We all know that smoking significantly increases the risk of a person developing lung cancer. Exposure to significant levels of asbestos also increases the risk. The effect of the two things together, smoking and exposure to asbestos, has what is known as a synergistic effect. This means that the two components work together to increase the risk even further than each individual one has on its own.

Many of our clients have smoked in the past given the popularity of smoking in years gone by. In 1962, the statistics show that over 80% of British men and 40% of British women smoked. Even by 1974, 45% of the British population still smoked. A person’s smoking history is always considered in an asbestos disease claim with the effects on a person’s health from smoking being taken into account when looking at the cause of a person’s breathless, symptoms or disease, and when valuing a claim for compensation.

Often people diagnosed with lung cancer who have both smoked in the past and been exposed to asbestos are concerned that their smoking history will prevent them from being able to make a claim.  In circumstances where a person has been heavily exposed to asbestos in the past and has smoked, the exact opposite is true because of the synergistic effect referred to above.

Contributory negligence

However, the fact that a person has smoked, and the contribution that has made to the development of lung cancer, means that it is open to the Defendants in a claim to argue what is known as “contributory negligence”. This means that the Defendants can argue that a Claimant was also, in part, responsible for the lung cancer developing, and the blame should be shared.

We were recently instructed in a lung cancer claim where this very issue was considered in depth at the time that the compensation negotiations were taking place. The Defendant insurers accepted that the Defendant was at least in part responsible for the lung cancer developing, and agreed to pay compensation to the Claimant, but argued that the amount should be discounted as a result of the smoking history.

Legal Arguments

The Defendant insurers argued that the amount of compensation to be paid should be reduced by 30%. This was on the basis that the sufferer had been a longstanding heavy smoker until as recently as 2009, long beyond the time when the dangers of smoking were well known. The insurers relied upon the well-known case of Shirley Frances Blackmore (Executrix of the Estate of Cyril Leonard Hollow, deceased) v Department for Communities & Local Government (2017). In this case, the deceased had been, as in our own claim, a heavy smoker. He had started smoking at the age of 14 but continued until his death at the age of 74. Contributory negligence was assessed at 30%.

We argued on behalf of our client that the discount should be much lower based on the fact that our client had given up smoking several years prior. We also considered and referred the Defendant insurers to decisions which had been made in similar cases which had gone to Court previously over the years.

We firstly referred the Defendant insurers to the 2019 case of Kristian Lee Hanbury (Administrator of the Estate of David Jack Hanbury, deceased) and Hazel Raye Hanbury v Hugh James Solicitors. This was actually a professional negligence claim in which the Court was considering the value of the potential claim which had been lost out on. The deceased had been described as having a “moderate cigarette consumption” and the Court discounted the value of the claim by 20% as a result of the smoking history.

We also referred to the case of John Shortell (Executor of the Estate of John Joseph Shortell, deceased & Litigation Friend of Eileen Shortell) v Bical Construction Ltd (Sued as successor of BIC Construction Ltd)(2008). This case concerned a man who had been a smoker for a number of years but had given up more than 20 years before his death. He had smoked 15 to 20 cigarettes a day for “many years” before then. Contributory negligence in that case was assessed at 15%.

Finally, we considered the earlier case of Beryl Badger v Ministry of Defence (2005) in which a wife’s claim for damages following her husband’s death from lung cancer, was reduced by 20% on account of his smoking history. Her husband had smoked for the majority of his life and had received a number of warnings about the damage that his continued smoking was causing to his health. It was also argued that the government had issued the first health warnings about smoking in the 1970s and despite all the warnings, he continued to smoke. However, it was held that the deceased could not be criticised for having started smoking as when he began smoking the link between smoking and serious health issues was not widely accepted. The deceased’s fault lay in not giving up smoking when he knew about the dangers. The appropriate discount to compensation was felt to be 20%.

Successful outcome

In our claim we successfully persuaded the Defendant insurers, on the basis of the above cases, to agree to reduce the discount to 20%. Our client had successfully given up smoking albeit after previously being a heavy smoker, and we argued that this should be taken into account. This resulted in the Claimant receiving significantly more compensation than had initially been offered.

If you require assistance in pursuing an asbestos compensation claim for lung cancer, mesothelioma or other asbestos disease then please contact us today on our 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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