Apportionment and the smoker negligently exposed to asbestos

In the case of Blackmore v Department for communities & Local Government (2014), the defendant admitted that they had negligently exposed the deceased to asbestos fibres during the course of his employment as a painter, causing lung cancer. But using a relative risk analysis, they sought a reduction of 85% for contributory negligence for the deceased’s smoking.

The defendant’s case was that as scientific data was available as to contribution, it was common sense to apply a scientific approach rather than a broad brush approach to this issue. The court was not persuaded for a number of reasons, underpinned by the acceptance that the disease was indivisible, so it was impossible to determine precisely what impact smoking had when compared to the impact of the exposure to asbestos on an individual cell. For the defendants to be right, every smoker exposed to asbestos ought to go on to develop lung cancer, and that simply was not the case.

Whilst causation must be considered it was not the sole guide and the defendant’s breach of specific duties had greater culpability than the claimant’s smoking when considering the evidence as a whole.

HHJ Cotter QC, provides an in depth review of the case law in this area and what is striking is that from the outset of the trial he made it clear that he would not countenance any argument that the deceased’s negligence could emasculate the defendant’s breach of duty. The claim was reduced by 30% for the deceased’s contributory negligence; the court reminding those who owe specific duties to be prepared for the consequences of failure.