Badger v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 16 December 2005 |
| Neutral Citation | [2005] EWHC 2941 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ05X01428 |
| Date | 16 December 2005 |
[2005] EWHC 2941 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Stanley Burnton
Case No: HQ05X01428
Christopher Goddard (instructed by Bond Pearce LLP) for the Claimant
Wendy Outhwaite (instructed by Beachcroft Wansbroughs) for the Defendant
Hearing dates: 22, 23 November 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
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.
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.
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.
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
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 …
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?
(c) If so, what was the extent of his responsibility for that damage or injury?
(d) Having regard to the answer to (c), what is the reduction in the damages recoverable that is just and equitable?
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.
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.
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.
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.
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.
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...
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