Tobacco.org

EDITORIAL: A smoking gun 

So now we know. In a long-awaited United States federal court ruling in Washington DC, the world's tobacco giants have been found guilty of orchestrating a sinister, decades-long cover-up of the lethal effects of smoking, says the Nelson Mail in an editorial. . . .

The decision came too late to have any bearing on the recently concluded case in this country in which Invercargill smoker Janice Pou sought $311,000 compensation from a tobacco giant. Mrs Pou died before her case ended and the judge was not convinced by her argument that the companies should have done more to warn her of the dangers of smoking.

If nothing else, Judge Kessler's ruling paints a grim picture of the sort of opponents Mrs Pou took on. It illustrates the yawning gap between "legal" and "moral", and the lengths some companies go to protect profits. If smoking really is about "informed choice", the ruling is certainly instructive - even if those who would gain most from its findings are unlikely to seek it out.

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• Pou's sister admits her own smoking struggle 

The sister of Janice Pou has gone public with her own battle against cigarettes - and said she was delighted with the positive messages young people get today about the dangers of smoking.

Mrs Pou, from Invercargill, started legal action against the tobacco industry before her death of lung cancer.

She died at the age of 51 in 2002. . . .

Mrs Pou's sister Helen Toomata, also of Invercargill, yesterday said she had been contacted by the Smokefree Coalition and encouraged to tell her own story and promote the non-smoking message.

She said she had tried patches, books and recently a hypnotherapist to quit smoking.

She managed to give up for about 10 days earlier this year but "damn well picked them up again".

"I will continue trying to get rid of these things."

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• Family will not appeal tobacco verdict  

The children of Janice Pou have decided not to appeal a High Court decision clearing a tobacco company of blame over their mother's death.

Kasey and Brandon Pou last month lost their bid to sue British American Tobacco for failing to inform their mother of the dangers of smoking. . . .

Lawyer for the pair, David Collins said they have this week made the decision not to appeal.

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• Dismay as smoking lawsuit fails  

But Justice Graham Lang ruled in the High Court at Auckland that Mrs Pou must have known the risks of smoking. Her attempts to give up waxed and waned and were doomed to fail.

"I do not consider that Mrs Pou ever made any reasonable attempts to give up smoking," he said.

As a result she must have accepted the risks.

"It was therefore not open to Mrs Pou to seek redress from the defendants once she developed lung cancer because the possibility she might develop lung cancer was one of the risks that she assumed."

The decision has saddened Mrs Pou's family and angered anti-smoking groups but British American Tobacco New Zealand spokesman Carrick Graham said the decision was a sensible one. . . .

The Public Health Association said the case was about cigarette companies' actions since the 1940s and 1950s when they discovered they were marketing a lethal product.

In 1954, US tobacco manufacturers jointly published A Frank Statement to Cigarette Smokers in more than 400 US newspapers. . . .

The Cancer Society said the decision appeared to be a willingness to let companies profit from the death and misery their products caused.

Action on Smoking and Health director Becky Freeman said the organisation was angry that cigarette companies had won.

"We are angry that an industry that not only manufactures products which are addictive and kill people but also lies about it has not been held accountable."

She hoped the Pou family would appeal.

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Pou Case About Tobacco Industry Lies 

Public Health Association Director Dr Gay Keating says that the late Janice Pou's case against British American Tobacco (NZ) and W D & H O Wills was about making the tobacco industry pay for deaths caused by lies of the past.

The case bought by a now-deceased smoker against two tobacco companies caused much debate about personal responsibility versus the culpability of a company that sells a deadly product. Justice Graham Lang found yesterday that Janice Pou was well aware of the dangers to her health that smoking posed.

The children of Invercargill smoker Janice Pou sought compensation for their mother's death from lung cancer in 2002. The reigning view on talkback seemed to be that Mrs Pou made a personal decision to smoke, and should therefore have been prepared to accept the consequences.

Actually, this case was all about the past actions of the tobacco industry. When Mrs Pou started smoking, the tobacco industry knew something she didn't - it was selling a lethal and addictive product. . . .

Janice Pou should have quit smoking, but she couldn't beat the addiction. However, this case was about a different decision, one made by the tobacco industry in the late 40s and early 50s upon discovering it was manufacturing and marketing a lethal product. That decision was to ignore the evidence and lie to the public - knowing that in so doing it would cause the deaths of millions of people. Janice Pou was just one of those people. But in taking action against British American Tobacco (NZ) and W D & H O Wills her family spoke for countless others.

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Verdict in Pou case 'ludicrous' 

"Justice Graham Lang's verdict in the Janice Pou case is ludicrous," said Hone Harawira, the Maori Party MP pushing for a total tobacco ban in New Zealand.

"Telling us that she was well aware of the dangers to her health that smoking posed, ignores the fact that back when Janice Pou started, the dangers of smoking weren't well known at all," said Harawira. "In fact, back in those times, everyone thought smoking cigarettes was glamorous and cool - movie stars smoked, even big time sports stars smoked.

And it's also disappointing because Justice Lang seems to have ignored the hugely addictive nature of tobacco.

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Ex-smoker’s family loses damages case 

David Collins, QC, the lawyer acting for Janice Pou and her family, said the children were disappointed with the verdict.

However, it was too early to decide on whether an appeal would be lodged.

What we have to do now is set aside that disappointment and take in what the judge has said and analyse that.

BAT spokesman Carrick Graham said the company was pleased with the decision.

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• No damages in case over smoker's fatal lung cancer 

Two children of Invercargill lung cancer victim Janice Pou have lost their damages claim against an international tobacco giant.

Brandon and Kasey Pou wanted $310,966 compensation from WD & HO Wills and its owner, British American Tobacco (New Zealand).

Mrs Pou, a former fish and chip shop worker who smoked 30 cigarettes a day since 1968, died of lung cancer in September, 2002, at the age of 51. . . .

"Liability would have been negated in the present case by the fact that the dangers inherent in smoking cigarettes were a matter of common knowledge when Mrs Pou began smoking in 1968," the judgment said.

"On the balance of probabilities Mrs Pou herself would also have known of those dangers at the time that she took up smoking."

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Tobacco company hopes verdict stubs out other claims 

In a reserved decision following a hearing in February, Justice Graham Lang says the dangers of smoking were known when Mrs Pou began smoking in 1968 and she would have been aware of them. She had smoked 30 cigarettes a day during her lifetime and died in 2002 at the age of 51.

Head of Corporate and Regulatory Affairs at British American Tobacco New Zealand, Carrick Graham, says the company always thought it had a strong case. He hopes the decision will prevent similar cases being brought against the company.

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No compensation for Pou family 

There is disappointment over a judge's decision not to award compensation to the family of smoker Janice Pou.

Her children, Brandon and Kasey Pou, were seeking $310,000 from British American Tobacco and WD and HO Wills, after Mrs Pou died of lung cancer.

They claim the tobacco manufacturers breached their duty of care when Mrs Pou started her 30 cigarettes-a-day habit in 1968.

Health warnings did not appear on cigarette packets until 1974.

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• Pou v British American Tobacco (New Zealand) Limited and W D & H O Wills (New Zealand) Limited (PDF) 

My findings, expressed in my own order rather than the order set out above, are as follows:

1. The plaintiffs’ claim against the defendants is not statute barred by virtue of the provisions of the Limitation Act 1950.

2. There has never been a duty on a manufacturer of cigarettes to cease the manufacture and distribution of cigarettes and to withdraw its products from sale on the basis that they are dangerous, nor is there any basis for such duty in the present case.

3. Even assuming that a duty to warn existed, liability would have been negated in the present case by the fact that the dangers inherent in smoking cigarettes were a matter of common knowledge when Mrs Pou began smoking in 1968.

4. On the balance of probabilities Mrs Pou herself would also have known of those dangers at the time that she took up smoking.

5. In deciding the scope of a duty to take reasonable care in a novel situation the Court is entitled to take into account policy factors.

These would necessarily relate to the circumstances that existed in 1968. Although the legislative and executive branches of government were fully aware of the dangers of smoking in 1968, they elected to address those issues in a manner that did not involve the imposition of a duty to warn until 1974. This approach must have involved the balancing of policy factors that had particular relevance at the time, and those branches of Government were in a much better position to carry out that exercise in the 1960s than the Court is today. The Court would therefore be reluctant to substitute its own view by holding retrospectively that manufacturers of cigarettes had a common law duty to warn consumers in 1968.

6. The claim against Wills fails on the basis that the plaintiffs have not established on the balance of probabilities that the smoking of cigarettes produced by Wills caused Mrs Pou’s lung cancer.

7. Mrs Pou’s claim against BAT also fails on the ground of causation.

This is because, even assuming that manufacturers of cigarettes had a duty in 1968 to warn consumers of the dangers of cigarette smoking, the plaintiffs have failed to establish on the balance of probabilities that Mrs Pou would not have begun or continued smoking if such warnings had been given.

8. The principles enunciated by the House of Lords in the recent case of Chester v Afshar should not be applied in deciding the issue of causation in the present case.

9. The claim against BAT would also have failed because, even if Mrs Pou was not aware of the dangers of smoking in 1968, she must have been aware of those risks by 1974 at the latest. Thereafter she elected to keep smoking and did not take reasonable steps to quit despite having the ability to do so. Any causative effect stemming from an initial breach of duty would at that point be supplanted by the causative impact of her free and informed autonomous conduct.

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I do not accept, on the balance of probabilities, that Mrs Pou’s lung cancer was caused by cigarettes that were manufactured by Wills. I consider that it is far more likely that her lung cancer was caused, as BAT accepts, by the cigarettes that Mrs Pou smoked from 1969 onwards.
Decision of the High Court's Justice Lang, in New Zealand's Pou case.

I reach these conclusions for two reasons. First, many of the matters that were relevant in deciding the issue of common knowledge are equally relevant when considering Mrs Pou’s actual knowledge. In saying that, I accept immediately that it is only possible to take into account the pool of information that is likely to have been available to Mrs Pou, and not that which was available to the New Zealand public as a whole. It is also likely to have been the topic of discussion with her friends at some stage, particularly after she left school and began working. At that stage she was surrounded by people who smoked.
Decision of the High Court's Justice Lang, in New Zealand's Pou case.

Although the legislative and executive branches of government were fully aware of the dangers of smoking in 1968, they elected to address those issues in a manner that did not involve the imposition of a duty to warn until 1974. This approach must have involved the balancing of policy factors that had particular relevance at the time, and those branches of Government were in a much better position to carry out that exercise in the 1960s than the Court is today. The Court would therefore be reluctant to substitute its own view by holding retrospectively that manufacturers of cigarettes had a common law duty to warn consumers in 1968.
Decision of the High Court's Justice Lang, in New Zealand's Pou case, which seems to rely heavily on the probable over the provable.

On the balance of probabilities Mrs Pou herself would also have known of those dangers at the time that she took up smoking. . . . . The claim against Wills fails on the basis that the plaintiffs have not established on the balance of probabilities that the smoking of cigarettes produced by Wills caused Mrs Pou’s lung cancer.
Aspects of probablility theory, as expressed in New Zealand High Court Justice Lang's Pou case decision.

• Family loses landmark smoking case 

The family of a dead Invercargill woman have lost a landmark case against British American Tobacco. 

Janice Pou lodged a $310,000 claim for damages against British American Tobacco before her death from lung cancer in 2002.

Her children, Brandon and Kasey Pou, continued the civil action. Their lawyer claims the tobacco giant failed to warn Pou of the dangers of smoking when it had a duty to do so.

The High Court has ruled that the tobacco company did not have a duty to warn the Invercargill woman of the dangers of smoking.

In his 111-page written judgement, Justice Lang, said the dangers were common knowledge in 1968, when Pou took up smoking and there was nothing to prove that the tobacco company caused her lung cancer.

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Ruling In Landmark Smoking Case Due 

A ruling in a landmark smoking case is expected to be released by the High Court this afternoon.

Janice Pou lodged a $310,000 claim for damages against British American Tobacco before her death from lung cancer in 2002. . . .

The judgement is expected to be released late this afternoon.

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Health Groups Hail Pou Family’s Battle 

Health groups are congratulating Janice Pou and her family for standing up to the tobacco giants, as the plaintiffs rest their case.

Janice Pou, a long-time smoker, died from lung cancer in 2002. Following her death, her children continued her suit for damages from British American Tobacco (NZ) and WD & HO Wills under the Deaths by Accident Compensation Act 1952. Mrs Pou maintained that cigarette advertising in the 1960s lured her into believing smoking was universal and sophisticated. Her lawyer, David Collins QC, finished his closing arguments today. . . .

Becky Freeman said that the tobacco industry found out over 50 years ago that tobacco killed people.

“But instead of ordering an immediate product recall, it hired a PR company to increase the promotion of tobacco and cigarettes.

“Finally, someone is calling them on those lies. Whatever the outcome of this case, Mrs Pou needs to be recognised as a unique New Zealander who had the guts and commitment to stand up to the tobacco giants.”

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• Decision reserved in smoking case 

The court action against two tobacco companies, on behalf of lung cancer victim Janice Pou, closed in the High Court at Auckland yesterday.

Janice Pou died of lung cancer in 2002, aged 51, but her children, Brandon and Kasey Pou, last year won the right to continue their mother's battle to claim more than $310,000 in damages against British American Tobacco (NZ) and WD & HO Wills.

Justice Graham Lang yesterday reserved his decision. . . .

ASH director Becky Freeman said Mrs Pou and her family were also battling an interesting social phenomenon - a public that at times seemed to be backing the tobacco industry.

"People seem to be very reluctant to point the finger at cigarette companies," she said, "even though they have been responsible for the deaths of around 170,000 New Zealanders over the past 50 years."

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