Partner, Head of Financial Services
Out-Law Guide | 14 Jul 2008 | 12:35 pm | 4 min. read
Johnston v NEI International Combustion Limited (and conjoined cases)
The issue in these four test cases was whether claimants who had been diagnosed with pleural plaques were entitled to claim against their previous employers in negligence.
Pleural plaques are localised areas of pleural thickening on the slippery membrane covering the lungs. They are one of the most common indicators of exposure to asbestos fibres. But although they constitute a physiological change in the body, they do not normally cause any symptoms and are rarely detected during the first 20 years following exposure.
Exposure to asbestos does not necessarily result in the development of plaques. Nor does the presence of plaques necessarily mean that the individual will go on to develop other asbestos-related conditions. The medical experts giving evidence in these test cases put the risk at around 5%.
As Lord Scott put it, "the unfortunate individual who has inhaled the fibres must simply wait and hope for the best".
In England and Wales, a claim for negligence can only be brought if there is proof of damage. The damage need not be substantial but it must be more than minimal.
The difficulty with claims based on the presence of symptomless pleural plaques is that plaques do not constitute an injury and so are not damage. In the absence of injury, a claimant's understandable anxiety that he may develop a more serious asbestos-related condition cannot, by itself, form the basis of a claim in negligence.
In the 1980s, however, a number of decisions allowed claimants to recover damages for pleural plaques on the grounds that, while not actionable in themselves, the presence of plaques, the risk of developing an asbestos-related condition in the future and the individual's anxiety that he might do so, together constituted an actionable claim.
For some twenty years, this "aggregation theory" enabled claimants to recover final awards of between £12,500 and £20,000, or provisional damages (leaving open the possibility of a further claim if the claimant subsequently developed an asbestos-related disease) of between £5,000 and £7,000.
In 2005 the insurance industry took ten test cases to the High Court.
In each case, the claimant had been negligently exposed by his employer to asbestos dust and, as a consequence had (1) developed pleural plaques, (2) was at risk of developing one or more long term asbestos-related diseases and (3) had suffered anxiety about the prospect that he may suffer a disease. One of the claimants (Mr Grieves), on finding out that he had pleural plaques, had become clinically depressed.
The High Court followed the aggregation approach and allowed the claims but reduced the amount awarded to provisional damages of £4,000 and full and final damages of £7,000.
Eight cases proceeded to the Court of Appeal, which in January 2006 reversed the decision. The court held by a majority that there was no legal precedent for aggregating heads of claim that were not in themselves actionable, and that there were solid policy grounds for not allowing claims based solely on a risk of contracting a disease in the future or anxiety about that risk.
Four of the claimants appealed to the House of Lords.
The five Law Lords unanimously rejected the aggregation theory. The presence of pleural plaques, whether or not combined with risk and anxiety, was not an actionable injury.
This conclusion was firmly based on fundamental principles of law, rather than on any considerations of public policy.
Proof of damage is an essential element of any claim in negligence. Pleural plaques do not in themselves constitute damage, nor does the risk of contracting a disease in the future or the individual's anxiety that he might do so. If none of these elements is actionable on its own, they cannot become actionable by being aggregated together.
In the words of Lord Scott, "nought plus nought plus nought equals nought".
The situation regarding Mr Grieves (who became clinically depressed when he discovered he had pleural plaques) was slightly different.
Mr Grieves had had a long-standing fear of developing an asbestos-related disease and became ill after he was diagnosed with pleural plaques some 30 years after he had left the employment in question.
Clinical depression is a recognised psychiatric illness. The question, therefore, was not whether Mr Grieves had suffered damage but whether his employer owed him a duty of care in respect of a psychiatric condition caused by his anxiety at the risk of a future illness.
This in turn depended on whether it was reasonably foreseeable that an employee would react in this way to the risk he might contract an asbestos-related disease.
In the absence of contrary information, an employer is entitled to assume his employees are persons of reasonable fortitude. Neither the Court of Appeal nor the House of Lords considered it reasonably foreseeable that the risk of an asbestos-related disease would cause psychiatric illness to a person of reasonable fortitude.
Although these claims in negligence failed, some of the Law Lords questioned whether claims could have been brought in contract, on the basis that employers owe contractual as well as tortious duties to their employees.
The advantage of a contract action is that the claimant would have to show there had been a breach, but not that he had suffered damage. Time bar issues would arise, but the claimants might be able to rely on the limit for personal injury claims that runs from the claimant's "date of knowledge" under the Limitation Act 1980. A difficulty here would be whether for the purposes of the Act pleural plaques are an "injury".
Since none of the present cases relied on contract, however, these issues could not be explored.
Partner, Head of Financial Services