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

Mr Badger died of lung cancer caused by both asbestos exposure during employment with the Ministry of Defence and his long-term smoking. His widow claimed damages. The court held that Mr Badger's continued smoking constituted contributory negligence, reducing damages by 20 per cent.

Facts

Reginald Badger worked as a boilermaker for the Ministry of Defence from 1954 to 1987, during which he was exposed to asbestos dust and fibres. He also smoked approximately 20 cigarettes daily throughout his adult life until shortly before his death. Mr Badger died of lung cancer on 6 May 2002 at the age of 63. Medical evidence established that both asbestos exposure and smoking were causative of his lung cancer. His smoking increased his risk of lung cancer by a factor of 10, while asbestos exposure increased it by a factor of 5. Mr Badger had been repeatedly advised by medical professionals to stop smoking, particularly from 1991 onwards when he developed angina, emphysema and heart disease.

Issues

Primary Issue

Whether Mr Badger’s continued smoking constituted contributory negligence, and if so, what reduction in damages was just and equitable.

Subsidiary Issues

Whether it was reasonably foreseeable that smoking would damage Mr Badger’s health; whether Mr Badger could reasonably have been expected to stop smoking; and what the appropriate level of reduction should be.

Judgment

Mr Justice Stanley Burnton held that Mr Badger’s continued smoking did constitute contributory negligence. The court found that by 1971, when the first government health warnings appeared on cigarette packets, it was reasonably foreseeable that smoking risked damaging health. Mr Badger had received specific medical advice about the harmful effects of smoking from 1968 onwards, and was strongly advised to stop smoking from 1991.

The court rejected the argument that addiction to smoking precluded a finding of contributory negligence, noting there was no medical evidence that Mr Badger was so addicted he could not have stopped, and the advice given to him presupposed he could do so.

Regarding the applicable legal principles, the court confirmed that contributory negligence requires foreseeability of harm to oneself, but the test is objective. Once contributory negligence is established, a reduction in damages is obligatory.

The court determined that the appropriate reduction was 20 per cent, taking into account that the Ministry of Defence bore significantly greater blame for its breaches of statutory duty, and that not all of Mr Badger’s smoking period was blameworthy.

Implications

This case established that continuing to smoke, when a person knows or ought to know that doing so risks damaging their health, can constitute contributory negligence. The decision has significant implications for occupational disease claims where claimants have also smoked. The court emphasised that a person who chooses to pursue conduct injuring their own health bears responsibility for the consequences, and the subjective views of the individual do not determine fault. The case provides guidance on how courts should approach the assessment of contributory negligence in cases involving multiple causes of injury, including lifestyle factors.

Verdict: The claimant's damages were reduced by 20 per cent on account of Mr Badger's contributory negligence in continuing to smoke.

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