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Assessment of contributory negligence for smoking in asbestos related lung cancer case

Blackmore v Department for Community and Local Government
County Court (Exeter)
23/10/2014

Mark Treacher looks at approach taken by the court when calculating the degree of contributory negligence in a case where the deceased developed lung cancer due to a combination of smoking and exposure to asbestos. The case contains a helpful review of the caselaw in this area which guided the judge to make a reduction of 30%.

Facts

This claim was brought on behalf of the Estate of Cyril Hollow.  He had been employed by the defendant as a decorator in a Devonport Dock Yard where he was exposed to asbestos fibre when he worked as a decorator whilst clearing out and refurbishing factories.  He had been exposed to asbestos between 1966 and 1986 but had started smoking in 1950.  He continued to smoke up until onset of symptoms leading to his death from lung cancer in October 2010 aged 74. 

It was accepted that exposure to asbestos dust had resulted in death and primary liability was not in issue.  The sole issue was the extent to which there should be a finding of contributory negligence to reflect the tobacco exposure. 

The court was asked to have a regard to mathematical calculations as to relative contributions to risk.

Findings

His Honour Judge Cotter QC was careful to position his reasoning within the boundaries imposed by the law relating to contributory negligence under the specific case law which preceded his judgment in the issue of smoking and asbestos.  He found support from the Supreme Court in Sienkiewicz v Grief [2011] UKSC 10 and in particular from the High Court decision in Shortell v BICAL [2008] (unreported) where Mackay J said:

It is helpful to have regard to the kind of detailed calculations… (that deal with relative risk)...the final stage of any judgment of contributory negligence is a jury like exercise decided on a broad and common sense basis”.

In making his assessment, HHJ Cotter found that:

  • The history of awareness of risk from smoking was clear and rehearsed comprehensively in the case of Badger v MOD[2005] EWHC 2941: an individual could not be criticised for smoking prior to the mid-1970s.

  • In any event the “rule of thumb” was that if there is a breach of statutory duty then contributory negligence should not exceed 50%.

  • None of the evidence in this case on risk should be equated to a high level of contributory negligence which would emasculate the defendant’s breach of duty. 

  • With regard to the previous authorities in the case of Badger the risk from smoking was greater and the claimant was repeatedly advised to stop smoking.  A 20% deduction was applied. In Shortell the judge rejected any mathematical basis and made a common sense finding of 15%. In Horsley v Cascade Insulation & Pinnacle Services [2009] EWHC 2945 (QB), the claimant continued to smoke despite numerous warnings and the finding was 20%. 

Here, Mr Hollow had smoked long before he commenced employment but, considering all the relevant features he assessed contributory negligence at 30%.

Comment

This case illustrates the tensions between the law of causation in asbestos claims and considerations of contributory negligence.  The defendant submitted that in this case, the relative risk, from an epidemiological perspective, from asbestos was between 2 and 5 and the relative risk for smoking was between 5.5 and 9.1.  Developed wisdom suggests that the risks are multiplied when considering the overall risk in which case the risk elevated to between 11 and 45.5.  The defendant advanced that this should result in an 85 - 90% reduction in the claimant’s damages to account for the fact that the far greater share of the risk was caused by smoking.  In this case, the deceased was a fairly unrepentant smoker who carried on smoking for most of his life up until his diagnosis with lung cancer.  The judge appeared to be influenced by the startling evidence on risk, but his assessment of contributory negligence was bound by policy considerations and the general “rule of thumb” in contributory negligence in employers’ cases namely that the figure cannot exceed 50% where there is a relevant breach of statutory duty. 

The practical point illustrated by this case is that having rejected the defendant’s somewhat optimistic submission, the judge then went on to find contributory negligence on the facts of this case at 30%.  He was clearly influenced by the fact that the claimant began smoking as a 14 year old and, notwithstanding the epidemiological evidence carried on doing so up until the end of his life. Defendants dealing with smoking related disease claims will be encouraged that the judge exceeded the previous reported figures for contributory negligence but should note that the court will not be quick to reduce the claimant’s damages or be blinded by science.

Contact

For further information, please contact Mark Treacher, Partner on 0161 604 1586.

Related article:

Disease: Court of Appeal considers constructive knowledge and section 33 discretion

 

By Mark Treacher

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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