Pleural Plaques Litigation - House of Lords Decision

November 2007

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The House of Lords unanimously ruled on 17 October 2007 in the Rothwell decision that anyone who has been exposed to asbestos in the course of their employment and has developed the asymptomatic asbestos-related condition pleural plaques, will not be able to claim compensation in negligence.  The House upheld the Court of Appeal's decision of 26 January 2006 that pleural plaques do not constitute a compensatable injury.  

Background 

Mr Justice Holland handed down his first instance judgment in 10 pleural plaques test cases on 15th February 2005, rejecting arguments that pleural plaques do not constitute a significant injury.  He upheld the Claimants' entitlement to compensation, stating that they had demonstrated an injury when the condition was considered in light of the anxiety caused, together with the risks of developing an asbestos-related disease in the future, thereby establishing a complete cause of action.  

The Court of Appeal subsequently overturned this decision by a majority, ruling that the plaques themselves are harmless and unactionable. The Court of Appeal held that this does not change when they are combined with two further individually unactionable heads of claim, the risk of future injury and the anxiety at the prospect of future injury. Three unactionable "injuries" should not give rise to an actionable injury by being considered in the aggregate.  

Issues considered by the House of Lords 

In their judgment of 17 October 2007, the House of Lords considered three issues:  

(a)        whether the existence of pleural plaques entitled the appellants to bring an action in tort for damages against their employers who had negligently exposed them to asbestos;  

(b)        alternatively, if the condition of plaques on its own is insufficient, whether the presence of the plaques coupled with the anxiety they caused and the risks of future malignancy would suffice to create a cause of action in tort for damages; and finally, 

(c)        in relation only to the Appellant Mr Grieves, whether an individual suffering from a psychiatric illness caused by his anxiety about the possibility of developing an asbestos-related disease, gave rise to a tortious cause of action. 

(a)        Pleural plaques on their own do not constitute actionable damage 

The House held that pleural plaques do not produce damage which could found a cause of action. The Lords confirmed that proof of damage is necessary for a claim in tort and that, although the presence of plaques can be seen on X-ray in the lining of the lung, plaques do not constitute real damage. This is due to the fact that plaques are asymptomatic and have no perceptible effect upon the subject's health or capability. A physical condition of this kind should therefore remain unactionable, for it is not the policy of the law to entertain a claim for damages where an alleged condition does not give rise to any harmful physical effects which are significant enough to constitute damage.

The House's view, as stated by Lord Hope, was 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 that are harmless."

(b)        Aggregation Rejected 

The House also rejected an argument that the Appellants were entitled to damages on the basis that the plaques became actionable when combined with the risks of suffering further injury associated with the asbestos exposure (but unrelated to the plaques) and anxiety about such risks. The Lords held that when these three factors were aggregated they did not constitute sufficient damage to complete a cause of action in negligence.  

It was held that there was no direct causative link between asymptomatic pleural plaques, the risks of future malignancy not linked to the plaques, and anxiety brought on by such risks. All three of these are unactionable on their own, and because of this, and the absence of a causative link between plaques and more serious conditions, the three factors are not actionable merely because they are aggregated. 

In considering the risks of other more serious asbestos-related conditions developing, Lord Hoffman states: 

"if he [the Claimant] has a cause of action, his damage must include the risks that other serious conditions might eventuate. But that does not mean that such risks are taken into account in deciding whether he has a cause of action, that is to say, whether he has suffered (and not merely may suffer) more than minimal damage." 

(c)        Psychiatric illness Rejected

The Lords considered separately the appeal of Mr Grieves, who claimed that he had suffered a recognisable psychiatric illness (a depressive illness) as a result of knowledge of his pleural plaques and the risk of future illness.  Lord Hope explained that the evidence given showed that Mr Grieves had a long-standing fear of developing an asbestos-related disease and one of the medical experts, Dr Menon, described his case as "relatively unique".  The House upheld the decision of the Court of Appeal, concluding that the Appellant did not have a cause of action for his psychiatric illness because it was not reasonably foreseeable that pleural plaques would cause psychiatric injury.

The case of Page v Smith [1996] AC 155  was distinguished by the House.  The principle established in this case was that as long as a defendant can reasonably foresee that his conduct will expose a claimant to a risk of personal injury, the claimant will be entitled to recover for such injury, without establishing a further duty in relation to psychiatric harm. However, in Rothwell the Lords have held that this principle is of limited scope. The Lords confirmed that Page v Smith should be confined to situations where the psychiatric injury arises as an immediate foreseeable consequence of an accident exposing the claimant to the risk of immediate physical injury. Mr Grieves' psychiatric injury was held to be too remote, as his psychiatric illness was caused by his anxiety at the risk of future illness only. 

Lord Hoffman summed up his views by stating:

"In the present case, the foreseeable event was that the Claimant would contract an asbestos-related disease. If that event occurred, it could no doubt cause psychiatric as well as physical injury. But the event has not occurred. The psychiatric illness has been caused by the apprehension that the event may occur."    

An Alternative Case - Contract  

The Lords' judgment therefore makes it very clear that claimants will not be able to recover damages for pleural plaques alone under the law of negligence. However, the majority of Their Lordships noted a potential route for claimants to seek compensation for pleural plaques by claiming in contract.  

It was stated obiter that those who have been negligently exposed to asbestos during the course of their employment could, in theory, bring actions based on breach of the contract of employment. Lord Scott's judgment stated that a "negligent employer"

"must surely have owed its employees a contractual duty of care, as well as and commensurate with the tortious duty on which the appellants based their claims".

Lord Scott noted that it is accepted that the duty of care in tort was broken by the exposure of the Appellants to asbestos. He states that he "would have thought that it would follow that the employers were in breach also of their contractual duty". While damage must be established in order to bring a successful claim in tort, a cause of action in contract can exist without demonstrating damage. Lord Scott suggests that individuals with plaques could in future bring claims against their employers for breach of the duty to provide a safe working environment for employees, with damages assessed on the basis of compensation to employees for "subjecting them to the risk of contracting in the future a life-threatening asbestos related disease". 

The future of pleural plaques claims 

Rothwell reaffirms that pleural plaques and the anxiety experienced by those exposed to asbestos are not conditions for which compensation will be awarded under the English law of negligence. However, the Lords have expressly noted the possibility that claimants diagnosed with pleural plaques could frame contractual claims in the future. Since the judgment, it has been suggested by at least one commentator that one way an employee could do this would be to argue that his employer was in breach of the implied contractual duty of trust and confidence. A claimant with pleural plaques could also potentially advance the argument that his employer had breached a principal object of the employment contract by failing to guard him from injury.  

There have also been complaints about the judgment from Trades Unions and claimant personal injury solicitors and some organisations appear to have begun to lobby the government to introduce legislation to overcome the House of Lords' decision. One claimant personal injury firm has created an online petition against the ruling and other firms have criticised the judgment. In the period before the judgment some MPs were also already calling for legislation to ensure that pleural plaques are actionable in the future. A House of Commons Early Day Motion was submitted in the week prior to the judgment stating that individuals with pleural plaques should be eligible for appropriate compensation. This Motion has yet to be debated. 

Despite this unanimous decision by the House of Lords, the position regarding claims for pleural plaques may not have been finally resolved. 

With thanks to  Rachel Butlin, Rebecca King and Holly Butwell of Holman Fenwick & Willan for preparing this article

Johnston (Original Appellant and Cross-respondent) v NEI International Combustion Limited (Original Respondents and Cross-appellants) Rothwell (Original Appellant and Cross-respondent) v Chemical and Insulating Company Limited and others (Original Respondents and Cross-appellants) Etc.   [2007] UKHL 39

The judgement can be found in the House of Lords area of the Parliament website at: http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/johns-1.htm