We discussed last week, the Court of Appeal’s decision in the asbestos related lung cancer claim of Blackmore v The Department for Communities and Local Government  EWCA Civ 1136, in which the defendant sought to appeal the reduction made to the claimant’s damages award to account for the deceased’s smoking.
This week we take a closer look at some of the arguments put forward by both sides and consider the issues surrounding contributory negligence in asbestos related lung cancer claims.
It is well established that smoking causes lung cancer. As a result, in cases of asbestos related lung cancers where there has been a significant smoking history post 1971 (when the first health warnings were put on cigarette packets), deductions of 20-30% in compensation are usual to reflect contributory negligence. In Blackmore, at first instance, the deceased had died as a result of asbestos related lung cancer but had been a heavy smoker for the majority of his life, consequentially a reduction in damages of 30% was made to reflect the deceased’s contributory negligence.
The facts of Blackmore were that the deceased was employed between 1966 and 1986 by the appellant’s predecessor departments 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.
Additionally, the deceased started smoking in 1950 when aged 14. He smoked around 20 cigarettes a day, until roughly 2005 when he cut down to about 12 cigarettes a day. He tried to give up on two occasions but was unable to do so. In 1976 he was advised to stop smoking after a spontaneous pneumothorax in his left lung, a condition which later resolved.
His lung cancer became symptomatic in 2009 and he died on 28 October 2010 aged 74 years. 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 breach of statutory duty were brought by the estate of the deceased against the defendant who subsequently conceded causation and primary liability for death. Damages were agreed under the Law Reform ((Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 in the sum of £118,460.57. The case at first instance was relating entirely to the issue of what apportionment, if any, there should be for contributory negligence under s.1 of the Law Reform (Contributory Negligence) Act 1945. This provision states:
‘1. Apportionment of liability in case of contributory negligence
Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’.
As such, at first instance, Judge Cotter identified the specific issues requiring determination, as follows:
- What were the relative contributions to the deceased’s death of smoking and asbestos exposure?
- Is the court entitled or bound to calculate the deduction for contributory negligence by reference to a mathematical calculation as to relative contribution to risk?
It was agreed between the experts instructed on behalf of the claimant and the defendant, that:
- Death was caused by the combined effects of smoking and exposure to asbestos.
- Tobacco smoke is the most common cause of cancer of the lungs. Exposure to asbestos is the second most common cause. Further, given his history of smoking, the deceased’s relative risk of developing adenocarcinoma of the lung was tenfold that of a non-smoker.
- Tobacco smoke and asbestos exposure work in a synergistic manner in the causation of lung cancer and the precise cellular mechanisms of this synergy are not fully understood.
- By reason of this synergy the deceased’s risk of the development of lung cancer as a smoker exposed to asbestos was greater than a simple additive effect. Rather, the approach should be multiplicative.
However, the main area of dispute between the experts was in relation to the relative contribution to risk made by smoking and exposure to asbestos. The defendant’s expert used epidemiological evidence to contend that the claimant’s smoking was the overwhelmingly more significant contributor to the risk of him developing lung cancer. Indeed, even after discounting the first 25 years of smoking – which occurred at time when the claimant could not have been regarded as knowing the dangers (because of the level of scientific knowledge at the time) – smoking caused 90% of the claimant’s cancer risk. The remaining 10% risk was attributable to the exposure to asbestos. The defendant contended that a commensurately large deduction to the damages ought to have been made for contributory negligence, namely a deduction of 85% or 90%.
The court rejected that argument on two principal grounds. Firstly, it criticised the basis of the defendant’s figures. The judge accepted criticism directed at the defendant’s expert that his figures were unreasonably precise. Secondly, and more importantly, the defendant’s argument was rejected on the basis of a review of the law of contributory negligence.
The judge found that the negligent smoking (after the first 25 years) was between two and three times more potent a cause of the claimant’s cancer than his exposure to asbestos. As to the law on contributory negligence, the judge emphasised that assessment of contributory negligence is a jury question, rather than one which relies on identifying the precise degree of contribution to an injury. The exercise comprised two components; first, considering the level of causative potency of the claimant’s actions, and, secondly, considering the overall relative blameworthiness between the claimant and the defendant. In this regard, the judge noted that when blameworthiness is considered it would usually be wrong axiomatically to give equal weight to a breach of statutory duty on the one hand and a claimant’s own failures on the other. The judge observed, echoing MacKay J, in Shortell :
‘…that the defendant should bear the lion’s share of responsibility in a case of prolonged breaches of statutory duty such as this is a proposition which does not give me pause’.
Bearing this in mind, the court emphasised the policy considerations behind imposing statutory duties on and employers and noted that they had been repeatedly breached by the defendant. Relatively, the claimant’s actions were morally less blameworthy. This he said was due to the impact of the early ‘innocent’ years of smoking, which, had increased the risk of lung cancer significantly. The judge found that the years of innocent smoking presented a continuing risk which should properly reduce the risk factor attributable to the subsequent 35 years of ‘guilty’ smoking.
The judge expressed his conclusion on contributory negligence as follows:
‘Here the claimant was a smoker long before he commenced employment with the defendant and long before it was known to be a hazard to health. He does not have an extensive history of having been advised to stop, tried to give up smoking twice and eventually cut down. Although the risk from smoking was probably between double and treble the risk of asbestos, having considered all relevant features I assess the degree of contributory negligence on the facts of this case at 30%’.
Against those findings, the court ruled there would be a 30% deduction from the claimant’s damages on account of his contributory negligence in smoking after the risks were well known. This is somewhat higher than the deduction in earlier cases. For example, in Badger v Ministry of Defence  EWHC 2941 (QB) the deduction was 25%, while in Shortell v Bical (QBD, 16 May 2008) the deduction was 20%.
The defendant appealed this order on the following grounds:
‘The conclusion when considering the amount of contributory negligence that the defendant should bear the lion’s share of responsibility even where the court concludes that the evidence shows that the claimant’s smoking was a greater contribution to the cancer than asbestos exposure is wrong in law’.
As such, the appeal was not seeking to challenge the conclusion of HHJ Cotter Q.C that the relative contributions to the increase of risk were higher for smoking than for asbestos – instead they sought to argue that the judge had failed to translate that risk directly into an apportionment of liability on ground of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. The defendant felt that this should have been reflected in a higher reduction than 30% as ‘the reduction in the claimant’s damages of 30% is less than half of the actual contribution that the court found he had made to the relative risk of contracting cancer through his smoking’.
So the question before the Court of Appeal was whether the defendant was justified in seeking to limit the concept of responsibility under section 1 of the 1945 Act to considerations of causation alone, excluding considerations of blameworthiness in the circumstances of this case.
What does responsibility mean in the context of section 1?
In order to answer this question, the Court looked back at the authorities and noted that, from an early stage, responsibility has been a broad concept which includes consideration of both causation and blameworthiness. The case of Davies v Swan Motor Co  2 KB 291, was relied upon to support this statement in which Denning LJ observed:
‘Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction is such an amount as may be found by the court to be ‘just and equitable’ having regard to the claimant’s ‘share in the responsibility’ for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness. The fact of standing on the steps of the dustcart is just as potent a factor in causing damage, whether the person standing there be a servant acting negligently in the course of his employment or a boy in play or a youth doing it for a lark: but the degree of blameworthiness may be very different’.
Despite this obvious inclusion of the consideration of blameworthiness, the defendant sought to distinguish the present case on the grounds that blameworthiness should come into play in determining responsibility arising from contributory negligence only where the fault of the claimant falls within the scope of the very act which the employer or tortfeasors is expected to guard against.
Lord Justice Lloyd Jones, rejected this argument and held at para 25:
‘However, I can see no reason in principle for drawing a general distinction between a claimant who contributes to his injury by conduct related to his work and one who contributes to his injury by conduct unrelated to his work. The concept of responsibility under section 1, incorporating tests of causative effect and blameworthiness, is broad enough and flexible enough to cover both situations and to give effect to the competing considerations in any given situation. While it may well be appropriate in a given case to accord less weight to contributory negligence arising in the context of the tortfeasors’ duty e.g. a failure to wear a protective mask, I do not consider that it is possible to construct a general principle that in all cases greater weight should be attributed to negligent conduct outside the scope of the employer/employee relationship. Whether it is appropriate to do so will depend on the facts of each case’.
The main thrust of the defendant’s submissions came in relation to the comparison between the apportionment of liability under the 1945 Act and the extent of recoverability under the principle established in Fairchild v Glenhaven Funeral Services Ltd  1 AC 32 and developed in Barker v Corus Uk Ltd  2 AC 572.
Let us briefly remind ourselves of the different tests of causation and how these apply to asbestos related lung cancer.
There are three well-recognised legal tests of causation that are adopted in personal injury claims. The first, and traditional test, is the ‘but for’ test. Here, the courts ask whether, on the balance of probabilities, the claimant can establish that but for the breach of duty the injury or disease would not have occurred. The second test is the test of material contribution, which was first applied in Bonnington Castings Ltd v Wardlaw  AC 613, a case that concerned pneumoconiosis resulting from exposure to silica dust from two concurrent sources, one of which was tortious and the other innocent. It was not possible to determine which source had resulted in the disease on the traditional but for basis, indeed the two sources had acted cumulatively to cause the disease. But it was clear that the tortious exposure had materially contributed to the disease, for without it the claimant may not have developed the disease when he did or at all. The House of Lords accepted that in cases where there are multiple sources of exposure to the same causative agent, causation is satisfied when the tortious exposure made a material contribution to the disease.
The third test of causation, the ‘Fairchild’ test, is more limited in scope, applied initially to claims for mesothelioma . In Fairchild v Glenhaven Funeral Services Ltd  1 AC 32 the House of Lords accepted a relaxation of the but for test so that causation would be satisfied where a defendant’s tortious activity materially increased the risk of mesothelioma occurring.
The Fairchild test was subsequently extended by Barker v Corus so that multiple defendants would not be liable in full but only to the extent that their culpable exposure had contributed to the risk of disease – in other words, damages could be apportioned. This was reversed (for mesothelioma claims only) by the Compensation Act 2006 which provided that:
‘when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a “material increase in risk” of the victim contracting the disease will be held to be jointly and severally liable for causing the disease’.
Whilst the Fairchild principle was initially applicable to only mesothelioma claims, the Court of Appeal in Heneghan v Manchester Dry Docks Ltd and Ors  EWCA Civ 86, extended this to asbestos related lung cancer claims – although the Compensation Act 2006 has not been amended and therefore, defendants will not be held jointly and severally liable in asbestos related lung cancer claims.
Before the Fairchild principle was extended beyond mesothelioma, the courts had difficulty determining which test of causation to apply in lung cancer cases. This is because science does not presently permit ready identification of the cause of cancer since its development is fundamentally random. But science has identified certain exposures which are likely to increase the risk of certain cancers developing.
How then were the courts to approach causation in cases where the claimant had been tortiously exposed to a substance that is known to significantly increase the risk of cancer, but where the claimant could not show that their cancer would have occurred ‘but for’ the exposure?
In the present case, liability was admitted by the defendant on the basis of the doubling of the risk principle which uses epidemiological data to determine causation on the balance of probabilities where medical science does not permit determination with certainty of how the injury was caused. Epidemiology is the science of studying populations and the incidence of diseases within populations. It establishes, firstly, the underlying incidence of a disease in a non-exposed population and then, secondly, the incidence of disease in an exposed population. It allows the presentation of relative risk (RR) ratios: if an individual is as likely to develop a condition as the rest of the population then it is said the RR is 1.0. If an individual has been exposed to substance that increases the risk of a condition by 60%, the RR is 1.6. Thus the doubles the risk test asks if an individual is more than 100% more likely to develop a condition compared with the underlying risk of developing the condition, or if the RR is 2.1 or more.
As we outlined above, it was accepted at first instance, based on the epidemiology that the deceased’s smoking in Blackmore had been a greater contributor to the cancer than the defendant’s negligent exposure.
The defendant’s main argument came in relation to these differing tests of causation. It was submitted that it would be irregular for an employer liable under the Fairchild principle to be liable only to the extent that his conduct contributed to the increase in risk whereas an employer liable under the doubling the risk test in a case where there was contributory negligence would be subject to a less favourable basis of apportionment between him and the claimant which took account not only of causation but also of blameworthiness.
Rejecting this argument, LJ Lloyd Jones stated at para 33:
‘…I am satisfied that Mr.Fortt’s submission is flawed because it is based on a false analogy. The Fairchild principle applies in certain cases where a claimant cannot prove causation of damage and, exceptionally, established liability by reference to each defendant’s contribution the increase in the risk of the damage occurring. Barker v Corus established that liability under this principle is several as opposed to joint and several. Accordingly, each defendant is liable only to the extent that he has caused an increase in the risk of the damage occurring. As a result, questions of contributory negligence never arise…by contrast, liability on the basis of doubling the risk is founded on orthodox principles of causation. It proceeds by drawing an inference from the increase in risk of contracting the disease that the agent in question was a cause of the disease. (Novartis Grimsby Ltd v John Cookson  EWCA Civ 1261 per Janet Smith LJ at ; Heneghan per Lord Dyson MR at .) Where liability is established in this way, a defendant who has made a material contribution to the damage is, prima facie, liable for the full extent of the damage suffered (Bonnington Castings Ltd v Wardlaw  AC 613). It is at this point that questions of contributory negligence may arise’.
He went on to conclude at para 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’.
So now it has been confirmed that blameworthiness is a factor to be taken into consideration, what is the correct approach to contributory negligence?
Giving judgment, Lord Justice Lloyd Jones concluded that the correct approach to the assessment of contributory negligence was that summarised in Badger v Ministry of Defence  EWHC 2941, in which Stanley Burnton J stated:
‘… [O]nce contributory negligence has been established, the court must take into account both the extent of the claimant’s responsibility for his injury and damage and the blameworthiness of his conduct as opposed to that of the defendant in deciding on the reduction in damages that is just and equitable. The decision as to the appropriate reduction in the claimant’s damages is to be dealt with in a broad, jury like and common sense way: …’
Commenting on the case before him, LJ Jones stated at para 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’.
As such the appeal was dismissed and the 30% reduction of the claimant’s damages was upheld.
What can we learn from this judgment about the approach to contributory negligence in asbestos related lung cancer claims?
Firstly, it is clear that the claimant’s contribution to the relative risk of disease will not be automatically translated into a reduction in damages for contributory negligence. This is for a number of reasons:
- The epidemiology used to calculate the relative risk posed by the claimant’s activity (in this case smoking) is not well suited to a precise percentage reduction;
- The claimant’s blameworthiness will also be taken into account which can reduce the reduction in damages that he will face. In this regard, the judge noted that when blameworthiness is considered it would usually be wrong axiomatically to give equal weight to a breach of statutory duty on the one hand and a claimant’s own failures on the other.
In this respect contributory negligence does differ to the Fairchild and Barker approach seen in multiple defendant lung cancer claims – where a defendant will be liable only for the portion of risk he is responsible for. However, it is clear from the judgment in Blackmore that this is an acceptable deviation.
It is therefore, unlikely, based on these decisions that we will see reductions for contributory negligence at a much higher rate than 30% in the near future.
The full judgment can be accessed here.