Case Alert - [2018] UKSC 18

Supreme Court decides whether employees had suffered actionable personal injury

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 at first instance and by the Court of Appeal. The Supreme Court has now unanimously allowed the claimants' further appeal.

The defendant had sought to argue that this case was analogous to Johnston v Rothwell, in which it was held by the House of Lords that proof of damage is an essential element in a claim in negligence and so symptomless pleural plaques were not compensatable damage. However, the Supreme Court said that this case was different because here there had been a change to the "physiological make-up" of the claimants, which required them to change their everyday lives in order to avoid further exposure which carried the risk of an allergic reaction. In Rothwell, though, the exposure to asbestos dust had not lead to, or contributed to, any condition which produced symptoms, even if the sufferer were to be exposed to further asbestos dust.

The defendant had accepted that physiological changes involved in sensitivity can constitute sufficient personal injury to found an action for negligence or breach of statutory duty if the defendant develops a sensitivity to something in everyday life, such as the sun. However, the Supreme Court said that "Ordinary everyday life is infinitely variable. For these claimants, their ordinary everyday life involved doing jobs of a type which, by virtue of their sensitisation, they can no longer do. In those circumstance, I do not see how their situation can be validly distinguished from the person who has developed a sensitivity to the sun".