Department for Communities and Local Government v Shirley Frances Blackmore (Executrix of the Estate of Cyril Leonard Hollow, Deceased) [2017] EWCA Civ 1136

Jacqueline Rubens, barrister at Invictus Chambers, on when employees may be judged as contributorily negligent to asbestos related deaths.

Asbestos related disease is highly prevalent in the UK. Legislation banning its use came into force in the mid 1980s, and asbestos related liability continues to be a headache for many manufacturers and insurers.

The sole issue in this case was the apportionment for contributory negligence due to the Claimant’s smoking, the Defendant having conceded causation and primary liability for his death. The post mortem asbestos fibre count had put the Claimant in the category of having double the risk of lung cancer.

The Court of Appeal ruled that an assessment for contributory negligence under section 1 of the Law Reform (Contributory Negligence) Act 1945 required consideration of blameworthiness along with causation to determine the proportion of a Claimant’s liability. They rejected the Defendant’s contention that the court should limit itself to assessing causation, even when the claimant’s blameworthiness had nothing to do with the risk that the employer was required to guard against, or his work, and agreed with the Judge’s finding that the Claimant should bear 30% of the liability.

The Claimant had smoked since 1950 when he was 14, and long before its harmful effects were known. From 1966 to 1986 he worked at a dockyard where for 20% of the time he was exposed to asbestos dust without the benefit of protective equipment at a time. The dangers of working with asbestos were known about at the time. He died of lung cancer in 2010.

Seasoned practitioners may wonder why this case reached the Court of Appeal. Soon after the 1945 Act came into force, and consistently thereafter, the parties’ relative blameworthiness has been a consideration for determining contributory negligence. In Davies v Swan Motor Co [1949] 2 KB 291 Lord Denning pithily observed, inter alia

“The amount of the reduction is such an amount as may be found by the court to be ‘just and equitable’ having regard to the claimant’s ‘share in the responsibility’ for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness.”

Furthermore, the Judge’s approach was consistent with the first three High Court decisions concerning reductions in damages for a smoking worker’s responsibility when there has been asbestos exposure. In one of those, Badger v Ministry of Defence [2005] EWHC 2941 Stanley Burnton J summarised the correct approach to the assessment of contributory negligence as follows at [16]:

“Once contributory negligence has been established, the court must take into account both the extent of the claimant’s responsibility for his injury and damage and the blameworthiness of his conduct as opposed to that of the defendant in deciding on the reduction in damages that is just and equitable. The decision as to the appropriate reduction in the claimant’s damages is to be dealt with in a broad, jury like and common sense way. . .”

The new point in this case arose from the Defendant’s argument that where apportionment between asbestos exposure and smoking of the relative risk of developing lung cancer can be established by epidemiological evidence, the court should directly apportion liability accordingly. Furthermore, it was unreasonable for the Defendant to bear most of the responsibility when the relative risk evidence established that 30% is less than half of the actual contribution that the court found the Claimant had made to the chance of contracting cancer through smoking.

The Defendant’s submission that blameworthiness should be excluded from consideration of the loss to be borne by the Claimant and only take into account causation was based on the Fairchild principle [Fairchild v Glenhaven Funeral Services Ltd [2003] 1 A C 32] as developed in the cases of Barker v Corus UK Ltd [2006] 2 A C 572 and Heneghan v Manchester Dry Docks [2016] 1 WLR 2036.

The Court of Appeal found that the analogy with Fairchild was flawed. The Fairchild principle applies where a claimant cannot prove causation of damage and establishes liability by reference to each defendant’s contribution to the increase in risk of the damage occurring. Liability between defendants is several, as opposed to joint. In circumstances where each defendant bears liability for the risk it posed, contributory negligence does not arise.

By contrast, this is a case in which liability was conceded on the basis of doubling of risk. This means that orthodox causation principles apply. Thus the Court of Appeal ruled at [35] that there is

“. . . no inconsistency between liability under the Fairchild principle, which is limited to the contribution made by the tortfeasor to the increase in risk of contracting the disease and where contributory negligence does not arise, and liability under the doubling the risk principle, where the tortfeasor has made a material contribution to the damage and is liable for the full extent of the loss subject to contributory negligence.”

The Court of Appeal also rejected the Defendant’s argument that blameworthiness should only come into play in determining responsibility arising from contributory negligence where the claimant’s fault falls within the scope of the act which the tortfeasor is expected to guard against. There was

“no reason in principle for drawing a general distinction between a claimant who contributes to his injury by conduct related to his work and one who contributes to his injury by conduct unrelated to his work. The concept of responsibility under section 1, incorporating tests of causative effect and blameworthiness, is broad enough and flexible enough to cover both situations and to give effect to the competing considerations in any given situation.”

This case is carefully consistent with legal precedent and serves to remind workplace employers that as a matter of law and policy considerable weight will be given to the blameworthiness of an employer in breach of a strict statutory duty to protect employees who work with asbestos.

 

Jacqueline Rubens