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Badger v Ministry of Defence, High Court, 16 December 2005

12 January 2006
The issues

Asbestosis – Smoking – Contributory Negligence

The facts

The Claimant was the widow of Reginald Badger who died of lung cancer in May 2002 aged 63.

He had been employed by the Ministry of Defence between 1954 and 1987 as a boiler maker mostly at Devonport but also in Gibraltar. During his employment he was exposed to asbestos dust and fibres. They were causative of the lung cancer that killed him. He also smoked. His smoking was also causative of his cancer. The Ministry of Defence admitted primary liability in February 2003. The issue before the Court was the Ministry of Defence’s contention that the claim should be reduced on account of Mr Badger’s contributory negligence in that he continued to smoke when it was alleged that he knew or should have known that doing so was likely to damage his health.

The decision

1. It was not in dispute that Mr Badger’s smoking was a substantial cause of his death. The joint statement attributed Mr Badger’s lung cancer and premature death to both tobacco and asbestos.

2. In a supplemental joint statement the medical experts set out their agreement that lung cancer was an indivisible injury and not a cumulative injury for which incremental exposure to a causative agent – whether asbestos fibres or cigarette smoke – resulted in increasing severity of the injury itself. They agreed that had it not been for his exposure to asbestos it was unlikely that Mr Badger would have developed lung cancer at the age of 63. Had it not been for his cigarette smoking they agreed it was unlikely that he would have developed lung cancer at the age of 63. They further agreed that had it not been for his asbestos exposure and his cigarette smoking it was unlikely that he would have developed lung cancer at the age of 63. Finally they agreed that if Mr Badger had stopped smoking at an earlier age his cumulative risk of developing lung cancer would have been less that his actual risk given that he had continued to smoke until the time that his lung cancer was diagnosed.

3. The question to be considered was whether Mr Badger’s cigarette smoking constituted fault. He had been diagnosed with angina in September 1991 and was strongly advised to stop smoking cigarettes. The evidence was that thereafter although there was a temporary stoppage he continued to smoke.

4. By 1971 when the first health warnings were put on cigarette packets it was reasonably foreseeable by a reasonably prudent man that if he smoked he risked damaging his health.

5. He could not be criticised for starting to smoke. In 1955 the connection between smoking and serious ill health was not widely accepted. If he was guilty of fault it lay in not giving up smoking. It had been argued for the Claimant that no fault could be attributed to Mr Badger for his failure to give up a habit to which he must have been addicted. However the Court noted it had no medical evidence before it on which he could find that Mr Badger was so addicted that he could not reasonably have been expected to stop smoking. On the evidence Mr Badger could have given up smoking. If he could and should have done so at a time that would have reduced his risk of lung cancer at the age of 63 he was guilty of fault but was partly responsible for his death. As to whether he should have done the answer was yes. A person who continued to smoke when he knew or ought to have known that by doing so he was damaging his health or that he risked doing so had to accept responsibility for his actions. A reasonably prudent man warned that there was a substantial risk that smoking would seriously damage his health would stop smoking.

6. By continuing to smoke after the age of 50 the Mr Badger increased his smoking risk from 2.2% to 3% i.e. by just over a quarter.

7. Considerably greater blame was to be attributed to the Defendant than to Mr Badger. The Ministry of Defence was guilty of breaches of statutory duty at a time when the dangers of asbestos were known. Even if the entire period of Mr Badger’s smoking were blameworthy and it was equally responsible for his lung cancer his contributory negligence therefore should be less than 50%. However not all of his period of smoking was blameworthy. The contribution to his combined risk for continuing to smoke after he should have stopped was in the region of a half of his ultimate risk. On this basis the appropriate reduction should be 20%.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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