Badger v The Ministry of Defence [2005] EWHC 2941 (QB)

Case No HQ05X01428

[2005] EWHC 2941 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16 December 2005

Before

MR JUSTICE STANLEY BURNTON

Between

BERYL BADGERClaimant

THE MINISTRY OF DEFENCEDefendant

Christopher Goddard (instructed by Bond Pearce LLP) for Claimant

Wendy Outhwaite (instructed by Beachcroft Wansbroughs) for Defendant

Hearing Hearing dates: 22, 23 November 2005

Judgment

Introduction

[1]The Claimant is the widow of Reginald Badger, who died of lung cancer on 6 May 2002 at the age of 63 years. He had been employed by the Ministry of Defence between 1954 and 1987 as a boiler maker, for most of that period at its dockyard at Devonport, but also in Gibraltar. In the course of his work, he was exposed to asbestos dust and fibres, which were causative of the lung cancer that killed him. He also smoked. His smoking was also causative of his cancer. The Ministry of Defence has admitted primary liability for Mr Badger’s widow’s claim: it did so when the claim was intimated on 21 February 2003. However, the Ministry of Defence contends that Mrs Badger’s claim falls to be reduced on account of Mr Badger’s contributory negligence. The contributory negligence alleged is his continuing to smoke when, it is alleged, he knew or should have known that his doing so was liable to damage his health. Subject to the issue of contributory negligence, it is agreed that Mrs Badger should recover general damages of £42,500 and special damages of £106,644.08. The Ministry contends that those damages fall to be reduced on account of his contributory negligence by 25 per cent.

[2]Mrs Badger denies that her husband’s smoking amounted to contributory negligence on his part; if it did so, she contends that no reduction should be made to claim, or, if one is to be made, it should be at a minimal level, as low as one per cent, and certainly less than 25 per cent.

[3]The issues to be determined in this case will arise in other cases. Surprisingly, there is no reported case in which the question whether the smoking of tobacco constitutes contributory negligence has been considered. Conversely, in no case decided in the United Kingdom has a smoker succeeded in recovering damages against a manufacturer of cigarettes or other tobacco product. The decision in this case, in this Court or on appeal, is likely to affect decisions in, and doubtless settlements of, other claims.

[4]In this judgment I shall consider the law applicable to the issues raised in this case, before addressing the facts and the conclusions I draw from them.

Contributory negligence: Law

[5]Section 1(1) of the Law Reform (Contributory Negligence) Act 1954 is as follows: Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons … 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 …

[6]It can be seen that, if the damage (or injury) in question was at least partly the result of fault on the part of the defendant, the following questions fall to be considered when contributory negligence is pleaded:(a) Was there fault on the part of the claimant?

(b) If so, did the damage or injury that he suffered result partly from that fault?

(d) Having regard to the answer to (c), what is the reduction in the damages recoverable that is just and equitable?

[7]So far as fault is concerned, it is hornbook law that there is no question of breach of a duty of care (which by definition is owed by a person to another person or persons) having to be owed by the claimant. However, as in the case of negligence, the question of fault is to be determined objectively. The question is not whether the claimant’s conduct fell below the standard reasonably to be expected of him, but whether it fell below the standard reasonably to be expected of a person in his position: did his conduct fall below the standard to be expected of a person of ordinary prudence? These propositions were stated more elegantly by Lord Denning MR (with whose judgment the other members of the Court of Appeal agreed) in Froom v Butcher

[1976] QB 286

, 291: Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself: see Jones v. Livox Quarries Ltd. [1952] 2 Q.B. 608.

[8]He added, at 294: In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individual or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe: see Vaughan v. Menlove (1837) 3 Bing. N.C. 468 and Glasgow Corporation v. Muir [1943] A.C. 448, 457 by Lord Macmillan. Nowadays, when we have no juries to help us, it is the duty of the judge to say what a man of ordinary prudence would do. He should make up his own mind, leaving it to the Court of Appeal to correct him if he is wrong.

[9]There is an echo in this of the speech of Lord Radcliffe in Davis Contractors Ltd v Farnham UDC

[1956] AC 696

, 728-9, in the very different context of the test for the frustration of contracts: … it might seem that the parties (to the contract) themselves have become so far disembodied spirits that their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.

[10]The context of Lord Denning’s statements cited above is pertinent. Froom v Butcher is the seat belt case. It was decided before Parliament had made the wearing of seat belts compulsory. The judge at first instance had held that the fact that there were differences of view among ordinary people as to the advisability of wearing seat belts meant that the plaintiff, who had not worn a seat belt, could not be held to have been guilty of contributory negligence. The Court of Appeal disagreed. Having reviewed the evidence and the guidance in the Highway Code (“Fit seats belts in your car and make sure they are always used”) Lord Denning said, at 294: I think the judges should say plainly that it is the sensible practice for all drivers and passengers in front seats to wear seat belts whenever and wherever going by car. It is a wise precaution which everyone should take. It followed that differences of view among ordinary people were not decisive, and perhaps not relevant: Quite a lot of people, however, think differently about seat belts. Some are like the plaintiff. They think that they would be less likely to be injured if they were thrown clear than if they were strapped in. They would be wrong. The chances of injury are four times as great. Yet they believe it honestly and firmly. On this account Nield J. thought they should not bear any responsibility. He recognised that such persons are in a minority, but he thought that proper respect should be paid to the minority view. He said [1974] 1 W.L.R. 1297, 1302:

“I do not feel that the courts are justified in invading the freedom of choice of the motorist by holding it to be negligence, lack of care or fault, to act upon an opinion firmly and honestly held and shared by many other sensible people.”

I am afraid I do not agree. And there follows the passage cited under paragraph 8. “I do not feel that the courts are justified in invading the freedom of choice of the motorist by holding it to be negligence, lack of care or fault, to act upon an opinion firmly and honestly held and shared by many other sensible people.”

[11]Reasonable foreseeability of the risk of harm is a prerequisite of a finding of contributory negligence, but it follows from the fact that the test for fault is objective that it is not necessary to show that the claimant personally foresaw harm. In Jones v Livox Quarries

[1952] 2 QB 608

, 615, Denning LJ (as he then was) said: Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. This passage was cited as authoritative by the Court of Appeal in O’Connell v Jackson

[1972] 1 QB 270

, 275, the crash helmet case.

[12]However, the foreseeability need not be of the precise way that the damage or injury is caused. In Jones v Livox Quarries

[1952] 2 QB 608

, the plaintiff had ridden on the back of a vehicle (a “traxcavator”), thereby exposing himself to the risk that he might be thrown off and injured. Another vehicle ran into the back of the first vehicle, injuring the plaintiff. He contended that his damages should not be reduced because although it was foreseeable that he might be thrown off the first vehicle, it was not foreseeable that he would be injured by another vehicle running into him. The Court of Appeal rejected this contention. Singleton LJ said, at 613-4: The plaintiff, in riding on the traxcavator, was disobeying the orders of his employers. In so doing he was exposing himself to danger. It may well be that the chief danger was that he might fall off, or be thrown off, or that he might become entangled in some part of the machine on which he was riding; but those were not the only risks to which he subjected himself. He had put himself in a dangerous position which, in fact, exposed him to the particular danger which came upon him. He ought not to have been there. The fact that he was in that particular position meant that he exposed himself, or some part of his body, to another risk, the risk that some driver following might not be able to pull up in time - it may be because that driver was certainly at fault. That is the view which the trial judge took of this case, and I do not see that that is a wrong view. It is not so much a question of Was the plaintiff's conduct the cause of the accident? as Did it contribute to the accident? on the assumption that it was something of a kind which a reasonably careful man so placed would not have done. If he unreasonably, or improperly, exposed himself to this particular risk, I do not think that he ought to be allowed to say that it was not a cause operating to produce the damage, even though one may think that the prohibition against riding on the vehicle was not made with that particular risk in mind Denning LJ said, at 615 ff.: The facts are simple. The plaintiff rode on the towbar of a vehicle, which was a careless thing to do because of the danger that he might fall off. Later, whilst the vehicle was almost stationary, another vehicle negligently ran into him from the back as he stood on the towbar, and he was crushed between the two vehicles. The question is whether he was guilty of contributory negligence such as to reduce his damages. Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for the consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is: What faults were there which caused the damage? Was his fault one of them? The necessity of causation is shown by the word “result” in section 1 (1) of the Act of 1945, and it was accepted by this court in Davies v. Swan Motor Co. (Swansea) Ltd. … In the present case, as the argument of Mr. Arthian Davies proceeded, it seemed to me that he sought to make foreseeability the decisive test of causation. He relied on the trial judge's statement that a man who rode on the towbar of the traxcavator “ran the risk of being thrown off and no other risk.” That is, I think, equivalent to saying that such a man could reasonably foresee that he might be thrown off the traxcavator, but not that he might be crushed between it and another vehicle. In my opinion, however, foreseeability is not the decisive test of causation. It is often a relevant factor, but it is not decisive. Even though the plaintiff did not foresee the possibility of being crushed, nevertheless in the ordinary plain common sense of this business the injury suffered by the plaintiff was due in part to the fact that he chose to ride on the towbar to lunch instead of walking down on his feet. If he had been thrown off in the collision, Mr. Arthian Davies admits that his injury would be partly due to his own negligence in riding on the towbar; but he says that, because he was crushed, and not thrown off, his injury is in no way due to it. That is too fine a distinction for me. I cannot believe that that purely fortuitous circumstance can make all the difference to the case. As Scrutton L.J. said in In re Polemis and Another and Furness, Withy & Co. Ld. [1921] 3 K.Badger. 560, 577:

“Once the act is negligent, the fact that its exact operation was not foreseen is immaterial.”

[13]The difficulties of analysing and prescribing tests for causation have led to judicial statements to the effect that it is to be decided in a broad, common sense way: see, for example, Lord Reid in Stapley v Gypsum Mines Ltd

[1953] AC 663

at 681 and Denning LJ in Jones v Livox Quarries at 616: There is no clear guidance to be found in the books about causation. All that can be said is that causes are different from the circumstances in which, or on which, they operate. The line between the two depends on the facts of each case. It is a matter of common sense more than anything else.

[14]In some cases it may be possible to attribute identifiable damage or injury to the claimant’s fault: seat belt and crash helmet cases may be such cases, as where facial scarring would have been avoided if a seat belt had been worn. In other cases, however, that is impossible, and a broader and less defined approach is necessary. In Stapley, two workers, Stapley and Dale, of equal status, had jointly decided to resume work in a mine tunnel without making the roof safe. Both knew that they should not do so. While Dale was working elsewhere, Stapley was killed when the roof fell on top of him. Lord Reid said, at 682: Finally, it is necessary to apply the Law Reform (Contributory Negligence) Act, 1945. Sellers J. reduced the damages by one half, holding both parties equally to blame. Normally one would not disturb such an award, but Sellers J. does not appear to have taken into account the fact that Stapley deliberately and culpably entered the stope. By doing so it appears to me that he contributed to the accident much more directly than Dale. The Act directs that the damages “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” (section 1(1)). 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 in 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. It may be that in this case Dale was not much less to blame than Stapley, but Stapley's conduct in entering the stope contributed more immediately to the accident than anything that Dale did or failed to do. I agree with your Lordships that in all the circumstances it is proper in this case to reduce the damages by 80% and to award 20%. of the damages to the appellant.

[15]Once relevant fault on the part of the claimant has been established, a reduction on account of his fault in the damages recoverable is obligatory. In Boothman v British Northrop Ltd [1972] KIR 113, Stephenson LJ said, in a judgment with which the other members of the Court of Appeal agreed: Speaking for myself, I do not find that the words of section 1(1) of the Law Reform (Contributory Negligence) Act 1945 give any support to the view that the court can disregard negligence on the part of a plaintiff contributing to an accident if it thinks it just and equitable so to do. What the section says is that “the damages recoverable in respect thereof” – that is, in respect of damage suffered by any person “as the result partly of his own fault and partly of the fault of any other person” – “shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share of the responsibility for the damage”. It has been held that the principle of de minimis applies to this as to other branches of the law and that where the contribution of a plaintiff’s negligence is virtually negligible it should be disregarded and the damages should be awarded him in full. If one looks at the words of section 1 (1) of the Act of 1945 they do not seem to leave much room for an application of the de minimis principle. But they certainly, in my view, do not encourage, and I very much doubt if they permit, not a reduction “to such extent as the court thinks just and equitable” but no reduction at all because the court thinks it just and equitable that there should be no reduction. The judge having found (as I think, rightly) contributory negligence on the part of the plaintiff, I do not think it is open to Mr Carman to argue that even if that finding stands he should not have his damages reduced at all.

[16]Lastly, once 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: see the above extract from the speech of Lord Reid in Stapley v Gypsum Mines at 682, and the approach of the Court of Appeal in O’Connell v Jackson

[1972] 1 QB 270

, 277-8: To what extent this finding should be reflected in the diminution of the £7,097.13 awarded as full compensation is not an easy question. The plaintiff being entirely innocent in relation to the collision without which he would not have been injured at all, the tests of blameworthiness and causative potency commonly adopted since Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291 are not entirely easy to apply to the injury which in fact followed. It seems to us that only a broad approach is possible. It must be borne in mind that, for so much of the injuries and damage as would have resulted from the accident even if a crash helmet had been worn, the defendant is wholly to blame, and the plaintiff not at all. For the additional injuries and damage which would not have occurred if a crash helmet had been worn, the defendant, as solely responsible for the accident, must continue in substantial measure to be held liable, and it is only in that last field of additional injuries and damage that the contributory negligence of the plaintiff has any relevance. It is not possible on the evidence to measure the extent of that field and then apportion that measure between the blameworthiness and causative potency of the acts and omissions of the parties. We can only cover the two stages in one stride and express the responsibility of the plaintiff in terms of a percentage of the whole. Giving the best consideration that we can to the whole matter, we assess the responsibility of the plaintiff in terms of 15%. of the whole, and allow the appeal to the extent of reducing the damages to that extent.

Was Mr Badger’s smoking a substantial cause of his death from lung cancer?

[17]That Mr Badger’s smoking was a substantial cause of his death is not in dispute. Dr C. R. McGavin and Dr C. H. C. Twort provided clear and informative joint reports. Their amended joint report states: 1) Mr Badger worked as a boilermakers’ apprentice and then boilermaker in HM Dockyard, Devonport from about 1955 to 1978, with secondment to the Gibraltar Dockyard between 1969 and 1972. 2) He smoked about 20 cigarettes a day through his adult life probably until 2001 or 2002, perhaps 44 pack years. 3) He developed symptoms of a lung cancer late in 2001 or early 2002. He died on May 6th 2002. 4) Mr Badger suffered from a number of medical conditions: a) Pleural plaque (confirming his exposure to asbestos but of no medical significance). b) Emphysema in the upper parts of the lungs (emphysema is a deterioration of the lung attributable to tobacco smoke but not to asbestos exposure). c) Ischaemic heart disease. In life Mr Badger had angina pectoris (heart pain) and a positive exercise test in 1992 (indicating shortage of oxygen to the heart muscle). However in 1995 he had further heart investigations including an exercise test which showed no obvious changes indicating lack of oxygen after 8½ minutes of exercise. The angiogram showed that he had mild atheromatous narrowing in the circumflex coronary artery and no significant atherosclerosis of the left anterior descending artery. At autopsy there were no significant atheromatous changes in the main coronary arteries and the heart muscle appeared normal on slicing. The experts conclude that he had mild ischaemic heart disease: this is attributable in part to tobacco consumption. d) Lung cancer. There was a cancer in the right upper lobe of the lung with metastatic spread to the liver and brain. This was the cause of his bronchopneumonia and death. e) Asbestosis … 5) Mr Badger died at 63 years at which age the average male Briton has a life expectancy of 19 years. The fact of his having been a smoker, with evidence of ischaemic heart disease and emphysema reduced that life expectancy and the experts agree that a reasonable expected reduction would be 7 years, giving him a life expectancy of 12 years in the absence of the lung cancer and asbestos exposure. 6) The relative risks of lung cancer in various categories of males aged 63 can be estimated as follows:(a) A never-smoker with no history of asbestos exposure, about 0.3%. (Extrapolation from tables in (reference 2).

(b) A smoker of 20 cigarettes a day without asbestos exposure, 3%. (similar extrapolation).

(c) A never-smoker with sufficient asbestos exposure to cause asbestosis, 1.5%, by adopting a multiplier of 5, (see (d)) and table 7a, reference 1).

(d) A smoker of 20 cigarettes a day with asbestosis. By adopting a multiplicative mode with a multiplier of 5 for the asbestos exposure, the risk would rise to 15%. Figures from the Hammond, Selikoff and Seidman paper (reference 1, table 8) suggest that men exposed to asbestos who have smoked 20+ cigarettes a day have an 53.24-fold risk of developing lung cancer compared with a never smoker who has not worked with asbestos. This would give RB a 15.97% risk of lung cancer. In this study the men had had asbestos exposure but did not necessarily have asbestosis. 7. We attribute Mr Badger’s lung cancer and hence premature death to both tobacco and asbestos. a) Pleural plaque (confirming his exposure to asbestos but of no medical significance). b) Emphysema in the upper parts of the lungs (emphysema is a deterioration of the lung attributable to tobacco smoke but not to asbestos exposure). c) Ischaemic heart disease. In life Mr Badger had angina pectoris (heart pain) and a positive exercise test in 1992 (indicating shortage of oxygen to the heart muscle). However in 1995 he had further heart investigations including an exercise test which showed no obvious changes indicating lack of oxygen after 8½ minutes of exercise. The angiogram showed that he had mild atheromatous narrowing in the circumflex coronary artery and no significant atherosclerosis of the left anterior descending artery. At autopsy there were no significant atheromatous changes in the main coronary arteries and the heart muscle appeared normal on slicing. The experts conclude that he had mild ischaemic heart disease: this is attributable in part to tobacco consumption. d) Lung cancer. There was a cancer in the right upper lobe of the lung with metastatic spread to the liver and brain. This was the cause of his bronchopneumonia and death. e) Asbestosis … The fact of his having been a smoker, with evidence of ischaemic heart disease and emphysema reduced that life expectancy and the experts agree that a reasonable expected reduction would be 7 years, giving him a life expectancy of 12 years in the absence of the lung cancer and asbestos exposure. (a) A never-smoker with no history of asbestos exposure, about 0.3%. (Extrapolation from tables in (reference 2). (b) A smoker of 20 cigarettes a day without asbestos exposure, 3%. (similar extrapolation). (c) A never-smoker with sufficient asbestos exposure to cause asbestosis, 1.5%, by adopting a multiplier of 5, (see (d)) and table 7a, reference 1). (d) A smoker of 20 cigarettes a day with asbestosis. By adopting a multiplicative mode with a multiplier of 5 for the asbestos exposure, the risk would rise to 15%. Figures from the Hammond, Selikoff and Seidman paper (reference 1, table 8) suggest that men exposed to asbestos who have smoked 20+ cigarettes a day have an 53.24-fold risk of developing lung cancer compared with a never smoker who has not worked with asbestos. This would give RB a 15.97% risk of lung cancer. In this study the men had had asbestos exposure but did not necessarily have asbestosis.

[18]In their supplemental joint statement of 9 November 2005, the doctors set out the following points of agreement:(1) Lung cancer is an indivisible injury. We understand this as an all-or-none injury. It is not a cumulative injury for which incremental exposure to a causative agent, for instance asbestos fibres or cigarette smoke, results in increasing severity of the injury itself.

(2) Had it not been for his exposure to asbestos, sufficient to cause asbestosis, it is unlikely that Mr Badger would have developed lung cancer at the age of 63. Had it not been for his cigarette smoking it is unlikely that he would have developed lung cancer at the age of 63. Had it not been for his asbestos exposure, sufficient to cause asbestosis, and his cigarette smoking, it is unlikely that he would have developed lung cancer at the age of 63.

(3) The study of Peto et al indicates that, if Mr Badger had stopped smoking at an earlier age, his cumulative risk of developing lung cancer would have been less than his actual risk, given that he had continued to smoke until the time that his lung cancer was diagnosed. Extrapolation from figure 3 in the publication indicates the following cumulative risks of developing lung cancer at age 63 at various ages of stopping smoking: 0.7% at age 30 1.3% at age 40 2.2% at age 50 years. There were no points of disagreement. 0.7% at age 30 1.3% at age 40 2.2% at age 50 years.

[19]The joint report assumes that Mr Badger’s smoking was at a constant level of 20 cigarettes a day. In fact, as will be seen, it seems to have fluctuated. However I infer from the joint report that the fluctuation in his consumption was not significant so far as its responsibility for his death is concerned. As Mr Goddard accepted, the joint report implies that the duration of his exposure to asbestos dust and fibres is immaterial. I note that the joint reports are to a significant extent based on research by Hammond, Selikoff and Seidman published in 1979.

[20]It is clear from this evidence that Mr Badger’s smoking was a substantial cause of his lung cancer and hence of his death at the age of 63. Indeed, and contrary to my expectation, it was the more substantial cause, in the sense that it increased his risk of contracting lung cancer by a factor of 10, as against a factor of 5 for his exposure to asbestos. However, it must be remembered that lung cancer is not the only disease caused by exposure to asbestos: it also, and more commonly, causes asbestosis and mesothelioma, and indeed Mr Badger had asbestosis when he died. Conversely, of course, as has been seen, lung cancer is not the only disease attributable to smoking. Mr Badger suffered from heart disease and emphysema attributable at least in part to his smoking.

Did Mr Badger’s smoking constitute relevant fault?

(a) Foreseeability

[21]Although foreseeability of injury is to be determined objectively, in my judgment the actual knowledge of Mr Badger must be taken into account. It would be absurd if medical (or other reliable professional) advice given to a claimant were to be ignored in determining whether he should have foreseen injury from an activity that he had been advised was liable to injure him. In a case such as the present, foreseeability may be inferred from information available to the public in general, or proved by evidence of reliable advice or information given to a claimant personally. Information and advice given to a claimant personally is even more obviously relevant to the question of the degree of fault, if any, attributable to him. Evidence of public awareness of the dangers of smoking and of advice specific to Mr Badger are not to be looked at in isolation from each other. The evidence specific to Mr Badger must be considered together with the contemporary evidence concerning general public awareness of the health risks associated with smoking.

[22]The evidence of public awareness relied upon by the Defendant was helpfully summarised in a schedule prepared by Miss Outhwaite, on which I have based the Appendix to this judgment.

[23]I should mention that in McTear v Imperial Tobacco Ltd

[2005] CSOH 69

, Lord Nimmo Smith had more extensive evidence of public awareness than was put before me. I have not taken account of his summary of that evidence or his conclusions based on it.

(b) Mr Badger’s smoking and his medical history

[24]Mr Badger was born on 15 January 1939. He began smoking at the age of 16, i.e., in about 1955, at about the same time that he began to work for the Defendant. There is nothing to indicate that he suffered any illness connected with his smoking until he was nearly 30. In November 1968, he saw Mr Barley, an ENT surgeon at Plymouth General Hospital. Mr Barley wrote to Mr Badger’s general practitioner: This patient has attacks of dysphagia with pyrexia and tonsillitis. He has had several of these attacks. There are smokers’ changes in the nose, red, berried tonsils, and a small gland is palpable in the right tonsular region. I have offered to remove these tonsils and he is to think it over. The operation is not essential and if he stops smoking, he might improve matters himself. No action will be taken until he writes to us giving his consent.

[25]Dysphagia is difficulty in swallowing; pyrexia is raised temperature. Miss Outhwaite asked me to infer from Mr Barley’s letter that Mr Badger must have been advised that his symptoms were or might have been caused by his smoking. I agree that this is this inference is to be made. It is not known whether or not Mr Badger had a tonsillectomy. It is known that he did not stop smoking.

[26]In February 1969, Mr Badger completed a medical certificate for the purposes of his transfer to Gibraltar. It stated that he had no illness of the lungs, such as bronchitis and pleurisy. He had had an x-ray examination of his chest, the results of which had been negative.

[27]From at least 1975, Mr Badger, as an asbestos worker, had routine medical examinations. A note of 7 April 1975 records that no pulmonary or pleural changes were seen in his chest x-ray. On the same date, his lung function was tested by means of a Vitalogram spirometer. The note of the test records that he smoked 15 cigarettes: clearly a reference to his professed daily consumption. Chest x-ray records of 26 November 1976 state that there was no evidence of active lung lesion and that no pleural changes were identified. A note of a medical examination of 3 December 1976 records his stating that he smoked 25 cigarettes a day. In November 1977 he had another x-ray. Again, his lungs were seen to be clear. A medical note of 2 December 1977 records that he was smoking 20 cigarettes a day.

[28]In March 1979, he had a further chest x-ray; again, there was no evidence of pulmonary or pleural change. At his medical on 27 March 1979, he stated that he smoked 10-15 cigarettes a day. A year later, in March 1980, he had a further x-ray; again, no pulmonary or pleural changes were seen. The notes of his history show that he was saying that he was smoking 10 cigarettes a day. A year later, in March 1981, he had a further x-ray, again with a negative result. He stated his consumption to be 10 cigarettes a day.

[29]In March 1982, Mr Badger again had a chest x-ray, which was “within normal limits”. The notes record his smoking 15-20 cigarettes a day. His x-ray in March 1983 was again within normal limits. He admitted to smoking 20 cigarettes a day. In April 1984, he stated that he smoked 10 cigarettes a day; his chest x-ray was clear. In May 1985, however, he was back to a consumption of 20 cigarettes a day. His stated consumption was the same in April 1987, when, at the age of 48, he left the defendant’s employment and went to work as an x-ray porter in Derriford Hospital.

[30]In September 1991, Mr Badger was diagnosed with angina. He was “strongly advised to stop smoking cigarettes and to start on a low fat diet”. In December 1991 he was seen by Dr Marshall as an out-patient. He was recorded as saying he was not smoking, but the doctor queried this, noting:

“? Smells of nicotine.”

[31]Mrs Badger’s evidence is as follows: 7. Since we were married my husband smoked approximately 10-15 cigarettes a day up until the early nineties. His doctor had advised him to stop smoking and so I can remember myself giving up in 1991 to try and help him to stop smoking, because he had been told by his G.P. to stop. My understanding was that he was told to stop smoking due to problems with his angina. 8. From the early nineties my husband would smoke a couple of cigars when he went down to the Social Club which was approximately four times a week. He very rarely smoked at home, only when he went to the Social Club. He would have one or two cigars when he was there and that was the only time that he really smoked. 8. From the early nineties my husband would smoke a couple of cigars when he went down to the Social Club which was approximately four times a week. He very rarely smoked at home, only when he went to the Social Club. He would have one or two cigars when he was there and that was the only time that he really smoked.

[32]In October 1992, Mr Badger was reviewed in medical out-patients. He continued to experience left-sided chest tightness, associated with “a little bit of shortness of breath on climbing hills.” He was also experiencing a few dizzy spells, which lasted for minutes at a time and occurred only when he was standing, and eased with his sitting down. The doctor reported that he felt that Mr Badger was “currently adequately controlled with medical treatment. His dizzy spells may well be related to postural hypotension…” The doctor stated that he had “advised Mr Badger to stop smoking his cigars and start a low fat diet.”

[33]His clinical notes record, at 24 October 1994, that he was smoking. A month later, on 22 November 1994, he presented at hospital complaining of chest pain. He was admitted to hospital. A note of 23 November 1994 records him suffering from unstable angina and emphysema. He was discharged on 29 November 1994. Two days later, on 1 December 1994, his G.P. recorded that he had not smoked for two weeks. Miss Outhwaite asked me to infer that he had smoked until November 1994. Given that Mrs Badger’s witness statement does not suggest that he had given up smoking earlier, and the advice given to him in October 1992, that inference seems to me to be inescapable. If Mr Badger had stopped smoking when he saw Dr Marshall in December 1991, the stoppage was very temporary.

[34]In December 1994, Dr Marshall, Mr Badger’s consultant cardiologist, sought the opinion of Dr Rothman, a consultant cardiologist at the Royal London Hospital. In his referral letter, Dr Marshall stated: (Mr Badger) presents with fairly mild angina which I have looked after for a number of years. His exercise test however is really strongly positive with quite gross anterior changes. You will see that he has a 95% stenosis in the left anterior descending artery.

[35]Dr Marshall reported to Mr Badger’s G.P: He presents with mild angina but a strongly positive exercise test and coronary arteriography shows a 95% stenosis in the left anterior descending artery. I am sending his films to Dr Martin Rothman at the Royal London Hospital to see whether he would feel that this lesion is suitable for angioplasty.

[36]In February 1995, Mr Badger underwent an angiograph in preparation for an angioplasty, but no surgery was undertaken. In September of that year Dr Marshall’s senior house officer reported to Mr Badger’s G.P. that Mr Badger was continuing to have attacks of angina every four or five days. The hospital notes for December 1995 recorded that he was short of breath when walking, smoked, had emphysema and was not at work. It refers to an exercise test. A year later, in October 1995, the occupational health physician stated that Mr Badger “would appear to have a relatively poor quality of life in that his ability to walk any distance at all is handicapped by his shortness of breath and ischemic heart disease. From a work point of view, if his angina could be brought under control, I am sure that we would be able to rehabilitate him to his workplace. However, if this is not going to be possible, then obviously consideration will have to be given to medical retirement.”

[37]Two months later, in December 1995, Mr Badger requested ill health retirement from his job as a porter. Dr Marshall wrote to Mr Badger’s G.P.: On repeat angiography prior to proposed angioplasty he was shown to have no apparent coronary disease. However, he remains highly symptomatic and claims that he is unable to do his job. He clearly needs further investigation. I have arranged for him to repeat the exercise test and we will then go from there. It should be at least remembered that part of his problem is breathlessness and this is due to emphysema rather than his heart. He continues to smoke and should stop.

[38]Miss Outhwaite submits that it is to be inferred that Dr Marshall must have advised Mr Badger to stop smoking. I agree. It is not conceivable that Dr Marshall, and indeed Dr Pai, Mr Badger’s G.P., would not have so advised him. However, a clinical note of 1 December 1996 records “smoke one cigar x 2 wk.” That level of consumption is of course significantly below that indicated by Mrs Badger’s evidence.

[39]In March 1996, Dr Pai wrote that Mr Badger was incapacitated by his emphysema and unable to continue working as a porter. In April 1996, the Occupational Health and Safety Agency found that he was incapacitated by coronary artery disease and emphysema and therefore entitled to an early receipt of his pension.

[40]Clinical notes dated 27 November 1996 record that Mr Badger:

“smokes two-three cigars in evening.”

[41]In March 1997 Mr Badger claimed incapacity benefit. Dr Pai supported his application. He identified Mr Badger’s conditions as “ischemic heart disease, emphysema and S.O.B. (shortness of breath), hypertension. Hypercholestraeimia and angina.” He recorded as the outlook for Mr Badger:

“Appears to have a relatively poor quality of life in that his ability to walk any distance at all is handicapped by a shortness of breath due to ischemic heart disease.”

[42]In January 2002, he told a doctor that he smoked “occasionally”, and had a cough with occasional phlegm.

[43]In February 2002, a consultant chest physician reported that Mr Badger “smoked until the beginning of the year.” Consistently with this, a medical note of 4 February 2002 records that he “stopped smoking 2/12 ago”. He was admitted to hospital on 1 March 2002 with very low blood pressure and sickness. The admission sheet records that he was not smoking and had given up cigars three months previously. Later that month, his lung cancer and secondary cancer were detected, and he died soon after, on 6 May 2002.

Foreseeability

[44]The evidence summarised in the Appendix shows, in my judgment that by 1971, when the first health warnings were put on cigarette packets, it was reasonably foreseeable by a reasonably prudent man that if he smoked he risked damaging his health.

[45]Moreover, Mr Badger was specifically advised about the damaging effects of his smoking on his health, in 1968 (albeit in relation to his tonsillitis), in September 1991 (when he was strongly advised to give up smoking), in October 1992 and in December 1995. In addition, from 1975, because of his exposure to asbestos, he was having regular pulmonary and pleural examinations. On each occasion he was asked about his smoking. It must have been obvious to him that there was a connection between his smoking and the health of his lungs. His lungs were clear, and that may have lulled him into a sense of security that was false, because of course they would be clear until he contracted lung cancer, asbestosis or mesothelioma or another disease of his chest. In 1987 he was “advised” in relation to his smoking. That must have been advice to stop or at least substantially to reduce his smoking. I am prepared to assume that he was not told that his smoking multiplied his risk of lung cancer by a substantial factor. Nonetheless, it was given at a time when the government health warnings on cigarette packets included “Stopping smoking reduces the risk of serious disease”.

Fault and the consequences of fault

[46]Foreseeability of injury is a prerequisite of fault, but is not determinative of fault. To be guilty of fault the claimant must have had some reasonable freedom to choose to do otherwise, to avoid incurring the risk that was partly responsible for his injury.

[47]Mr Badger cannot be criticised for starting to smoke. In 1955, the connection between smoking and serious ill health was not widely accepted. If he was guilty of fault, it was in not giving up smoking. Nicotine and smoking are notoriously addictive; to stop smoking is therefore more difficult than avoiding smoking in the first place. Mr Goddard submitted that no fault could be attributed to Mr Badger for his failure to give up a habit to which he must have been addicted. However, I have no medical evidence before me on which I could find that Mr Badger was so addicted to tobacco (or nicotine) that he could not reasonably have been expected to stop smoking, and the advice he was given to stop is inconsistent with it not being reasonably possible for him to do so. Mrs Badger’s evidence indicates that at least from the early 1990s he was not a chain smoker. I find on the evidence before me that Mr Badger could have given up smoking. If he could, and should, have done so at a time that would have reduced his risk of lung cancer at the age of 63, he was guilty of fault that was partly responsible for his death.

[48]If he could have given up smoking, should he as a reasonably prudent man have done so? In my judgment, the answer is, “Yes”. A person who continues smoking who knows or ought to know that by doing so he is damaging his health, or that he risks doing so, must accept responsibility for his actions. A reasonably prudent man, warned that there is a substantial risk that smoking will seriously damage his health, would stop smoking.

[49]I do not think it necessary to make a finding as to a specific date when Mr Badger should have given up smoking. I have summarised the evidence in paragraph 45 above. In my judgment, a reasonably prudent person in his position and with his knowledge would have stopped smoking by the mid-1970s, after the first government health warnings, when he knew as a result of what he had been told in 1968 that his smoking was damaging to his health, and when he was asked about his smoking in connection with his lung examination. His “fault” is clearer from 1987, when he was “advised” about his smoking. Mr Badger’s blameworthiness increased with the passage of time.

[50]If Mr Badger had stopped smoking in 1969, his smoking risk would have been 0.7 per cent, that is, less than a quarter of his ultimate smoking risk. His combined risk, resulting from the combination of his asbestos exposure and smoking, would have been 3.5 per cent, as against the ultimate 15 per cent. His continued smoking was responsible for over 75 per cent of his ultimate combined risk.

[51]If Mr Badger had stopped smoking in 1979, at the age of 40, his risk of contracting lung cancer at age 63 would have been just over 4 times that of a non-smoker: i.e., less than half of his ultimate risk caused by his continuing to smoke until shortly before his death. His combined risk, resulting from his exposure to asbestos and his smoking to that age, would have been 6.5 per cent as against the 15 per cent resulting from his continuing to smoke. If he had stopped at the age of 40, his asbestos risk would still have been 1.5 per cent, about the same as his tobacco risk. In terms of causation, therefore, there would have been little to choose between smoking and asbestos. Instead, by continuing to smoke, his smoking risk became twice that of his asbestos risk.

[52]If Mr Badger had stopped smoking in 1989, at the age of 50, his smoking risk would have been 2.2 per cent, i.e. over 7 times the risk of a non-smoker, and about three-quarters of his ultimate smoking risk. His combined risk would have been 11 per cent as against his ultimate 15 per cent: 36 times the risk of a non-smoker who has not been exposed to asbestos, as against his ultimate 53.24 times. By continuing to smoke after the age of 50, he increased his smoking risk from 2.2 per cent to 3 per cent, i.e. by just over a quarter.

[53]It follows, in my judgment, that Mr Badger’s continued smoking constituted contributory negligence on his part.

Conclusion

[54]It remains to determine a percentage reduction in the claim on account of Mr Badger’s contributory negligence. Ultimately, the principle of contributory negligence is that a person has responsibility for his actions. He may choose to pursue or to continue a course of conduct that injures or risks injuring his own health; but if he does so, he bears responsibility for the consequences of his actions. The reduction that is just and equitable must take account of the relative blameworthiness of the parties’ conduct.

[55]Miss Outhwaite sensibly accepts that significantly greater blame is to be attributed to the Defendant than to Mr Badger. The Ministry accepts that it was guilty of breaches of statutory duty at a time when the dangers of asbestos were known. In other words, even if the entire period of Mr Badger’s smoking were blameworthy, and it was equally responsible for his lung cancer, his contributory negligence would be less than 50 per cent. However, not all of the period of his smoking was blameworthy. The contribution to his combined risk of his continuing to smoke after he should have stopped was in the region of a half of his ultimate risk.

[56]In my judgment, on this basis, the appropriate reduction in damages attributable to Mr Badger’s continuing to smoke after he should have stopped is 20 per cent. It follows that the damages otherwise recoverable by his widow will be reduced by that percentage.

Other comments

[57]The parties agreed that the facts in this case should be established from Mrs Badger’s witness statement, the agreed joint medical experts’ reports and contemporaneous documents, including those relating to Mr Badger’s medical history. No witnesses were called to give evidence. The result was efficient litigation and a saving of substantial costs, without, I am sure, any effect on the ultimate result. The parties and their legal advisers are to be commended for this. I should also like to express my appreciation for the helpful manner in which counsel presented the facts and the law.