Rothwell v Chemical & Insulating Co Ltdclaims in tort dismissed but possibility of suing in contract left open

[2007] UKHL 39

Claimants have been recovering damages for pleural plaques for 20 years since the decision in Sykes v MOD even though they cause no physical symptoms. The decision of the Court of Appeal allowing the defendants' appeal represented a fundamental change in the way we approach such claims. This has been upheld by the House of Lords, saving the insurance industry what has been estimated at more than £1.4bn in damages.

Although they gave separate judgments, the Law Lords were fairly unanimous in their approach and agreed on the following principles:

1 Pleural plaques are not an actionable physical injury because they do not cause more than minimal damage.

2 Emotional reactions, such as anxiety about your future state of health, do not on their own sound in damages.

3 Bringing a claim which combines 1 and 2 does not create a good cause of action.

Nought plus nought still equals nought.

One of the claimants, Mr Grieves, had developed a psychiatric illness 20 years after his exposure to asbestos dust. His claim was also dismissed on the ground that the psychiatric illness was not reasonably foreseeable. The decision in Page v Smith, where the claimant was entitled to recover damages in respect of psychiatric harm following a car crash in which he was exposed to but escaped instant physical harm was distinguishable. There the mechanism which caused the psychiatric harm was the same mechanism as had almost resulted in physical harm ie the crash. By contract, the mechanism which caused Mr Grieves' depression was his doctor telling him that he that he had slight pleural thickening in 2000 and not the defendants' breach of duty 20 years earlier.

Comment: this decision has understandably caused an outcry on behalf of claimants, and, as happened after the decision of the House of Lords in Barker v Corus, pressure has been applied to the government to legislate to reverse the effect of the decision. The pressure following Barker was successful and the effect of the decision was reversed in s3 Compensation Act 2007 so that defendant employers to mesothelioma claims are now jointly and severally liable. Not immune to the outcry which they knew would follow their decision, the House of Lords left open the possibility that a contractual rather than a tortious claim could be brought against an employer for pleural plaques and anxiety or psychiatric harm. This might be possible by analogy with the cases establishing exceptions to the usual rule that damages in contract will not be awarded for mental distress, such as Farley v Skinner. Alternatively a claimant could argue that his employer was in breach of an implied duty of trust and confidence (see Mahmud v BCCI SA and Johnson v Unisys Ltd). Limitation need not be a problem since the extended limitation period for personal injury claims under s11 Limitation Act 1980 applies to contract claims as well as those in tort.