In this e-bulletin we consider the House of Lords decision in Rothwell v Chemical Insulating Co and others  UKHL39.
Ten claimants claimed damages against their former employers alleging that they had been negligently exposed to asbestos and as a result had developed pleural plaques. They argued that despite the fact that the plaques caused no physical symptoms, nonetheless the fibros thickening of the pleural membrane was sufficient to amount to an actionable injury. In the alternative they argued that the plaques combined with the risks of other asbestos-related disease and the attendant anxiety, crossed the threshold of actionable damage; the aggregation theory. One of the claimants, Mr Grieves, also suffered from a psychiatric illness as a result of the diagnosis of pleural plaques. Accordingly, he alleged that even if pleural plaques were not actionable, he had a cause of action based on his psychiatric illness.
The test cases were upheld by Mr Justice Holland at first instance (see e-bulletin of 3 March 2005). The Court of Appeal reversed this decision. The majority held that the damage was not more than minimal as the pleural plaques did not cause them symptoms or increase the risk of future disease (see e-bulletin of 3 February 2006).
Four of the claimants appealed to the House of Lords. The following issues were considered:
1. Whether the presence of pleural plaques which caused no symptoms, a result of the inhalation of asbestos fibres brought about by the negligent exposure of the claimants to asbestos dust, entitled the claimants to bring an action for damages.
2. If the answer to the first issue was no, did the presence of plaques when coupled with anxiety associated with the risk of developing an asbestos related disease create a cause of action?
3. The third issue related only to Mr Grieves, namely, whether if the answers to the first and second issues are in the negative, did he have a cause of action by virtue of his psychiatric injury?
The five Law Lords unanimously held that the Court of Appeal had been right to rule that claimants with pleural plaques which cause no symptoms have no cause of action.
1. Are pleural plaques actionable damage?
- The leading speech was given by Lord Hoffmann. Applying basic principles he held that proof of damage is an essential element in a claim in negligence. Accordingly symptomless plaques are not compensatable damages.
2. Aggregation theory
The House of Lords unanimously rejected the aggregation theory:-
- Lord Hope held that if pleural plaques were not actionable and anxiety alone is not actionable then it was not possible to combine them to produce a cause of action. For policy reasons damages are not awarded in cases where the effects of injury are negligible. Lord Hope recognised that there is no clear guidance as to where the line is to be drawn "but it can at least be said that an injury which is without any symptoms at all because it cannot be seen or felt and which will not lead to some other event that is harmful has no consequences that will attract an award of damages. Damages are given for injuries that cause harm, not for injuries which are harmless".
- Lord Scott emphasised that the aggregation theory failed not because the plaques or the resulting anxiety themselves were too trivial, but rather because as a matter of legal analysis neither gives rise to a cause of action. With symptomless plaques there is no damage, and for policy reasons the law does not recognise anxiety falling short of a recognised psychiatric condition as an injury. Therefore, as he concluded, "Nought plus nought equals nought".
3. Mr Grieves
The House of Lords unanimously held that Mr Grieves' claim also failed.
- The principle in Page v Smith requires the court to decide whether it was reasonably foreseeable that the event which actually happened (in this case, the creation of the risk of an asbestos-related disease) would cause psychiatric illness to the claimant. In the present case, the foreseeable event was that the claimant might contract an asbestos related disease in the future. However, as the event has not occurred and the psychiatric illness has been caused by apprehension that the event may occur the Court considered that would be an unwarranted extension of the principle in Page v Smith.
- Mr Grieves' case was distinguishable from the victim in Page v. Smith on two grounds. First, the factor that precipitated Mr Grieves' psychiatric illness was not a stressful event caused by the breach of duty such as the motor accident which gave rise to Mr Page's psychiatric reaction. Mr Grieves did not become psychiatrically unwell when he was negligently exposed to asbestos, but only many years later when he was told that slight pleural thickening had been detected by x-ray. Lord Hope stated the category of primary victim should be confined to persons who suffer psychiatric injury caused by fear or distress resulting from involvement in an accident caused by the defendant's negligence or its immediate aftermath: "A person like Mr Grieves who suffers psychiatric injury because of something that he may experience in the future as a result of the defendant's past negligence is in an entirely different category".
- Second, he held the causal chain between his inhalation of the asbestos dust and the psychiatric injury was stretched far beyond that which was envisaged in Page v. Smith. Mr Grieves inhaled asbestos dust for about eight years. It was not until the end of that period that he became worried and his depression did not occur until he was told 20 years later about the results of his chest x-ray. His psychiatric condition was caused by what was told to him by his doctors and not by anything done by his employers while he was inhaling asbestos.
- In summary the House of Lords held no duty of care was owed by the defendant employers. As Lord Rodger found "it would be anomalous to recognise such a duty when the law considers that the risk itself is not actionable".
4. The last word?
It is unlikely that this decision marks the end of litigation concerning pleural plaques:-
- A number of their Lordships, Lord Scott in particular, held out the prospect that whilst a claim in tort had failed, a claim in contract (which was not argued) might succeed. He observed that the failure of the claims struck "a somewhat discordant note". Given that the defendant employers owed the claimants a contractual duty of care, which he thought had been breached, then contractual damages might be awardable. Unlike a claim in tort it is not necessary to show damage, merely that the contract has been breached. If in the future such a claim is successful it will be interesting to see how the court approaches the assessment of damage. As the object of awarding damages is to put the party back into the position as if the contract had been performed, then in circumstances where no demonstrable loss has occurred we hazard the view that if damages are awardable they are likely to be nominal.
- Interested parties may seek to persuade the Government to legislate to reverse the decision, as occurred in relation to claims involving mesothelioma. For example, in Scotland we understand the Scottish Parliament is to be petitioned to introduce legislation to overturn the decision which suggests for the moment at least the issue is not yet determined.