Deborah Orr: It is not the job of juries to regulate people's behaviour

'In America, government is not in a position to impose, or even encourage, moral behaviour'

A couple of particularly hefty kerchunks this week joined the merrily ringing chorus of opening tills that is the dissonant soundtrack to North America's crazed compensation culture.

In the first, a man who smoked 40 cigarettes a day for 40 years received £3.5m in compensatory damages, and £2bn in punitive damages, because he is now dying of incurable cancer. In the second, a family received £5.6m in a civil wrongful death suit because their relative had killed his wife and family shortly after beginning a course of the anti-depressant, Seroxat.

Apart from anything else, compensation for death is a weird concept anyway. Does the gargantuan sum to be paid out by Philip Morris to Richard Boeken really have any connection to the sort of value that could be placed on his probably ­ but not necessarily ­ longer, tobacco-free life?

And is the loss that Donald Schell's relatives and in-laws suffered when he wiped out his family reparable in any way by the wealth they will receive from GlaxoSmithKline to share among themselves? The sort of compensation that pays for medical intervention, palliative care, or even psychiatrists' bills is one matter. But the idea that free money ­ spend it wherever you like ­ can offer a satisfactory counterpoint to tragedy is quite another.

Which is the odd thing about both of these cases. Neither is about compensating victims, despite the fact that the cases were brought in the names of victims. Instead they are about punishing protagonists. The loss rather than the gaining of money is the motor of righteousness that drives judges and juries to make these huge awards.

This is most obvious in the case of Philip Morris, and that £2bn punitive damages payment. Prior to this award, the biggest payout against Philip Morris was around £50m, which was reduced to £21m on appeal.

The £2bn comes in the face of increasing public hostility to multinational companies in general, and companies such as Philip Morris in particular. Mr Boeken's argument that he was unaware of the health warnings printed on cigarette packets until the mid-Nineties, and was then too addicted to stop, has been accepted. Therefore, any Marlboro-smoking cancer- sufferer in the US who fancies it, can now take a pop at Philip Morris. No wonder the company's share price has toppled.

The £5.6m award against GlaxoSmithKline though, in an odd irony, has surely been coloured by the fact that the company has been unwilling to print warnings on the instruction sheets that come with Seroxat, suggesting there may be a link between taking the drug and certain side-effects.

Seroxat (or Paxil as it is called in the US) is an SSRI, similar to Prozac, second only to Eli Lilly's drug in sales terms, and GlaxoSmithKline's premier product. While its prescription has been helpful to many people, there have also been worrying reports about incidences of self-harm. So worrying that an article published in The British Journal of Psychiatry suggested that doctors should no longer prescribe SSRIs to potentially suicidal patients.

The interesting thing, though, is that according to the precedent set by this latest Philip Morris trial, warnings on packets, the dissemination of all kinds of information about the product ­ none of this makes any difference. If you take something made by a rich company and it does you harm, you or your family can get big money if a link between the product and the harm can be proved to the satisfaction of a jury.

No matter that the big money awarded through compensation is not money earmarked to tackle the problems caused by the product in question. The £5.6m awarded to Mr Schell's family would surely be better spent on further research into the links between SSRIs and self-harm. The vast amount to be paid out by Philip Morris could likewise be spent alleviating the symptoms of thousands of cancer sufferers and their families, not just one.

But again, the common good is not the point. Far from it. Both the pharmaceutical industry and the tobacco industry are supposed to be highly regulated by various bodies. Clearly, if all of the landmark decisions about the future practices of these companies are being made not through these mechanisms, but by juries, then none of these checks and balances are working.

There is every indication that the remarks of the jury in the Philip Morris case accurately reflect public opinion about the tobacco companies. One juror, who had smoked for 15 years, said: "There were too many things they kept trying to cover up, instead of being honest about their product." Another commented: "If you're addicted you have no free choice."

Likewise, the pharmaceutical companies are widely distrusted, even though there is plenty of positive benefit to be gained from the products they manufacture. Again, the jury who decided that two days on a widely prescribed anti-depressant was enough to make Mr Schell into a psychotic killer was clearly in no mood to trust the corporate lawyers.

What we see here is an admission that in America, government is not in a position to impose, or even encourage, moral behaviour in the free marketplace. There is no longer any layer of protection between corporation and consumer except that provided by a sympathetic jury in a civil action.

And in this set-up there is no pressure that can be brought to bear against corporations except that brought by customers who can prove that damage has already been done to them. This results in piecemeal amends being made to those who have got good lawyers, amends that almost by definition can do nothing to tackle the wider implications of individual suffering. Richard Boeken is not alone in having contracted cancer from smoking. But he is alone in having gone to court and gained £2bn from doing so.

Now, either what Philip Morris did in selling him fags was so reprehensible that this compensation is deserved ­ in which case surely all smokers need the kind of blanket protection that Mr Boeken now says he should have had, and all cancer sufferers the compensation that he is going to receive.

So surely, on the precedent of this case, there is an argument for intervening in the trade of Philip Morris more decisively than by letting more and more individuals mount cases that will erode the company's profits.

This case surely must be seen as a judgement against all the health warnings and good-living propaganda that Richard Boeken has been considered perfectly within his rights to ignore or not notice or not bother to educate himself about. Instead it would seem that the organisations in charge of disseminating anti-smoking information on behalf of the government should instead be devising a system of tobacco control that will protect all the other Richard Boekens in America.

Or they should not. In which case Philip Morris, foul as this organisation is, ought to win its appeal.

d.orr@independent.co.uk