Insurers have been told they could demand up to a 10% contributory negligence bump from asbestos sufferers who were also habitual smokers, after a judge charged one claimant 30% for lighting up.
According to Barbara Milne, partner at law firm BLM, defendant insurers should be alert to the recent case where the judge awarded a significant discount for contributory negligence for smoking in an asbestos lung cancer claim.
“In Shirley Frances Blackmore (executrix of the estate of Cyril Leonard Hollow, deceased) v Department for Communities & Local Government (2014), Mr Hollow had died of lung cancer caused by negligent exposure to asbestos,” explained Barbara.
“However, as he had been a smoker, contributory negligence was alleged by the defendants, raising an issue of whether his contribution should be assessed by the concept of relative risk; and if so, the weight that could be placed on the expert opinions relating to the biological processes that occur as a result of smoking and asbestos exposure, including any synergy between the two.”
Weighing up the evidence
Lung cancer can be caused by smoking alone, or by asbestos alone, (or indeed by other risk factors). Where a claimant has both smoked and been exposed to asbestos, these two risk factors do increase the risk of lung cancer developing, most likely synergistically. The increased risk of the disease occurring as a result of exposure to asbestos is often assessed by the use of epidemiology; the study of disease in populations through statistics.
“The judge in Blackmore had to consider the amount of any deduction for contributory negligence,” continued Barbara. “He noted that some members of the Supreme Court had warned in Sienkiewicz against an over-reliance on statistical or epidemiological evidence in the context of causation.
Cancer down to bad luck
in a week when new research pointed to cancers often being caused by ‘bad luck‘, Barbara added how the judge in Blackmore had observed, “carcinogenesis is ‘fundamentally stochastic’ by which he means that it is random. Unsurprisingly then, he didn’t accept an overly rigid or mathematical approach to assessing the relative contribution of these two risk factors when assessing contributory negligence.
“For the judge in Blackmore, the relative risks associated with smoking and asbestos exposure, (which are central to proving causation) were “not the sole guide” to the percentage reduction for contributory negligence. The assessment of contributory negligence is also based on the claimant’s relative blameworthiness, (after the mid-1970s when warnings went on cigarette packs) compared to that of the defendant. He thought it wrong to give equal weight to the breach of statutory duty on the one hand and Mr Blackmore’s own failure on the other.”
30% contributory negligence
The judge went on to declare that the defendant should bear the lion’s share of responsibility in a case of prolonged breaches of statutory duty. “Mr Hollow’s contributory negligence in smoking from 1950 to the year he died was assessed at 30%, based on an approach taking into account all factors, both statistical and factual,” added Barbara.
“The case is of interest to insurers, as the 30% contributory negligence deduction is a higher deduction than those made in Badger (20%), Shortell (15%) and Horsley (20%),” she said. “Bearing in mind the relatively high value of many such claims, the savings can be significant.
“The case reflects the fact that each case does turn on its own facts; here, the deceased continued smoking for over three decades after warnings went on packs, so his actions were judged to be worthy of a significant deduction. Given the prevalence of smoking within the population even after warnings went on packs in the early 1970s, Blackmore suggests that in an asbestos lung cancer case, where a claimant continues to smoke long after the dangers were well known, defendants and their insurers should be seeking a greater percentage reduction for contributory negligence than in the better known case of Badger.”