Asbestos lung cancer – Court stubs out defendant smoking argument

An asbestos lung cancer claim appeal to reduce compensation to the deceased’s family has failed. The judges rejected the defendants attempt to further reduce damages due to the deceased victims smoking history.

Asbestos Lung Cancer claim –  The Case Facts

The Court of Appeal has heard a claim in respect of the case brought for the family of Mr Leonard Hollow (Mr H). He was born in 1936 and from 1966 – 1986 he worked in the Devonport Dockyard as a decorator. Mr H had smoked from the age of 14 right through to 2005. He suffered a health scare and cut down but was still smoking at the end of his life.

He became ill in 2009 and died in October 2010 due to adenocarcinoma.

The First Decision

The case was firstly heard at Exeter County Court.The trial judge at that time undertook a careful assessment of the evidence. The fact that the deceased had been warned about stopping smoking for many years was considered. In previous cases parties have adopted a 20% deduction in lung cancer cases where a cancer victim had smoked. In the first instance decision the court reduced damages by 30%.

This Lung Cancer Appeal

In this appeal the Defendant tried to increase that deduction for contributory negligence even higher.

In particular the defendants argued that where someone had smoked this would have contributed to the risks of developing lung cancer to the same or a greater degree than from the underlying exposure to asbestos.

The defendants wanted a discount for contributory negligence between to 85 – 90% as they argued the far greater share of cause of the cancer was smoking.

The Appeal

The appeal was heard by the Court of Appeal. The three appeal judges considered the arguments raised by the defendants. They noted that when assessing whether to reduce damages for contributory negligence they were not limited simply to causation. Whilst an argument was made that the smoking made the condition more likely to happen the court also considered blameworthiness.

In particular the court supported the first judge decision to attach a significant amount of weight to the defendants blameworthiness in exposing Mr H to asbestos and breaches of duty when the dangers of asbestos were well-known. By the period 1966 -86 asbestos was a known workplace killer.  By contrast less blame was attached to Mr H’s smoking history taking into account he had a period of innocent smoking when the dangers of smoking were not so well known.

The Outcome

The court decided to leave the original decision alone. The Defendant appeal was dismissed. Damages had been agreed at £118, 000 from which the 30% deduction would be made.

Commentary – What have we learned?

Corries Director & Asbestos Manager Howard Bonnett said

“Any cases which highlight that asbestos can cause lung cancer is welcome. This was an interesting effort by the defendants to try and reduce damages further than has become the norm. These cases are worth significant sums of money. It is not surprising that the insurance companies and government departments who meet these cases will seek to challenge every aspect of them.

However it is vital and must not be forgotten that victims who develop lung cancer did so with exposure to asbestos entirely innocently. They have simply gone to work to try and earn a living. The exposure to asbestos in such cases has caused them ill health and death.

I believe that the reduction of damages by 30% is a hefty penalty in these cases. However the decision made by the Court of Appeal is not binding on all cases but is a marker of how the courts are thinking.

I welcome and encourage anyone who thinks that they have got lung cancer due to asbestos to come forward. There is a growing body of these claims which have often been ignored by doctors, coroners and government departments. Many thousands go un recognised and without any compensation each year.

This issue needs to be raised as over 4000 people a year are diagnosed or can die due to asbestos related lung cancer. Even those that claim and get their damages reduced will win significant sums. It is worth the fight.

If you or a family member have been diagnosed or died due to lung cancer in the last three years and think it might be due to asbestos then contact our specialist Asbestos Claims Team. We can give you a FREE no obligation assessment on (0800) 083 7839