When apportioning responsibility for the purposes of the Law Reform (Contributory Negligence) Act 1945 s.1, a judge had been entitled to differentiate between the blameworthiness of the employer and the employee in relation to the exposure to asbestos of an employee who was a long-term smoker.
The deceased, Mr Cyril Frances Blackmore was employed between 1966 and 1986 by the Department for Communities and Local Government (defendant) predecessor departments in the Devonport Dockyard as a general decorator. His work involved significant contact with asbestos fibres, including clearing off asbestos from pipework and the preparation and stripping of asbestos in factories. Approximately 20% of his working time was spent in conditions where there was asbestos dust. At no time during the 20 years was he provided with a dust mask or any protective equipment.
Mr Blackmore started smoking in 1950, when aged 14. He smoked around 20 cigarettes a day, until approximately 2005.Mr Blackmore developed lung cancer in 2009 and he died on 28 October 2010, aged 74 years, of adenocarcinoma of the lungs with metastasis. At the post mortem, mineral fibre analysis of the lungs indicated a quantity of total retained asbestos fibre count above the level at which the risk of contracting lung cancer doubles.
Claims in negligence and for breach of statutory duty were brought by his estate against the defendant whose predecessors were responsible for Mr Blackmore’s employment.
The defendant, conceded causation and primary liability for death. Damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 were agreed in the sum of £118,460.57.
At first instance the Judge considered that it would be wrong to determine the issue using a precise calculation based on a mathematical analysis of the concept of relative risk. He considered the requirement to compare the respective fault of the parties a key factor. On this basis, he found the defendant should bear the greater share of responsibility given the breach of statutory duty and assessed contributory negligence at 30%.
On appeal, the defendant submitted that as the comparative relative risks from the two causes could be calculated precisely, that should have been reflected in the apportionment of responsibility through contributory negligence. The appeal concerned what apportionment, if any, should there be for contributory negligence on the part of the deceased and the reduction in damages which followed.
The appeal was dismissed. The Court of Appeal held that apportionment of responsibility under the Law Reform (Contributory Negligence) Act 1945 s.1 required that account be taken not only of causative potency, but also of blameworthiness. The concept of responsibility under s.1, was broad enough to cover situations where a claimant contributed to his injury by conduct related to his work and one who contributed by conduct unrelated to his work.
In relation to the apportionment of liability, the judge was correct to reject the defendant’s submission that apportionment on grounds of contributory negligence should be in the proportions by which exposure to asbestos and smoking increased the risk of contracting lung cancer. In carrying out the s.1 apportionment exercise, he gave appropriate weight to all of the competing considerations and underlying policies. It was also held that the judge was right to give considerable weight to the blameworthiness of the defendant in exposing the deceased to asbestos where the dangers of asbestos were well known. By comparison, a lesser degree of blame attached to the deceased’s conduct in continuing to smoke. The judge concluded it was necessary to take into account the earlier period of innocent smoking and the medical uncertainty attaching to the impact and synthetic effect of the earlier period. The judge’s ruling on contributory negligence was upheld at 30%.