Contributory Negligence In Lung Cancer Claims

Case alert: Blackmore v Department for Communities & Local Government [2017] EWCA Civ 1136

The Court of Appeal took a holistic approach in calculating contributory negligence in lung cancer claims; assessing 'blameworthiness' rather than a purely epidemiological approach of the relative risk of developing lung cancer.

The Facts

The deceased had smoked for a long period before commencing employment with the Defendant as a general decorator. Approximately 20% of his working time was spent in conditions where there was asbestos dust.

It was agreed by the parties the Claimant's death was caused by the combined effects of smoking (from the age of 14 until his death aged 74) and exposure to asbestos dust whilst working for the Defendant during the period 1966 and 1986. Post mortem lung analysis showed an asbestos fibre count above the level at which the risk of contracting lung cancer doubles.

First instance

The court held contributory negligence should not be assessed by reference to a mathematical calculation based on the relative risks from smoking and asbestos exposure alone, as argued by the Defendant.

The contributory negligence appraisal was largely influenced by policy considerations and the general practice in employers' liability cases that where there is a breach of statutory duty the contributory negligence figure cannot exceed 50%.

Lung cancer is an indivisible disease and there are possibly other factors which could be taken into account and contributed to the condition, such as genetics. Accordingly, although the risk from smoking was between double and treble the risk from asbestos exposure, having considered all the relevant factors, the court assessed contributory negligence at 30%.

The Defendant was granted permission to appeal. It contended that from a mathematical perspective considering relative risks, the discount for contributory negligence should be between 85% and 90%, as the far greater share of the risk was caused by smoking.

Appeal

The court held the concept of responsibility under section 1 of the Law Reform (Contributory Negligence) Act 1945 ('the 1945 Act') is not limited to causation, but also encompasses blameworthiness.

The Defendant was under a statutory duty to protect the Claimant and failed to do so. The legislative intention of the 1945 Act was to create a general rule capable of flexible application to all types of cases. Furthermore it would be incorrect to draw a general distinction between a claimant...