Badger v The Ministry of Defence

Contributory negligence requires: (i) objectively assessed fault; (ii) causation; and (iii) an apportionment that is just and equitable. Fault does not require a duty of care owed by the claimant. It requires conduct below that expected of a reasonably prudent person, with reasonable foreseeability of harm to oneself.

In assessing foreseeability and blameworthiness, the court may consider both public information and reliable advice given personally to the claimant. A claimant must also have had reasonable freedom to avoid the risk. Where continued smoking, despite knowledge of its serious health risks and the ability to stop, materially contributes to fatal lung cancer, it may constitute contributory negligence. Once relevant fault and causation are established, damages must be reduced. The reduction is assessed broadly by reference to blameworthiness and causative responsibility.

The claimant, the widow of a former Ministry of Defence boilermaker, claimed damages following his death from lung cancer. The Ministry admitted primary liability for asbestos exposure but alleged that the deceased’s continued smoking was contributory negligence.

The medical evidence established that both asbestos exposure and smoking were substantial causes of the lung cancer. The court had to decide whether the deceased’s smoking amounted to relevant fault, whether it contributed to the death, and what reduction would be just and equitable.

1. The claim succeeded subject to a 20 per cent reduction in damages for contributory negligence. The agreed damages were reduced accordingly.

2. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the court asks whether there was fault by the claimant, whether the damage resulted partly from that fault, what share of responsibility the claimant bore, and what reduction is just and equitable.

3. Fault is assessed objectively. It does not depend on breach of a duty owed by the claimant. The relevant standard is that of a person of ordinary prudence in the claimant’s position. Reasonable foreseeability of harm to oneself is a prerequisite, although personal foresight is unnecessary. Actual knowledge and reliable advice given personally may nevertheless be relevant to foreseeability and blameworthiness.

4. Causation is not determined by asking whether the claimant foresaw the precise mechanism of injury. The question is whether the claimant’s fault contributed to the damage. In difficult cases, causation and apportionment are assessed broadly and by common sense.

5. Once contributory negligence is established, a reduction is required. The court must assess both blameworthiness and the relative importance of the parties’ conduct in causing the damage. The assessment is broad and does not require an exact division of an indivisible injury.

6. The deceased could not fairly be criticised for starting to smoke in 1955. His relevant fault lay in continuing to smoke after the health risks were reasonably foreseeable and after he had received personal medical advice. He had reasonable freedom to stop, and his continued smoking substantially increased the risk of lung cancer.

7. The Ministry’s breaches of statutory duty and its greater blameworthiness meant that the reduction could not approach 50 per cent. Taking account of the period for which continued smoking was blameworthy and its contribution to the combined risk, a 20 per cent reduction was just and equitable.