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Rothwell v Chemical and Insulating Company Ltd; Grieves v F T Everard & Sons Ltd and 4 Other Cass, Court of Appeal, 26 January 2006

31 January 2006
The issues

Pleural Plaques – Asbestos – Page v Smith – Psychiatric Injury

The facts

The Claimant brought claims arising out of pleural plaques that they were suffering from. In respect of each Claimant it was admitted by the Defendant that he was negligently exposed to asbestos in the course of employment and limitation was either not raised or not pursued.

Plaques are a form of localised thickening on the outer layer of the pleura – the smooth wet membrane which surround the lungs and line the inside of the rib cage. They are usually symptomless. Occasionally the sufferer may be aware of a grating sensation when breathing. Their presence can only be established by way of chest x-ray or CT Scan. They are rarely detected in the first 20 years after exposure to asbestos. They do not themselves threaten or lead to other asbestos induced conditions nor are they a necessary pre condition for them.

They do not increase the risk of lung cancer. It is the exposure to asbestos that they evidence, taken in conjunction with a probable life expectancy, which accounts for the risk of further asbestos induced conditions. The Defendants denied that plaques could be regarded as a disease for the purposes of the law of tort and that in any event they gave rise to no impairment of physical condition. The anxiety which was engendered by the risks of the future onset of asymptomatic condition could not the Defendants argued as a matter of law be compensatible. They argued that anxiety could not contribute to “damage” so as found a claim. Mr Justice Holland found for the Claimants. He decided that mere inferred permanent penetration by asbestos fibre could not on its own account constitute injury or damage but merely raised a potential for damage. Pleural plaques on their own could not found a cause of action either since they were neither a disease not an impediment of a physical condition. When however anxiety was caused by tortuously inflicted psychological damage, it could properly contribute to “damage” or “injury” so as to complete the foundation of a cause of action.

As to quantum he found in the case of provisional awards the appropriate bracket would be £3500.00 to £4000.00 and in respect of final awards the appropriate bracket would be £6000.00 to £7000.00 for general damages. Both Claimants and Defendants appealed to the Court of Appeal.

The decision

1. It was undesirable that the development of pleural plaques should give rise to a cause of action. If pleural plaques gave rise to a cause of action:-

i) On discovery of the existence of plaques the Claimant would be advised that he should bring a claim in order to protect his position even if he would not otherwise wish to do so unless and until he developed symptomatic disease.

ii) Bringing legal proceedings is stressful. It would result in the Claimant’s attention being drawn to the possible consequences of exposure to asbestos and might well create or augment the anxiety for which compensation would be claimed.

iii) There was a danger that those such as Claims Managers who made a business out of litigation would encourage workers who had been exposed to asbestos to have CT Scans in order to see whether they had pleural plaques for the sole purpose of brining claims for compensation. Such a practice would tend to create stress and anxiety where none existed.

iv) Some Claimants would be tempted to claim final award thereby in effect gambling to the possible prejudice of themselves and their families that they would not contract an asbestos related disease.

The cost of litigation in cases such as these tended to be disproportionate to the damages recoverable. It was unjust that the right to recover damages should depend on whether or not the particular Claimant had developed pleural plaques.

There was no legal precedent beyond first instance decisions for aggregating three heads of claim which individually could not found causes of action so as to constitute sufficient damage to give rise to a legal claim. There was no logical basis for such an approach. Nor was there any justification for departing from logical legal principle in the specific case of asbestos induced pleural plaques. Policy pointed the other way.

Appeals in the cases of Mears, Jackson, Downy, Topping, Johnston and Rothwell would be allowed.

Mr Greave’s appeal

This Claimant had produced a report attributing a depressive illness which he suffered to anxiety at being exposed to asbestos related disease and further attributed to the depressive illness a condition of irritable bowel syndrome. This led to an updating of the Schedule of Special Damage and future loss to allege that Mr Grieves had suffered and had continued to suffer from a depressive illness and IBS and had therefore sustained loss of earnings and future loss of earnings. It was argued for Mr Greaves that he had a free standing claim for psychiatric injury. This was on the basis that the psychiatric injury sustained had been a foreseeable consequence of the Defendant’s breach of duty or alternatively because physical injury was a foreseeable consequence of the breach of duty, that therefore recovery could be made for psychiatric injury in accordance with the principle of Page v Smith.

The Judge below had found that Mr Greaves had suffered a depressive illness which was different from the anxiety proved by other Claimants. He did not find that that psychiatric injury was a reasonably foreseeable consequence of the breach of duty and there was no material before the Court of Appeal to make such a finding. The issue was whether the approach of the majority of the House of Lords in Page v Smith was applicable to a case such as that of Mr Greaves.

The test in Page v Smith was applied in the context of a road traffic accident in which the Plaintiff was a participant and therefore foreseeably exposed to the risk of physical injury. In Norfolk v Weston Railway the American Supreme Court had adopted a similar approach referring to “the zone of danger” test. In other words the American test and five others for standalone emotional distress claims for Plaintiffs who either sustained a physical impact as a result of the Defendant’s negligent conduct or were placed in immediate risk of physical harm by that conduct i.e. those who escaped immediate physical harm but were “within the zone of danger of physical impact”. The American Supreme Court had held that the zone of danger test could not properly be extended so as to render a Defendant who negligently exposed a Plaintiff to the risk of asbestos induced cancer liable for emotional distress caused by the fear of developing cancer. By a similar reasoning, the Court did not believe that the test in Page v Smith could properly be extended so as to render a Defendant who negligently exposed a Claimant to the risk of contracting a disease liable for freestanding psychiatric injury caused by the fear of contracting the disease.

In so doing the Court had in mind the views of Lord Steyn in Frost v Chief Constable of South Yorkshire to the effect that the law on the recovery of compensation for pure psychiatric harm was “a patchwork quilt of distinctions which are difficult to justify” and that “the only prudent course is to treat the pragmatic categories as reflected in [case law] as settled for the time being, but by and large to leave any expansion or development in this corner of the law to Parliament”. The Claimant was therefore not entitled to recover for his psychiatric illness under the principle in Page v Smith.

There was an alternative route by which Mr Greaves might succeed. In Barber v Somerset County Council the House of Lords had approved the Judgment of Hale LJ to the effect that an employee could recover for psychiatric injury caused as result of being exposed to stress provided that certain requirements were satisfied. The threshold question was whether it was reasonably foreseeable that a particular employee was liable to suffer psychiatric injury as a result of those pressures. In Melville v The Home Office the Court of Appeal had held that where an employer had knowledge that particular stresses carried with them the risk of psychiatric injury to employees, failure to implement recommended precautions against such injury could attract liability without any need to demonstrate knowledge that an employee was particularly vulnerable.

In principle where the evidence existed to establish that it was foreseeable that men of reasonable fortitude if exposed to asbestos dust might suffer psychiatric injury as a consequence of anxiety about their future health, then it would follow that employers would owe a duty of care not to expose employees to that risk. There was however no evidence in this case that would enable the Court to find that such a risk was foreseeable.

It would be possible to postulate that an employer who negligently exposed an employee to the risk of sustaining a disease should be liable for psychiatric injury resulting from anxiety at the risk of such disease even if this were not a reaction to be foreseen in an employee of ordinary fortitude but to do so would be to extend the law in a manner which was not supported by principle and the Court was not persuaded that it would be right to make such an extension.

Judgment in favour of the Defendants in the case of Mr Greaves (the appeal) would also be allowed.

The issue as to quantum was academic however in respect of provisional awards the appropriate bracket would otherwise be £4000.00 to £6000.00. In the case of final awards the correct bracket would be £4000.00 to £6000.00 in respect of provisional damages. In cases involving a recognisable psychiatric injury, an additional award of £3000.00 would be made. In respect of final awards the appropriate figure would be calculated by calculating the value of the claim of the future disease by calculating the value of the claim if the future disease should arise, and by multiplying that figure by the percentage future risk of the disease eventuating and discounting further for accelerated receipt.

Comments

Lady Justice Smith dissented as to liability. The Court of Appeal granted permission to appeal to the House of Lords.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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