Dismay as smoking lawsuit fails

Janice Pou

A landmark bid to make tobacco companies pay for an Invercargill mother's death has been extinguished by a High Court decision which says she knew the dangers of smoking and could have given up.

Janice Pou smoked nearly 30 cigarettes a day from the age of 17 and died in September 2002 at the age of 51, just over a year after being diagnosed with lung cancer.

Her estate, executed by her children Kasey and Brandon, claimed $310,966 from British American Tobacco New Zealand and WD & HO Wills.

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.

"British American Tobacco New Zealand is engaged in the legal business of manufacturing tobacco products for informed adults who make a personal decision to smoke," he said.

But Mrs Pou's sister, Helen Toomata, knows only too well how addictive smoking is.

Janice was her second sibling to die of lung cancer. Another sister, Margaret Karipa, died in 1998.

Mrs Toomata, also a smoker, has tried many times to give up. Nicotine patches gave her nightmares, but hypnotherapy had helped reduce her cigarette consumption, although she would not say how many she smoked now.


The court case was to make tobacco companies aware of the harm smoking inflicted, but they were still not accountable, she said.


Her sister's dying wish was to make a difference by bringing the action and she hoped it had at least raised public awareness.

A lawyer for the family, John French, said hundreds of hours had gone into preparing the case and the result was disappointing. The family had yet to decide whether to appeal.


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 advertisement questioned research findings implicating smoking as a cause of cancer, promised consumers that their cigarettes were safe, and pledged to support impartial research to investigate allegations that smoking was harmful to human health.

In the 1960s, the Rothmans Sports Foundation used high-profile figures such as Peter Snell, Arthur Lydiard, cricketer Bert Sutcliffe and All Black Don Clarke to promote sport.

And in 1974, the health warnings that did appear on cigarettes said only that "smoking may damage your health".

"Janice Pou should have quit smoking, but she couldn't beat the addiction," said association director Gay Keating.

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.

In his decision Justice Lang said that 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.

She continued to smoke, he said, and did not take reasonable steps to quit despite having the ability to.

"Informed consumers are entitled to exercise an autonomous right to purchase and consume products that are lawfully sold, not withstanding the fact that such products may be harmful to their health."