Facts
The issue in these four test cases was whether claimants who had
been diagnosed with pleural plaques were entitled to claim
against their previous employers in negligence.
Pleural plaques are localised areas of pleural thickening on the
slippery membrane covering the lungs. They are one of the most
common indicators of exposure to asbestos fibres. But although they
constitute a physiological change in the body, they do not normally
cause any symptoms and are rarely detected during the first 20
years following exposure.
Exposure to asbestos does not necessarily result in the
development of plaques. Nor does the presence of plaques
necessarily mean that the individual will go on to develop other
asbestos-related conditions. The medical experts giving evidence in
these test cases put the risk at around 5%.
As Lord Scott put it, "the unfortunate individual who has
inhaled the fibres must simply wait and hope for the
best".
In England and Wales, a claim for negligence can only be brought
if there is proof of damage. The damage need not be
substantial but it must be more than minimal.
The difficulty with claims based on the presence of symptomless
pleural plaques is that plaques do not constitute an injury and so
are not damage. In the absence of injury, a claimant's
understandable anxiety that he may develop a more serious
asbestos-related condition cannot, by itself, form the basis of a
claim in negligence.
In the 1980s, however, a number of decisions allowed claimants
to recover damages for pleural plaques on the grounds that, while
not actionable in themselves, the presence of plaques, the risk of
developing an asbestos-related condition in the future and the
individual's anxiety that he might do so, together constituted an
actionable claim.
For some twenty years, this "aggregation theory" enabled
claimants to recover final awards of between £12,500 and £20,000,
or provisional damages (leaving open the possibility of a further
claim if the claimant subsequently developed an asbestos-related
disease) of between £5,000 and £7,000.
Test cases
In 2005 the insurance industry took ten test cases to the High
Court.
In each case, the claimant had been negligently exposed by his
employer to asbestos dust and, as a consequence had (1) developed
pleural plaques, (2) was at risk of developing one or more long
term asbestos-related diseases and (3) had suffered anxiety about
the prospect that he may suffer a disease. One of the claimants (Mr
Grieves), on finding out that he had pleural plaques, had become
clinically depressed.
The High Court followed the aggregation approach and allowed the
claims but reduced the amount awarded to provisional damages of
£4,000 and full and final damages of £7,000.
Eight cases proceeded to the Court of Appeal, which in January
2006 reversed the decision. The court held by a majority that there
was no legal precedent for aggregating heads of claim that were not
in themselves actionable, and that there were solid policy grounds
for not allowing claims based solely on a risk of contracting a
disease in the future or anxiety about that risk.
Four of the claimants appealed to the House of Lords.
House of Lords judgment
The five Law Lords unanimously rejected the aggregation theory.
The presence of pleural plaques, whether or not combined with risk
and anxiety, was not an actionable injury.
This conclusion was firmly based on fundamental principles of
law, rather than on any considerations of public policy.
Proof of damage is an essential element of any claim in
negligence. Pleural plaques do not in themselves constitute damage,
nor does the risk of contracting a disease in the future or the
individual's anxiety that he might do so. If none of these elements
is actionable on its own, they cannot become actionable by being
aggregated together.
In the words of Lord Scott, "nought plus nought plus nought
equals nought".
The situation regarding Mr Grieves (who became clinically
depressed when he discovered he had pleural plaques) was slightly
different.
Mr Grieves had had a long-standing fear of developing an
asbestos-related disease and became ill after he was diagnosed with
pleural plaques some 30 years after he had left the employment in
question.
Clinical depression is a recognised psychiatric illness. The
question, therefore, was not whether Mr Grieves had suffered damage
but whether his employer owed him a duty of care in respect of a
psychiatric condition caused by his anxiety at the risk of a
future illness.
This in turn depended on whether it was reasonably foreseeable
that an employee would react in this way to the risk he might
contract an asbestos-related disease.
In the absence of contrary information, an employer is entitled
to assume his employees are persons of reasonable fortitude.
Neither the Court of Appeal nor the House of Lords considered it
reasonably foreseeable that the risk of an asbestos-related disease
would cause psychiatric illness to a person of reasonable
fortitude.
Commentary
Although these claims in negligence failed, some of the Law
Lords questioned whether claims could have been brought in
contract, on the basis that employers owe contractual as well as
tortious duties to their employees.
The advantage of a contract action is that the claimant would
have to show there had been a breach, but not that he had suffered
damage. Time bar issues would arise, but the claimants might be
able to rely on the limit for personal injury claims that runs from
the claimant's "date of knowledge" under the Limitation Act 1980. A
difficulty here would be whether for the purposes of the Act
pleural plaques are an "injury".
Since none of the present cases relied on contract, however,
these issues could not be explored.
