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Written on 14th July 2016 by Laura Magson

The Department for Communities and Local Government is the defendant in an asbestos related lung cancer claim. They have been granted permission to appeal an award for compensation made to the family of a man, Mr Hollows, who sadly died as a result of asbestos related lung cancer. Where somebody has a diagnosis of lung cancer and has been exposed to asbestos, they may be able to pursue a claim for compensation even if they were smokers. It has long been established that those who smoke and have been exposed to asbestos dust are at a significantly increased risk of developing lung cancer. For example, if someone has a 5% risk of developing lung cancer as a result of asbestos exposure and a 10% risk as a result of smoking, his or her combined risk is 50%.

Asbestos related lung cancer

The Department for Communities and Local Government consider that Mr Hollows’ health was more affected by his smoking than his exposure to asbestos dust. They are arguing that the reduction to the damages award to account for his smoking should have been higher.

Discount for smoking history

Where somebody was a smoker and smoked at a time when they should have been aware of the detrimental effect to their health, then a defendant can argue for a reduction in damages to reflect their own damage to their health through smoking.

For a long time, it was accepted that the relevant deduction for contributory negligence due to smoking was no more than 20%.  However, in the recent case of Blackmore v Department for Communities and Local Government, the Department for Communities and Local Government successfully argued that the degree of contributory negligence could be assessed at 30% on the basis of the deceased’s very heavy smoking history.

It would now appear that in the case of Mr Hollows’ family, the Department for Communities and Local Government are arguing for an even higher deduction.

The medical experts have agreed that Mr Hollows’ death was caused by a combination of the effect of both smoking and his exposure to asbestos dust, but they disagree over the contribution of each. The defendant’s expert considers that the contribution from smoking was 88% compared with only 12% due to the asbestos exposure.

Implications for asbestos related lung cancer sufferers

If the Department for Communities and Local Government are successful in their appeal then it has significant implications for asbestos related lung cancer claims where the sufferer has been a heavy smoker. It also raises further queries as to the contribution of asbestos exposure to the development of a lung cancer where somebody has been a smoker.

It is likely that the hearing of the appeal will take place within the next few months and we shall update you on the final decision as soon as we are made aware of it.