The Government has lost its appeal to reduce the damages paid to the family of an asbestos victim, who died after being exposed to the killer substance, because he was also a smoker.
Cyril Hollow worked as a general decorator at a Plymouth dockyard between 1966 and 1986 where he indisputably came into contact with asbestos.
But according to lawyers for the Department for Communities and Local Government, the fact that he smoked from the age of 14 until he died aged 74 in 2010 from lung cancer was the main reason for his death.
Back in 2014, Mr Hollow’s step-daughter, Shirley Blackmore, sued for damages on behalf of his estate and was awarded compensation of £80,000 – reduced by 30 per cent from almost £118,500 to take account of his smoking habit.
The court had heard that Mr Hollow had smoked 20 cigarettes-a-day and had smoked since he was 14. He had tried to give up twice without success but had cut down to 12-a-day. The judge conceded that he had started smoking “long before it was known to be a hazard to health”.
No dust mask or protective equipment
His work as a general decorator had involved significant contact with asbestos fibres, the court was told, including clearing asbestos from pipework and the stripping of asbestos in factories. About a fifth of his working time was spent in conditions where there was asbestos dust and the Court heard evidence that at no time in 20 years was he given a dust mask or any protective equipment.
The finding of the Court at first instance
Post mortem results confirmed sufficiently large amounts of asbestos in Mr Hollow’s lungs for the Court to find that the asbestos probably doubled or tripled the risk of developing cancer. However, as we all know, smoking also increases the risk of lung cancer and the Court found that smoking probably increased this risk five to six-fold.
Experts on both sides agreed that Mr Hollow’s death was caused by the combined effects of smoking and exposure to asbestos.
The defendant, the Department for Communities and Local Government, argued that there should be an 85% deduction for ‘contributory negligence’ because the Claimant smoked. In short, it argued that the lung cancer was overwhelmingly Mr Hollow’s own fault, and said it claimed it arrived at the figure of 85% by using statistical data.
If successful, this would have meant that the Claimant – or more precisely Mr Hollow’s family – would receive only 15% of what his claim was worth.
The judge rejected that argument and reduced the award by 30% for contributory negligence. The Department for Communities and Local Government appealed.
The Department for Communities and Local Government maintained that Mr Hollow was overwhelmingly to blame for his own death.
The Court of Appeal dismissed the appeal. In his judgment, Lord Justice Lloyd Jones found that the judge who awarded the original damages was “right to give very considerable weight to the blameworthiness of the employer in exposing its employee to asbestos in breach of a strict statutory duty in circumstances where the dangers of asbestos to health were well known”.
He concluded that Mr Hollow shared a lesser degree of blame for continuing to smoke after the health dangers became well known and added: “In all the circumstances, I consider that the judge’s apportionment of contributory negligence at 30 per cent was well within the range of options open to him”.
Implications and thoughts
It is well established that smoking causes lung cancer. Even if we do not smoke, we are still at some risk. Smoking and asbestos exposure means that we are significantly more at risk.
Mr Hollow started smoking when he was a child and before the risks of smoking were commonly known. The first health warnings on cigarette packets were in 1971. He tried to give up and anyone who has smoked will tell you that this can be incredibly difficult or, for some, impossible.
The smoking contributed substantially to the risk, but there is a deeper question here – was Mr Hollow to blame for the fact he was addicted to cigarettes, a habit which started as a child before the risks of smoking were known? Can he really be said to have been negligent? Was he negligent for not being able to overcome an addiction to cigarettes?
Set this against the employer who knew or should have known at the time of the risks of asbestos causing cancer, whose negligence is fully established. Mr Hollow’s employer had very clear and specific duties to Mr Hollow, knowing that if it did not fulfil those duties Mr Hollow would be at risk of a fatal or debilitating illness.
One needs to also consider the interaction between the risks associated with asbestos and smoking. Studies show that risk of the two combined is significantly greater than simply adding the percentage risks together. Mr Hollow’s overall risk of developing lung cancer was likely to have been much greater as a result of the asbestos exposure.
An HSE study found that ‘asbestos workers who stopped smoking remained at an increased risk of lung cancer mortality up to 40 years after smoking cessation’. Therefore, even if Mr Hollow had been able to stop smoking, the increased risk would not have gone away entirely.
The Courts have clearly and consistently indicated that there should be some degree of contributory negligence in cases where asbestos victims also smoked. Fortunately, at present the Court agrees that the balance of fault should lie with the employer, not the employee, and the victim and their families should be entitled to receive the substantial majority of the value of their claims.
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