In a landmark judgment the Supreme Court, the highest court in the UK, has today ruled that three former employees of the chemicals company Johnson Matthey should be compensated after they developed a sensitivity to platinum salts which led to them losing their jobs on medical grounds.
Today’s ruling means that if an employer has been negligent and that negligence causes a physiological change in the body, and that change results in economic loss, an employee may be entitled to claim compensation, even though the physiological change is symptomless.
The judgment follows a two-day hearing in November 2017 at which lawyers for the men argued that the failure by Johnson Matthey to keep their Royston and Brimsdown factories clean led them to develop sensitivity to platinum salts and that this had caused them ‘actionable’ injury.
The Supreme Court judgment overturns the previous High Court and Court of Appeal judgments when the men lost their cases as it was decided that the men could not claim compensation against their employer, Johnson Matthey, as the sensitivity to the platinum salts was not ‘actionable’.
‘Actionable’ is a legal term which is the measure by which a claimant can make a compensation claim. Whilst Platinum salt sensitivity is itself symptomless, further exposure to platinum salts is likely to cause the men to develop an allergic reaction, which usually manifests as pain and irritation to the eyes, nose, chest and skin.
The workers, however, had not yet developed those symptoms so the question was whether they had suffered sufficient ‘damage’ to be ‘actionable’.
In today’s ruling five Supreme Court judges unanimously agreed that the sensitivity to platinum salts whilst symptomless did constitute an ‘actionable’ personal injury claim and so the men could make a claim against the company. The judgment states:
“… Suppose that the claimants were coffee tasters, employed because they had the ability to distinguish different flavours and qualities of coffee, by smell and taste. Suppose further that, through negligence, their sense of smell or taste became impaired in a way which would be of absolutely no consequence to anyone who was not employed in this particular role, but meant that they could no longer do their jobs and had to seek other employment. I venture to suggest that there would be little difficulty in accepting that the changes to their bodies were actionable personal injury...” [Para 41]
As platinum salts were an essential part of the work the Claimants did, they all lost their careers.
Harminder Bains from law firm Leigh Day was asked to take over the case after it had been lost in the Court of Appeal and the previous law firm were unable to continue the claim to the Supreme Court.
She instructed different Counsel to represent the three men, Waynsworth Dryden, Tony Cipullo and Simon York at court. Harminder said the decision would have a wide-ranging impact on the law in regards to personal injury, she said:
“This judgment is a landmark judgment in the definition of personal injury for those workers who have been negligently exposed in the workplace and who have suffered an injury which may be symptomless but which has a huge impact on their work and subsequently their life.”
The company had argued that by removing the workers from the areas in the factory in which they would come into contact with platinum salts, they would never suffer from symptoms and therefore had no loss. However, this overlooked the devastating financial impact the removal had. The arguments by Johnson Matthey were dismissed in the judgment, which stated:
"The physiological changes to the claimants’ bodies may not be as obviously harmful as, say, the loss of a limb, or asthma or dermatitis, but harmful they undoubtedly are… What has happened to the claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. They have, in my view, suffered actionable bodily damage, or personal injury, which, given its impact on their lives, is certainly more than negligible. [Para 40]
Industrial disease partner at Leigh Day, Harminder Bains, said:
“My clients are delighted with this decision from the Supreme Court and will now return to the High Court to proceed to a trial for how much their lost wages and other benefits are worth following the negligent exposure to platinum salts.
"They have lost their highly skilled jobs in these chemical plants, In addition, there are other men who, sadly, have been similiary exposed, and we will be looking to widen the claims out to all those affected.
"This landmark judgment is a clear warning to all employers that they cannot side-step their health and safety responsibilities to their employees and must not cut corners and expose other workers to hazardous working conditions.”
Counsel representing the Claimants are Robert Weir QC and Patrick Kerr.