In March 2017 we reported on the case of Greenway et al v Johnson Mathie Plc (article here). Three of the five claimants proceeded to appeal the judgment of Lord Justice Sales in the Court of Appeal. The matter proceeded under the name Dryden and others v Johnson Matthey Plc [2017] and was heard by the Supreme Court in November of last year. Judgment has been handed down today (a copy is available here).

The Supreme Court has allowed the appeal and found that sensitisation, even without symptoms is an actionable injury.

Background

Five initial claimants were exposed to platinum salts during the course of their employment. It was admitted by the defendant that the exposure was greater than safe levels required and that prolonged exposure would result in ‘sensitisation’ which, with further exposure, would become an allergy. The turning point in this case was not breach of duty but rather its causative effect. The claimants were given a skin prick test and it was established that they had developed a sensitisation to the platinum salts. As a result they could no longer work with platinum salts and under an agreement reached between the defendant and the claimant’s trade union they were redeployed within the defendant’s business, dismissed or resigned.

At first instance it was held by Jay J that the claimants had an incomplete cause of action in tort as they had not suffered any physical injury. He ruled that the claim was one for pure economic loss.

On appeal the Court of Appeal, citing Rothwell v Chemical & Insulating Company Limited concerning pleural plaques found that the claimants had not suffered physical injury. Whilst the claimants had suffered physiological changes, the steps taken to prevent the allergy developing were not a component of the injury. Removal of the claimants from their jobs, though financially detrimental, was a form of pure economic loss.

In the Supreme Court, the claimants submitted that platinum salt sensitisation constituted a physical change to their bodies which amounted to material damage in that they were worse off than they would have been but for their employer’s breach of duty. They were likely to develop an allergy if further exposed to platinum salts. They were now unfit for further work in areas where they may be exposed to salts, and this qualified as an actionable personal injury.

Alternatively the claimants alleged that there was an implied term within their contract of employment that their employer would keep them safe; as a result of breach of this implied term, they were entitled to damages for the resulting economic loss. Only three claimants proceeded to the Supreme Court.

The Supreme Court’s findings

The matter was heard by five Supreme Court Judges who agreed unanimously that the claimants had suffered an actionable injury. A physical change which makes the claimant appreciably worse off in respect of his health or capability amounts to a personal injury. The arguments on breach of contract and pure economic loss fell away.

Lady Black handing down judgment gave consideration to the medical position and the effects of sensitisation on the claimants’ immune systems. Lady Black stated:

Sensitisation … involves the body’s immune system. The immune system reacts to the presence of molecules which are not normally found in the body (“antigens”) by producing antibodies, in the form of large molecules called immunoglobulins. In many cases, the antibody performs a useful purpose by combining with the antigen and rendering it harmless. However, in some cases, the combination of the antigen and the antibody results in adverse consequences by provoking particular cells within the body (“mast cells”) to release histamine. In this situation, asthma, rhinitis, eye symptoms or skin rashes may result.”

The court was invited to again consider Rothwell (in which claimant’s exposed to asbestos developed pleural plaques in their lungs and were found not to experience any injury and therefore could not pursue a claim) and Cartledge v E Jopling & Sons Ltd (claims brought by steel dressers who contracted pneumoconiosis whilst working in a factory. The House of Lords ruled that the steel dressers had suffered actionable personal injury despite the fact the sufferers were unaware of the disease).

While resisting the claims, it was not the defendant’s argument that sensitisation without allergy can never be actionable, rather, that in this case the substance to which the claimants were sensitised was not a commonly occurring substance which would affect them in their everyday lives. Counsel for the defendant accepted for example that if the claimants were sensitised to something in everyday life, such as sunlight, as opposed to platinum salts, they would have sustained actionable damage because they would not be able to carry on with their ordinary life and would suffer, a “deficit” which would constutite a personal injury.

It followed that sensitisation can constitute an actionable personal injury.

Lady Black summarised the decision succinctly:

The physiological changes to the claimants’ bodies may not be as obviously harmful as, say, the loss of a limb, or asthma or dermatitis, but harmful they undoubtedly are. Cartledge establishes that the absence of symptoms does not prevent a condition amounting to actionable personal injury, and an acceptance of that is also implicit in the sun sensitivity example, in which the symptoms would only be felt upon exposure to sunshine, just as the symptoms here would only be felt upon exposure to platinum salts. What has happened to the claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. They have, in my view, suffered actionable bodily damage, or personal injury, which, given its impact on their lives, is certainly more than negligible.”

Lady Black made clear that the decision in Rothwell has not been overruled, but rather distinguished between the two cases, setting out her reading of Rothwell:

As I see it, it is material that the pleural plaques were nothing more than a marker of exposure to asbestos dust, being symptomless in themselves and not leading to or contributing to any condition which would produce symptoms, even if the sufferer were to be exposed to further asbestos dust. Similarly, the sensitisation of the claimants in this case marks that they have already been exposed to platinum salts, but unlike the plaques, it constitutes a change to their physiological make-up which means that further exposure now carries with it the risk of an allergic reaction, and for that reason they must change their everyday lives so as to avoid such exposure.”

What this means for you

Dryden arguably returns occupational disease litigation in respect of sensitising agents to the previously accepted position. Exposure to such agents in breach of duty which results in sensitisation is actionable. To manage and deal with these risks employers must carry out health screening before and during employment where there is a risk of exposure to harmful substances.

The Supreme Court helpfully distinguished Dryden from Rothwell/pleural plaques. This preserves de minimis arguments in cases where the physiological change does not result in the risk of symptoms, and does not require consequent changes in everyday life and work.