Johnston (Original Appellant and Cross-respondent) v. NEI International Combustion Limited (Original Respondents and Cross-appellants) Rothwell (Original Appellant and Cross-respondent) v. Chemical and Insulating Company Limited and others (Original Respondents and Cross-appellants) Etc.
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Johnston (Original Appellant and Cross-respondent) v. NEI International Combustion Limited (Original Respondents and Cross-appellants)
Rothwell (Original Appellant and Cross-respondent) v. Chemical and Insulating Company Limited and others (Original Respondents and Cross-appellants)
Topping (Original Appellant and Cross-respondent) v. Benchtown Limited (formerly Jones Bros Preston Limited) (Original Respondents and Cross-appellants)
Grieves Appellant) v. F T Everard & Sons and others (Respondents)
 UKHL 39
The earlier rulings
The concept of actionable damage
Are pleural plaques actionable damage?
The aggregation theory
The judgment of the Court of Appeal
Page v Smith
LORD HOPE OF CRAIGHEAD
In Strang v Steuart (1864) 2 M 1015 the same judge lamented the amount of court time that had been taken by what he described at p 1029 as a foolish and absurd litigation about a hedge and ditch that separated the parties' properties. But he held nevertheless that it was the duty of the court to deal with the case.
Mr Grieves's case
LORD SCOTT OF FOSCOTE
It was not in dispute in Page v Smith that to sustain a damages claim for personal injury caused by a negligent breach of a tortious duty of care some such "disease or impairment " was necessary. In Cartledge v E Jopling & Sons Ltd  AC 758 this House held that a physical condition caused by a negligent act or omission had to reach a certain threshold "beyond the minimal" in order for it to constitute an injury for which damages in tort could be claimed. Lord Evershed at 773/4 said that :
And Lord Pearce at 779 said that
As I have said, these principles are not in dispute.
He went on, however, to comment that
So, anxiety simpliciter cannot constitute the damage necessary to complete the tortious cause of action; but if there is some such damage the fact of the anxiety can enhance the amount of damages recoverable.
Are pleural plaques an "injury" for the purposes of the tort of negligence?
and, secondly, in para 80a that pleural plaques per se could not found a cause of action. He said
The judge's conclusion, concurred in by all the members of the Court of Appeal, that pleural plaques could not be characterised as a disease or as an impairment of physical condition was in part a finding of fact but also a conclusion of law. The question whether the formation of pleural plaques suffices to complete a tortious cause of action in negligence depends on what the law recognises as damage, not on how medical experts may classify the condition in question. The facts, however, lead inevitably in my opinion to the conclusion reached by the judge. Pleural plaques are not visible or disfiguring. None of the appellants suffered from any disability or impairment of physical condition caused by the pleural plaques. The plaques were asymptomatic and were not the first stage of any asbestos related disease. The inhalation of the fibres and the formation of the plaques involved no pain or physical discomfort. Those being the facts the conclusion that the presence of pleural plaques could not per se suffice to complete a tortious cause of action in negligence is, in my opinion, unassailable. Indeed both before Holland J and in the Court of Appeal the appellants conceded that that was so. They based their case on the so-called "aggregation" theory, namely, that the presence of pleural plaques plus the attendant anxiety and the risk of contracting a life threatening asbestos related disease in the future together constituted sufficient damage to complete the tortious cause of action.
The aggregation theory
He held that the door should not be opened (para 68).
Mr Grieves' damages claim based on his psychiatric illness
LORD RODGER OF EARLSFERRY
In his submissions before the House Mr Burton QC put the claim in two ways: as a claim for the pleural plaques simpliciter, and as a claim for the pleural plaques with the associated risks and anxiety.
Even though Mr Grieves refers only to his anxiety about the risks of malignancy, in fact, he became clinically depressed and developed irritable bowel syndrome after being told that he had pleural plaques. So, in this respect, his case is different. I deal first with the other claimants.
As Lord Guthrie pointed out, at p 68, the problem considered by this House in Cartledge v E Jopling & Sons Ltd could not have arisen if the pursuer's contention had been sound.