| NEGLIGENCE — Damage — Asbestos exposure — Employees developing symptomless and harmless pleural plaques — Whether giving rise to claim against employer — Whether employer liable for psychiatric illness caused by fear of contracting disease in future
Rothwell v Chemical and Insulating Co Ltd and another; Topping v Bench Town Ltd (formerly Jones Bros Preston Ltd); Johnston v NEI International Combustion Ltd; Grieves v F T Everard & Sons Ltd and another [2007] UKHL 39
HL(E): Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Mance: 17 October 2007
A person who developed pleural plaques as a result of having been negligently exposed to asbestos in the course of his employment, could not sue his employers for negligence because the presence of pleural plaques did not constitute actionable damage. Although pleural plaques indicated the presence in the lungs and pleura of asbestos fibres which could cause other life-threatening diseases such as asbestosis or mesothelioma, the risk of future illness was not actionable, neither was a psychiatric illness caused by the contemplation of that risk, and those three factors could not be aggregated so as to give rise to a cause of action.
The House of Lords so held when dismissing appeals by the claimants, Alan Rothwell, Bernard John Topping, Kenneth Johnston and John Grieves from a decision of the Court of Appeal (Lord Phillips of Worth Matravers CJ, Longmore and Smith LJJ) [2006] ICR 1458 on 26 January 2006 allowing appeals by the defendant employers, Chemical and Insulating Co Ltd and WB Industrial Ltd, Benchtown Ltd (formerly Jones Brothers Preston Ltd), NEI International Combustion Ltd and FT Everard & Sons Ltd.
LORD HOFFMANN said that the plaques in themselves were not damage which could found a cause of action. Save in the most exceptional cases, the plaques could never cause any symptoms, did not increase the claimants’ susceptibility to other diseases or shorten their expectation of life. Did the plaques become damage when aggregated with the risk which they evidenced or the anxiety which that risk caused ? In principle, neither the risk of future injury nor anxiety at the prospect of future injury was actionable. Therefore they could not be relied upon to create a cause of action which would not otherwise exist. The case of Mr Grieves was different because he suffered not merely anxiety but clinical depression, a recognised psychiatric illness, in consequence of being told that his plaques indicated a significant exposure to asbestos and the risk of future disease. Psychiatric illness constituted damage for the purpose of founding an action in negligence. So the question in Mr Grieves’ case was not whether he suffered damage, but whether the defendants owed him a duty of care in respect of psychiatric illness caused by his anxiety at the risk of future illness. The threshold question was whether this kind of harm to this particular employee was reasonably foreseeable. On the facts of Mr Grieves’ case it could not be said that it was reasonably foreseeable that the event which actually happened, the creation of a risk of an asbestos-related disease, would cause psychiatric injury to a person of reasonable fortitude. It was submitted for Mr Grieves that even if his psychiatric illness was not foreseeable, the decision of the majority of the House of Lords in Page v Smith [1996] AC 155 indicated that it was enough that his employer ought to have foreseen that exposure to asbestos might cause him physical injury, namely an asbestos-related disease. The foreseeable event was that Mr Grieves would contract an asbestos-related disease. If that event occurred, it could no doubt cause psychiatric as well as physical injury. But the event had not occurred. The psychiatric injury had been caused by apprehension that the event might occur. The creation of such a risk was not actionable, It would be an unwarranted extension of the principle in Page v Smith to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened.
LORD HOPE, LORD SCOTT, LORD RODGER and LORD MANCE delivered concurring speeches.
|
Appearances: Frank Burton QC and Harry Steinberg (Marrons, Newcastle) for the claimants Rothwell, Topping and Johnston; David Allan QC and Ivan Bowley (Thompsons, Newcastle) for the claimant Grieves; Michael Kent QC, Michael Rawlinson and Sophie Allan (Whittles, Manchester) for the defendants in the cases of Rothwell, Johnston and Grieves; Michael Beloff QC, Michael Rawlinson and Sophie Allan (Halliwells LLP, Sheffield) for the defendants in the case of Topping.
|
