Court of Appeal dismisses claims for financial losses stemming from physiological changes short of physical injury Greenway and others v. Johnson Matthey Plc [2016] EWCA Civ 408

The background

The High Court last year held that no actionable injury in tort arose from claims that former employees of the defendant had developed sensitivity to platinum as a result of exposure to complex halogenated platinum salts. Although the claimants had suffered no physical injury, their sensitisation had required them to be removed from the workplace environment in which the exposure had occurred. They were unable to be redeployed and either resigned or were dismissed. Each suffered financial loss, claiming significant sums for loss of earnings.

Much of the case at first instance concerned a comparison between platinum sensitisation and pleural plaques. The claimants argued unsuccessfully that they had sustained actionable injury as their sensitisation had led directly to a diminution in their earning capacity.

It was clear that the progression to an allergy would not occur once the claimants were removed from the source of platinum exposure. Although removal from the source, and the resulting job losses, would result in economic loss, there was no physical injury which would form the basis for a claim in tort. The sensitivity in itself was not harmful.

The claims in tort failed, as did the alternative claims in contract.

The Court of Appeal decision

The appellant claimants submitted that they had suffered actionable physical injury or damage by reason of the physiological changes in their bodies. In his judgment, Sales LJ reviewed the decisions of Cartledge v Jopling: [1962] 1 QB 189, CA, [1963] AC 758, HL, concerning development of pneumoconiosis, and Rothwell v Chemical and Insulating Co. Limited [2007] UKHL 39; [2008] 1 AC, which confirmed that pleural plaques were not an actionable injury. He agreed entirely with the first instance judge that:

“One cannot define the actionable injury by the steps which are taken to prevent it. Those steps may result in economic loss, but that is not the same as…. the injury. The correct approach is to analyse the sensitisation in terms of the physical (or physiological) harm it may be causing, not any financial loss which may be consequent upon that harm. The sensitisation is no more, and no less, than the presence of antibodies which in themselves are not harmful.”

The claimants could only recover damages if they had a right of action for breach of contract in respect of pure economic loss, or a right of action in tort to recover such loss.

On the contract point, Sales LJ did not agree with the submission on behalf of the appellants that a duty to hold them harmless from economic loss could be implied in law, or from their contracts of employment, in the absence of express terms. It would not be fair, just and reasonable to extend the respondent’s obligations to cover the type of loss in this case.

Although not argued at first instance, the appellants had been allowed to introduce a new argument on appeal, based on recovery of economic losses in tort. Sales J dealt with that argument in short compass. Relying on Lord Bridge of Harwich in Scally v Southern Health and Social Services Board [1992] 1 AC 294 he was satisfied that:

“If a duty of the kind in question was not inherent in the contractual relationship, I do not see how it could possibly be derived from the tort of negligence.”

The impact

This judgment, adopted in its entirety by Lord Dyson  and Davis LJ, makes it very clear that claimants will not be permitted to claim for harmless injuries, even where financial consequences are sustained. It will be reassuring to employers and insurers that the Court of Appeal has confirmed that to extend the law in such a way is not within their remit.