The Department for Communities And Local Government v Blackmore (Rev 1) [2017] EWCA Civ 1136

[2017] EWCA Civ 1136Case No B3/2015/0299
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
HHJ COTTER QC
2YM53819
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/07/2017
Before
LORD JUSTICE LLOYD JONESLORD JUSTICE DAVID RICHARDSLORD JUSTICE MOYLAN
Between
THE DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENTAppellantSHIRLEY FRANCES BLACKMORE (Executrix of the estate of CYRIL LEONARD HOLLOW, deceased)Respondent
Russell Fortt (instructed by Government Legal Department) for AppellantGabriel Farmer (instructed by Gard & Co., Plymouth) for RespondentHearing Hearing date : Thursday 15 June 2017
Judgment ApprovedLORD JUSTICE LLOYD JONES :
[1]Mr. Cyril Leonard Hollow, who was born on 7 October 1936, was employed between 1966 and 1986 by the appellant’s predecessor departments in the Devonport Dockyard as a general decorator. His work involved significant contact with asbestos fibres, including clearing off asbestos from pipework and the preparation and stripping of asbestos in factories. Approximately 20% of his working time was spent in conditions where there was asbestos dust. At no time during the 20 years was he provided with a dust mask or any protective equipment.[2]Mr. Hollow started smoking in 1950, when aged 14. He smoked around 20 cigarettes a day, until approximately 2005 when he cut down to about 12 cigarettes a day. He tried to give up on two occasions but was unable to do so. In 1976 he was advised to stop smoking after a spontaneous pneumothorax in his left lung, a condition which later resolved.[3]His lung cancer became symptomatic in 2009 and he died on 28 October 2010 aged 74 years of adenocarcinoma of the lungs with metastes. Mineral fibre analysis of the lungs post mortem indicated a quantity of total retained asbestos fibre count above the level at which the risk of contracting lung cancer doubles.[4]Claims in negligence and for breach of statutory duty were brought by his estate (“the respondent”) against the Department for Communities and Local Government (“the appellant”) whose predecessors were responsible for Mr. Hollow’s employment. On the basis of the fibre analysis, the appellant conceded causation and primary liability for death. Damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 were agreed in the sum of £118,460.57. The case came before HHJ Cotter QC in the Exeter County Court on the sole issue of what apportionment, if any, there should be for contributory negligence as a result of Mr. Hollow’s smoking. The judge assessed contributory negligence at 30%.[5]The appellant now appeals against that order.

Relevant legislation

[6]Section 1, Law Reform (Contributory Negligence) Act 1945 provides in relevant part:
“1. Apportionment of liability in case of contributory negligence Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”

The proceedings below

Judge Cotter identified the specific issues requiring determination as follow:

[7](1) What were the relative contributions to the deceased’s death of smoking and asbestos exposure?(2) Is the court entitled or bound to calculate the deduction for contributory negligence by reference to a mathematical calculation as to relative contribution to risk?[8]The experts, Dr. Hughes (the consultant instructed on behalf of the claimant) and Dr. Thomas (the consultant instructed on behalf of the defendant) agreed on the following matters(1) Death was caused by the combined effects of smoking and exposure to asbestos.(2) Tobacco smoke is the most common cause of cancer of the lungs. Exposure to asbestos is the second most common cause. Further, given his history of smoking, the deceased’s relative risk of developing adenocarcinoma of the lung was ten fold that of a non-smoker.(3) Tobacco smoke and asbestos exposure work in a synergistic manner in the causation of lung cancer and the precise cellular mechanisms of this synergy are not fully understood.(4) By reason of this synergy the deceased’s risk of the development of lung cancer as a smoker exposed to asbestos was greater than a simple additive effect. Rather, the approach should be multiplicative.[9]There was, however, a significant difference of opinion between Dr. Hughes and Dr. Thomas as to the relative contribution to risk made by smoking and exposure to asbestos. Dr. Thomas considered that an increase in the risk of development of the condition can be expressed by using the concept of relative risk (“RR”) i.e. the incidence of the condition in an exposed population divided by the risk of an unexposed group. Dr. Thomas concluded that the RR for smoking was 9.1 and that for asbestos exposure was 2.1. Given the multiplicative effect, Dr. Thomas’s figures give a combined RR of 19.11. These figures were relied upon by Mr. Fortt on behalf of the defendant, as directly setting the appropriate level of contributory negligence. This would result in a very large deduction for contributory negligence in the region of 85% to 90%.[10]Dr. Hughes, however, considered that any approach to assessing relative contribution or apportionment must take into account the fact that cancer is an indivisible injury and a result of a biological process that is not fully understood and probably varies from individual to individual. Furthermore, not only is the mechanism of the synergy unknown, but also any precise calculation based solely on analysis of smoking and exposure to asbestos must be inaccurate as there must logically be other factors at play. (Otherwise all individuals with similar histories of smoking and exposure to asbestos would die of cancer). As a result it was his view that the RR for asbestos exposure was between 2 and 5 i.e. somewhere between a doubling and a five fold increase in risk. During cross-examination he clarified his position, stating that the RR for asbestos was nearer 2 than 5.[11]In the course of a detailed and closely reasoned judgment, the judge accepted Dr. Hughes’s reservations concerning over-reliance in an individual case upon the mathematical analysis put forward by Dr. Thomas, given the current level of medical knowledge. Any approach to assessing relative contribution or apportionment must take into account that cancer is an indivisible injury and that there were possibly other factors at play. Moreover, he considered that Dr. Thomas’s analysis claimed a degree on certainty and accuracy, beyond that required to determine the issue of causation, that could not be seen as wholly reliable and firmly based on a good understanding of the processes at play. The judge justified this cautious approach by reference to the views expressed in Shortell v BICAL, Unreported, 16 May 2008,by MacKay J. and in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 by Lord Rodger at [163] and Lord Mance at [191]. Judge Cotter considered that reliance could be placed on the analysis of relative risk but that it could only be used as a basic broad guide and with caution.[12]The judge considered that given the lack of knowledge of the dangers of smoking prior to the mid 1970s, any calculation should ignore the contribution to risk of smoking prior to that date (i.e. taking into account only the additional risk posed by smoking after that date), and also build into the assessment of relative risk, as against asbestos, the additional synergistic effect of the combination of asbestos exposure and tobacco for the ten years prior to the mid 1970s. In the judge’s view this simply could not be done with the precision put forward by Dr. Thomas. As a result he considered that it would be wrong to proceed on the assumption that the precise calculation based on relative risk for smoking and exposure to asbestos produced by Dr. Thomas was a sufficiently reliable accurate assessment of the biological processes at play that it could, let alone should, translate directly into an apportionment of contributory negligence. Given the limits of scientific knowledge it could only provide broad guidance as to relative contribution.[13]The judge further found that the relative risk figures suggested by Dr. Thomas should be viewed with caution.(1) Dr. Thomas used a relative risk figure for asbestos exposure relating to that generally expected for painters. However the evidence suggested that Mr. Hollow’s exposure to asbestos was much greater than would usually be expected in relation to painters.(2) The risk arising from the fact that Mr. Hollow had already been smoking for 25 years before the dangers of smoking were known (“innocent smoking”) and the fact that starting smoking early in life increased the risk of lung cancer, needed to be taken into account when considering the relative risk factor for the 35 years of “guilty smoking”. The years of innocent smoking presented a continuing risk which should properly reduce the risk factor attributable to the subsequent 35 years. Furthermore, a tortfeasor takes a complainant as he finds him and Mr. Hollow was exposed to asbestos for many years during which his smoking was innocent.[14]For these reasons the judge used as broad guidance to relative contributions to risk an RR for asbestos towards the bottom of the range 2 – 5 and an RR for smoking between 5.5 and 9.1.[15]In rejecting Mr. Fortt’s central submission that the relative figures should be directly translated into a finding of contributory negligence, the judge considered that the key concept introduced by the 1945 Act was the requirement to consider the fault of the person suffering the damage in a comparative process with the fault of the tortfeasor. That comparative process should recognize respective duties, powers and resources. The imposition of a high standard upon an employer in any comparative assessment in an employer’s liability case reflected the decision to impose such a duty in the first place. Hence in any case of breach of statutory duty the court had to have very clearly in mind the reasons why the duties that go beyond best endeavours are imposed by statute. When undertaking the comparative process courts had repeatedly underlined the need to reflect the importance of compliance with statutory duties. (Toole v Bolton Metropolitan Borough Council [2002] EWCA Civ 588 per Buxton L.J. at [13]). This reflected a long established, broad rule of thumb that if a causative breach of statutory duty by the employer was established any finding of contributory negligence should not normally exceed 50%. The judge rejected the approach for which Mr. Fortt contended, on the basis that it limited the concept of blameworthiness to no more than a statement of the extent to which the person contributed to the damage. It accorded no extra weight to the fact that the employer was in breach of statutory duty. It simply equated the blameworthiness arising from the breach of such a duty with the employee’s breach of his duty of care to himself. The judge regarded that submission as wrong in principle.[16]The judge therefore assessed Mr. Hollow’s share in the responsibility for the injury through consideration of his relative blameworthiness and the causative potency of his conduct. However these were not precise or mutually conclusive tests. Causation could not be the sole guide. Furthermore, when blameworthiness is considered it would usually be wrong axiomatically to give equal weight to a breach of statutory duty on the one hand and a claimant’s own failures on the other. The judge observed, echoing MacKay J. in Shortell v BICAL:
“… that the defendant should bear the lion’s share of responsibility in a case of prolonged breaches of statutory duty such as this is a proposition which does not give me pause.”

The judge then expressed his conclusion on contributory negligence as follows:

“Here 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. He does not have an extensive history of having been advised to stop, 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 facts of this case at 30%.”

The appeal

[18]There is now only one ground of appeal which Mr. Fortt has formulated as follows:
“The conclusion when considering the amount of contributory negligence that the defendant should bear the lion’s share of responsibility even where the court concludes that the evidence shows that the claimant’s smoking was a greater contribution to the cancer than asbestos exposure is wrong in law.”
[19]Thus the appellant does not seek to challenge the conclusion of the judge that the relative contributions to the increase of risk were an RR for asbestos towards the bottom of the range 2-5 and an RR for smoking between 5.5 and 9.1. However, the appellant does challenge the judge’s failure to translate those figures directly into an apportionment of liability on grounds of contributory negligence.[20]The essence of Mr. Fortt’s submission is that, the judge having been able to determine the comparable relative risks from the two causes with a degree of precision, that should have been reflected directly in the apportionment of responsibility on the ground of contributory negligence. He submits that the result of the judgment below is that “the reduction in the claimant’s damages of 30% is less than half of the actual contribution that the court found he had made to the relative risk of contracting cancer through his smoking”.[21]The argument before us was devoted entirely to the question whether the appellant was justified in seeking to limit the concept of responsibility under section 1 of the 1945 Act in this way to considerations of causation and, in particular, whether considerations of blameworthiness could properly be excluded in the particular circumstances of this case.[22]The case law on section 1 established at an early stage that responsibility is a broad concept which includes consideration of both causation and blameworthiness. In Davies v. Swan Motor Co. [1949]2 KB 291 Denning LJ observed (at p. 326):
“Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction is such an amount as may be found by the court to be "just and equitable," having regard to the claimant's "share in the responsibility" for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness. The fact of standing on the steps of the dustcart is just as potent a factor in causing damage, whether the person standing there be a servant acting negligently in the course of his employment or a boy in play or a youth doing it for a lark: but the degree of blameworthiness may be very different.”
Similarly in Stapley v. Gypsum Mines [1953] AC 663, Lord Reid expressed the same idea in rather different terms (at p. 682):
“A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party but “the claimant’s share of the responsibility for the damage” cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness.”
[23]Nevertheless, Mr. Fortt submits, first, that considerations of blameworthiness should come into play in determining responsibility arising from contributory negligence only where the fault of the claimant falls within the scope of the very act which the employer or tortfeasor is expected to guard against. In this regard, he relies on the following passage in the speech of Lord Hoffmann in Reeves v. Commissioner of Police of the Metropolis [2000] 1 AC 360, at p. 371, which it is necessary to set out in full. “Thirdly, Buxton L.J. referred to cases under the Factories Acts, in which appellate judges have warned against allowing the legislative policy in imposing an absolute duty on the employer to be undermined by too readily allowing a defence of contributory negligence. He quoted Goddard L.J.'s remarks in Hutchinson v. London and North Eastern Railway Co. [1942] 1 K.B. 481 , 488:
"It is only too common to find in cases where the plaintiff alleges that a defendant employer has been guilty of a breach of a statutory duty, that a plea of contributory negligence has been set up. In such a case I always directed myself to be exceedingly chary of finding contributory negligence where the contributory negligence alleged was the very thing which the statutory duty of the employer was designed to prevent."
It is important to notice that these remarks were made before the Act of 1945 was passed. It is not surprising that judges, faced with an all or nothing decision between the policy of the Factories Acts and the common law rule which made contributory negligence a complete defence, should have given priority to the legislative policy even if in practice it often meant overriding the common law rule. But Goddard L.J. did not say that contributory negligence could not in principle be a defence and it has always been recognised as such. Buxton L.J., at p. 182, also quoted an observation of Lord Tucker in Staveley Iron & Chemical Co. Ltd. v. Jones [1956] A.C. 627 , 648 after the Act of 1945 had come into effect: ” "in Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute." This citation performs the valuable function of reminding us that what section 1 requires the court to apportion is not merely degrees of carelessness but "responsibility" and that an assessment of responsibility must take into account the policy of the rule, such as the Factories Acts, by which liability is imposed. A person may be responsible although he has not been careless at all, as in the case of breach of an absolute statutory duty. And he may have been careless without being responsible, as in the case of "acts of inattention" by workmen. I shall return to this point when I consider the proper apportionment of responsibility in this case. But the two citations do not support the view that contributory negligence can in principle have no application when the plaintiff's carelessness is something which the defendant had a duty to guard against. It is commonly the case that people are held liable in negligence for not taking precautions against the possibility that someone may do something careless and hurt themselves, like diving into a shallow swimming pool, but I do not think it has been suggested that in such cases damages can never be reduced on account of the plaintiff's contributory negligence.” "It is only too common to find in cases where the plaintiff alleges that a defendant employer has been guilty of a breach of a statutory duty, that a plea of contributory negligence has been set up. In such a case I always directed myself to be exceedingly chary of finding contributory negligence where the contributory negligence alleged was the very thing which the statutory duty of the employer was designed to prevent." "in Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute."[24]In this passage Lord Hoffmann is addressing one specific situation in which the policy of imposing liability on the tortfeasor may properly be reflected in the degree of blameworthiness to be attributed to the claimant. However, I do not understand Lord Hoffmann to be limiting the relevance of respective blameworthiness to situations where the claimant’s fault falls within the scope of a duty on the tortfeasor to avoid a risk of such conduct by the claimant. On the contrary, he states in very general terms the principle that the assessment of responsibility must take into account the policy of the rule by which liability is imposed. Furthermore, the other authorities cited above make clear that, in general, the apportionment of responsibility under the 1948 Act requires that account be taken not only of causative potency but also of blameworthiness. To my mind, the legislative intention was to create a general rule capable of flexible application to all types of case.[25]In a similar vein, Mr. Fortt draws attention to the fact that the contributory negligence on the part of the claimant was entirely unrelated to his work or to the duty owed by the defendant. However, I can see no reason in principle for drawing a general distinction between a claimant who contributes to his injury by conduct related to his work and one who contributes to his injury by conduct unrelated to his work. The concept of responsibility under section 1, incorporating tests of causative effect and blameworthiness, is broad enough and flexible enough to cover both situations and to give effect to the competing considerations in any given situation. While it may well be appropriate in a given case to accord less weight to contributory negligence arising in the context of the tortfeasor’s duty e.g. a failure to wear a protective mask, I do not consider that it is possible to construct a general principle that in all cases greater weight should be attributed to negligent conduct outside the scope of the employer/ employee relationship. Whether it is appropriate to do so will depend on the facts of each case.[26]In a further attempt to persuade the court that considerations of blameworthiness should not be permitted to influence the apportionment of liability under section 1 of the 1945 Act, Mr. Fortt then submitted that in cases where the contribution made by the fault of the claimant “does not arise out of a risk [in respect of] which public policy demands an employer should bear the lion’s share of damages”, there is no sensible reason to draw a distinction between the approach to apportionment of liability under section 1 of the 1945 Act and to an apportionment under section 2 of the Civil Liability (Contribution) Act 1978. Here he draws attention to the fact that both provisions use similar language. Section 2 of the 1978 Act provides:
“2 (1). Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”
[27]Notwithstanding the similarity of language employed, I do not consider that a comparison with section 2 of the 1978 Act assists in the present case. The approach to the application of section 1 of the 1945 Act as developed in the case law is self-contained and permits weight to be given to considerations of causation and blameworthiness as appropriate in each case. It may well be that different considerations will apply when apportioning liability between tortfeasors under the 1978 Act. In the course of his submissions Mr. Farmer submitted that under the 1978 Act the blameworthiness of tortfeasors may often be equal with the result that causation may assume greater significance but that that is unlikely to occur as between claimant and tortfeasor, especially in employment cases, where duties, powers and responsibilities will often vary markedly. Be that as it may, I do not consider that section 2 of the 1978 Act casts any light on the task which the judge was required to perform in the present case.[28]By far the greater part of the hearing before us was taken up with a comparison which Mr. Fortt sought to draw between the apportionment of liability under the 1945 Act and the extent of recoverability under the principle established in Fairchild v. Glenhaven Funeral Services Ltd. [2003] 1 AC 32 and developed in Barker v. Corus UK Ltd. [2006] 2 AC 572. Here Mr. Fortt submitted that the approach of the House of Lords in Barker v. Corus, although confined to Fairchild–type cases, suggests that the courts should be prepared in appropriate cases to rely on epidemiological data to evaluate the appropriate apportionment of damages on grounds of contributory negligence. He draws attention to the fact that in Heneghan v. Manchester Dry Docks [2016] 1 WLR 2036 this court concluded that the Fairchild approach was equally applicable to lung cancer cases. He submits that it therefore follows that the Barker approach to apportionment of damages by reference to epidemiological data is sustainable in lung cancer cases where the relative apportionment of damage between asbestos exposure and smoking is determined by reference to the contribution to risk that each posed.[29]In Fairchild the claimants had been exposed to asbestos during successive periods of employment with more than one employer and each contracted mesothelioma. The claimants were able to establish that their exposure to asbestos had caused their disease but were unable to establish which exposure or exposures had had causative effect. The House of Lords admitted an exception to the standard principles of causation and accepted that, in the particular circumstances of that case, proof that a defendant employer had materially contributed to the risk of contracting the disease was sufficient to satisfy the causal requirements for his liability. The full implications of this novel approach were not worked out in that decision. In particular, Fairchild did not deal with the question of apportionment between defendants. That was addressed in Barker v. Corus. There, the claimant’s husband, who died of mesothelioma, had been exposed to asbestos at three periods in his working life, first while working for a company that had become insolvent, secondly while working for the defendant company and thirdly while self-employed. The House of Lords held that where more than one person had been in breach of duty and might have been responsible, liability should be attributed according to the defendant’s relative contribution to the risk that the employee would contract the disease. It was irrelevant whether the other exposure was tortious or not or whether it was caused by the employee himself.[30]The present case is not a Fairchild-type case. Liability was admitted by the defendant not on the basis of the Fairchild principle but on the basis of the doubling of the risk principle. This principle was explained by Lord Dyson MR in Heneghan as follows: “The “doubles the risk” test is one that applies epidemiological data to determining causation on the balance of probabilities where medical science does not permit determination with certainty of how an injury was caused. If statistical evidence shows that a tortfeasor more than doubled the risk that the victim would suffer the injury it follows that it is more likely than not that the tortfeasor caused the injury.” (at [8])[31]In the present case Judge Cotter explained that mineral fibre analysis of the claimant’s lungs post mortem revealed a retained amphibole asbestos fibre count of 2.49 million fibres/gm dry lung tissue. A count of 2.2 million or more is considered sufficient to attribute causation in cases of lung cancer because at this level the risk doubles. Hence the concession on causation.[32]Mr. Fortt submits that there is a close analogy between the two situations. In a Fairchild-type case the liability of each defendant would be limited to his personal contribution to the increase in risk of contracting the disease. He submits that the same principle should apply here where liability was based on a doubling the risk test. In particular, he submits that where a defendant is liable on a doubling the risk basis any apportionment for contributory negligence should proceed solely on the basis of the respective contributions made by claimant and defendant i.e. a causation test. Here he points to the facts of Heneghan where the judge suggested that an absent defendant could have been liable on a doubling of the risk basis. He submits that it would be highly anomalous if an employer liable under the Fairchild principle were liable only to the extent that his conduct contributed to the increase in risk (i.e. purely a causation test) whereas an employer liable under the doubling the risk test in a case where there was contributory negligence would be subject to a less favourable basis of apportionment between him and the claimant which took account not only of causation but also of blameworthiness.[33]I note, in passing, that the question whether one in a series of employers might be held liable on ordinary principles on the basis of epidemiological evidence showing that the employer was responsible for a doubling of the relevant risk, alongside other employers whose liability depended on the application of the Fairchild principle and, if so, what the effect might be in terms of the recoverability of damages against each of them, was expressly left open in Heneghan. (See Sales LJ at [55].) However, whatever the position may be in that regard, I am satisfied that Mr. Fortt’s submission is flawed because it is based on a false analogy. The Fairchild principle applies in certain cases where a claimant cannot prove causation of damage and, exceptionally, establishes liability by reference to each defendant’s contribution to the increase in the risk of the damage occurring. Barker v. Corus establishes that liability under this principle is several as opposed to joint and several. Accordingly each defendant is liable only to the extent that he has caused an increase in the risk of the damage occurring. As a result, questions of contributory negligence never arise. In Barker v. Corus Lord Hoffmann explained the situation as follows (at [47]):
“… [I]f the defendant is deemed to have caused the mesothelioma but the claimant, like Mr Barker, was himself responsible for a significant period of exposure, the court may find that he did not take adequate care for his own safety or was in breach of safety regulations and, as Moses J did in the Barker case, reduce the damages for contributory negligence. On the other hand, if liability is several, there is no question of contributory negligence any more than of contribution. A defendant is liable for the risk of disease which he himself has created and not for the risks created by others, whether they are defendants, persons not before the court or the claimant himself.”
[34]By contrast, liability on the basis of doubling the risk is founded on orthodox principles of causation. It proceeds by drawing an inference from the increase in risk of contracting the disease that the agent in question was a cause of the disease. (Novartis Grimsby Ltd. v. John Cookson [2007] EWCA Civ 1261 per Janet Smith LJ at [74]; Heneghan per Lord Dyson MR at [8].) Where liability is established in this way, a defendant who has made a material contribution to the damage is, prima facie, liable for the full extent of the damage suffered (Bonnington Castings Ltd. v. Wardlaw [1956] AC 613). It is at this point that questions of contributory negligence may arise.[35]There is therefore, to my mind, no inconsistency between liability under the Fairchild principle, which is limited to the contribution made by the tortfeasor to the increase in risk of contracting the disease and where contributory negligence does not arise, and liability under the doubling the risk principle, where the tortfeasor has made a material contribution to the damage and is liable for the full extent of the loss subject to contributory negligence. I can, therefore, see no good reason, when determining responsibility under section 1 of the 1945 Act in cases such as the present, to limit consideration to matters of causation or to deny any role to blameworthiness.[36]In these circumstances it is not necessary to consider whether Fairchild has any application in circumstances such as those of the present case where the contributory causes represent different agencies.[37]For these reasons, I consider that the judge was correct to reject the submission on behalf of the appellant that apportionment on grounds of contributory negligence should be in the proportions by which exposure to asbestos and smoking increased the risk of contracting lung cancer.[38]The correct approach to the assessment of contributory negligence was, to my mind, helpfully summarised by Stanley Burnton J., as he then was, in Badger v. Ministry of Defence [2005] EWHC 2941 as follows (at [16]):
“… [O]nce contributory negligence has been established, the court must take into account both the extent of the claimant’s responsibility for his injury and damage and the blameworthiness of his conduct as opposed to that of the defendant in deciding on the reduction in damages that is just and equitable. The decision as to the appropriate reduction in the claimant’s damages is to be dealt with in a broad, jury like and common sense way: …”
[39]In carrying out the apportionment exercise under section 1 of the 1945 Act the judge in the present case gave what I consider to be appropriate weight to all of the competing considerations and underlying policies. Had his approach been limited to an assessment of relative contributions to causation, it would necessarily have failed to differentiate between the blameworthiness of the employer in exposing employees to asbestos and that of the employee in smoking. I agree with the judge that such an approach would have been wrong in principle. There is a particular policy underlying Parliament’s strict prohibition of the exposure of workers to asbestos and other harmful substances which needs to be reflected in the apportionment of responsibility. Here the judge was right to give very considerable weight to the blameworthiness of the employer in exposing its employee to asbestos in breach of a strict statutory duty in circumstances where the dangers of asbestos to health were well known. By comparison, a lesser degree of blame attaches to the conduct of Mr. Hollow in continuing to smoke after the dangers of smoking to health became known. Moreover, as the judge concluded, it was necessary to take account of the earlier period of innocent smoking and the medical uncertainty attaching to the impact and synergistic effect of that earlier period of innocent smoking. In all the circumstances, I consider that the judge’s apportionment of contributory negligence at 30% was well within the range of options open to him.[40]I also note that the judge’s approach is entirely in conformity with that adopted in three first instance decisions in the High Court concerning responsibility in cases of exposure to asbestos by a worker who smokes, to which he referred in his judgment (Badger v. Ministry of Defence [2005] EWHC 2941 (QB), (Stanley Burnton J.); Shortell v. BICAL Construction Ltd., Unreported, 16 May 2008, (Mackay J.); Horsley v. Cascade Insulation Services Limited [2009] EWHC 2945 (QB), (Eady J.)) and that the reduction for contributory negligence at which he arrived is consistent with the reductions in those cases.

Conclusion

[41]For these reasons I would dismiss the appeal.

LORD JUSTICE DAVID RICHARDS :

[42]I agree.

LORD JUSTICE MOYLAN :

[43]I also agree.