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The Appeal Case of The Department for Communities and Local Government v Blackmore - David Roderick, Farrar's Building

02/03/18. The appeal case of The Department for Communities and Local Government v Blackmore [2017] EWCA Civ 1136 (“Blackmore”) is an important restatement of the principles governing the exercise of the reduction of damages for contributory negligence under s.1 (1) of the Law Reform (Contributory Negligence) Act 1945, and a defeat for a novel argument on behalf of defendants in asbestos related lung cancer cases. The Defendant’s contention was that the court ought to apply the causation test for the attribution of liability (as derived from Fairchild v. Glenhaven Funeral Services Ltd. [2003] 1 AC 32 and developed in Barker v. Corus UK Ltd. [2006] 2 AC 572) to the apportionment assessment of causative potency and relative blameworthiness when determining contributory negligence.

The deceased was employed between 1966 and 1986 and although his work had involved significant contact with asbestos fibres he had never been provided with a dust mask or other protective equipment. The Defendant had conceded primary liability because a post mortem mineral fibre analysis of the lungs indicated a quantity of total retained asbestos fibre count above the level at which the risk of contracting lung cancer doubles.

However, the deceased had also been a smoker who had started in 1950 at age 14 by smoking about 20 per day, until 2005 when he cut down to 12 a day. He had been medically advised to stop smoking in 1976, and he died from lung cancer in 2010...

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