Assessment of contributory negligence for smoking in asbestos related lung cancer case
Blackmore v Department for Community and Local Government
County Court (Exeter)
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%.
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.
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  UKSC 10 and in particular from the High Court decision in Shortell v BICAL  (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 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  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%.
For further information, please contact Mark Treacher, Partner on 0161 604 1586.
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.