'Tobacco firms should pay for my illness': Hundreds of smokers are to seek damages. Liz Hunt meets one of them

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JOHN ELLNER cannot leave his house without a huge wad of paper tissues.

For a man of 60 who has already had part of one lung removed and who suffers frequent bouts of breathlessness and dizziness, it may seem a trivial thing - but it is the tissues that bother him most. 'It is so embarrassing when I'm out with people and I have all these tissues and I'm coughing it all up in front of them, gurgling all the time. They look away.'

John Ellner smoked his first cigarette at 12 and now he is paying the price. He has emphysema, a disease almost always caused by smoking which turns lungs into 'cardboard'.

Mr Ellner blames tobacco companies for what has happened to him. His case is one of the 20 that will be raised in the High Court tomorrow, on the opening day of the judicial review of a decision by the Legal Aid Board not to grant Mr Ellner and others with smoking-related illnesses - lung cancer, stroke, heart and vascular disease - aid to seek damages from tobacco companies.

Mr Ellner says that when he grew up in south-east London in the 1930s and 40s, cigarettes were part of the daily currency and no one was too worried about children smoking. 'People would give them to you for running errands. They were everywhere, like sweets.' By the age of 18 he was on 20 a day, rising to 40 a day as he got older. In 1970, at the age of 36, he had part of one lung removed.

But Mr Ellner didn't think cigarettes were to blame. In the course of his work as a binman for Southwark council he had been exposed to asbestos and so sought compensation from the council. After exhaustive medical tests, however, doctors concluded that smoking was responsible for his lung damage. He carried on working until 1980, but his breathing was so bad he was forced to leave.

In 1992 Mr Ellner spotted an advertisement in a local paper placed by two firms of solicitors, Bindman & Partners and Leigh Day & Co, which were seeking people with smoking- related illness with a view to making compensation claims against tobacco companies. This followed a landmark decision by the United States Supreme Court in June 1992, which ruled that claims by smokers would be allowed to proceed through the courts.

The American ruling was based on the case of Rose Cipollone, who died of lung cancer at the age of 58 after smoking a packet of cigarettes every day for more than 30 years. She sued makers of the three brands she smoked in the year before her death. Her family pursued the case on her behalf and in 1988 a federal district court awarded them dollars 400,000 against one company.

That decision was overturned and the case went to the Supreme Court; the court rejected the tobacco companies' argument that 1969 congressional legislation making health warnings mandatory on cigarette packets rendered them immune from smokers suing for damages. In a 7-2 majority decision, judges said that the legislation protected companies in cases where smokers claimed that they were not adequately warned of the dangers, but not in cases based on claims of 'intentional fraud and misrepresentation' or 'conspiracy' to present smoking as harmless.

Anti-smoking campaigners claim the ruling made the industry vulnerable to multi-million-dollar claims for damages - if plaintiffs were able to prove deliberate deception or misrepresentation on the part of companies. But the American tobacco industry also claimed the ruling as a victory for companies, stating that permitting smokers to sue on the grounds of intentional misrepresentation would have 'little practical effect'.

The Supreme Court ruling - although it has no jurisdiction here - was seized upon by British lawyers who decided that similar cases now had a 'reasonable' chance of succeeding. They advertised for potential plaintiffs and about 300 smokers, ex-smokers and the bereaved are seeking damages in joint actions. Mr Ellner is one of the first because his medical records state that his illness was caused by smoking.

In reality, the chances of success for Mr Ellner and the others are probably slim. A total of 350 actions have been brought against tobacco companies in the US since the early 1950s. None has been successful, although there are 50 cases still pending. Outside the US, very few actions have been brought and only one, in Finland, has been tried.

On the other hand, it is true that the tobacco industry is now under pressure as never before. The New York Times claimed last month that in 1963 BAT had instructed an American subsidiary, Brown & Williamson, to withhold research it had commissioned showing that cigarettes caused heart disease. Last week the paper published more documents alleging they showed that B&W and its parent company adopted a two- track policy for more than 40 years, saying in public there was no proven risk while debating in private how to deal with the risks. A spokesman for BAT in the UK said that quotes from company documents were being used out of context.

John Ellner accepts that he is not entirely blameless, but smoking has ruined his life, and if, as he believes, the tobacco companies knew what risks he ran, he says they should have told him sooner. Meanwhile he is still trying to kick the habit; he is down to 10 a day.

(Photograph omitted)