The Department for Communities and Local Government v Shirley Francis Blackmore (Executrix of the estate of Cyril Leonard Hollow, deceased)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Lord Justice David Richards,Lord Justice Moylan |
| Judgment Date | 27 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1136 |
| Date | 27 July 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2015/0299 |
[2017] EWCA Civ 1136
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
HHJ COTTER QC
2YM53819
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd Jones
Lord Justice David Richards
and
Lord Justice Moylan
Case No: B3/2015/0299
Russell Fortt (instructed by Government Legal Department) for the Appellant
Gabriel Farmer (instructed by Gard & Co., Plymouth) for the Respondent
Hearing date: Thursday 15 June 2017
Approved Judgment
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.
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.
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.
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%.
The appellant now appeals against that order.
Relevant legislation
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:
(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?
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.
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%.
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.
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.
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.
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.
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.
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...
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