E-cigarettes, lung cancer & contributory negligence: what’s the deal when making a claim for personal injury?

Many lung cancer claimants, with heavy exposure to asbestos in their work history, also have a history of smoking. While many may have given up in recent years, few gave up when the first Government health warnings were issued about smoking in the 1970s. Many continue to smoke to this day, albeit to a lesser degree.

Cigarettes and contributory negligence - the case law

In the 2005 case of Beryl Badger v Ministry of Defence, Mrs Badger sought damages against the MOD for negligence following her husband’s death from lung cancer at the age of 63.

Mr Badger had been employed by the MOD as a boiler maker and during the course of his employment he was exposed to high levels of asbestos, which was accepted to be the cause of the lung cancer that killed him.

However, Mr Badger had smoked for most of his life and had received numerous warnings about the risk to his health from continuing to smoke. Despite this, Mr Badger continued to smoke, and whilst the MOD admitted primary liability for Mr Badger’s cancer, they contended that he should be found to be contributory negligent because he was smoking when he should have known that continuing to do so could cause damage to his lungs’ health.

The judge found that Mr Badger could not be criticised for starting to smoke. When he first began smoking, the connection between smoking and serious ill health was not widely accepted. However, in Mr Badger’s case, there was no evidence that he was so addicted to tobacco that he could not reasonably have been expected to stop smoking. Therefore, he was found to be partly responsible for his death from lung cancer by continuing to smoke despite the advice and causing damage to his lungs.

The court found that a reasonably prudent man in Mr Badger’s situation, warned that there was substantial risk of continuing to smoke cigarettes damaging his health, would stop smoking. Mrs Badger’s damages were therefore reduced by 20% for Mr Badger’s contributory negligence in continuing to smoke.

E-cigarettes & vaping: what is the known effect on damage to lung health?

E-cigarettes have only been available for a relatively short time, first becoming widely available in the UK in 2007. However, the number of people using them has grown rapidly over the past decade and they have played a significant role in helping many people give up cigarette smoking. There is still uncertainty over their effect on lung health though, especially with long-term use.

The advice from the National Institute for Health and Care Excellence (NICE) on e-cigarettes states “the evidence suggests that e-cigarettes are substantially less harmful to health than smoking, but are not risk free. The evidence in this area is still developing, including the evidence on the long-term health impact”.

In the USA there have been significant reports of severe lung damage in people who vape, sometimes referred to as ‘popcorn lung’, although there is no definitive answer at this point as to how vaping harms lungs. It is important to note that regulations concerning the chemical makeup of vaping solutions differ between the UK and the US, which could account for the wider reporting of severe lung damage in people who use e-cigarettes there.

2018 studies of the effect of e-cigarette liquid on the cells of the lungs that prevent irritants such as dust and infectious bacteria passing into the airways indicated an increased level of cell death, especially amongst those cells that were exposed to condensed e-cigarette liquid. However, these studies involved a very small number of cell samples.

For firm conclusions to be drawn about the effects on health, much wider studies would be needed to provide data from people who use e-cigarettes.

Recent news though has reported a link between e-cigarettes and lung cancer in mice. This study involved a laboratory study of 85 mice divided into three groups.

Over the course of a year, each group was exposed to either:

• e-cigarette smoke (including nicotine)
• e-cigarette vapour (without nicotine)
• filtered normal air.

Out of that controlled group, nine out of the 40 mice exposed to e-cigarette smoke developed lung tumours whereas only one of the mice breathing normal air developed a lung tumour during the course of the study.

None of the mice breathing nicotine free vapour developed a lung tumour, and more than half the mice exposed to e-cigarette smoke showed signs of potentially cancerous changes in their bladder (bladder cancer also being linked to cigarette smoking).

However, it is important to note the results of this study do not automatically lead to a link between e-cigarettes causing lung cancer in humans or cancerous changes in the bladder! The group of 85 mice was very small, much wider data would be needed to draw conclusive links. The test on mice exposed 40 mice to cigarette smoke containing nicotine, whereas the second and third groups contained only 18 mice, so this again has to be borne in mind when considering the results.

Humans are not biologically identical to mice, so could react differently to e-cigarette smoke. The lifecycle of a human would require a much longer period of study in order to definitively know what the impact of e-cigarette smoking is on human health. Therefore while laboratory tests can give an indication of potential biological and health effects, this would not be enough to give a definitive view on how humans would respond.

What does the NHS advise?

Current NHS advice is that there is no doubt that e-cigarettes are far healthier than smoking tobacco. However, e-cigarettes are not a solution to quitting a nicotine addiction. Nicotine gum, patches and throat sprays are designed to gradually reduce daily exposure to nicotine, helping to wean off the addiction, whereas e-cigarettes containing nicotine merely replace it.

The current advice is that e-cigarettes are considerably less harmful than smoking cigarettes, but we are not certain that e-cigarettes are completely safe. They have not been in use long enough to build a clear enough picture of their long-term effect on human health, as the effect of inhalation of cigarette smoke often takes decades to present harmful effects on human health.

It is also not known whether the ambient exposure concentrations used in animal studies are the same as someone vaping, and whether vaping affects only the person directly inhaling the vapour or whether there can be a passive exposure to e-cigarette smoke in the same way that there is with cigarette smoke.

The NHS advice is clear, in that at this stage we need to continue to gather evidence on the effect of e-cigarettes in humans and it could be many years before we are able to fully understand the risks associated with the long-term use of e-cigarettes.

So how do we minimise the risk? The only potential way to minimise the risk from e-cigarette use would be to use them as a short-term measure while stopping smoking, rather than as a long-term alternative. Ideally, use alternate nicotine replacements products that will allow you to wean off the addictive habit and give up completely.

What are the likely legal implications for contributory negligence in asbestos induced lung cancer cases?

In the case mentioned above, Mr Badger was found to have been contributory negligent because he failed to cause smoking in the face of long term and repeated advice that smoking would serious damage his health.

There have been repeated failures of cases against the tobacco industry to establish liability for the causation of lung cancer through cigarette smoking. In the case of McTear v Imperial Tobacco (2005), a case that was heard under Scottish law, Mrs McTear failed in her claim for damages for the death of her husband after he developed lung cancer having smoked 60 cigarettes a day for most of his adult life. The judge in that case held that Mrs McTear had failed to discharge the burden of proving that cigarette smoke can cause lung cancer. He found the state of the evidence did not allow him to decide one way or the other.

So where does this leave us in terms of the possibility of a defendant successfully arguing that a claimant was contributory negligent for continuing to smoke using e-cigarettes?

In the case of Mr Badger, he was given repeated warnings over many decades about the potential dangers to his health from continuing to smoke if he did not give up. The advice in relation to e-cigarettes currently is that they cannot be considered to be completely safe, but they are understood to be considerably less harmful than smoking cigarettes. The NHS currently advises that it is simply too early to know what the long-term damage would be to human health.

Applying the test used in Mr Badger’s case then, what, given this advice, would the reasonable man do? Given the lack of knowledge, would it be unreasonable for a person to use e-cigarettes to give up smoking?  Personally, I think not!

However, a court in years to come may take a different view. The advice given to Mr Badger was repeated and far more definitive than the current data and advice available for the smoking of e-cigarettes. My opinion is that a court would be hard pressed to find in a defendant’s favour for contributory negligence. However, as the knowledge develops on how e-cigarettes affect human lungs, the health guidance may become more clear, and if a danger to human health is shown, more in line with the guidance given to Mr Badger in the decades leading to him developing lung cancer.

With the lack of knowledge surrounding long-term use of e-cigarettes, and the inevitability that should studies show that they are damaging to human lungs in the future, the Courts will find contributory negligence to some extent for their continued use. The answer must be to err on the side of caution with their use.