Smoking and contributory negligence in asbestos cases

 


A smoker who was certified as dying of asbestosis and lung cancer, among other causes, was 20 per cent contributorily negligent for the cause of his death in failing to heed general health warnings on cigarettes and specific warnings from his GP from the mid 1970’s onwards.

 

It was held the reasonably prudent person would have stopped smoking after such warnings.

The medical evidence was that this failure contributed to his early death as well as the negligent exposure to asbestos. The causes of death were indivisible but the medical evidence was that failure to cease smoking caused a significant statistical risk of early death.

Protection from Harassment Act case


The claimant had been interviewed by a police officer on several occasions following allegations by her daughter that she had been raped and beaten by her former partner.

The statements taken by the police officer included details of her sexual conduct that were not relevant to the investigation and which it was alleged had been elicited by him to satisfy his prurient interest. She stated that he had visited her home several times and telephoned her for personal discussions about his or her private life unrelated to the investigation, that he had touched her sexually and made sexual remarks and conducted himself in a manner that amounted to harassment or assault or both.

The claimant (D) claimed damages for battery and harassment against the defendant chief constable on the basis that he was vicariously liable for the acts of one of his officers (H).

Held: (1) The visits to D and the taking of the statements was a course of conduct and plainly amounted to harassment. H’s purpose in obtaining and recording the sexually explicit details in the statements was not to prevent or detect crime. The only purpose was H’s own gratification. H did touch D in the way she had alleged, and as such committed batteries against her. The touching was unacceptable from a police officer on duty. The incidents of touching also formed part of the whole course of conduct, which amounted to harassment.

As discussed before, you do not need to show a classifiable psychiatric injury for damages under this Act.

(2) It had not been shown that D had developed post traumatic stress disorder, or any other psychiatric disorder, as a result of her contact with H, therefore damages for psychiatric injury did not arise but D was awarded general damages in the sum of £10,000 for anxiety and injury to feelings during the period of H’s visits and telephone calls. She was also awarded a further sum of £10,000 by way of aggravated damages due to the further suffering caused by H persistently denying the allegations. D had had to relive all the matters complained of in giving further statements, in attending the disciplinary proceedings and being vigorously cross-examined in the instant proceedings.

It was also held just and equitable that the police officer should indemnify the chief constable in full.

KD (claimant) -v- Chief Constable of Hampshire (defendant) & John Hull (Part 20 defendant) (2005) [2005] EWHC 2550 (QB). CC (Portsmouth) (Tugendhat J) 23 November 2005