Good news for employers
Litigation around pleural plaques has been ongoing for a number of years. The presence of this asymptomatic condition is not a pre-courser for a more serious disease and as a consequence
no liability exists for the employer or the insurer
.
This is good news for the cost of employers’ liability insurance. Industry commentators have estimated that had this decision gone the other way compensation could have amounted to some £1.5 bn.
Judgement summary
This is the verbatim judgement summary by Lord Hoffman which can be found in the full report below.
The question is whether someone who has been negligently exposed to asbestos in the course of his employment can sue his employer for damages on the ground that he has developed pleural plaques. These are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases. But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma. In consequence, a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression.
Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account.
It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk.
For the full judgement visit:
Johnston v NEI International Combustion Ltd; Rothwell v Chemical & Insulating Co Ltd; Topping v Benchtown Ltd; Grieves v F T Everard & Sons (The pleural plaque test case)[2007] UKHL 39. 17th October 2007