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The effects of smoking are now well known but that was
not always the case and the courts at times are asked to
consider whether a claimant’s history of smoking has had
any impact upon their health and in many cases, whether it
has contributed towards their death. For a defendant faced
with a claim for damages arising from asbestosis or other
lung diseases, this is an important factor to investigate
and consider when arguing for a reduction towards their
financial liability.
Following a recent case of Shirley
Blackmore (Executrix of the Estate of Cyril
Hollow, Deceased) –v- Department for
Communities & Local Government (2014),
the court was asked to consider the part
smoking played in the Mr Hollow’s death,
which had been caused by the combined
effects of his smoking and exposure to
asbestos.
It took until 1971
for the first health
warnings on
cigarette packets to
appear in the UK.
The starting point for such considerations
is Badger -v- MOD (2005), which
surprisingly was the first reported case
to consider whether smoking constituted
contributory negligence.
Contributory negligence is basically
defined as one’s carelessness in looking
after their own safety by failing to foresee
that if they did not act like a prudent
person, they might harm themselves.
Once any fault has been established
against the claimant, a reduction needs to
be made to any recoverable damages.
In Badger, the claimant was the widow of a
Reginald Badger, who died of lung cancer
in 2002 at 63. He had been employed by
the Ministry of Defence as a boiler maker
at its dockyards and during his work; he
was exposed to asbestos dust and fibres,
which were causative of the lung cancer
that killed him. He had also smoked for
the majority of his life, and this was also
causative of his cancer. The Ministry of
Defence admitted primary liability but
sought a 25% reduction in the damages
to be paid to the widow on account of her
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late husband’s contributory negligence, as
he had continued to smoke when he knew
or should have known that doing so would
damage his health and also, contrary to
numerous warnings.
If any reduction in damages was to be
fair, it had to take into account the relative
blameworthiness of the parties’ conduct.
The court was referred to expert statistical
evidence on risk before deciding upon
the degree of contributory negligence
attributable to Mr Badger’s continued
smoking, when he should have known to
stop.
As an example, someone who had never
smoked, with no history of asbestos
exposure had a 0.3% chance of
developing lung cancer. This was called
the “base risk”. A long-term smoker of
20 cigarettes a day with no history of
asbestos exposure had a 3% chance
of developing lung cancer, being 10
times the base risk. Someone who had
never smoked but had been exposed to
sufficient asbestos to cause asbestosis
had a 1.5% chance of developing lung
cancer, being 3 times the base risk.
However, by contrast, a long-term smoker
of 20 cigarettes per day who had also
been exposed to sufficient asbestos to
cause asbestosis, had a 15% chance of
developing lung cancer and was deemed
to be at 30 times the base risk. That figure
was derived from the base risk figures
for both a long term smoker and a non
smoker exposed to asbestos. Though
both smoking and asbestos exposure
contributed to the risk of the claimant
developing lung cancer, the smoking was
more causatively potent.
As not all of the period of smoking was to
blame for the cancer and as the defendant
was significantly blameworthy in exposing
Mr Badger to asbestos when its risks were
known, the court ultimately assessed
his contributory negligence at 20%. The
damages recoverable by his widow were
reduced by that amount.