Judge takes common sense balance

Posted: 14th August 2017

SmokingNowadays the public is made well aware that smoking is not good for you, but that was not the case in the 1950s and earlier at a time when thousands of people were exposed to asbestos. That point was made in an important test case in which the Court of Appeal analysed the level of blameworthiness to be attached to those who fail to kick their tobacco habit.

The case concerned a dockworker who was aged 74 when he died from lung cancer. He had started smoking when he was aged 14 in 1950. He had managed to cut down from 20 to 12 cigarettes a day later in life but had continued to smoke against his doctor’s advice.

There was no dispute that he had been exposed to asbestos in the course of his work at the dockyard between 1966 and 1986. A post-mortem revealed quantities of asbestos fibres in his lungs that would have doubled the risk of him contracting lung cancer. In those circumstances, his stepdaughter – on behalf of his estate – launched proceedings against the Department for Communities and Local Government, who had inherited the liabilities of the dockyard’s operators.

A judge upheld her claim and awarded her about £80,000 in damages. The payout was reduced by 30 per cent, however, to take account of the man’s contributory negligence in continuing to smoke after he had been advised to stop. In a case that raised novel points of law, the Department challenged that decision on the basis that the reduction should have been between 85 and 90 per cent. It was submitted that the danger to the man’s health from smoking was probably between two and three times the risk posed by asbestos.

In dismissing the appeal, however, the Court found that the judge had been right not to focus exclusively on the respective contributions of smoking and asbestos to the man’s death. He had correctly taken a common-sense approach in balancing the man’s blameworthiness against that of the dockyard’s operators.

The Court noted that the man had started smoking long before the habit was known to pose a hazard to health. The judge had rightly placed very considerable weight on the operators’ breaches of duty in exposing him to asbestos and the fact that, by the time he began work at the dockyard, the dangers of asbestos were well known. Despite that, he had not been provided with a dust mask or any other protective equipment.