Shared blame for an untimely death

In a landmark decision at the end of last year, Badger v. Ministry of Defence, a smoker was found to be partly to blame for his own ill health and to have been negligent in failing to give up smoking. As a result, damages were reduced by 20%.

Beryl Badger, of Plymouth, was seeking damages following the death of her husband Reginald at the age of 63 from lung cancer. Mrs Badger claimed that, during the course of Mr Badger's work as a dockyard boilermaker between 1954 and 1987, he had been exposed to asbestos dust and fibres and, as a consequence, developed asbestosis and the lung cancer that ultimately killed him. The MoD admitted primary liability for the claim in 2003, but argued that Mr Badger's smoking had also contributed to his illness.

The medical experts' view was that Mr Badger's emphysema was attributable to smoking but not to asbestos exposure and that his heart disease was attributable, in part, to tobacco. Mr Justice Stanley Burnton found in favour of the MoD on the issue of contributory negligence and concluded from the evidence that Mr Badger's smoking was a substantial cause of his lung cancer. The judge ruled that Mr Badger's continued smoking constituted contributory negligence and that the appropriate reduction in damages for continuing to smoke was 20%.

Badger v. MoD is the first reported case in which the question of whether the smoking of tobacco constitutes contributory negligence has been considered. While the judge did not criticise the claimant for starting to smoke in 1955, when the connection between smoking and serious ill health was not widely accepted, he concluded that he could have given up smoking and that, as a reasonably prudent man, he should have done so.

The decision is expected to have important implications for claims arising from asbestos exposure where the injury suffered is lung cancer and the claimant was a smoker.

The judgment also reinforces existing case law that, once relevant fault on the part of a claimant has been established, a reduction in damages recoverable is obligatory. A number of factors, such as the length of time a claimant smoked, when they started smoking, medical advice given about smoking and the presence of other smoking-related diseases, may be relevant.