We successfully applied for summary judgment where the Claimant suffered from asymptomatic silicosis. The Judge agreed with our position, that the symptoms were not clinically significant and did not give rise to any functional impairment that was compensable in law.
The Claimant alleged that his work as a stonemason resulted in exposure to significant quantities of respirable silica dust.
The Claimant's medical expert concluded the Claimant's silicosis was "probably not causing any respiratory disability" and that it was possible that it was making a small contribution to his cough and a minor degree of breathlessness, although there were other causes of these symptoms.
He took the view that there was an approximate 10% chance of the silicosis worsening to cause breathlessness with a respiratory disability of 10% or more. There was also an increased risk of lung cancer (1%) and of tuberculosis (0.1%) owing to the diagnosis.
The Claimant also suffered with pre-existing psychological issues and anxiety, which he alleged had deteriorated as a result of the silicosis diagnosis.
We applied for summary judgment on the basis that the Claimant's medical evidence noted the silicosis was not causing any respiratory disability and was not responsible for any symptoms. It was our position that even if the silicosis diagnosis was proven, the symptoms were not clinically significant and did not give rise to any functional impairment. It was therefore de minimis, caused no harm to the Claimant and was not compensable in law.
In respect of the psychiatric injury, the medical evidence failed to confirm that the diagnosis of silicosis had caused any psychiatric injury to the Claimant. In any event, any anxiety (if proved) consequent on a diagnosis of a non-actionable injury was not compensable on the basis of Chemical & Insulating Co Ltd and Gieves v Everard.
The Judge agreed with our submissions, despite the Claimant advancing counter arguments; namely relying on the judgment of Harry Mills v J P Barnes (2013). In that case, the Court found there was a respiratory disability due to silicosis, sufficient to amount to a material injury.
The present case was however distinguishable as there was insufficient evidence to find there was any respiratory disability and only a possibility and not a probability this contributed to the Claimant's cough and a minor degree of breathlessness.
What can we learn?
- Despite the silicosis diagnosis and, on the claimant's evidence, the (10%) chance of progression to cause breathlessness and a respiratory disability of 10% or more the Judge in this case was persuaded that this was insufficient to give rise to a cause of action for injury.
- Whilst silicosis claim numbers have reduced in recent years (annual new cases assessed for Industrial Injuries Disablement Benefit have reduced from around 80 cases per year in 2005-2007 to around 40 cases per year in 2013-2015), as this case indicates, it is still worth taking such points in relevant cases, even where there is a chance of progression of the disease.
- The rationale of the decision follows, in general terms, the reasoning employed by the Court of Appeal in the hearing loss case of Mark Ross v Lyjon Co Limited in which we successfully represented the Defendant. Both cases found that causation could not be inferred on the basis there were no others causes of the symptoms, and that the symptoms were in any event de minimis. Had these decisions not been made the way there were, claimants would also be able to argue that lower levels of loss would be actionable on the basis that the condition will or might deteriorate.
- This decision is also in line with the decision in Rothwell v Chemical & Insulating Co Ltd, most recently followed by the Court of Appeal decision of Greenway & others v. Johnson Matthey Plc  EWCA Civ 408 which dismissed claims for financial losses stemming from physiological changes short of physical injury.