Supreme Court redefines scope of actionable personal injury

Out-Law Analysis | 29 Jun 2018 | 4:46 pm | 3 min. read

ANALYSIS: The UK's highest court has redefined the scope of an actionable personal injury, by finding that employees can in principle recover damages for sensitisation to an allergy.

The recent decision by the Supreme Court could potentially open the floodgates to claims from employees who develop sensitisations to substances in the workplace, inevitably increasing employers' health and safety duties. There are many substances to which workers can develop a sensitisation, and so employers need to be vigilant in pro-actively identifying and discharging their duties regarding the workplace through the appropriate risk assessments and other health and safety controls.

Dryden and two others were employed by Johnson Matthey making catalytic converters, for which platinum salts are used in the production process. Johnson Matthey failed to keep the factory appropriately cleaned, in breach of the health and safety regulations and its duty of care at common law. As a result, the three workers developed a sensitisation to platinum salts.

As soon as the company discovered that the three workers suffered from sensitisation, they were no longer allowed to work in a part of the factory that had platinum salts. One took up a different role at the company, at reduced pay; while the other two had to leave to find alternative work. As such, all three argued that they had suffered a financial loss as a result of Johnson Matthey's breach.

Negligence and a breach of duty are not actionable in and of themselves. Not only do you have to show a breach of a duty of care but you also need to show that you suffered an actionable physical injury. Therefore, economic loss arising from a physical injury can be recovered in tort, but pure economic loss without physical injury cannot.

Sensitisation to the salts is in itself harmless, although further exposure could cause the sufferers to develop allergy-like symptoms such as running eyes and nose, skin irritation and breathing problems. The question for the Supreme Court was whether a sensitisation could constitute an actionable personal injury for which the employees could claim.

The employees lost on this question in the High Court, and also at the Court of Appeal. At both the trial and on appeal, the court held that the employees had suffered no actionable personal injury, and were therefore claiming for a pure economic loss. In particular, Lord Justice Sales at the Court of Appeal endorsed the trial judge's view that platinum salt sensitisation is "not harmful in itself in any relevant sense", and concluded that it was not converted into actionable injury by the resulting removal of the employees from their jobs and related detrimental financial consequences.

The Supreme Court, however, reversed that decision. Lady Black, giving the unanimous judgment of the court, said that the employees' "bodily capacity for work has been impaired and they are therefore significantly worse off". They had "suffered actionable bodily damage, or personal injury, which, given its impact on their lives, is certainly more than negligible".

In coming to its decision, the Supreme Court considered a 2007 House of Lords decision, Rothwell, which was also considered at both trial and appeal levels. This case was remarkably similar to the claim brought by Dryden and his colleagues, except that it concerned the development of pleural plaques on the lungs as a result of exposure to asbestos fibres.

The presence of pleural plaques shows that lung tissue has been exposed to asbestos. However, it does not in itself shorten the life expectancy of an individual, or increase their susceptibility to diseases caused by exposure to asbestos. The House of Lords, in the Rothwell case, therefore held that the presence of asymptomatic pleural plaques was not a personal injury capable of giving rise to a claim for damages in tort.

Johnson Matthey tried to rely on the reasoning in the Rothwell case and tried to argue that because the employees suffered no real damage, they did not have a claim.

However, the Supreme Court has now disagreed with this argument, distinguishing the two cases from each other. While in the Rothwell case, the pleural plaques were nothing more than symptomless markers of exposure to asbestos dust, and would not lead or contribute to any condition which would produce symptoms, even by further exposure to asbestos; in this case, the employees' sensitisation carried the risk of an allergic reaction in the event of further exposure to platinum salts and required them to change their lives in order to avoid such risks.

Meghan Kirk is a health and safety law expert at Pinsent Masons, the law firm behind Out-Law.com.