The three claimants were employed in factories that make catalytic convertors and it was alleged that they had been exposed to platinum salts and had consequently become sensitised to them.
As a result of being sensitised to platinum salts, the claimants could no longer work in areas where there was a risk of further exposure because this would likely lead to an allergic reaction. Consequently one of the claimants was redeployed and the other two were dismissed under special termination conditions.
The claimants asserted that they had suffered loss of earnings or earning capacity due to the fact that they were no longer able to work in their previous roles or in any environment where further exposure to platinum salts might occur.
The claimants’ argued that sensitisation to platinum salts was an actionable personal injury which entitled them to bring claims against the defendant.
At first instance, the judge held that the claims were for pure economic loss, which was irrecoverable in tort.
The matter went to the Court of Appeal where the decision of the judge at first instance was upheld.
Supreme Court decision
The Supreme Court noted that the concept of actionable personal injury had not been defined but it had been seen as including a physical change, which made the sufferer appreciably worse off in respect of their health or capability and also included an impairment or injury to the sufferer’s physical capacity to enjoy life.
It was accepted that an allergy due to platinum salts exposure amounted to an actionable personal injury. The development of the allergy had two stages comprising of sensitisation and allergy.
In respect of sensitisation, it was noted that the claimants had experienced physiological changes even though these changes were hidden and symptomless unless there was further exposure to platinum salts. Also, further exposure carried with it the real risk of an allergic reaction and the claimants had to make changes to their everyday lives to avoid further exposure.
It was accepted that their working capacity had been impaired because they could no longer work in their former jobs and were therefore significantly worse off.
As a result, the claimants were allowed to pursue their claims against the defendant for personal injury, loss and damages as a result of developing sensitisation to platinum salts.
This case raised important points in respect of the nature of actionable injury and the recoverability of economic losses in negligence.
Negligence and breach of statutory duty are not actionable in themselves and it is necessary for claimants to establish that there has been damage in the form of actionable personal injury. In this case, the Supreme Court recognised that the concept of what is an actionable personal injury is very broad and includes physiological changes that are hidden and symptomless.
Whether or not an individual has suffered material damage by any physical changes in their body is essentially a question fact. The concept of actionable personal injury is sufficiently broad to include latent damage where the effect on the claimant is classed as significant.