InsightsInsight - Industrial Disease Claims - POSTED: August 9 2017
Compensation for asbestos, smoking and lung cancer- is the employer or the victim more to blame?
We welcome the Court of Appeal’s decision confirming that where lung cancer has been caused by a combination of asbestos exposure and smoking the employer must compensate for most of the disease even where smoking made a much greater contribution to the lung cancer than asbestos.
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In Blackmore v Department for Communities & Local Government (27/7/17) the lung cancer victim had been a heavy smoker for most of his life – long after the harm from smoking was well-known – and this arguably contributed over 60% to his development of lung cancer compared to his asbestos exposure.
However, the Court of Appeal rightly (in our view) upheld the trial judge’s decision that the lung cancer victim’s compensation for asbestos-related lung cancer should be reduced by 30% for his contributory negligence and not more. This was because the court must give more weight to the employer’s greater blameworthiness in exposing him to asbestos in breach of strict statutory duties.
Note: this reduction of 30% for contributory negligence through smoking is still higher than the more usual 15 to 20 in such asbestos claims- presumably because smoking played a particularly large part in the lung cancer there. Note also where the lung cancer victim gave up smoking by the 1970s there should be no contributory negligence deduction.
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