Blackmore v Department for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson |
| Judgment Date | 28 June 2016 |
| Neutral Citation | [2016] EWCA Civ 956 |
| Date | 28 June 2016 |
| Docket Number | B3/2015/0299(A) |
| Court | Court of Appeal (Civil Division) |
[2016] EWCA Civ 956
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COMBINED COURT
SITTING AT PLYMOUTH
(HIS HONOUR JUDGE COTTER QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Tomlinson
B3/2015/0299(A)
Mr R Fortt (instructed by Government Legal Department) appeared on behalf of the Applicant
The Respondent was not present and was not represented
This is a renewed application for permission to appeal against a decision given by His Honour Judge Cotter QC in the Exeter County Court.
The Claimant is the stepdaughter of Cyril Hollow and executrix of his estate. He sadly died from lung cancer on 28 October 2015 at the age of 74. Mr Hollow had for 20 years between 1966 and 1986 worked as a general decorator at the Devonport dockyard, for which the Department for Communities and Local Government has become responsible. It was not in dispute at trial that during this period Mr Hollow was exposed to asbestos and that the Department was liable in respect of his contraction of lung cancer which the evidence demonstrated was in part caused by that asbestos or that exposure to asbestos dust.
The question at issue was to what extent, if at all, the award of damages to the estate should be reduced on account of the circumstance that Mr Hollow had been a smoker for 60 years since he was 14 years of age. He had smoked around 20 cigarettes per day from that age, but had cut down to around 12 cigarettes per day in around 2005, which was, of course, considerably after the period of his exposure to asbestos.
The judge concluded that the relevant reduction on account of contributory negligence would be 30 per cent, that, in the judge's view, reflecting the deceased's responsibility for the damage. I would straightaway pay tribute to the judge for the erudition of his analysis of the problem which he had to resolve and of his analysis of those authorities which bear on the problem.
Two grounds are appeal are put forward by Mr Fortt who argued the case at trial before the judge. The first is that the judge's conclusion that, when considering the amount of contributory negligence that the Defendant should bear, the lion's share of responsibility should be borne by the Defendant, even where the court considered that the evidence shows that the Claimant's smoking was a greater contribution to the risk of cancer than asbestos exposure, is wrong in law. Secondly, that the judge was wrong to regard this case as what I might colloquially call an eggshell skull case or, as put by Mr Fortt, the conclusion that a defendant in the circumstances in this case must take his tortfeasor as he finds him is wrong in law.
The application for permission to appeal was refused on the papers by Beatson LJ, who pointed out that ground one involves a challenge to the approach in a series of decisions, including those in Badger v Ministry of Defence [2005] EWHC 2941 QB, Horsley v Cascade Insulation [2009] EWHC 2945 (QB) and Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360, a decision of the House of Lords. Beatson LJ also observed that the decision of the House of Lords in Barker v Corus [2006] 2 AC 572 does not assist the Applicant because it is confined to Fairchild type cases.
As to ground two, Beatson LJ rightly, if I may respectfully say so, identified the key issue as whether there was fault after there was knowledge of the health risks caused by smoking, but concluded that there was no realistic prospect of succeeding in the contention that the judge erred in concluding that in circumstances in which the deceased had smoked for 25 years before there was such knowledge he could be considered to be at fault.
The first hurdle which the Applicant here seeks to overcome is that as a result of various shortcomings within the Government Legal Department, this renewed application was not made or the application for permission to appeal was not renewed within the seven day period after receipt of the Government Legal Department on behalf of the Applicant that the application had been refused on the papers. The sealed order of Beatson LJ was sent to the Government Legal Department on 10 August and it is to be assumed that it was received in the post room of the Government Legal Department on 11 August 2015.
As a result of internal inefficiency, that order was not received in the Government Legal Department internal post by the solicitor responsible, Mr David Stranger-Jones until [ Date missing]...
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