Legal News

Asbestos-related lung cancer claims and smoking

Date: April 01, 2019 by idu-net

Asbestos is certainly a potential cause of lung cancer but around 85% of all lung cancers are believed to be caused by smoking. Many people therefore believe that making some sort of claim for compensation that will help them in easing the effects of their illness is not worth making, since they think a court would find that “it’s their own fault”.

 

It is well established that people who smoke and are also  exposed to asbestos have a much higher risk of developing lung cancer than smokers who were not exposed to any form of asbestos –  one study were found smokers to be around fifty times more likely to contract the cancer in these circumstances than non-smokers.

 

Establishing cause

Asbestos-related lung cancer claims where the victim is a smoker therefore involve complex issues of causation. Where a claimant has smoked and been exposed to asbestos, how does a court decide which of those caused their cancer or to what extent it caused it?

In most asbestos-related lung cancer cases, it is generally accepted that the test to use is whether a claimant’s asbestos exposure, when considered in isolation, more than doubles the risk of developing lung cancer. But even if asbestos is found to have caused or contributed to the development of the lung cancer, the smoking history is not ignored.

 

Recent case example

A recent example of this is the case of Blackmore v Department for Communities and Local Government (2017). Mr Blackmore was exposed to asbestos at the Devonport Dockyard for at least five years, removing it and sweeping up after others’ activities. His employer accepted that they had negligently exposed him to asbestos and analysis of his lungs showed an asbestos fibre count above the level at which the risk of contracting lung cancer doubles. However, Mr Blackmore was also a moderate but long term smoker, with a 20 a day habit for around 60 years. The defendant employer maintained that the cancer was largely due to his smoking, arguing that his habit caused 90% of the cancer risk with the remaining 10% only due to their negligent asbestos exposure.

 

Contributory negligence

They used these figures to argue for a correspondingly huge 90% reduction in any compensation award. The court rejected those arguments. The judge maintained that the causes of lung cancer cannot be determined by a simple statistical analysis as the defendants tried to do here, but he did find that Mr Blackmore’s smoking was a contributory cause of the cancer, especially when he continued to smoke after the links between smoking and cancer were well established and well known.

A finding of 30% contributory negligence for smoking was upheld by the Court of Appeal in Mr Blackmore’s case, meaning that to total compensation awarded was reduced by that amount.  However, while his actions in continuing to smoke when he ought to have been aware of the risks were considered to be a contributory factor in his cancer, his was judged to be morally ‘less blameworthy’ than the wilful disregard his employers showed for his health and safety, so even with a finding of contributory negligence, the claim was still worth pursuing.

 

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