THURSDAY 3 FEBRUARY 2000

MR MARTYN DAY

  1180. You have seen a lot of the internal documents that we perhaps have not seen yet. Did you get a view from any of the documents that you have seen that there was any attempt at making sure that the public and the media and the government knew as little as possible?
  (Mr Day) I think it was clear that in the fifties and the sixties there was a lot of that going on. They were obfuscating and misinforming and the rest of it. As I said in my written evidence, from the mid sixties my perception is that whereas in the States that carried on for a long time, as far as one can see here there was an uneasy sort of war so that by and large they decided that it was a better tactic in this country to stay silent and simply not to say anything about it from about 1963/64 than it was continually to take this line that it was very difficult to take.

  1181. You mentioned the word "obfuscation" and being misleading. Are there any legal implications from that, just that itself, that the companies knew about the products and yet did not do anything much about it? Does that in itself have any legal implications?
  (Mr Day) That was what our case was about, that they were negligent, that they were taking steps that they should not have taken and all the rest of it. Mr Justice Wright obviously was not that enthused.

  1182. But in your opinion some of the questions have not been answered?
  (Mr Day) Presumably up until 1950 there was the odd suggestion that it was causing damage but it was rather minor, but from 1950 the evidence became crystal clear within about three or four years, and I take the view that from the moment that you are clear as an executive of the company that your product is killing a large proportion of your consumers, I should have thought that was electric information that you would be acting on immediately and that would be on your conscience day and night causing you not to sleep.

  1183. Let us stick with the legal implications. For example, if a company made a car and they discovered during its testing that the brakes were defective and that there was a significant risk that the brakes might fail under certain conditions, what would the legal implications be if there were internal documents from the engineers that said, "We are worried that the brakes on this car may fail under certain conditions" and the company did not then go to the public and the media and customers? What would the legal implications be of that particular obfuscation?
  (Mr Day) Clearly with a car in that sort of instance you have got a very clearcut case. What was more complicated here, and one of the issues that we never really got fully resolved because it never went to a full trial, was that when you are selling a product that is inherently dangerous, as with cigarettes, what are your duties? We were saying as the lawyers of the claimants, "Look; your duties are even stronger than with anything else to make sure that that risk is as minimal as possible." There was some debate with the judge who was rather doubting as to whether that duty absolutely existed, because these are common law duties one is talking about rather than statutory duties. It is what interpretation of the judges: should we impose that duty on these companies? As I say, we never actually reached a resolution to it.

  1184. But let us stick with my analogy for a minute or two. A car is a dangerous object; it kills many people every year. It seems to prove that cars are in themselves objects that can cause damage. I would argue therefore that if a car which we know has inherently got a risk, just like tobacco has, were to develop a fault which perhaps the company could have put right, were able to put right but did not put right; not only that, but sought to cover up from the public that there was a potential risk with their car, are we not talking about exactly the same sort of duty to the public?
  (Mr Day) You are talking there about the car developing a fault.

  1185. No, it is a design fault. Inherent in the design of that particular model of car there is a brake problem and the company for example know about the brake problem. It carries on making these cars. It does not suddenly develop after the car has been sold; it is an inherent design fault in the car that makes it more lethal than the average car. If the company were to cover up such a fact, is that not exactly the same thing?
  (Mr Day) No. The difference would be perhaps that if you say had a car which was running fine, no problems with it, just running along, and it knocks over a pedestrian, no fault of the driver; the pedestrian just walked out in front of you, can the pedestrian sue the manufacturer on the basis that they are selling an inherently dangerous product where there is no negligence attached to anything other than the fact that the car is inherently dangerous?

  1186. No, but were it to come out in the inquest that the reason why the car knocked over the pedestrian was that there was a design fault in the brakes and the company knew about the design fault in the brakes but it sought not to do anything about it, are we talking about the same issue?
  (Mr Day) No. Again, with a car which is inherently dangerous in the sense that there is some fault or flaw in the system, then that is a good case of negligence, a defective product sort of case, whereas here you have a product where, in the very nature of it,—clearly if one were able to show that tobacco companies had then done something with the cigarette to make it inherently more dangerous, but when you had a cigarette in 1950 that was on the evidence dangerous, they were not doing anything to it; it was simply that that product in itself was dangerous.

  1187. If you had a company making two cigarettes, one of which had a worse health record than the other cigarette, yet they had marketed them in the same way, is there not then a duty that they should act and not be marketing the more dangerous cigarette in parallel with the safer cigarette?
  (Mr Day) That was our case.

  1188. And you did not get very far.
  (Mr Day) No.

  1189. In your evidence you have brought out some very interesting points and that is the extent to which the companies refused to accept that their products were unhealthy and certainly one is that the President of BAT denied that there was that there was any causal relationship between smoking and any of the diseases with which it was associated, one from Ian Burke(?), who is from Gallaher, did not accept that smoking caused cancer or heart disease. But those are going back a few years. When we took evidence recently the tobacco companies were able to admit to us in open session that their products were hazardous, that they were leading to these diseases, and in fact one of them even went so far as to say that there is no such thing as a safe cigarette. My point is very simple. Are we talking (a) about companies who have now finally accepted the evidence that smoking is harmful where in fact they did not before, (b) does this make any difference to any future litigation, or (c) are they just taking the piss?
  (Mr Day) I think the legal answer is that I do not think it makes a great deal of difference legally any more. Although they were defending the case on the basis that there is now scientific proof about all these points by and large, the evidence was overwhelming, we never perceived that that was going to be a serious issue. On the warnings front, whatever they were saying it was clear that all the scientific world, the government world, were all giving the information, so although part of our case was the fact that the industry was failing to accept the evidence, it did have a significant input in many people's minds that it allowed them to have that one last remaining vestige of doubt, and I think probably that is why in the end they have accepted the position in the last two or three years that this has arisen after the big settlement in the States, it has arisen after the cases here have collapsed, so they are taking the view that tactically, legally, it is not going to make a material difference.

  Dr Stoate: So they are taking the piss.

  Chairman: Some of us do not understand Dr Stoate's medical terminology.

  1190. Could I pick up the car analogy? Recently there has been quite a lot of evidence that bull bars tend to kill more pedestrians than cars that do not have them. They are perfectly legal appliances to fit to cars, so you have a dangerous vehicle which is made more dangerous, or you discover it is more dangerous, as a result of research. I have not seen a rush amongst manufacturers of cars to abandon bull bars. Are they relying on the fact that they have not been banned by statutory authorities as a defence against the sort of claim that you would like to make against the tobacco companies?
  (Mr Day) As far as I know I think there are a lot of claims in the States about bull bars, but not claims in this country. By and large we have very few claims against car manufacturers, mainly because in most cases you have a good claim against the driver for negligent driving or you have a claim against the MIB if the driver has done a runner. Very few cases in this country ever take on the manufacturers. In the States they do because of punitive damages which we have not got either by and large. In a case like that, if somebody is run over and is caused more serious damage by the bull bars, again it would be an unusual instance where you could not claim against the driver. We tend not to see cases like that. The other difficulty is costs. If you as an individual have got a case against a driver with bull bars, if you bring in the manufacturers you could well be talking of a couple of million pounds. The actual value of a case in this country by and large, even if it is pretty serious, is £100,000 or £120,000. Two hundred thousand pounds is very rare. You have to drive over a City banker to be talking about that level.

  1191. In the States the fact that bull bars are legal does not disbar you from making a case?
  (Mr Day) No. It is legal to drive at 30 miles an hour but it does not mean you can always drive at that.

  1192. So in the States it would not be a defence that a car manufacturer could use saying that bull bars have not been banned by statute? This is obviously the way that the tobacco companies tend to defend themselves, saying that it is a legal product, the government has not acted and therefore why should they.
  (Mr Day) In this country there is a case called BBP, which was a case in the late 1970s of children living next to a motorway where the children sued for mental impairment resulting allegedly from the lead in petrol. The defence of BP and Shell, two or three of the big companies, I think, was that they were simply complying with statutory requirements which allowed them to have lead up to a certain level. It went to the Court of Appeal and the Court of Appeal agreed that that was a sufficient defence and did not allow them to continue. That has always been a case that has stood in the way of these sorts of claims as a potential way through and has always been a serious issue, so you are right.

  1193. Do you think that the Department of Health's reluctance to initiate court proceedings might have something to do with the Department of Health being at risk of being just as culpable as the tobacco companies because they have had this very cosy voluntary co-operative relationship?
  (Mr Day) Again that is another issue that one would want to contemplate as a part of the overall balance of weighing up a case like this.

  1194. Before I go on to the main things I want to ask you, I would like to refer to the publicity that has recently been given to what are called admissions by the tobacco companies that in fact cigarettes are dangerous, that there is no such thing as a safe cigarette, and ask you if you are aware or would like to comment at all on the fact that that precisely is a major argument being used by big tobacco companies in the United States in its action against the food and drug administration which is trying to assert the right to regulate tobacco. Because they are making that assertion under the Food, Drug and Cosmetic Act, the Food Drug and Cosmetic Act talks about the remit of the FDA being to secure safe and effective products. Tobacco companies then come along and say, "You cannot do this. You cannot carry out your remit because there is no such thing as a safe cigarette. Therefore you have got no right to regulate. You cannot regulate in the terms of legislation. Do you think the fact that that is the situation in the USA, and some of us heard that particular argument being put in the Supreme Court, will be having a bearing on this apparent willingness to admit the danger of their products now?
  (Mr Day) I think that is a very fair point. They were increasingly realising that they were in an untenable position, not just for the reasons you say but as individual executive members of these companies. We will always remember the business of them standing on oath and saying that tobacco was not addictive, seven major chief executives of the seven major companies in the US. As far as I understand it, the Justice Department contemplates the idea of taking those individuals on for perjury or whatever in the United States. The risk of being taken on and potentially being imprisoned for your actions does not half concentrate the mind in terms of the court view. It seems to me that those at the top of these companies began to realise that with the amount of spotlight on them as individuals as well as companies, and with more and more legislation in this country (as indeed in the States) to allow individuals to be charged with criminal offences in terms of corporate offences, I think they realised that they did not want to carry on with this totally ridiculous defence on cigarettes and health.

  1195. The head of research at British American Tobacco, Dr S J Green, was quoted as saying in 1976 that the public position of the tobacco companies with respect to causal explanations of the association of cigarette smoking and diseases is dominated by legal considerations. In the ultimate companies wish to be able to dispute that a particular product was a cause of injuries to a particular person. By repudiation of a causal role for cigarette smoking in general they hoped to avoid liability in particular cases. Do you have any reason to think that the companies' current positions on smoking is driven by any different considerations from those expressed by Dr Green?
  (Mr Day) Life has moved on considerably now from the early 1970s as far as I remember from that statement being made. I think there has been a considerable movement on, that for some 40 years individual claims were brought in the United States, and successfully, and therefore they felt that their strategy was an enormously successful one, and yet since about 1994 we have had a whole scene as far as tobacco and health and legal claims in the United States is concerned has dramatically changed. I think that they have realised that the strategy that they built up in the 1960s and 1970s and carried them through into the early nineties was no longer a tenable strategy, that jurors in the States would no longer accept this rather pathetic line of argument. They have taken in my view a much more sophisticated line to take on board what has happened over the last few years.

  1196. Even though cigarettes are not safe and you cannot get a safe cigarette, when it comes to being asked about specific diseases and very pointed yes or no answers, they still kind of wriggle, I thought, and in particular they wriggle about the addictiveness of nicotine? We have people saying, "Ah well, yes, it is addictive in the way that word is used nowadays, you are addicted to shopping or chocolate or whatever", and they are very resistant to suggestions such as was made by my colleague Simon Burns that the essence of the nature of addiction is that something has got hold of you. Of course they are resistant to that, are they not, because their main argument is free adult choice? Do you think that that resistance on their part to the issue of the addictiveness of nicotine is something which is or can be of legal significance? Do you think that there is some purpose, such as the causal link on diseases, in the denial or wriggling on the issue of addiction which also could be motivated by legal considerations?
  (Mr Day) I think that is a very good point. What is very interesting in the States is that virtually all the cases in the States are based on nicotine addiction. I think that they have been clear that they want to be in a position that they can say to American juries that an individual has got the willpower to come off smoking if they want to, that they have the ability to take that step, that there are millions of people who have started smoking who have stopped smoking and if only you had that strength of character you could come off. Why are you here in front of the jury today? You should have had the willpower. If you had had the willpower you would never be here. For a lot of people that is a powerful argument. For a lot of us we think what are the broad boundaries if you are addicted to chocolate or addicted to reading The Guardian or addicted to whatever it might be? As has been said, it is a term that is loosely bandied around, that whereas you would expect perhaps a judge to take a rather more objective view of the evidence in relation to that, with a jury you are talking about a much more subjective position, a much more subjective approach to that word. They have been very keen to retain the ability to obfuscate the whole issue around the ability of individuals to give up as a primary litigation tool.

  Chairman: We have stumbled into an area that I know Simon Burns and Peter Brand wanted to explore and also Eileen Gordon on nicotine addiction, so as we have touched on that area I will bring in some of my other colleagues on this area before we move on.

  1197. In retrospect do you think your case would have been stronger if you had pursued the argument that tobacco companies had prior knowledge of the addictive nature of nicotine rather than relying more on the fact that they failed to reduce the levels of tar in cigarettes?
  (Mr Day) The difficulty that we always perceived with nicotine and addiction was that virtually all our cases, all our clients, were people who had started smoking back in the 1940s and 1950s, and contracted their cancers in the late 1980s through the nineties. You take an individual within that, an average person who, say, started smoking in 1948. First of all, at what point is one saying that the tobacco company should have done something about it? What should they have done? In the end you have got to show that they have done something wrong and that wrong has caused the damage. Legally it was quite difficult to come to a view to say what exactly should they have done? From the evidence it would seem that from about the early sixties the suggestion that nicotine was addictive was gaining more and more hold, so by the time you get to the early seventies there is quite a strong body of evidence that rounds up. Say you use a date like 1965. Say you have got your guy who has been smoking 15 years by 1965. What exactly is one saying to the companies that they should have done about that one individual? It is quite hard because we get into the whole debate about that. By that stage the tar level was probably about 28 milligrams, the nicotine was probably about two milligrams. What is one saying? We have all that debate about should they have kept the nicotine coming down so that the guy could eventually come off? Should they have kept the nicotine high so that they could have kept smoking at the same level? What exactly should the tobacco companies have done? In America, because you have got a jury which tends to be more simplistic, you say, "Look; these companies have addicted all these smokers. They are a bunch of so-and-so's. Make them pay." You do not need to have quite the same complex legal formulation, whereas in this country facing a judge you simply have to put together what exactly should they have done, what could they have done, and what difference would that have made?

  1198. Leading on from that, as a supplementary that we were given here in earlier sessions, some of the tobacco companies have actually admitted that nicotine can be deemed to be an addictive substance by reference to two commonly used measures of dependence which go by the names of DSM4 and ICD10. Are there in your mind any legal ramifications of such an acknowledgement?
  (Mr Day) There are legal ramifications in the sense that if you get an individual case that there is a big debate about whether someone voluntarily accepts the risk that they are pursuing—it is a legal argument called volente—part of the legal case would be that you cannot voluntarily accept a risk if you are addicted to the substance that you have been using. That is more of a defence to the argument that the defence will put forward in the States as a primary tool. Here it was always a shield against that defence from the tobacco companies.

  1199. That is interesting because all the tobacco companies we took evidence from, except Imperial, now accept that their product is dangerous. Their argument is that smokers know it is dangerous and they volunteer to accept that danger as a matter of free choice, which is one of the reasons why they support FOREST and organisations like that. If they were to accept that free choice by smokers is affected by the addiction but those smokers are suffering as a result of that product, would that undermine the defence that they are coming up with now, accepting that there is a danger?
  (Mr Day) I think it would but I would be surprised if their major worry was litigation. I think that the much greater worry would be the political climate that that can bring about by them accepting that. It is again one of those things where it is difficult for them to know what the implication might be. Politically it is difficult to know where the waves of that admission could take them. From a legal standpoint, again it was not an issue that we were greatly worried by. We did not feel in terms of this defence of volente, this defence of voluntary acceptance of risk, that they were likely to get anywhere than perhaps they would with Mr Justice Wright and in terms of any other judge that we would have had a good chance on that point. I would not see it as a main point for them in the legal perspective but I think it would be much more from a political point of view.

  Dr Brand: That is interesting, because I think the representatives from BAT admitted that their volunteering that there was a danger might well help them against further litigation, that they had made it quite clear that it was a dangerous substance and people were free to either accept it or refuse it.