Pleural plaques

The House of Lords held that the appellants, who had been negligently exposed to asbestos and developed pleural plaques, could not sue their employers in tort, unanimously upholding the previous decision of the Court of Appeal ([2006] EWCA Civ 27, [2006] 4 All ER 1161). The appellants submitted that the development of pleural plaques, without more, amounted to an actionable injury. Alternatively, they argued that plaques, plus the risk of asbestos- related disease, plus anxiety, amounted to actionable damage. This was termed “aggregation theory” during argument. The respondents’ counter argument (dubbed a “reductionist fallacy” by the appellants) was that nought, plus nought, plus nought, still equalled nought. Lord Hoffmann, giving the leading speech, moved away from the policy considerations which weighed with the Court of Appeal and instead sought to apply established legal principles to resolve the issues.

Damage

Lord Hoffmann considered the nature of damage required to complete the appellants’ cause of action. The appellate committee had been shown photos of plaques and resultant (albeit internal) scarring in argument. However, in his lordship’s view, damage did not equate to simple physical change, so that a neutral change, which has no perceptible effect on health or capability, was not damage. Damage was an abstract concept of being “worse off ”, physically or economically, so that compensation was appropriate. On the findings of fact made by Mr Justice Holland, the plaques had no effect on the health of the appellants. The claims were therefore not claims with merely a low value; rather they were claims with no value at law at all. Following Gregg v Scott [2005] 2 AC 176, [2005] 4 All ER 812 and Hicks v Chief Constable of the South Yorkshire Police [1992] All ER 65 and rejecting the aggregation theory approach, Lord Hoffmann observed that neither the risk of injury nor anxiety at the prospect of future injury were in themselves actionable. The appellants’ case that they could recover for the risks of further injury was not assisted by reference to the rule that an injured party must sue for all damage he has or will suffer arising from a cause of action in one claim. The principle was effective only when there was an existing actionable injury which may expose a defendant to multiple suits requiring the court’s protection. Lord Hope, agreeing, said that the ordinary rules of causation did nothing to advance the appellants’ claim for the psychological effect of risks of injury. It was the exposure to asbestos and not the plaques in themselves which gave rise to the risks and consequent anxiety.

Grieves v F T Everard & Sons

Bringing a separate appeal, Mr Grieves sought damages for the psychiatric illness and irritable bowel syndrome which he suffered as a result of his diagnosis. He relied on Page v Smith [1996] AC 155, [1995] 2 All ER 736 in arguing that this meant that his case could succeed, regardless of their lordships’ dismissal of aggregation theory. His appeal was also unanimously dismissed. Lord Hoffmann said that the ratio of Page was that where a foreseeable event had occurred which could have caused either physical injury or psychiatric injury to a primary victim, damages for either form of injury was recoverable. In Grieves’s case the foreseeable event had not yet occurred; Grieves had not contracted an asbestos related disease. He was only apprehensive about the possibility of this occurring. To apply Page in those circumstances would involve an unwarranted extension of the principles expressed therein. There was also no evidential basis before their lordships to support a finding that the creation of the risk of an asbestos related disease would foreseeably cause psychiatric illness to

a person of reasonable fortitude. Lord Hope, agreeing, noted that the facts lacked “immediacy”, given that exposure had occurred over a period of time and some years ago. Primary victims should be confined to persons who had suffered psychiatric injury caused by fear or distress resulting from involvement in a stressful event such as an accident or its immediate aftermath.

Comment

Given the current lack of political will to support any statutory change in the law, this seems to be the end of claims for pleural plaques. The asbestos battleground is already moving into a number of different areas. Although the possibility of a claim in contract was raised by several of their lordships— Lord Hope in particular stating that there may be “room for development of the common law”, such a claim is likely to face a number of additional difficulties. For example, it is likely that there would be an additional hurdle to cross due to the Limitation Act 1980. Further, claimants would need to ensure that the defendant’s insurance policies would respond to this risk, where a solvent defendant could not be found. Additionally, given that breach of contract is actionable without proof of damage (if only for nominal damages) a strong floodgates argument is likely to be deployed by defendants seeking to avoid liability. Interestingly, although the law lords declined an invitation from the respondents to depart from Page as “unnecessary” on the facts of this case, the tenor of the speeches in Grieves can only encourage further confinement of Page to its facts and a challenge at a later date by defendants.