Experts say governments should not be afraid to sue tobacco companies for their enormous cost to health systems.

A new paper published in the Medical Journal of Australia calls on state and federal governments to take legal action to recover some of the costs imposed on healthcare by the use of tobacco products.

“An estimated 2.6 million adult Australians were smokers in 2014, and smoking remains the country’s leading preventable cause of death and disease,” wrote Dr Ross MacKenzie, lecturer in Health Studies at Macquarie University.

“It causes 15 000 deaths annually and is likely to kill two-thirds of current users. Annual health, social and economic costs of smoking were estimated at more than $31.5 billion in 2008, and are now considered to be substantially greater.”

The experts point to Canada as a good model for taking on ‘Big Tobacco’, where the province of British Columbia filed a health care cost recovery lawsuit in 1998, which led to the Supreme Court upholding that it had the constitutional right to sue the tobacco industry.

As Canada’s legal system is more akin to Australia’s than that of the United States, there are lessons for Australia to learn, MacKenzie and colleagues wrote.

“A major recovery in Australian litigation could potentially push an Australian subsidiary of a global cigarette manufacturer into bankruptcy, depriving plaintiffs of the opportunity to recover full damages … [It is] imperative that the parent [tobacco] companies remain as defendants in legal actions in order to satisfy the large damage awards necessary to provide just financial compensation,” they wrote.

“Any future action would first require at least one jurisdiction to enact legislation similar to British Columbia’s Tobacco Damage and Heath Care Costs Recovery Act, which was subsequently adopted by other Canadian provinces. It would also require a coordinated commitment by state, territory and Commonwealth governments, given that Australian health care funding involves areas of Commonwealth, state, territory and joint responsibility.

“Further, litigation would inevitably be a protracted and costly process, especially as the tobacco industry would undoubtedly mount a determined and obstructionist defence.”

Nevertheless, the authors concluded, the benefits of suing outweighed the costs.

“Beyond the potential to recover billions of dollars spent on treatment of diseases caused by smoking, publicity around legal action would also emphasise the health and social impacts of tobacco industry corporate behaviour, furthering the denormalisation of smoking in Australia and generating public and political support for further public health measures,” they wrote.

“As with any measures opposed by tobacco companies, this will not be easy, it will take time, and nothing can undo the damage caused by smoking. But Australian governments now should give serious consideration to litigation that can ultimately bring some recompense to our health systems,” MacKenzie said.