Smoking and Asbestos Related Disease
There are, however, some diseases where establishing that asbestos exposure caused the illness can be more complicated and in these cases an asbestos compensation claim may be more difficult to pursue.
It is well known that lung cancer is linked to smoking but it can also be caused by exposure to asbestos at work. It is estimated that a smoker is 11 times more likely to develop lung cancer than a non smoker and that someone who was exposed to asbestos at work is 5 times more likely to develop lung cancer than someone who has not been exposed. There is however a synergistic relationship between cigarette smoking and asbestos exposure which means that someone who smoked and was exposed to asbestos at work is 55 times more likely to develop lung cancer than a non smoker who was not exposed to asbestos. It is therefore very common to find that someone who has developed lung cancer and been exposed to asbestos was also a smoker. So, in dealing with an asbestos related compensation claim, how can a Court decide whether the smoking or the asbestos exposure has caused the lung cancer?
To succeed in an asbestos related claim for lung cancer a Claimant, or their surviving relatives, would have to show that there was significant occupational exposure to asbestos. If they are able to show that the Claimant, or the deceased, had evidence of asbestosis i.e. fibrosis of the lung tissue, then the Court will almost always accept that lung cancer has been caused by exposure to asbestos exposure because asbestosis itself is a condition which is caused only by significant exposure to asbestos. However, what about asbestos related compensation claims for lung cancer where there is no evidence of asbestosis? These asbestos claims are much more difficult. To have any chance of success the Claimant in such cases must show :-
a) A substantial asbestos body or fibre count per gram of dry lung tissue; or
b) An estimated cumulative exposure to asbestos of 25 fibre\ml years or more; or
c) An occupational exposure of 1 year’s heavy exposure (e.g manufacturing, spraying, insulation or demolition);or
d) Five to ten years moderate exposure; and
e) At least a ten year time lag between exposure and the onset of cancer.
This criteria was established in 1997 when specialists in the medicine and statistics of asbestos met in Helsinki and therefore it is know as the” Helsinki Criteria. “
Asbestos related compensation claims involving lung cancer in the absence of asbestosis are very often rigorously defended by employers or their insurers. It is important that the asbestos related claim is pursued by a firm with considerable experience of asbestos related litigation and, in addition, the following criteria should be met:
- The case should be supported by medical evidence by a medical expert with at least a national if not international reputation in asbestos related compensation claims;
- There is firm evidence of significant exposure which meets the Helsinki Criteria and is supported by an engineer of repute with extensive asbestos related claims expertise;
- The case is supported by an epidemiologist of international repute;
- The claim should be backed by a Barrister with extensive asbestos related claims experience.
If the Claimant is able to show that his exposure to asbestos did cause lung cancer, can their smoking mean that they are found to be partly to blame for developing lung cancer ? The answer appears to be yes. In the leading case of Badger –v-MOD  EWHC 2941 the Court dealt with the issue of whether smoking tobacco could constitute contributory negligence i.e. that the Claimant was partly to blame for his development of an asbestos related disease.
The findings were as follows:-
- The Claimant was heavily exposed to asbestos as a boiler maker at HM Dockyards between 1955 and 1978;
- He developed lung cancer in late 2001/early 2002 and died on 6th May 2002;
- He had smoked 20 cigarettes per day throughout his adult life until shortly before his death and his development of lung cancer was attributed to both tobacco and asbestos;
The Court held that by 1971, when the first health warnings were put onto cigarette packets, it was reasonably foreseeable by a reasonably prudent person that if they smoked they risked damaging their health. It was held that therefore Mr Badger should have stopped smoking by the mid 1970s and that his blameworthiness in continuing to smoke increased with the passage of time. The Court made a finding of 20% contributory negligence which meant that the Claimant’s asbestos related compensation was reduced by 20% to reflect his smoking history.
It should be pointed out that these cases are fact sensitive and it does not mean that in every case where a Claimant smoked that a 20% deduction would be appropriate. It was apparent in the case of Badger that the Court was not presented with all of the potential arguments against a deduction, in particular no evidence regarding addiction to tobacco nor the tobacco industry’s attempts to undermine the anti-smoking message was submitted on the Claimant’s behalf.