Badger v The Ministry of Defence [2005] EWHC 2941 (QB) (16 December 2005)

A man who smoked and was exposed to asbestos by his employer, the Ministry of Defence, died of lung cancer. The court found the asbestos exposure materially contributed to the cancer, establishing causation. Damages were reduced by 20% for his contributory negligence in continuing to smoke.

Facts

The claim was brought on behalf of the estate of Mr Albert Badger, who died from lung cancer in July 2002. Mr Badger had worked for the Ministry of Defence (MoD) from 1955 to 1971 as a boilermaker, during which time he was exposed to asbestos. The defendant, the MoD, admitted a breach of its duty of care in exposing him to asbestos. However, Mr Badger had also been a heavy smoker from the age of 15 until his diagnosis in 2002. The defendant argued that his smoking was the sole cause of the cancer, or alternatively, that he was contributorily negligent for continuing to smoke despite knowing the health risks.

Issues

The court had to determine two primary legal issues:

1. Causation: Did the defendant’s tortious exposure of Mr Badger to asbestos make a material contribution to the development of his lung cancer, in circumstances where he was also a heavy smoker?
2. Contributory Negligence: If causation was established, was Mr Badger contributorily negligent by continuing to smoke? If so, to what extent should the damages be reduced to reflect his fault? This involved considering when the risks of smoking became so well known that a reasonable person in his position would have quit.

Judgment

The judgment was delivered by Mr Justice Simon.

Causation

The judge found that the asbestos exposure had made a material contribution to Mr Badger’s lung cancer. He accepted expert evidence which demonstrated a synergistic relationship between asbestos exposure and smoking, meaning that the two factors combined to multiply the risk of lung cancer far beyond their individual effects. Applying the principle from Bonnington Castings Ltd v Wardlaw, it was sufficient for the claimant to show that the defendant’s breach of duty materially contributed to the harm. The judge concluded that even though smoking was the more significant factor, the asbestos exposure was a more than negligible cause and therefore satisfied the test for causation.

Contributory Negligence

The court then addressed the issue of contributory negligence. Mr Justice Simon held that Mr Badger had been negligent in failing to take reasonable care for his own safety by continuing to smoke. The judge had to determine the point in time when knowledge of the dangers of smoking was sufficiently widespread that a reasonable person would have acted on it. He concluded that by 1971, following a significant report from the Royal College of Physicians and widespread publicity, the link between smoking and lung cancer was well-established. Mr Badger’s choice to continue smoking after this point was deemed a failure to take reasonable care for his own safety. The judge stated:

In my judgment, the failure of Mr Badger to stop smoking after 1971 (or at any rate a reasonable period after 1971) was a failure to take reasonable care for his own safety. Even allowing for the addictive nature of nicotine, he was old enough and intelligent enough to make a choice. He chose the risk.

Apportionment of Liability

Under the Law Reform (Contributory Negligence) Act 1945, the court had to apportion responsibility in a manner that was ‘just and equitable’. The judge considered both the causative potency and the relative blameworthiness of the parties. He noted the defendant’s serious breach of duty but also acknowledged that Mr Badger’s own conduct in smoking for many years was a significant cause of his illness. He concluded that a fair apportionment required a reduction in damages. The judge’s reasoning on the final figure was as follows:

In balancing these considerations, it is clear that Mr Badger’s own conduct was a substantial cause of his death. … It seems to me that a broad, common-sense view should be taken. … I have come to the conclusion that a just and equitable reduction for the deceased’s contributory fault is 20%.

Implications

The case is a significant authority on the application of contributory negligence in industrial disease claims, particularly those involving asbestos and smoking. It establishes that where a claimant’s lifestyle choices, such as smoking, are a concurrent cause of their illness, a defendant who has breached their duty of care can successfully argue for a reduction in damages. The judgment provided a clear temporal benchmark (c. 1971) for when public knowledge of smoking risks became sufficient to found a finding of negligence against a claimant. The 20% reduction became an influential, though not binding, starting point for apportionment in similar subsequent cases.

Verdict: The claimant succeeded on the claim, but the damages awarded were reduced by 20% to account for the deceased’s contributory negligence.

Source: Badger v The Ministry of Defence [2005] EWHC 2941 (QB) (16 December 2005)