Johnston v NEI International Combustion Limited, Rothwell v Chemical and Insulating Company Limited and others, Topping v Benchtown Limited, Grieves v FT Everard & Sons and others

In a decision which will come as a relief to insurers and reinsurers, the House of Lords has unanimously upheld decisions of the Court of Appeal to overturn awards for damages for the development of pleural plaques. The Lords rejected the notion that plaques, which are largely without symptoms (but are indicative of exposure to asbestos), amounted to an actionable injury. A claim in tort based upon negligence required proof that damage had actually occurred.

The appellants’ “aggregation” theory was also rejected. It had been submitted that a physiological change which is not compensatable damage can be added to the equally un-compensatable anxiety about future disease to form one cause of action. The Lords found that the risk of injury and the anxiety of developing more serious asbestos-related illnesses could not be aggregated to establish a cause of action. Lord Hoffman remarked: “in order to sue for personal injury you need a cause of action and … symptomless bodily changes with no foreseeable consequences, the risks of a disease which is not consequent upon those changes and anxiety about that risk are not, individually or collectively, damage giving rise to a cause of action”.

A separate ground of appeal was put forward by Mr. Grieves in relation to his psychiatric injury allegedly caused by the development of the plaques. It was held that a claimant would have to prove that the actual event (ie the plaques) would cause psychiatric injury to a person of sufficient fortitude. The Lords did not agree that Mr. Grieves’ depression was a reasonably foreseeable consequences of the creation of the risk of an asbestos-related disease (as opposed to the actual onset of such a disease).

It was pointed out that claimants may have had an alternative cause of action in contract if their employers had failed to provide a safe working environment. That would amount to a breach of contract which is enough to establish a cause of action, regardless of the amount of loss actually suffered. The claimants would nevertheless have had to show actual injury in order to become entitled to anything more than nominal damages for the breach.