The Court of Appeal has handed down judgment in the matter of Department For Communities and Local Government v Blackmore on the issue of contributory negligence for smoking in asbestos related lung cancer cases. The defendant’s appeal was dismissed. Badger v The Ministry of Defence [2005] EWHC 2941 (QB) approved. The deduction for contributory negligence for smoking remained at 30%.

Background 

Mr Cyril Frances Blackmore, had been employed between 1966 and 1986 by the erstwhile department in the Devonport Dockyard as a general decorator. His work involved significant contact with asbestos fibres, including clearing off asbestos from pipework and the preparation and stripping of asbestos in factories. Approximately 20% of his working time was spent in conditions where there was asbestos dust. At no time during the 20 years was he provided with a dust mask or any protective equipment.

Mr Blackmore started smoking in 1950, when aged 14. He smoked around 20 cigarettes a day, until approximately 2005.

Mr Blackmore developed lung cancer which became symptomatic in 2009 and he died on 28 October 2010, aged 74 years, of adenocarcinoma of the lungs with metastes. Mineral fibre analysis of the lungs post mortem indicated a quantity of total retained asbestos fibre count above the level at which the risk of contracting lung cancer doubles.

Claims in negligence and for breach of statutory duty were brought by his estate against the Department for Communities and Local Government, whose predecessors were responsible for Mr Blackmore’s employment.

The appeal concerned the level of contributory negligence on the part of the deceased and the reduction in damages which followed.

The decision

In his judgment Lord Justice Lloyd Jones stated at paragraph 35:

“There is therefore, to my mind, no inconsistency between liability under the Fairchild principle, which is limited to the contribution made by the tortfeasor to the increase in risk of contracting the disease and where contributory negligence does not arise, and liability under the doubling the risk principle, where the tortfeasor has made a material contribution to the damage and is liable for the full extent of the loss subject to contributory negligence. I can, therefore, see no good reason, when determining responsibility under section 1 of the 1945 Act in cases such as the present, to limit consideration to matters of causation or to deny any role to blameworthiness.”

And

“In these circumstances it is not necessary to consider whether Fairchild has any application in circumstances such as those of the present case where the contributory causes represent different agencies.

For these reasons, I consider that the judge was correct to reject the submission on behalf of the appellant that apportionment on grounds of contributory negligence should be in the proportions by which exposure to asbestos and smoking increased the risk of contracting lung cancer.

The correct approach to the assessment of contributory negligence was, to my mind, helpfully summarised by Stanley Burnton J., as he then was, in Badger v Ministry of Defence…”

His analysis was set out at paragraph 39:

“In carrying out the apportionment exercise under section 1 of the 1945 Act the judge in the present case gave what I consider to be appropriate weight to all of the competing considerations and underlying policies. Had his approach been limited to an assessment of relative contributions to causation, it would necessarily have failed to differentiate between the blameworthiness of the employer in exposing employees to asbestos and that of the employee in smoking. I agree with the judge that such an approach would have been wrong in principle. There is a particular policy underlying Parliament’s strict prohibition of the exposure of workers to asbestos and other harmful substances which needs to be reflected in the apportionment of responsibility. Here the judge was right to give very considerable weight to the blameworthiness of the employer in exposing its employee to asbestos in breach of a strict statutory duty in circumstances where the dangers of asbestos to health were well known. By comparison, a lesser degree of blame attaches to the conduct of Mr Blackmore in continuing to smoke after the dangers of smoking to health became known. Moreover, as the judge concluded, it was necessary to take account of the earlier period of innocent smoking and the medical uncertainty attaching to the impact and synergistic effect of that earlier period of innocent smoking. In all the circumstances, I consider that the judge’s apportionment of contributory negligence at 30% was well within the range of options open to him.”

What this means for you

This is likely to become a foundation on which proper assessments of contributory negligence can be carried out. There is no set formulae for the assessment of contributory negligence for smoking in lung cancer cases. However in a case where the claimant did not know the risk of smoking for much of his life, his contributory negligence was found to be as high as 30% on the basis that there was likely to be at least a doubling of the risk of lung cancer from smoking. With this in mind it is likely the future findings of contributory negligence for smoking will be made more readily.