New Supreme Court judgment on asbestos and smoking

The Supreme Court has ruled in a case where the question was whether an employee's lung cancer was caused by smoking for many years or exposure to asbestos at the previous workplace.

Since the 1980's there has been a total ban against the use of asbestos in building materials, but new cases of asbestosis are still emerging. This is due to the fact that the disease often emerges many years after a person has been exposed to asbestos. Lung cancer caused by asbestos was in 2013 included in the list of occupational diseases of the Centre for Occupational Diseases.

In the leading Supreme Court ruling from 1989 on industrial injuries caused by asbestos, it was established that the employer was liable in damages, and that smoking was not to be considered own fault, even if the asbestos dust was not the most significant cause of the injuries according to the Danish Medico-Legal Council.

HEAVILY SMOKING ASBESTOS WORKER STRICKEN BY LUNG CANCER

In the ruling from the Supreme Court, a man had in the period 1979-1986 been working with substantial quantities of asbestos. At the same time, he had for 40 years been smoking between 20-30 cigarettes per day and was later stricken by lung cancer.

The National Board of Industrial Injuries recognised the disease as an industrial injury. However, when the man's degree of disablement was to be determined, there was disagreement as to whether the asbestos injury was most likely caused by other conditions than the occupational conditions - i.e. the smoking for many years - with the effect that a deduction should be made in the degree of disablement or it should be eliminated entirely.

ASBESTOS DOUBLES THE RISK OF CANCER

The matter was submitted to the Medico-Legal Council, which stated that the man's consumption of cigarettes had increased his risk of lung cancer by 10-20 % when disregarding the impact of asbestos. At the same time, the asbestos had only increased the risk by 2 % when disregarding the smoking.

However, the Medico-Legal Council stated that smoking and the exposure to asbestos have a so-called multiplicative effect, which means that the exposure to asbestos had doubled the risk of lung cancer, i.e. 20-40 % when taking both the smoking and the asbestos into account. At the same time, the Medico-Legal Council stated that the number of lung cancer incidents caused by asbestos is approx. 50 % for both smokers and non-smokers.

In other words, had the man not been exposed to asbestos in his work, the risk of developing lung cancer would have been halved, while the exposure to asbestos combined with the smoking had doubled the risk of cancer.

The National Board of Industrial Injuries and the National Social Appeals Board concluded on this basis that the man's total degree of disablement was 15 %, but that 90 % thereof was caused by the smoking and could therefore not be ascribed to the work. Therefore, the man was not awarded compensation as the work-related degree of disablement was below the triviality limit of 5 %.

THE SUPREME COURT: ASBESTOS CAUSED LUNG CANCER

Initially, the Supreme Court referred to the rule of assumption in section 8 of the Danish Workers Compensation Act, which provides that any person having contracted a disease included in the list of occupational diseases shall be entitled to benefits under the Act, except where it is deemed to be likely beyond reasonable doubt that the disease was brought about by non-occupational circumstances.

According to the Supreme Court, it had to be based on a specific assessment of the evidence whether the man's lung cancer had been caused by smoking or the exposure to asbestos.

As opposed to the National Social Appeals Board, the Supreme Court did not find that the decision was to be based on the risk of developing lung cancer if the man was not a smoker. On the contrary, it was to be based on the fact that the man was a smoker and that the risk of developing lung cancer had increased from 10 to 20 % as a result of the exposure to asbestos.

It was therefore not likely beyond reasonable doubt according to the rule of assumption that the lung cancer had been caused by other than the exposure to asbestos. The Supreme Court noted that the risk of developing lung cancer would also have doubled due to the asbestos even if the man had not been a smoker.

The Supreme Court therefore found that the man's permanent injury of 15 % was to be considered a result of the industrial injury.

COMMENTS

The judgment shows that, irrespective of the fact that a high cigarette consumption increases the risk of developing lung cancer to a higher extent than asbestos, it was not likely beyond reasonable doubt according to the rule of assumption that the man's lung cancer had not been caused by the exposure to asbestos.

In relation to the so-called "differential claims", which constitute employees' claims for damages against an employer under the Liability in Damages Act for payments in connection with an industrial injury, it is important to keep in mind that no similar rule of assumption applies in the system of damages.

Under the Liability in Damages Act, the general assessment of causal connection applies in relation to competing diseases. The competing risk and cause of the development of lung cancer as a result of smoking would therefore presumably have led to the opposite result under the Liability in Damages Act.

contacts

Finn Schwarz

Managing Partner

Maria Schmiegelow

Attorney