state law.

So the issue in last week’s case was solely whether Federal law requiring health warnings on cigarette packets prevented the family from getting their damages. In the circumstances it was not.

The dangers of smoking are more well-known now. People consent to the danger. That is how the law stands now. But the law changes with attitudes. The Cipollone award was originally a jury ruling. So, too, was a case in Australia earlier this year when Liesel Scholem was awarded $85,000 for injuries from passive smoking. the jury held her employer was negligent for permitting smoking in the workplace in the face of the known danger.

Juries and judges are likely to get tougher, rather than more lenient against tobacco companies. Ultimately, they might decide to visit liability upon them for all smoking-related diseases irrespective of the warnings. This is because tobacco is a unique product. Cars, dynamite, alcohol, paracetamol and other dangerous products can be used in beneficial ways. Cigarettes, however, when used in the way intended by the manufacturer are inherently dangerous. Short of throwing them in the garbage bin, which is not using them at all, they can only be used in a dangerous way.

Some of the absolute liabilities provided in consumer-protection law make the manufacturers liable for all injuries resulting in the use of their products if they are used in the way intended by the manufacturer.

If those principles are applied to tobacco, the commercial production and sale of cigarettes would become a minefield of liability. It would become unprofitable, and manufacture would cease. Tobacco users would have to grow their own. Or the government would have to supply it or pass legislation excluding tobacco and nicotine from general product-liability law, much as it is now excluded from general law applying to the sale of poisons and addictive drugs.

The grow-your-own or government-supply solution is now new. It is the one favoured by those seeking changes to the law prohibiting the possession of marijuana and other drugs.

Last week’s US case is not landmark and will not dramatically change anything in Australia, but it does illustrate how the law follows community attitudes. As those attitudes harden against widespread commercial trading in tobacco and against its use in public, the law can be expected to follow.

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