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Rothwell v Chemical and Insulating Company Ltd; Grieves v F T Everard & Sons, House of Lords, 17 October 2007

19 October 2007
The issues

Pleural Plaques – Asbestos – Page v Smith – Psychiatric Injury – claim in contract.

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 Court of Appeal found for the Defendants. The Claimant’s appealed to the House of Lords.

The decision

Some causes of action can arise without proof of damage. Trespass and breach of contract are examples. Proof of the trespass or the breach is enough to found a cause of action in such cases. If no actual damage is proved then the Claimant is entitled to nominal damages.

However, a claim in tort based on negligence is incomplete without a proof of damage. Damage is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It is more than simply a physical change consistent with making one better or with being neutral.

How much worse had someone to be? An action for compensation should not be set in motion on account of a trivial injury. Whether an injury was too trivial was a question of degree.

The Trial Judge at first instance had found that the plaques in themselves were not damage which could found a cause of action. This was an unassailable finding of fact. It was not open to the Judge on the evidence to come to any other conclusion. The plaques caused no immediate symptoms. More importantly, save in the most exceptional cases, the plaques would never cause any symptoms, did not increase the susceptibility of the Claimants to other diseases or shorten their expectation of life. They had no effect upon their health at all.

If the plaques were not in themselves damage, did they 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. Those propositions were established by the decisions of the House of Lords in Gregg v Scott and Hicks v Chief Constable of the South Yorkshire Police. They could not be aggregated to establish a cause of action that would not otherwise exist.

The Claimants had relied on the “single action rule” which required an injured party to sue for all damage suffered or that would be suffered and which arose out of the same cause of action, in a single claim. This principle however could not be invoked by the Claimants to establish a cause of action. It was effective only when there was an existing actionable injury.

Mr Grieves’ Appeal.
Mr Grieves’ appeal was different because he had suffered not merely anxiety but clinical depression, which was a recognised psychiatric injury, as a consequence of being told that his pleural plaques indicated a significant exposure to asbestos and the risk of future disease. Unlike anxiety, as considered in Hicks v Chief Constable of South Yorkshire Police, psychiatric illness did constitute damage for the purpose of an action in negligence. The question in Mr Grieves’ case was therefore 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 a future illness.

The question of whether he was owed a duty of care by his employer had to be answered, according to Lord Hoffman, by reference to the principles stated by Lady Justice Hale in her lucid and comprehensive Judgment in Hatton v Sutherland, which was approved by the House of Lords in Barber v Somerset County Council. That Judgment had been concerned with psychiatric injury caused by subjecting an employee to occupational stress, but the general principles were applicable to psychiatric injury caused by any breach of duty on the part of an employer.

In that case the threshold question, according to Lady Justice Hale, had been whether the kind of harm to the particular employee was reasonably foreseeable, thus rejecting the general applicability of the test of whether psychiatric injury was foreseeable in a person of “ordinary fortitude”. This was because an employer’s duty was owed to each individual employee and not to an undifferentiated member of the public. In the absence of some known particular problem or vulnerability the employer was entitled to assume, in a case of occupational stress, that the employee was up to the normal pressures of the job. Applied to the broader question of psychiatric injury, that meant, in the absence of contrary information, the employer was entitled to assume that his employees were persons of ordinary fortitude. In this case the employer would be unlikely to have any specific knowledge of how a particular employee was likely to react to a risk of asbestos related illness more than 30 years after he had left his employment. An assumption of ordinary fortitude was therefore inevitable.

In McLaughlin v O’Brien, Lord Bridge had pointed out that foreseeability did not depend on “the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect” but on whether the Judge “as fairly representative of…..the educated layman…..[formed the]…..view from the primary facts [that]…..the proven chain of cause and effect was reasonably foreseeable”. This test restricted rather than enlarged the foreseeability of psychiatric illness. It allowed for the fact that expert knowledge of cause and effect might not be available to the educated layman and did not mean that the Judge should give effect to speculation or urban legend unsupported by evidence. In the case of psychiatric illness, the standard description of what should have been foreseen, namely that he event which actually happened would have caused psychiatric illness to a person of sufficient fortitude of customary phlegm had been part of the law since Bourhill v Young. It was a test intended to be more difficult to satisfy than merely whether it was foreseeable that something might happen which would cause someone to suffer psychiatric injury. The latter test would not be hard to satisfy, as was shown by the opinion of the majority of the House in Pagev Smith. That test was applicable only in the special circumstances of that case however. The general rule still required a Court to decide whether it was reasonably foreseeable that the event which actually would cause psychiatric injury to a person of reasonable fortitude and the Court of Appeal had been right to say there was no basis for such a finding.

Page v Smith.
The Claimant relied on Page v Smith in support of its argument that foreseeability was unnecessary and that it was enough that his employer ought to have foreseen that exposure to asbestos might cause the Claimant physical injury, namely an asbestos related disease. In Page v Smith it was held to be sufficient that the Defendant should have foreseen that his negligent driving might cause some physical injury and that it did not matter that he could not have foreseen that the event which actually happened, namely a minor collision, would cause psychiatric injury. The House had been invited to depart from the decision on Page v Smith on the ground that it was wrongly decided. It would be wrong however to do so. It did not appear to have caused any practical difficulties, not withstanding its critics, of which it had no shortage. It was unlikely to cause any practical difficulties if confined to the kind of situation which the majority in that case had in mind. That was a foreseeable event (a collision) which was such as might cause physical injury or psychiatric injury or both. Where such an even had in fact happened and caused psychiatric injury, the House decided that it was unnecessary to ask whether it was foreseeable that what had actually happened would have that consequence. Either form of injury was recoverable. In this case the foreseeable event was that the Claimant would attract an asbestos related disease. If that event occurred it would no doubt cause psychiatric as well as physical injury. However, the event had not occurred. The psychiatric injury had been caused by the fear that the event would occur. That risk was not actionable. It would be an unwarranted extension of the principle of Pagev Smith to apply it to psychiatric injury caused by apprehension of the possibility of an unfavourable event which had not actually happened.

Lord Hope expressed regret that the Claimants in this case were denied a remedy. Lord Scott found that the conclusion of the House, with which he had agreed, had struck “a discordant note” and raised the possibility of a claim in contract on the basis that each Appellant was employed under a contract of service and each was owed a contractual duty of care as well as a tortuous duty. It had been accepted that the tortuous duty had been broken by the exposure of the Claimants to asbestos dust. It would seem to follow that the employers were in breach also of their contractual duty. Damage did not have to be shown in contract to establish a cause of action. The breach itself was all that it was necessary to show. The amount of damages recoverable would be subject to contractual rules established by the leading cases and applying those rules it might be arguable that the breach of a contractual duty to provide a safe working environment for employees would justify an award of contractual damages to compensate the employees for subjecting them to the risk of contracting, in the future, a life threatening asbestos related disease. These matters had not been debated in the House. The House could not take them further therefore. Lord Hope agreed with Lord Scott and noted that there might be room for development of the common law in this area. Lord Mance thought that the scope of the employer’s contractual liability might require examination.

Lord Scott also, in passing, took the view that sections 11 and 14 of the Limitation Act 1980, which applied to negligence actions for damages for personal injury, applied not only to damages based on breach of a tortuous duty of care but could surely also apply to actions based on breach of a contractual duty of care, thus, on the one hand limiting the time in which such action may be brought but on the other hand providing Courts therefore with the possibility of exercising discretion otherwise unavailable under Section 14 of the Act.

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