Can a claim be made for asbestos lung cancer when the worker smoked?
Navigating the legal terrain surrounding workplace-related asbestos exposure, including mesothelioma, is akin to unravelling a complex puzzle. In employment law, protecting workers’ safety and well-being is foundational. Picture this: you’re going about your job when, because of the nature of the work, you’re exposed to substances like asbestos. If you fall ill, the legal journey becomes essential to determine whether your employer bears responsibility.
Often in asbestos and mesothelioma compensation claims, the asbestos worker affected is elderly, usually in their late 60s and 70s if alive, or, if sadly deceased, the claim will usually be made by the next of kin, that is, wife, husband, partner or children of the deceased.
The background to the legal implications is set out below, but in short, a claim for asbestos-related lung cancer can be made, which includes a claim for compensation for mesothelioma. However, what if the worker who has contracted an asbestos condition has also smoked all his life? This raises complex questions of law and fact that need to be established by the mesothelioma solicitor in the claim.
The deduction for ‘contributory negligence’ (that is, the worker can also be found to be partly to blame for his lung cancer due to smoking) is taken from the case of Blackmore v The Department for Communities and Local Government. In that case, the Deceased had been a very heavy smoker, smoking 20 cigarettes a day from aged 14 until cutting down to 12 a day at the end of his life. He died aged 76 and was therefore a heavy smoker for over 50 years. He had also received explicit advice to stop smoking on a number of occasions, in particular after he had suffered a spontaneous pneumothorax of the left lung. There was scientific evidence in the case that most of the risk of lung cancer came from cigarette smoking at 85% to 90%. The Defendants sought to argue that there should be a deduction at this level notwithstanding earlier cases where the deduction had been at a much lower level. Both the Judge at First Instance and the Court of Appeal rejected this argument. Blackmore is the highest award of contributory negligence. The earlier cases, in particular Badger v The MOD (an asbestos worker refused to give up smoking and his compensation was reduced by 20%) and Shortell v Bical Construction, were at lower levels, 20% and 15% respectively.
In a recent case, an asbestos worker was smoking for most of his adult life with a habit of 10 to 15 cigarettes a day. This appears somewhat less than that in the Blackmore case. There is no evidence of specific warnings in the face of symptoms. Contributory negligence in this case was estimated at 20% to 25%. The asbestos worker was in his 70s and suffered for a matter of weeks before succumbing to the asbestos lung cancer. The compensation for the pain and suffering before death was assessed in the region of about £85,000. But due to the fact that the asbestos worker had smoked between 10-15 cigarettes for most of his life, it is anticipated that the compensation award would be reduced to £70,000 for the injury alone.
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