16 November 2017
The recent case of the Department for Communities and Local Government v Shirley Francis Blackmore (Executrix of the Estate of Cyril Leonard Hollow, Deceased) [2017] EWCA Civ 1136 provides a good example of how the Court has dealt with contributory negligence in disease claims.
The late Mr Hollow was employed by the defendant as a general decorator between 1966 and 1986 and spent approximately 20% of his working time in conditions where there was asbestos dust. He was not provided with a dust mask or any protective equipment. He started work at the age of 14 in 1950 and smoked 20 cigarettes a day until his death in 2010 at age 74. The post mortem analysis confirmed a fibre count above the level at which the risk of developing lung cancer doubles. As a result of this, parties agreed that the cause of his death was as result of the cumulative effects of smoking and his asbestos exposure with the defendant.
The issue concerned the apportionment, if any, for contributory negligence on account of the deceased’s smoking. The Court held that contributory negligence could not be determined from a mathematical calculation based on the respective risks of smoking and asbestos exposure, even though the evidence was that the risk from smoking was between double or treble the risk from asbestos exposure. Contributory negligence was assessed at 30% at first instance.
The defendant was granted permission to appeal and sought to argue that the discount for contributory negligence should be between 85% and 90%, as smoking accounted for the greater risk of developing lung cancer. The Court of Appeal held that the Judge at first instance was correct in not simply applying a mathematical calculation to the relative risk of developing lung cancer and was entitled to draw a distinction between the blameworthiness of the employee and employer when assessing contributory negligence.
The point for the Court of Appeal was that the defendant was under a strict statutory duty to protect the claimant and had not complied with that duty. It held that the Judge was entitled to find that the defendant, as the employer, should bear the greater responsibility given their blameworthiness in exposing the deceased to asbestos given its breach of statutory duty and where the dangers were well known. The deceased could not be considered to be equally blameworthy given the lengthy period of time during his life during which the dangers of smoking were not known. In light of this, the Judge’s assessment of 30% contributory negligence was well within the range open to him. The defendant’s appeal was dismissed.
The decision in Blackmore is fact specific, however the finding of 30% contributory negligence is high against the background of the claimant being considered not to have been aware of the risk of smoking to his health for the majority of his life. The judgment will hopefully assist in there being more findings of contributory negligence due to smoking in lung cancer cases.
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Jennifer Stewart |