LADY BLACK: (with whom
Lady Hale, Lord Wilson, Lord Reed and Lord Lloyd-Jones agree)
1.
The central question in this appeal is whether the appellants have
suffered actionable personal injury on which they can found claims for
negligence/breach of statutory duty. I will refer to the appellants hereafter
as “the claimants” as they were at first instance.
2.
The claimants worked for the respondent company, Johnson Matthey Plc
(hereafter either “Johnson Matthey” or “the company”), in factories making
catalytic converters. Platinum salts are used in the production process. In
breach of its duty under the health and safety regulations and at common law,
the company failed to ensure that the factories were properly cleaned and, as a
result, the claimants were exposed to platinum salts, which led them to develop
platinum salt sensitisation.
3.
Platinum salt sensitisation is, in itself, an asymptomatic condition.
However, further exposure to chlorinated platinum salts is likely to cause
someone with platinum salt sensitisation to develop an allergic reaction
involving physical symptoms such as running eyes or nose, skin irritation, and
bronchial problems. When the claimants’ sensitisation was detected, through
routine screening by means of a skin test, they were no longer permitted by the
company to work in areas where they might be further exposed to platinum salts
and develop allergic symptoms. One has taken up a different role with the
company but, he claims, at a significantly reduced rate of pay. The other two
had their employment terminated. Each claimant therefore asserts that he has
suffered financially as a result of his sensitisation to platinum salts, being
unable to take work in any environment (whether with Johnson Matthey or with
any other employer) where further exposure might occur. Does the platinum salt sensitisation
which each of the claimants has developed qualify as an actionable personal
injury, in which case the claimants have viable claims against the company for
damages for personal injuries caused by the company’s negligence and/or breach
of statutory duty? Alternatively, if the platinum salt sensitisation is not
properly categorised as an actionable personal injury, can they recover damages
for economic loss under an implied contractual term and/or in negligence?
4.
The claimants lost at first instance, following a trial of the question
of liability, before Mr Justice Jay. Jay J concluded [2014] EWHC 3957 (QB) that
they had sustained no actionable personal injury and that their claim was for
pure economic loss, for which they were not entitled to recover in tort. He
also rejected their alternative claim in contract. That had been put on the
basis that there was an implied term in the claimants’ contracts of employment
which obliged the company to provide and maintain a safe place and system of
work, and to take reasonable care for their safety, and that they were entitled
to damages for pure financial loss for breach of that implied term. The judge,
however, considered that the company’s implied contractual duty was to protect
employees from personal injury, not from economic or financial loss in the
absence of personal injury.
5.
The Court of Appeal dismissed the claimants’ appeals ([2016] EWCA Civ 408; [2016] 1 WLR 4487). Lord Justice Sales, with whom the other members of the
court agreed, endorsed Jay J’s view that the claimants had suffered no
actionable personal injury and were claiming for pure economic loss. He saw the
physiological change of platinum salt sensitisation as “not harmful in itself in
any relevant sense” (para 30) and concluded that it was not converted into
actionable injury by the resulting removal of the claimants from their jobs,
with detrimental financial consequences. As for the alternative claim for
damages for economic loss under an implied contractual term and/or in
negligence, there is, of course, no general duty of care in tort to protect
against pure economic loss, and Sales LJ did not consider that a duty of care
arose here from the particular circumstances of the case. His reasoning in
relation to this was closely tied in with his reasoning in relation to the
claim based on contract. That contractual claim failed because Sales LJ was in
agreement with Jay J that there was no implied term in the claimants’ contracts
of employment to the effect that the employer would protect them from pure
economic loss, whether on the basis of this being a standard implied term in
employment contracts or on the basis of features particular to the employment
of the claimants. In Sales LJ’s view, the claimants could not succeed in a
tortious claim for pure economic loss when the employer assumed no such
responsibility in the employment contract.
The medical position
6.
It is necessary to understand the medical evidence about the claimants’
condition for the purposes of the appeal. Sensitisation is a complicated
process which has been explained in simplified terms for the purposes of the
litigation. It involves the body’s immune system. The immune system reacts to
the presence of molecules which are not normally found in the body (“antigens”)
by producing antibodies, in the form of large molecules called immunoglobulins.
In many cases, the antibody performs a useful purpose by combining with the
antigen and rendering it harmless. However, in some cases, the combination of
the antigen and the antibody results in adverse consequences by provoking
particular cells within the body (“mast cells”) to release histamine. In this
situation, asthma, rhinitis, eye symptoms or skin rashes may result.
7.
A person who is sensitised to platinum salts will have a particular type
of antibody in their immune system (IgE antibodies). Although they may not yet
have developed any physical symptoms of the sensitisation, it can be
demonstrated by a skin prick test in which a minute amount of a solution
containing the salts is introduced into the body. A sensitised individual
reacts by developing a small raised red, sometimes itchy, lump in the skin. If
exposure to platinum salts continues after sensitisation has occurred, the
medical evidence is that most (but not all) people will develop physical
symptoms relating to one or more of the eyes, nose, chest and skin. At this
point, they are said to have developed an allergy. On the other hand, physical
symptoms will not develop if there is no further exposure. A person who has
been sensitised but has not yet developed symptoms is not limited in any way in
their life, except that they must avoid circumstances in which they are exposed
to platinum salts. Platinum salts are not encountered in everyday life, only in
certain specialised workplaces. Sensitised people cannot work in jobs which
involve the potential for further exposure.
8.
One of the central authorities which must be considered in determining
this appeal is the House of Lords’ decision in Rothwell v Chemical & Insulating
Co Ltd [2008] AC 281, which concerned the development of pleural plaques as
a result of exposure to asbestos fibres. The doctors who provided expert
medical evidence in the present case were asked to consider whether platinum salt
sensitisation could be said to be akin to pleural plaques, and it is convenient
to set out their response here. They were agreed that there are important
distinctions between the two, namely:
i)
Slight further exposure to asbestos will not materially worsen pleural
plaques, but slight further exposure to platinum salts is likely to increase
the degree of sensitisation and may result in asymptomatic sensitisation
becoming symptomatic;
ii)
Pleural plaques do not, themselves, turn into any other injury
attributable to asbestos whereas asymptomatic sensitisation may turn into
symptomatic sensitisation (allergy);
iii)
The presence of pleural plaques does not prevent a person from engaging
in particular types of work that would otherwise be open to him or her,
asbestos exposure being restricted by law in any event. In contrast, a person
who has asymptomatic sensitisation to platinum salts is restricted in
the work that he or she can do.
Collective agreement
9.
Employees of Johnson Matthey working in factory areas in which they
could be exposed to platinum salts were paid an additional shift allowance. In
addition, the claimants’ trade union had negotiated a collective agreement with
the company to address the issue of platinum salt sensitisation and allergy.
The agreement provided for regular skin prick tests to take place and for
employees who became sensitised to be redeployed away from platinum salt areas
if possible. If an employee could no longer continue to work in a factory
because of “platinum allergy”, the agreement provided for the company to
dismiss him under special termination conditions, including what was termed an
“ex gratia payment” of a lump sum.
10.
The collective agreement expressly acknowledged that an employee dismissed
with “platinum allergy” would normally file a compensation claim against the
company. It provided that the termination arrangements were not meant to be an
alternative to such claims, and that no waiver of claim was implied in
accepting the termination payment.
Personal injury/harm
11.
Negligence and breach of statutory duty are not actionable per se. It is
common ground between the parties that (leaving to one side claims for pure
economic loss), in order to make out their claims in tort for negligence or
breach of statutory duty, it is necessary for the claimants to establish that
there has been damage, in the form of actionable personal injury. The terms
“physical injury” and “personal injury” tend to be used interchangeably in the
authorities, and in the documentation in this case, and this is reflected in
this judgment, there being no psychiatric injury to complicate the matter.
12.
An exploration of the ambit of personal injury is fundamental to the
appeal and depends largely on case law, in particular the two House of Lords
cases of Cartledge v E Jopling & Sons Ltd [1963] AC 758 and Rothwell
v Chemical & Insulating Co Ltd (supra). It is worth noting from the
outset that nowhere in the authorities is there a definition of actionable
personal injury, although there is some guidance as to the attributes of it.
Personal injury features as a concept in various legislative provisions, again
without definition, although in some of the legislation, it is expressly said
to include “any disease and any impairment of a person’s physical or mental
condition”, see for example section 38 of the Limitation Act 1980.
13.
The parties are agreed that if a person were to develop a platinum salt allergy
as a result of improper exposure to platinum salts at work, as opposed to mere
sensitisation, he or she would have suffered personal injury of a type
which would give rise to a cause of action in tort. What divides them is
whether or not sensitisation on its own is actionable personal injury. The
claimants rely upon Cartledge v E Jopling & Sons Ltd [1963] AC 758
as supporting their case that it is, and Johnson Matthey rely upon Rothwell
v Chemical and Insulating Co Ltd [2008] AC 281 as supporting their case
that it is not.
14.
In Cartledge v E Jopling & Sons Ltd, the claims were brought
by steel dressers who had contracted pneumoconiosis whilst working in the
defendant’s factory. The issue was whether their claims were statute-barred and
the House of Lords therefore had to consider when their cause of action first
accrued. This required their Lordships to determine when the steel dressers had
suffered actionable personal injury. The problem was that, in pneumoconiosis,
substantial injury could occur to the lungs without the sufferer being aware of
the disease, as had occurred with the plaintiffs. Amongst the arguments
advanced unsuccessfully on their behalf was the argument that actionable injury
did not occur until the man became aware of his disease, since a man who does
not feel any symptoms or have any knowledge of his disease has suffered no
injury. Addressing this argument, Lord Pearce, with whom there was unanimous
agreement, gave consideration to the attributes of actionable personal injury.
He observed (p 778) that no case had sought to define its borders but, in the
following passage, drew what he could from the authorities to which the House
had been referred:
“There is no case that seeks to
define the borders of actionable physical injury. Your Lordships have been
referred to words used in various cases. In Fair v London &
North-Western Railway Co [(1869) 21 LT 326, 327 DC] Cockburn CJ said: ‘… in
assessing that compensation the jury should take into account two things;
first, the pecuniary loss he sustains by the accident; secondly, the injury he
sustains in his person, or his physical capacity of enjoying life.’ Again, in Haygarth
v Grayson Rollo & Clover Docks Ltd [[1951] 1 Lloyd’s Rep 49, 52]
Asquith LJ said: ‘General damage, while usually assessed in a single global sum,
ought to include loss referable to at least three factors, where all three
factors are present, namely, the respective loss of earnings, pain and
suffering and loss of amenity.’ Such observations naturally proceed on the
normal basis that personal injury involves some pain or patent loss of amenity,
but the unusual question before your Lordships is whether a hidden, painless
injury or latent loss of amenity sounds in damages. And in no case is it laid
down that hidden physical injury of which a man is ignorant cannot, by reason
of his ignorance, constitute damage.”
15.
Lord Pearce went on to hold that actionable harm can be suffered despite
the fact that a man has “no knowledge of the secret onset of pneumoconiosis and
suffers no present inconvenience from it” (p 778). In Lord Pearce’s view, as
will be seen from the following quotation from p 779 of the report, the
question was “whether a man has suffered material damage by any physical
changes in his body”, and this was a question of fact in each case:
“It is for a judge or jury to
decide whether a man has suffered any actionable harm and in borderline cases
it is a question of degree …
It is a question of fact in each
case whether a man has suffered material damage by any physical changes in his
body. Evidence that those changes are not felt by him and may never be felt
tells in favour of the damage coming within the principle of de minimis non
curat lex. On the other hand, evidence that in unusual exertion or at the
onslaught of disease he may suffer from his hidden impairment tells in favour
of the damage being substantial. There is no legal principle that lack of
knowledge in the plaintiff must reduce the damage to nothing or make it
minimal.”
16.
Although symptomless, and not causing any present physical
inconvenience, the physical injury to the lungs of the steel dressers was held
to constitute actionable damage and, by virtue of the terms of the Limitation
Act 1939, their Lordships felt compelled therefore to find that their claims
were statute barred.
17.
Rothwell v Chemical and Insulating Co Ltd involved employees who
had been exposed to asbestos dust and had developed pleural plaques as a
result. They were at risk of developing asbestos related diseases and suffered
anxiety at that prospect; one of them had developed a depressive illness,
brought on by the diagnosis of the plaques.
18.
A convenient summary of the medical position about the plaques can be
found at the start of Lord Hoffmann’s speech in Rothwell. He said,
in para 1:
“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.”
19.
The unanimous view of the House of Lords was that the claimants had
suffered no actionable damage. As Lord Hoffmann put it, in para 2, “compensatable
physical injury” was required to establish a cause of action and the plaques
did not constitute such injury. The claimant who had developed clinical
depression was in a different position, since psychiatric illness can
constitute damage. However, his claim also failed, essentially because it was
not reasonably foreseeable that a person of reasonable fortitude would develop
a psychiatric illness in his circumstances.
20.
In considering the implications of the decision in Rothwell, it
is important to have an appreciation of the attributes of the pleural plaques
and of how they differ from the damage sustained by the steel dressers in Cartledge.
21.
In Cartledge, the inhalation of silica particles had damaged the
lung tissue, causing minute scars and reducing the efficiency of the lung
tissue. As Lord Hoffmann summarised the position in Rothwell (para 8):
“… their lungs had suffered damage
which would have been visible upon an x-ray examination, reduced their lung
capacity in a way which would show itself in cases of unusual exertion, might
advance without further inhalation, made them more vulnerable to tuberculosis
or bronchitis and reduced their expectation of life. But in normal life the
damage produced no symptoms and they were unaware of it.”
22.
In contrast, the pleural plaques were not in any way harmful to a
sufferer’s health or physical condition. They were evidence that the lungs had
been penetrated by asbestos fibres but they did not, themselves, give rise to
actual or prospective disability. Save in the most exceptional cases (which it
appears did not include any of the claimants), they would not have any effect
upon health at all. They were described, for example, as “symptomless bodily
changes with no foreseeable consequences” (para 17), as “not harmful” and not
giving rise to any symptoms or leading to “anything else which constitutes
damage” (para 49), and as “asymptomatic and … not the first stage of any
asbestos-related disease” (para 68). In so far as the sufferer faced a risk of
deterioration in his health in future, that risk arose from the exposure to the
asbestos fibres, not from the plaques, which neither posed nor contributed to
any risk. Similarly, it was the exposure to asbestos which caused the anxiety felt
by the claimants about their future health, following the discovery that they
had pleural plaques, not the plaques themselves.
23.
The speeches in Rothwell possibly shed a little further light on
the identifying features of actionable personal injury. I will refer to the
relevant passages here, and they contribute to my conclusions later.
24.
First, it seems to have been accepted that the concept of personal
injuries includes a disease or an impairment of a person’s physical condition.
The term “impairment” is to be found in certain statutes (see above) and is
used by Lord Pearce in Cartledge who referred, at p 779, to the scarring
to the lungs in that case as a “hidden impairment”. The trial judge in Rothwell
looked for a disease or impairment of physical condition and, considering the
judge’s finding that there was nothing that could be categorised in that way,
Lord Hoffmann made no suggestion that the judge had been wrong to focus on
impairment (para 11).
25.
Secondly, it was underlined that to be actionable, the damage had to be
more than negligible. This is expressed in various ways, including that it must
be more than trivial (Lord Hoffmann, at para 8), that it must be “real damage”
(Lord Hope of Craighead, at para 39), and that it must be material (Lord Rodger
of Earlsferry, at para 87). Thirdly, following on from that, it was made clear
that the mere fact that a particular physical condition might properly be
described as an “injury” does not necessarily mean that it constitutes damage
of the requisite kind. Lord Hope countenanced that the plaques could be called
an injury (see, for example, at para 39), but the claimants still did not
recover because, as he said:
“… the use of these descriptions
does not address the question of law, which is whether a physical change of
this kind is actionable. There must be real damage, as distinct from damage
which is purely minimal: Lord Evershed, at p 774 [of Cartledge]. Where
that element is lacking, as it plainly is in the case of pleural plaques, the
physical change which they represent is not by itself actionable.”
Returning to the subject at para 47, he said:
“… It is well settled in cases
where a wrongful act has caused personal injury there is no cause of action if
the damage suffered was negligible. In strict legal theory a wrong has been
done whenever a breach of the duty of care results in a demonstrable physical
injury, however slight. But the policy of the law is not to entertain a claim
for damages where the physical effects of the injury are no more than negligible.
Otherwise the smallest cut, or the lightest bruise, might give rise to
litigation the costs of which were out of all proportion to what was in issue.
The policy does not provide clear guidance as to where the line is to be drawn
between effects which are and are not negligible. But it can at least be said
that an injury which is without any symptoms at all because it cannot be seen
or felt and which will not lead to some other event that is harmful has no
consequences that will attract an award of damages. Damages are given for
injuries that cause harm, not for injuries that are harmless.”
26.
Lord Hoffmann had some comments to make about the nature of “damage”. He
said, at para 7:
“a claim in tort based on
negligence is incomplete without proof of damage. Damage in this sense is an
abstract concept of being worse off, physically or economically, so that
compensation is an appropriate remedy. It does not mean simply a physical
change, which is consistent with making one better, as in the case of a successful
operation, or with being neutral, having no perceptible effect upon one’s
health or capability.”
Putting this formulation together with the requirement
that the damage be more than minimal, he saw the relevant question, on the
facts of the Rothwell case, as being (para 19), “is [the claimant]
appreciably worse off on account of having plaques?” Although he had referred
at para 7 to damage in the sense of being economically worse off, the context
makes it plain that the question he was posing in para 19 was whether the
claimant was physically worse off.
27.
It can be seen from the passages referred to above that, as well as the
usual reference to “pain, suffering and loss of amenity”, personal injury has
been seen as a physical change which makes the claimant appreciably worse off
in respect of his “health or capability” (Lord Hoffmann at para 7 of Rothwell)
and as including an injury sustained to a person’s “physical capacity of
enjoying life” (Fair v London & North-Western Railway Co (1869)
21 LT 326, 327, quoted by Lord Pearce in Cartledge, at p 778),
and also an “impairment”. Furthermore, it has been established that it can be
hidden and symptomless (Cartledge).
How Jay J and the Court of Appeal saw matters
28.
Jay J saw it as key (paras 27 and 31 of his judgment) that the scarring
to the lungs in Cartledge was “not neutral as to its health impacts” and
constituted “a disease process which is real and present.” He contrasted this
with the situation in the Rothwell case in that the pleural plaques
would never cause symptoms or increase the susceptibility of the individual to
other diseases or conditions, and did not reduce life expectancy. He agreed (para
30) that there were factual differences between Rothwell and the instant
case, including that “the progression from sensitisation to allergy can be
envisaged as being along a direct causal pathway … [whereas] … the pleural
plaques were a biological cul-de-sac.” But he thought it critical that the
progression would not occur if an employee was removed from the source of the
sensitisation and, because the claimants had all been removed from exposure to
platinum salts, would not occur in their cases. The correct approach in his
view (para 32) was to analyse the sensitisation in terms of the physical or
physiological harm that it may be causing. The antibodies in the claimants’
bodies were not harmful in themselves and he considered that “something more
has to happen before actionable injury may be sustained”. He discarded
financial loss consequent upon the changes as irrelevant, and took the view
that “one cannot define the actionable injury by the steps which are taken to
prevent it” (by which he must have meant the steps taken to prevent the
claimants developing an allergy). It seems to have been his view that, on the facts
of this case, nothing short of actual symptoms could amount to actionable
injury.
29.
In the Court of Appeal, there was a close analysis of Cartledge
and Rothwell. Setting out his conclusions, between paras 30 and 32 of
his judgment, Sales LJ (with whom the other members of the court agreed)
concluded that the claimants have suffered “no physical injury”. He considered
that the platinum salt sensitisation that they have developed is not harmful in
any relevant sense. He saw it as analogous to the pleural plaques in Rothwell,
and said that it was “not a ‘hidden impairment’ which has the potential by
itself to give rise to detrimental physical effects in the course of ordinary
life”, and was therefore not like the lung scarring in Cartledge. He
observed that, like the plaques, platinum salt sensitisation does not reduce
life expectancy and, “provided the worker is removed from an environment in
which he may be exposed to platinum salts” (para 27), will not cause symptoms,
or increase the susceptibility of the individual to other diseases or
conditions. In Sales LJ’s view (para 30), it did not therefore constitute
actionable damage or injury.
30.
Sales LJ agreed with Jay J that the steps taken to prevent the allergy
developing (removing the employee from work in an environment where further
exposure may occur) should not be seen as a component of the injury and that
the sensitisation had to be looked at in terms of the physical or physiological
harm which it may be causing, which, without further exposure, was none.
He acknowledged that the removal of the claimants from their jobs might be seen
as an extra element, present in this case and not in Rothwell, but,
whilst he accepted that this was detrimental to the claimants financially,
Sales LJ did not consider that it converted the physiological change into an
actionable injury, because he took the view that the financial detriment should
be viewed separately, as a form of pure economic loss. Indeed, he was disposed
to view the removal of the claimants from their jobs as a “sort of mitigation
of loss in advance of injury” (para 32), the restriction on their work being to
protect them from suffering the physical injury which would otherwise have
developed. On his reasoning, as damages can only be claimed for the expenses of
mitigation where there is a right to sue for a wrong in the first place, and
there was no such right here, damages for the financial loss could not be
recovered.
The arguments in this court
31.
In summary, the claimants argue that platinum salt sensitisation
constituted a physical change to their bodies which amounted to material damage
in that they were worse off than they would have been but for their employer’s
breach of duty. By virtue of their sensitisation, they were likely to develop
an allergy if further exposed to platinum salts. Their bodies were now in a
state that made them unfit for further work in areas where they may be exposed
to salts (“red zones”), and this constituted a real loss of amenity and
qualified as an actionable personal injury.
32.
The company supports the reasoning of Jay J and the Court of Appeal. It
argues that platinum salt sensitisation is not an actionable personal injury
and that the claim is in reality one for pure economic loss for which the
claimants are not entitled to recover, either in tort or through the medium of
a term implied into their employment contracts. The claimants cannot establish
actionable personal injury, say Johnson Matthey, by adding the financial
consequences of the sensitisation to the physiological changes in their bodies.
33.
The company argues that the changes in the claimants’ bodies do not
amount to physical damage to bodily tissue or an impediment to the proper
working of bodily tissues or organs, and seeks to categorise the molecular
change that has occurred as entirely normal and benign in character, as a
person will naturally develop antibodies in everyday life and antibodies are
not themselves harmful. In the company’s view, it “would seem perverse and an
abuse of language to describe as ‘injured’ someone who merely acquired a new
antibody”. The company’s argument seeks to align the claimants’ condition with
that of the claimants with pleural plaques in the Rothwell case, and to
distance it from the situation in Cartledge, it being asserted that
sensitisation is merely an indicator of past exposure to platinum salts as the
plaques were an indicator of exposure to asbestos. In addition, it is
emphasised that the claimants are not limited in living their lives, except
that they should avoid exposure to platinum salts.
34.
An important element in the company’s argument is that platinum salts
are not encountered in ordinary everyday life, only in certain specialist
workplace environments. I interpose to observe that an employee should not be
exposed to the salts even in the specialist workplace, but it is clear from the
existence of the testing regime and the practice of not allowing sensitised
individuals to work in the red zones, that exposure does take place, and of
course it is admitted that the claimants in this case were in fact exposed to
the salts by virtue of the company’s breach of its duty under various health
and safety regulations. The company says that these claimants almost certainly
will not go on to develop platinum salts allergy, now that they are not
permitted to work in the red zones, and are aware of the need to avoid contact
in other working environments. Furthermore, the company observes that if the
claimants were at any stage to develop initial allergy symptoms (which
in themselves may be too minor to constitute actionable personal injury), that
would be a warning to remove themselves from the source of exposure, thus
avoiding significant injury.
35.
Encapsulating these elements of their argument in their written case,
the company says that the claimants have “molecular changes without symptoms”
and “a theoretical but no practical risk of symptoms developing.”
36.
The company also argues that it is not, in fact, the sensitisation
itself that prevents the claimants from working at their old jobs, but the
terms of the collective agreement which led to the employer removing them from
risky areas. This is demonstrated, it is said, by the fact that the claimants
must have been sensitised before the skin prick test revealed that they were,
but they continued to do their jobs until the test results were known.
Discussion
37.
I am not persuaded by the company’s attempt to class the claimants’
condition as just the development of another benign antibody in the body, not a
true departure from the normal, and not damaging the claimants’ health or
physical capability. Some antibodies may do their job in the body without
producing any adverse consequences. What matters, however, is the behaviour of
the particular antibody which is produced in an individual who has been
sensitised to platinum salts. If such an individual is subsequently exposed
again to the salts, the IgE antibody involved in platinum salt sensitisation is
likely, in most people, to react in a way which produces allergic symptoms of a
type which, it is common ground, would be of sufficient significance to
constitute an actionable personal injury. Whilst possibly simplistic, I do not
think it is inappropriate to view the development of a platinum salts allergy
in a person who does not, at the outset, have a sensitivity to platinum salts
as having two stages: first comes sensitisation, next comes allergy. Before
initial employment in the red zones, a medical screening procedure is
undertaken so as to avoid employing people who have a genetic disposition to
allergy. When commencing work in the red zones, the claimants were people who
had the capacity to work there. At that point, their bodies were fitted for
that task, still having a safety net to protect them from allergy, in the form
of the sensitisation stage, which would enhance the prospect of removing them
from further exposure before allergy developed. When they became sensitised,
through the company’s negligence and/or breach of statutory duty, that change
to their bodies meant that they lost this safety net and therefore their
capacity to work around platinum salts.
38.
But, on the company’s argument, this bodily change which leaves the
claimants worse off than they were before they became sensitised, is not
actionable personal injury. From discussion in the course of argument, it
became clear that Johnson Matthey’s argument was not that sensitisation can never
amount to actionable injury. Mr Kent QC acknowledged, on behalf of the company,
that if the claimants had developed a sensitivity to something in everyday
life, such as sunlight, as opposed to platinum salts, they would have sustained
actionable damage because they would not be able to carry on with their
ordinary life and would suffer, as he put it, a “deficit” which would
undoubtedly be characterised as personal injury. It follows from this
acknowledgment that there is no dispute that the physiological changes involved
in sensitivity can constitute sufficient personal injury, sufficient
damage, to found an action for negligence or breach of statutory duty.
39.
However, Mr Kent contrasts the person who develops a sensitivity to sun
with the situation here because, he says, the sufferer is not sensitive to
something in everyday life, but only to a dangerous chemical to which people
should not be exposed, given the health and safety regulations. Certain aspects
of this argument ring rather hollow in this case, given that the claimants were
exposed to the salts by the company, and the risk of further exposure is
considered sufficiently significant for the collective agreement to require
that they be prevented from working in red zones. However, I will set that
objection to one side for present purposes and consider the simple proposition
that the claimants have not become sensitised to something in everyday life,
like the sun. It is a proposition to which I cannot subscribe. Ordinary
everyday life is infinitely variable. For these claimants, their ordinary
everyday life involved doing jobs of a type which, by virtue of their
sensitisation, they can no longer do. In those circumstance, I do not see how
their situation can be validly distinguished from the person who has developed
a sensitivity to the sun.
40.
The physiological changes to the claimants’ bodies may not be as
obviously harmful as, say, the loss of a limb, or asthma or dermatitis, but
harmful they undoubtedly are. Cartledge establishes that the absence of
symptoms does not prevent a condition amounting to actionable personal injury,
and an acceptance of that is also implicit in the sun sensitivity example, in
which the symptoms would only be felt upon exposure to sunshine, just as the
symptoms here would only be felt upon exposure to platinum salts. What has
happened to the claimants is that their bodily capacity for work has been
impaired and they are therefore significantly worse off. They have, in my view,
suffered actionable bodily damage, or personal injury, which, given its impact
on their lives, is certainly more than negligible.
41.
It can be helpful to test an approach by applying it to slightly
different facts, albeit that they are not an exact parallel with the present
case. Suppose that the claimants were coffee tasters, employed because they had
the ability to distinguish different flavours and qualities of coffee, by smell
and taste. Suppose further that, through negligence, their sense of smell or
taste became impaired in a way which would be of absolutely no consequence to
anyone who was not employed in this particular role, but meant that they could
no longer do their jobs and had to seek other employment. I venture to suggest
that there would be little difficulty in accepting that the changes to their
bodies were actionable personal injury. Another example might be of claimants
working in the fragrance industry, whose highly developed sense of smell was
damaged. It might be that the coffee tasters, or the expert perfumers, would be
able to show something which looks more like a physical bodily injury of a
conventional kind, but I can see no essential difference between their
situation and the present case, where bodily changes have led to the claimants,
who were formerly people who could and did work around platinum salts, no longer
being able to do so.
42.
I should address specifically some of the arguments which featured in
the company’s case. First, there is the argument that the claimants are
attempting to claim for something, an allergy, that will never happen because
they will not now work around platinum salts. This goes along with what might
be described as “the timing argument”, namely that the deficit which the
claimants rely upon (their inability to do their chosen jobs) did not exist
prior to the positive skin tests, and was not the product of the negligent
exposure to platinum salts and resulting sensitisation, but of the protective
provisions of the collective agreement which required that they be removed from
the red zones. Another strand of the argument is the assertion that the
claimants are seeking to make what is, in reality, only a risk (the risk of
developing an allergy) into an actionable injury.
43.
These arguments could only prosper, it seems to me, if the sensitisation
itself is not seen as an actionable personal injury, but only as a benign and
symptom-free molecular change. For the reasons I have given at paras 37 to 40
above, I do not see it in that way. If the sensitisation is viewed as an
injury, as in my view it should be, then it did exist before the skin test revealed
it. The restrictions on the work that can be done by claimants who have tested
positive are attributable to the sensitisation, to which the protective
provisions of the collective agreement were a response. Those provisions
reflect the fact that, because of the negligence and/or breach of statutory
duty of their employers, these claimants’ bodies are now in such a state that
they need to avoid further exposure to platinum salts which, according to the
evidence, would be likely to provoke allergy in most people. But the need for
sensitised individuals to avoid exposure would apply whether or not there was a
collective agreement such as that which was in force in this case, and no
matter whether the employer was Johnson Matthey or another employer who imposed
no comparable restrictions. As for the fact that the claimants must have worked
for a period after they became sensitised, but before their positive skin prick
tests demonstrated that fact, I do not see that that advances the argument in
any way, given that they did so in ignorance of their condition. They were
lucky enough not to have gone on to develop allergic symptoms during that
period of unknown sensitisation, but that does not mean that they would be safe
to continue to work in red zones (or the equivalent area in another company) if
not prevented from doing so by the collective agreement.
44.
Once the sensitisation is identified as an actionable injury in its own
right, the company’s argument that the claimants are, in reality, claiming only
for their lost earnings and therefore for pure economic loss also falls away.
45.
But, the company asks, what about a claimant who was about to retire
when he or she became sensitised, or no longer wanted to work in the same type
of employment, and upon whom the sensitisation would therefore have no impact?
This, to my mind, does not go to the question of whether actionable personal
injury has been suffered, but to the quantum of damages flowing from that,
which it could be expected would be reduced by this feature of the particular
case.
46.
I return to the cases of Rothwell and Cartledge. Although
other authorities were cited, including some relating to claims for damage to
property, I have found them of little direct, or even indirect, assistance and
therefore, like Jay J and the Court of Appeal, my focus has been upon these two
central cases.
47.
I would distinguish this case from Rothwell. I set out earlier
how the doctors saw the distinction between pleural plaques and sensitisation
to platinum salts but it is, of course, ultimately a lawyer’s question whether
the two conditions are distinguishable. As I see it, it is material that the
pleural plaques were nothing more than a marker of exposure to asbestos dust,
being symptomless in themselves and not leading to or contributing to any
condition which would produce symptoms, even if the sufferer were to be exposed
to further asbestos dust. Similarly, the sensitisation of the claimants in this
case marks that they have already been exposed to platinum salts, but unlike the
plaques, it constitutes a change to their physiological make-up which means
that further exposure now carries with it the risk of an allergic reaction, and
for that reason they must change their everyday lives so as to avoid such
exposure. Putting it another way, they have lost part of their capacity to work
or, as the claimants put it in argument, they have suffered a loss of bodily
function by virtue of the physiological change caused by the company’s
negligence.
48.
As Lord Pearce said in Cartledge (supra para 15), it is a
question of fact in each case whether a man has suffered material damage by any
physical changes in his body. It is a question of fact that must be determined
in the light of the legal principles applicable to personal injury actions, and
this case has provided a useful opportunity to clarify some of those
principles. The process has led me, for all the reasons I have set out, to
differ from Jay J and the Court of Appeal and to conclude that the concept of
actionable personal injury is sufficiently broad to include the damage suffered
by these claimants, which is far from negligible.
49.
In these circumstances, it is unnecessary to say anything further about
the claimants’ alternative argument that they should be able to recover for
pure financial loss. I would allow the appeal on the claimants’ first ground,
having concluded that they do have a cause of action in negligence/statutory
duty against the company.
