Asbestos compensation and lung cancer; what reduction for smoking?

In the lung cancer compensation claim of Blackmore v Department for Communities & Local Government (2014) Judge Cotter QC refused a defendant’s attempt to remove nearly all of a lung cancer victim’s compensation, where his smoking was a much bigger contributor to his lung cancer risk than asbestos.

The Defendant admitted negligently exposing the deceased to asbestos dust. He had also smoked for 60 years. It was agreed that his death was caused by a combination of smoking and asbestos. However, the Defendant’s medical expert argued that his relative risk of developing lung cancer from his smoking was four to five times that from asbestos. The Defendant, therefore, sought a deduction for contributory negligence of at least 85 per cent, submitting that where there was precise contribution data, it was common sense to apply it when calculating contributory negligence in a lung cancer claim.

The Claimant’s expert emphasised that there were too many unknowns about the combined effect of asbestos exposure and smoking on the development of lung cancer. Also, any precise calculation based solely on these two factors had to be inaccurate, as logically there must be other factors that contributed to lung cancer.

The judge held:

1. Calculation of the percentage contributions to the risk of developing lung cancer by smoking and asbestos must take into account many factors and uncertainties which made it impossible to be too precise. This included the need to ignore any contribution to lung cancer made by the deceased’s smoking before the mid 1970s; until then the dangers of smoking were not known widely enough for him to be negligent. It was, however, right to consider the relative contributions made by negligent smoking and negligent asbestos to the risk of lung cancer. He concluded the relative contributions to the risk of lung cancer from his smoking was roughly two to three times that from his asbestos exposure.
2. It was wrong to assess contributory negligence just on the contribution to the risk of lung cancer caused by negligent smoking or negligent asbestos exposure. Extra weighting must be given to the fact that Parliament had placed a statutory duty directly upon the defendant and this had been breached. The consequences of the Defendant’s breaches of duty causing the asbestos exposure should not be emasculated by a high finding of contributory negligence for smoking.
3. The risk of lung cancer from smoking here was probably between double and treble the risk from asbestos. He did not have an extensive history of having been advised to stop smoking. He had tried to give up twice, and eventually succeeded in cutting down, but never gave it up. His degree of contributory negligence was assessed at 30 per cent.

Comment: This was only a County Court decision, but it does helpfully re-affirm the approach established by the High Court in cases like Badger and Shortell for lung cancer claims; where lung cancer has been caused by a combination of smoking and asbestos, even where smoking made the much greater contribution to developing lung cancer the deduction for contributory negligence should be much less than half. This is because the defendant’s conduct in exposing their employee to asbestos is morally much more culpable than a claimant’s in smoking. A 30% deduction may be near the upper end. In Badger and Shortell, with shorter smoking histories before the lung cancer, the deductions were only 20% and 15%.

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