The Department for Communities And Local Government v Blackmore (Rev 1)

Under section 1 of the Law Reform (Contributory Negligence) Act 1945, responsibility is broad. Apportionment must consider both causative potency and blameworthiness, together with the policy underlying the duty breached. A mathematical comparison of relative risks is guidance only and must not be translated directly into the reduction in damages. There is no general rule excluding blameworthiness because the claimant’s conduct was unrelated to the employment. Where liability is established by doubling the risk, it rests on orthodox causation and remains subject to contributory negligence. That is distinct from the several liability regime in Fairchild-type cases.

The deceased had worked for government departments in a dockyard and had substantial occupational exposure to asbestos. He had also smoked for many years. His estate claimed in negligence and for breach of statutory duty. Causation and primary liability were conceded, and damages were agreed. The sole issue before HHJ Cotter QC in the Exeter County Court was the appropriate reduction for contributory negligence arising from smoking. The judge assessed the reduction at 30 per cent. The Department appealed, arguing that epidemiological evidence showing the relative contributions to risk should be translated directly into the apportionment. The central issue was whether section 1 required an assessment based solely on causation or also required consideration of blameworthiness and statutory policy.

The appeal was dismissed. The 30 per cent reduction for contributory negligence was within the range open to the county court judge.

1. Section 1 responsibility. Section 1 of the Law Reform (Contributory Negligence) Act 1945 requires a broad, just and equitable assessment. The authorities, including Davies v Swan Motor Co. [1949] 2 KB 291 and Stapley v Gypsum Mines [1953] AC 663, establish that responsibility includes both causative potency and blameworthiness.
2. Blameworthiness and statutory policy. The relevance of blameworthiness is not confined to cases where the claimant’s conduct was the very risk which the employer had a duty to prevent. Nor is there a general distinction between work-related and unrelated conduct. The assessment must remain flexible and fact-sensitive. The policy underlying strict statutory duties, including duties protecting workers from asbestos, may justify giving substantial weight to the employer’s breach. Section 2 of the Civil Liability (Contribution) Act 1978 does not alter that self-contained approach.
3. Risk-based causation. The Fairchild and Barker authorities concerned an exceptional liability regime based on contribution to risk, with several liability and no scope for contributory negligence in the same way. By contrast, doubling the risk is an orthodox causation method. A defendant who materially contributes to the damage is prima facie liable for the full loss, subject to contributory negligence. The analogy relied on by the appellant was therefore false.
4. Application. Relative-risk evidence could provide broad guidance but could not determine the reduction mechanically, particularly given medical uncertainty, synergistic effects and the deceased’s earlier innocent smoking. The judge was entitled to give considerable weight to the employer’s prolonged breach of statutory duty and lesser weight to the deceased’s later smoking. The approach was consistent with Badger v Ministry of Defence [2005] EWHC 2941, Shortell v BICAL Construction Ltd. and Horsley v Cascade Insulation Services Limited [2009] EWHC 2945 (QB).

• Court of Appeal (Civil Division) — dismissed the appeal from the assessment of 30 per cent contributory negligence: [2017] EWCA Civ 1136.
• Exeter County Court — HHJ Cotter QC assessed contributory negligence at 30 per cent after liability and damages had been agreed.