In Blackmore -v- The Department for Communities and Local Government ( Exeter County Court 23rd October 2014 – reported on Lawtel) HH Judge Cotter Q.C. made important observations about issues of contributory negligence and apportionment in cases where the defendant is in breach of statutory duty to an employee.
This was a fatal accident claim where Mr Hollow died as a result of lung cancer. Liability was admitted for breach of duty and damages agreed. The sole issue was whether, and the degree to which, Mr Hollow’s smoking should lead to a finding of contributory negligence. This involved a consideration of the relative contribution to Mr Hollow’s death of smoking and lung cancer.
THE FINDINGS OF FACT
The judge had to consider the relative risks “RR” of asbestos and smoking. This was further complicated by the (agreed) facts that there was a lack of knowledge of the risks of smoking before the mid 1970s and that any calculation should ignore the contribution to risks of smoking before that date. This could not be done with precision.
The judge found that the relative risk for asbestos was towards the bottom of the range of 2 – 5 (asbestos) and 9.1 (smoking). That is the risk from smoking was considerably higher than the risk from asbestos.
THE JUDGE’S CONSIDERATION OF THE LAW
What then took place was a detailed and authoritative discussion of the legal principles relating to employer’s liability and contributory negligence. He concluded that:
- The assessment of an injured person’s share of the blame is carried out by consideration of their relative blameworthiness and the causative potency of the relevant act or omission.
- These are not precise or mutually exclusive tests.
- Causation is not the sole guide.
- When blameworthiness is considered it will usually be wrong to give equal weight to a breach of statutory duty and the claimant’s own failures on the other.
- The defendant should bear the lion’s share of responsibility in a case of prolonged breaches of statutory duty.
- Although the risk from smoking was probably between double and treble the risk from asbestos the degree of contributory negligence was assessed at 30%.
FINDING THE CASE
Browne Jacobson have a discussion of the case and a link to the transcript, available at Law Less Ordinary.