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Rothwell - House of Lords and Pleural Plaques
17 October 2007
The judgment came out today (17 October 2007). Their Lordships unanimously found against the appellants (claimants).
There will be a number of summaries of the decision circulating from counsel which should be read. Rather than repeat their views, I set out below a very brief summary for you and highlight one or two positives. I am in the process of drafting a letter to claimants but just await confirmation on one issue from leading counsel before completing it.
A claim for personal injury will only result in an award of damages when it can be shown that as a result of the negligence of the defendant the claimant is “worse off” (Lord Hoffman) either physically or economically. In the past the courts have awarded damages when an injury is “not insignificant”, “not negligible” and “real”. It is a question of degree but the courts look for material damage caused by physical change to the body.
Lord Hoffman, giving the lead judgment, dismissed “symptomless bodily changes with no foreseeable consequences, the risk of a disease which is not consequent upon those changes, and anxiety about that risk” as none of those three elements individually or collectively amounts to damage giving rise to a cause of action.
This aggregation point was unanimously dismissed with Lord Scott summarising the fact that none of the three components individually gives rise to a cause of action as “0 + 0 + 0 = 0”. Scott dealt specifically with Smith LJ’s assessment that a scar on the lining of the lung equates to a scar on the surface of the skin as a poor comparison because a cut or burn to the skin surface hurts and may hurt during healing.
The Page v Smith argument in relation to the individual claimant, Mr Greaves, was also resoundingly dismissed. The foreseeable event, in their Lordships’ eyes, was the contraction of an asbestos-related disease (Lord Hoffman, paragraph 33). Their view was that this had not occurred despite Lord Hope (paragraph 39) saying that pleural plaques could be defined as a disease. It was evident their Lordships were influenced by the fact that the foreseeable risk of injury in the Page case resulted from the road traffic collision. Other cases referred to within the judgment identified that it is an accident which sets off the prospect of a claim for either physical or psychiatric injury, for as Lord Roger (paragraph 97) stated, in respect of the Simmons v British Steel Plc case:
“the illness was prompted by the pursuer’s reaction to a very unpleasant event that had actually occurred, not by his contemplation of the risk that something unpleasant might occur in the future”.
Conclusion
In short, the policy of the law that damages should not be awarded where the physical effects of an injury are no more than negligible was maintained.
Are there any positives?
Lord Scott (paragraph 74) and, with a passing nod from Lord Hope (paragraph 59), and Lord Roger (paragraph 105) suggested that the claimants may have prospects of success from pursuing a breach of contract rather than in negligence. Damage need not result. All the claimant would have to show was that there was a breach of the contract. I await leading counsel’s view on whether this is a realistic proposition.
Can we pursue symptomatic pleural plaques cases? Lord Hoffman (paragraph 19) states:
“the rare victim whose plaques are causing symptoms is worse off on that account”.
Therefore, presumably, we can.
Can we pursue asymptomatic pleural thickening and asbestosis claims?
Lord Hoffmann (paragraph 11), stated that:
“the important point was that, save in the most exceptional case, the plaques would never cause any symptoms, did not increase the susceptibility of the claimants to other diseases or shorten their expectation of life”.
Pleural thickening and asbestosis are developing conditions. Therefore, the very fact that these conditions are present, even in an asymptomatic form, means that symptoms can be caused in the future and therefore would not fall within the same categorisation as pleural plaques.
Lord Hope (paragraph 49) said:
“pleural plaques themselves do not require periodical medical attention”.
If the claimant suffers from pleural thickening or asbestosis and is subject to regular medical reviews (repeat X-rays, etc) then one can argue that there is a differentiation between plaques and the other conditions.
Conclusion
We expected this decision. There is a logic of sorts behind the view of their Lordships that the mental anxiety is created by the worry of the risk of mesothelioma, lung cancer and asbestosis, the cause of which is not in any way attributable to the pleural plaques and not by the diagnosis of plaques. Arguably, the individual who has been exposed to asbestos but does not have pleural plaques may well have exactly the same anxiety as his mate who suffered the same exposure but has developed pleural plaques.