The first instance decision in this case was reported in Weekly Update 44/14. The claimant employees were exposed to complex halogenated platinum salts and as a result had developed sensitivity to platinum. Since this sensitivity can, with further exposure, lead to an allergy, the employees were removed from their regular posts and eventually handed in their notice. The claimants sought to argue that they had sustained actionable injury because the sensitivity had led directly to a reduction in their earning capacity. That argument was rejected by Jay J, who held that the progression to an allergy would not occur if the employee is removed from the source of the sensitisation. Although such a removal may result in economic loss for the employee, that is not the same as an injury. The sensitivity in itself is not harmful.
The Court of Appeal has now dismissed the appeal from that decision.
In order to establish liability, the Court of Appeal confirmed that the claimants had to show that they had suffered actionable physical injury. They were unable to do so, since, on the medical evidence, platinum sensitisation is not harmful: "It is a physiological change analogous to the development of pleural plaques in the lungs in the Rothwell case, and hence does not constitute actionable damage or injury. Unlike the lung scarring from pneumoconiosis in Cartledge, platinum sensitisation is not a "hidden impairment" which has the potential by itself to give rise to detrimental physical effects in the course of ordinary life".
Nor could the claimants bring a claim for breach of contract, on the basis that the defendant had failed to take all necessary and reasonable steps to ensure that the appellants were safe while at work. That claim failed because the employer has a duty to protect an employee from physical injury and not from economic harm. Nor could a claim be brought in tort for damages for pure economic loss. There was no implied contractual term, nor any duty inherent in the contractual relationship between the parties, to protect the employee from financial harm.
The Court of Appeal concluded that: "At the heart of this case is an attack by the appellants, from various different directions, on the conventional view that under the law governing the relationship between employer and employee, whether in contract or in tort, an employee needs to show that he has suffered physical injury in a case such as this in order to be able to claim substantive damages which cover also the financial losses he has suffered as a result of such injury". The various arguments raised by the claimants were rejected because the need for actual physical injury is "deeply embedded in the law".