In a long awaited judgement the House of Lords unanimously dismissed the appeal brought by former employees who had developed pleural plaques and in one case psychiatric injury and upheld the majority decision of the Court of Appeal. Peter Hodson provides the following commentary:

Johnston v NEI International Combustion Ltd; Rothwell v Chemical & Insulating Co Ltd; Topping v Benchtown Ltd; Grieves v F T Everard & Sons (The pleural plaque test case) [2007] UKHL 39 (17th October 2007)

The main issue in this case was whether the Appellants, who had been negligently exposed to asbestos dust/fibre and developed pleural plaques could sue their employers in negligence. It was argued on behalf of the Appellants that the development of pleural plaques amounted to an actionable injury and/or that pleural plaques together with the risk of developing more serious asbestos related disease and the anxiety that was thereby created was sufficient to give rise to a cause of action.

One Appellant, Mr Grieves, who having received his diagnosis of pleural plaques and as a consequence of receiving that diagnosis, developed a psychiatric injury and irritable bowel syndrome, argued (relying on Page v Smith [1996] AC 155) that even if the presence of pleural plaques alone was insufficient to give rise to a cause of action the development of a recognised psychiatric illness was sufficient to entitle him to sue.

At trial, Holland J held that the claims were made out and awarded damages although at a lower rate than had by then become the norm. The Court of Appeal (Smith LJ dissenting) reversed that decision ([2006] EWCA Civ 27). The House of Lords unanimously dismissed the appeal and upheld the majority decision of the Court of Appeal.

Lord Hoffman, who gave the leading speech, stated that proof of damage is an essential element in a claim in negligence and that in his opinion (which was shared by the remainder of the House) symptomless plaques are not compensatable damage nor does the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action. In addition, Lord Hoffman held that even if the anxiety causes a recognised psychiatric illness such as clinical depression no cause of action arises - the risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk (following Gregg v Scott [2005] AC 176 and Hicks v Chief Constable of South Yorkshire [1992] AllER 65).

The House of Lords unanimously dismissed the appeal by Mr Grieves. Lord Hoffman (with whom the other members of the House agreed) held (relying on Hale LJ's judgement in Hatton v Sutherland [2002] ICR 613), that what needs to be foreseen by the employer is "€œthe event which actually happened"€ would have caused psychiatric illness to a person of "€œsufficient fortitude" or "€œcustomary phlegm". So in Mr Grieves case the test became "whether the creation of a risk of asbestos related disease would cause psychiatric disease in a person of ordinary fortitude"€. Lord Hoffman (with whom the remainder of the House agreed) considered that the Court of Appeal were right to conclude there was no basis in Mr Grieves'€™ case for such a finding.

Mr Grieves, had argued that he was a "€œprimary victim" within the meaning of Page v Smith and thus it was necessary only for him to shew that his employer ought to have forseen that the admitted exposure to asbestos might cause him physical injury. Lord Hoffman held that in Mr Grieves case the foreseeable event was that he would develop an asbestos related disease but that event had not actually occurred. In Mr Grieves case the "psychiatric illness had been caused by apprehension that the event may occur"€ and, because the creation of such a risk is not actionable, it would be an unwarranted extension of the principle in Page v Smith to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened. Likewise, Lord Rodger distinguished Page v Smith noting that Mr Grieves developed his illness on learning of a risk that he might possibly develop asbestosis or mesothelioma at some uncertain date in the future as compared to the Claimant in Page v Smith who was exposed to but escaped instant physical harm, ie, he developed his illness as an immediate response to a past event.

Future developments

It may be that there is yet more litigation to come out of pleural plaques. Lord Hope observed (para 59) that the question whether employees might have a remedy against their employers in contract has not been explored in the present context and that "there may be room for development of the common law in this area"€. Similarly, Lord Scott found (para 74) the conclusion that none of the appellants had a cause of action against his negligent employer struck, for him at least, "€œa somewhat discordant note"€. Lord Scott observed that each Appellant was employed under a contract of service, that "€œdamage" does not have to be shewn in order to establish a cause of action for breach of contract. Accordingly, "€œit might well be arguable that the breach of a contractual duty to provide a safe working environment for employees or an environment where reasonable precautions had been taken to avoid employees being exposed to injurious asbestos dust, would justify an award of contractual damages to compensate the employees for subjecting them to the risk of contracting in the future a life-threatening asbestos related disease"€. Lord Mance (para 105) noted that the scope of an employers'€™ contractual liability "€œmight require examination"€. Lords Hope, Scott and Mance agreed that such examination would have to wait for another case.

Commentary by Peter Hodson, Garden Court North, 17th October 2007

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