Re: When he farts, does he summon bats?
- From: "The Todal" <deadmailbox@xxxxxxxx>
- Date: Wed, 21 Dec 2005 12:17:44 -0000
<Theo_Delight@xxxxxxxxxxx> wrote in message
news:1134824624.453463.297440@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
> Mr Justice Stanley Burnton slashed a payout
> to the widow of a dockyard worker who died of
> lung cancer after being exposed to asbestos
> by 20 per cent.
>
> He claimed he made the cut because of the
> worker's own "contributory negligence" in failing
> to give up smoking.
>
The judgment is now available, though not I think in the public domain.
Badger v MoD.
[extracts]
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.
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 6 th 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
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.
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".
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.
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. 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.
.
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