Asbestos Claims and Smoking
Smoking causes lung cancer and so does asbestos. However what if a person has a smoking history but also worked with asbestos? Below are some questions many clients will face and consider when making a claim.
What if that person then has a diagnosis of lung cancer and thinks the lung cancer is due to working with asbestos? How will the courts deal with the two possible causes of causing the lung cancer? Will it deny all compensation due to self inflicted damage caused by smoking?
Contributory negligence is a legal concept that comes into play when someone is partially responsible for their own harm or injury. It means that if you have contributed to your own injury in some way, the compensation or damages you receive may be reduced.
When it comes to lung cancer cases caused by factors like asbestos exposure and smoking, there are two key questions that need to be answered. First, what caused the cancer? Second, who is responsible for causing it?
ASBESTOS EXPOSURE DOUBLES THE RISK OF CANCER
If it can be shown that asbestos exposure has doubled the risk of lung cancer, it is considered a cause of the cancer. This means that if you were exposed to asbestos and can demonstrate that it significantly increased your chances of developing lung cancer, you have established causation, or a direct link, between the exposure and the cancer.
SMOKING AND ASBESTOS EXPOSURE INCREASED THE RISK TO ABOUT 90%
Once causation is established, the next step is to determine who is responsible for causing the cancer. In cases involving both asbestos exposure and smoking, both factors are known to increase the likelihood of developing lung cancer. In fact, when smoking and asbestos exposure occur together, the risk of lung cancer is even higher, about 90% more than usual.
MESOTHELIOMA UNAFFECTED BY SMOKING
Contributory negligence specifically applies to lung cancer cases caused by asbestos exposure, which is an indivisible condition. This means that it is difficult to separate the effects of asbestos exposure from other factors. However, it is generally agreed that mesothelioma, a type of lung cancer, is predominantly caused by exposure to asbestos, and smoking may not be considered a significant contributing factor to the pain and suffering experienced by the claimant.
In cases where the condition is considered indivisible, any factor that is found to have materially contributed to the condition is considered the cause of the entire condition. This means that if smoking is found to have significantly contributed to the development of lung cancer, contributory negligence can be alleged.
LONG TERM SMOKING MAY REDUCE COMPENSATION AWARD FOR LUNG CANCER
The courts have dealt with the issue of smoking in lung cancer cases in various ways. They have made deductions in the compensation awarded to claimants based on their smoking habits. For instance, if a claimant is a long-term smoker, a certain percentage may be deducted from their compensation. The percentage deducted depends on factors such as the extent of the claimant’s smoking and whether they continued to smoke against advice.
When determining the degree of contributory negligence, the courts consider two important aspects: causative potency and culpability. Causative potency refers to the extent to which a particular factor contributed to the development of the cancer, while culpability refers to the level of fault or responsibility.
It is important to note that the courts have generally found that asbestos exposure carries greater responsibility for causing lung cancer compared to smoking. However, the application of contributory negligence in these cases is not always straightforward, and there is no fixed formula for determining the degree of deduction.
In simple terms, contributory negligence in lung cancer cases involving asbestos exposure and smoking means that if you have lung cancer and you smoked, the compensation you receive may be reduced. This is because your smoking habit could have contributed to the development of the cancer. The courts look at how much each factor (asbestos exposure and smoking) contributed to the cancer and determine the level of responsibility for the harm caused. The more responsibility is attributed to smoking, the greater the deduction in compensation. However, applying contributory negligence in these cases can be complex and varies depending on the specific circumstances.
QUESTIONS ABOUT ASBESTOS CLAIMS?
Please contact our asbestos team who are here to help you with any question you may have if you were exposed to asbestos at work, either yourself or on behalf of a relative or friend. As solicitors experienced in handling asbestos claim we operate under a NO, WIN, NO FEE, NO WORRY agreement so you don’t need to worry about your legal costs.