Last reviewed 15 November 2018

Barrister Robert Spicer considers recent cases dealing with the issue of contributory negligence and how being a smoker affects compensation for asbestos-related diseases.

Before 1945, the common law rule was that where injury had been caused partly by the victim and partly by the person responsible for the injury, the victim could recover nothing.

This rule was changed by the Law Reform (Contributory Negligence) Act 1945. Section 1 of that Act states, in summary, that where a person suffers damage partly by his own fault and partly by the fault of 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 compensation in respect of the damage shall be reduced to such extent as the court thinks just and equitable.

Smoking and asbestos

The most recent example of the application of this principle in the context of health and safety is the Court of Appeal decision in the case of Blackmore v Department for Communities and Local Government (2017).

H died from lung cancer aged 74. He had contracted the disease from exposure to asbestos when working in the Devonport Dockyard. Mineral fibre analysis of the deceased’s lungs showed a quantity of total retained asbestos fibre above the level at which the risk of contracting lung cancer doubles. H smoked approximately 20 cigarettes a day. Liability of the employer was not in dispute. The sole issue was what apportionment there should be as a result of the deceased’s smoking.

Medical experts agreed that death had been caused by the combined effects of smoking and exposure to asbestos. The key concept introduced by the Law Reform (Contributory Negligence) Act 1945 was the requirement to consider the fault of the person suffering the damage in a comparative process with the fault of the tortfeasor. That process would recognise the respective duties, powers and resources. The imposition of a high standard upon an employer in a comparative assessment reflects Parliament’s decision to impose statutory duties on employers and the importance of compliance with those duties.

At first instance the judge assessed contributory negligence at 30%. The defendant appealed to the Court of Appeal. That Court decided the following.

  • The apportionment of responsibility under the 1945 Act required that account be taken not only of causative potency but also of blameworthiness.

  • There was no reason in principle for drawing a general distinction between a claimant who contributed to his injury by conduct related to his work and conduct unrelated to work.

  • Apportionment on grounds of contributory negligence should not be in the proportions by which exposure to asbestos and smoking increased the risk of contracting lung cancer.

  • There was a particular policy underlying Parliament’s strict prohibition of the exposure of workers to harmful substances which needed to be reflected in the apportionment of liability. The judge had been 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. A lesser degree of blame attached to the deceased in continuing to smoke after its dangers had become known.

  • The judge’s apportionment of contributory negligence at 30% was well within the range of options open to him.

Other cases

An earlier case with similar facts is Badger v Ministry of Defence (2005). B was employed by the MOD as a boilermaker. He died from lung cancer. During the course of his employment he had been exposed to asbestos dust and fibres which were causative of his cancer. He had smoked and his smoking was also causative of his cancer.

The MOD admitted liability for his death, but argued that his widow’s claim for compensation should be reduced because her late husband had been contributorily negligent in that he had continued to smoke when he knew, or should have known, that this was liable to damage his health. The High Court reduced the compensation by 20% because of B’s contributory negligence. It made the following points.

  • B’s continuing to smoke when he should have given up was a substantial and exacerbating cause of his lung cancer and death.

  • Smoking increased his risk of contracting lung cancer by a factor of 10, as against a factor of five for his exposure to asbestos.

  • He could have given up smoking. There was no evidence that he was addicted to tobacco and he could reasonably have been expected to give up smoking. He had been advised to do so on four occasions.

Another asbestos-related contributory negligence case is that of Barclays Bank plc v Fairclough Building Ltd (1995). B engaged F as contractors to carry out maintenance work on two industrial warehouses. The work of cleaning the asbestos roofs of the warehouses was subcontracted by F to C and by C to T. Neither T nor C had sufficient experience of the health risks of cleaning asbestos roofs. T used a high pressure hose for the work. This caused asbestos slurry to enter the warehouses and to dry out, resulting in dangerous levels of asbestos contamination. An environmental health officer served a prohibition notice. Remedial works estimated to cost £4 million were required.

The issue in the Court of Appeal was the extent of the liability of T and C. The Court of Appeal found the following.

  • Neither T nor C could avoid liability for having failed to exercise reasonable care and skill.

  • Having regard to the weight of expert evidence on the publication of information about the risks of working with asbestos, any person cleaning asbestos with a high pressure hose had a duty to avoid extensive contamination of the surrounding area.

  • T’s liability to C should be reduced by 50% by reason of C’s contributory negligence. This reflected the close relationship between T and C.

Conflicting evidence

The question of conflicting evidence in relation to contributory negligence was considered by the Court of Appeal in the case of Burns v Ministry of Defence (1995). B, an employee of the MOD, fell from the hopper of a road gritter and caught his foot and ankle in the revolving gritter rollers. He claimed compensation from the MOD. At first instance, the judge had to decide between the evidence of the gritter’s driver that it was not common practice for workers to stand on top of the hopper and he had not consented to B doing so. B stated that it was common practice. The judge preferred the evidence of the driver and found that B’s compensation should be reduced by one-third. This decision was upheld by the Court of Appeal.

For detailed information see your Asbestos and Smoking at Work topics.