A person who develops lung cancer after coming into contact with asbestos may be entitled to compensation. However, smoking causes 80% of lung cancers. As a result, we ask – what happens when a lung cancer patient has been exposed to asbestos but has also smoked?

You can still make a claim if you are or were a smoker:

Compensation can still be claimed but it is likely that smokers may get a lower amount of compensation. Many workers who have been exposed to asbestos at work, also smoked because of the era they worked in and some studies have shown that asbestos exposure and smoking can lead to a greater risk of cancer than exposure to either separately.

Contributory negligence:

In some instances the court may consider smoking to be ‘contributory negligence.’ Contributory negligence is when a person has contributed to their situation/disease through their own actions.

The amount of contributory negligence will depend on various factors, including:

  • How much the smoker was advised to stop smoking.
  • How long and heavily the smoker smoked.

Importantly, each case is unique. We would advise that you speak to a specialist Solicitor about your own circumstances.

If smoking is considered to be ‘contributory negligence’ how much can it effect the amount of compensation you receive?

The court of appeal has recently handed down a judgement dealing with this issue in the case of Shirley Frances Blackmore (Executrix of the Estate of Cyril Leonard Hollow, Deceased) v Department for Communities and Local Government (2017).

Background to the case:

Mr Hollow was a decorator in the Devonport Dockyard. His work involved clearing asbestos off pipework and preparing and stripping asbestos in factories. Mr Hollow was exposed to asbestos dust for an estimated 20% of his 20-year employment at Devonport Dockyard. Sadly, he was never provided with a mask or any protective equipment.

Mr Hollow started smoking at the age of 14 in 1950 and smoked around 20 cigarettes a day until 2005, when he cut down to around 12 a day. He had attempted to give up completely a few times but was unable to. He received a warning to give up smoking in 1976 when he suffered a pneumothorax in his left lung.

Sadly, Mr Hollow developed symptoms of lung cancer in 2009 and died of the disease in 2010. In the original case his Solicitors successfully won his claim for asbestos-related lung cancer compensation. They argued that his asbestos exposure had played a part in the development of the disease. A fibre analysis of lung tissue which took place following the post mortem indicated a level of asbestos which was above the level at which the risk of contracting lung cancer doubles.

The Decision:

In the original case the Judge decided how much the compensation should be reduced by because Mr Hollow had contributed to his own risk of developing lung cancer by smoking. The Judge concluded that Mr Hollow’s compensation should be reduced by 30%.

He stated that, “the claimant was a smoker long before he commenced employment with the defendant and long before it was known to be a hazard to health. [The Claimant] does not have an extensive history of having been advised to stop. He tried to give up smoking twice and eventually cut down. Although the risk from smoking was probably between double and treble the risk of asbestos, having considered all relevant features I assess the degree of contributory negligence on the fact of this case at 30%.

The Court of Appeal agreed with the assessment. They repeated the opinion that the defendant was more to blame than the deceased was.

How can we help?

We always take a detailed smoking history when dealing with an asbestos-related lung cancer claim. This case demonstrates the importance of knowing the individual smoking history of a claimant.

If you require assistance in pursuing an asbestos-related lung cancer claim contact us today on Freephone number 0800 038 6767. Alternatively, head over to the ‘contact us’ page, complete the form, and we will be in touch.

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