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.
26. In the present case, the employer would be unlikely to have any specific knowledge of how a particular employee was likely to react to the risk of asbestos-related illness more than 30 years after he had left his employment. An assumption of ordinary fortitude is therefore inevitable.
27. The Court of Appeal noted (at p 1482, para 76) that the judge had made no finding that Mr Grieves's psychiatric injury was reasonably foreseeable and said that "there is no material which would enable us to make such a finding." Dr Menon, one of the expert witnesses, said that over 6 years he had assessed nearly 80 men with asbestos-related diseases and suspected mental health problems. Of these, about half were suffering from diagnosable mental disorders. But his evidence did not distinguish between mental problems suffered by actual victims of asbestos-related diseases and those caused simply by the fear of developing such diseases. Nor did he say what proportion of actual or potential victims suffered such problems. As the Court of Appeal said (at p 1483, para 76) it was impossible to deduce from his report:
28. Of course the test of whether it is foreseeable that the employee of reasonable fortitude would suffer psychiatric injury does not depend entirely upon the statistical evidence. In McLoughlin v O'Brian  1 AC 410, 432 Lord Bridge of Harwich pointed out that foreseeability did not depend on "the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect" but on whether the judge "as fairly representative of the educated layman [formed the] view from the primary facts [that] the proven chain of cause and effect was reasonably foreseeable." But this test restricts rather than enlarges the foreseeability of psychiatric illness. It allows for the fact that expert knowledge of cause and effect may not be available to the educated layman. It does not mean that the judge should give effect to speculation or urban legends unsupported by evidence.
29. The answers to a test of foreseeability will vary according to, first, the precise description of what should have been foreseen and, secondly, the degree of probability which makes it foreseeable. Lord Reid's opinion in Hughes v Lord Advocate  AC 387 shows how much depends upon the level of generality at which you describe the event which must have been foreseen. (See also Jolley v Sutton London Borough Council  1 WLR 1082). And Lord Reid's well-known dictum in Overseas Tankship (UK) Ltd v Miller Steamship Co (The Wagon Mound (No 2))  1 AC 617, 643-644 shows that the degree of probability which counts as foreseeability may vary according to other factors in the case:
30. In the case of psychiatric illness, the standard description of what should have been foreseen, namely that the event which actually happened would have caused psychiatric illness to a person of "sufficient fortitude" or "customary phlegm", has been part of the law since the speech of Lord Porter in Bourhill v Young  AC 92, 117. It was plainly intended to make the test more difficult to satisfy than whether it was foreseeable that something might happen which would cause someone (or even a person of reasonable fortitude) to suffer psychiatric injury. The latter test would not be hard to satisfy, as is evidenced by the opinion of the majority of the House in Page v Smith  AC 155. But in my opinion the latter test was applicable only in the special circumstances of that case, to which I shall in due course return. The general rule still requires one to decide whether it was reasonably foreseeable that the event which actually happened (in this case, the creation of a risk of an asbestos-related disease) would cause psychiatric illness to a person of reasonable fortitude. I think that the Court of Appeal was right to say that there was no basis for such a finding.Page v Smith
31. Counsel for Mr Grieves submits that even if his psychiatric illness was not foreseeable, the decision of the majority of the House in Page v Smith  AC 155 makes such foreseeability unnecessary. It is enough that his employer ought to have foreseen that exposure to asbestos might cause him physical injury, namely, an asbestos-related disease. In Page v Smith it was held to be sufficient that the defendant should have foreseen that his negligent driving might cause some physical injury. It did not matter that he could not have foreseen that the event which actually happened, namely a minor collision, would cause psychiatric injury.
32. Counsel for the defendant invited the House to depart from the decision in Page v Smith on the ground that it was wrongly decided. It has certainly had no shortage of critics, chief of whom was Lord Goff of Chieveley in Frost v Chief Constable of South Yorkshire Police  2 AC 455, supported by a host of academic writers. But I do not think that it would be right to depart from Page v Smith. It does not appear to have caused any practical difficulties and is not, I think, likely to do so if confined to the kind of situation which the majority in that case had in mind. That was a foreseeable event (a collision) which, viewed in prospect, was such as might cause physical injury or psychiatric injury or both. Where such an event has in fact happened and caused psychiatric injury, the House decided that it is unnecessary to ask whether it was foreseeable that what actually happened would have that consequence. Either form of injury is recoverable.
33. In the present case, the foreseeable event was that the claimant would contract an asbestos-related disease. If that event occurred, it could no doubt cause psychiatric as well as physical injury. But the event has not occurred. The psychiatric illness has been caused by apprehension that the event may occur. The creation of such a risk is, as I have said, not in itself actionable. I think it would be an unwarranted extension of the principle in Page v Smith to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened.
34. In Creuzfeldt-Jakob Disease Litigation Group B Plaintiffs v Medical Research Council  Lloyd's Rep Med 161, 165 Morland J observed that if Page v Smith were given the wide interpretation for which counsel for Mr Grieves argues, psychiatric injury caused by the apprehension of illness related to exposure to asbestos, radiation, or contaminated food would become actionable, even though the claimants had actually suffered no physical injury. Whether such liability would have the disastrous consequences for society which the judge predicted may be debatable, but it would involve an extension of the principle to cases which I do not think were contemplated by the House. I do not think it would be right to do so and I would therefore also dismiss Mr Grieves's appeal.
35. The defendants cross-appealed against the quantum of damages which the Court of Appeal said they would have awarded if the claimants had been successful. As the appeals are to be dismissed, the cross-appeal does not arise and I say nothing about it.
LORD HOPE OF CRAIGHEAD
36. No action lies for a wrong which has not resulted in some element of loss, injury or damage of a kind that was reasonably foreseeable and for which the claimant can sue. It is the limits of this, most basic, principle of the law of negligence that are under scrutiny in these appeals.
37. The first question is what we mean when we refer in this context to "injury". In Cartledge v E Jopling & Sons Ltd  AC 758, 778, Lord Pearce said that there was no case that had sought to define the borders of actionable injury. The issue in that case was whether an injury which had been sustained before the claimant knew that he had been injured could nevertheless be said to be actionable. As Lord Pearce explained, it was impossible to hold that a person who has no knowledge of the secret onset of pneumoconiosis and suffers no present inconvenience from it cannot have suffered any actionable harm. But the evidence in that case was that a person who is susceptible to pneumoconiosis, and who inhales the noxious dust over a period of years, will have suffered substantial injury to his lungs before his injury can be discovered: Lord Reid at p 772.
38. The problem in the present cases is a different one. The claimants were negligently exposed to asbestos dust. They developed pleural plaques as a direct and foreseeable result of that exposure. The pathological process that gives rise to them is such that pleural plaques may be described as a disease or an injury. But they do not normally give rise to any physical symptoms. They may become more extensive. But they do not in themselves give rise to, or increase the risk of developing, any other asbestos induced conditions. The appearance of the pleura is altered. But this is detectable only by way of chest X-ray or CT scan or, after death, by autopsy. There is no cosmetic deficit. Their physical effects cannot, in any normal sense of the word, be described as harmful. In essence, they are only indicators. They do no more than evidence exposure to asbestos.
39. The question then is whether an alteration in a claimant's physical condition of this kind is actionable. If the alteration is taken by itself there can be only one answer to this question. As Lord Reid put it in Cartledge v E Jopling & Sons Ltd at p 771-772, a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible. I do not think that it is an abuse of language to describe pleural plaques as an injury. The question whether they can also be described as a disease is less easy to answer. But 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. 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.
40. The claimants have an alternative argument. They maintain that the physical change ought not to be looked at in isolation from other consequences of their exposure to asbestos. In each case there was medical evidence that the presence of pleural plaques indicated that the claimants were at significantly increased risk of developing an asbestos-related disease which would be actionable - of developing asbestosis, mesothelioma or lung cancer. There was also evidence from the claimants themselves, which the judge accepted, that they had suffered from anxiety on being told that they had pleural plaques and of the increased risks of developing these diseases due to the amount of asbestos fibres in their lungs which the presence of pleural plaques indicated.
41. The claimants accept that they have no free-standing claim for those increased risks, as it is not the pleural plaques themselves that gave rise to them: Gregg v Scott  2 AC 176. They also accept that they have no free-standing claim for their anxiety, which is mainly about their state of health in the future. Emotional reactions of that kind do not, on their own, sound in damages. But taken in combination, they say, these various elements when added together do add up to an injury caused by the wrongful exposure to asbestos which is more than negligible. Even when the risk is discounted for the purpose of an award of provisional damages under section 32A of the Supreme Court Act 1981, an award can, it is submitted, be given for an amount that is more than negligible for the anxiety when it is added to the physical alteration which gave rise to it. The physical change resulting from the presence in their lungs of asbestos fibres is the control mechanism or "hook", to adopt Professor Jane Stapleton's graphic metaphor ("Cause-in-Fact and the Scope of Liability for Consequences" (2003) LQR 388, 424), on which they wish to hang their argument.
42. It would be easy to dismiss this argument by applying the simplest of all mathematical formulae: two or even three zeros, when added together, equal no more than zero. It is not possible, by adding together two or more components, none of which in itself is actionable, to arrive at something which is actionable. It would be easy to say that, as the element of anxiety is simply parasitical on another element which on its own is not actionable, it cannot in combination create something which is actionable. But I do not think that this would do justice to what, on the evidence, is a genuine problem of legal analysis. The claimants may never develop any of the harmful diseases which they are now at an increased risk of developing. But they have already developed pleural plaques and it has been established that they are suffering from anxiety due to an awareness of what the pleural plaques indicate. The respondents accept that if the claimants were to develop any of the harmful diseases they would then have a claim that was actionable. But the award which that cause of action would produce would give them nothing for any anxiety which preceded the development of the disease. And those who did not develop any of the harmful diseases would not ever, if the respondents are right, be able to recover anything for their anxiety.
43. The need to examine the problem more closely is indicated by the fact that, prior to this litigation, it was accepted by both lawyers and insurers working in this field that claimants who had developed pleural plaques were entitled to damages. As Smith LJ noted in the Court of Appeal  ICR 1458, para 128, this was the result of a trilogy of cases in the 1980s involving the Ministry of Defence: Church v Ministry of Defence (unreported, 23 February 1984); Sykes v Ministry of Defence (unreported, 19 March 1984); Patterson v Ministry of Defence (unreported, 29 July 1986). In Patterson Simon Brown J said that he had no doubt that the plaintiff had suffered material damage. This consisted of the symptom-free pleural changes, the risk of the development of diseases that were harmful and what he described as the understandable worry attendant upon those various matters. In the present cases Lord Phillips of Worth Matravers CJ, speaking for the majority in the Court of Appeal, accepted that, if the claimants had sustained actionable physical injury, an award of provisional damages could properly reflect anxiety at the risk of sustaining a harmful disease consequent upon the breach of duty that caused the physical injury and that compensation for significant anxiety would normally be expected to fall within a bracket of £4,000 to £6,000:  ICR 1458, para 107. The problem then is not due to the fact that it would not be possible, on this hypothesis, to arrive at an award which crossed the minimal threshold that the maxim de minimis non curat lex stipulates. It is due to the fact that, on their own, the pleural plaques do not amount to an injury, or a disease, which is actionable.
44. Why should this be? The respondents say that the answer lies in an application of the de minimis test: the law ought not to concern itself with pleural plaques which in themselves are, at best for the claimants, a trivial injury. But the wording of the test itself is liable to mislead. It is not right to say that the law does not concern itself with matters of small moment or which are trivial in amount. The dishonest taking of an item of trivial value - a bun from the bakery, for example - is just as much theft as it is when the item taken is of high value. And in strict legal theory every wrong, however slight, attracts a remedy. Every right, of whatever value, may be enforced.
45. Two Scottish authorities illustrate this point. In Meikle v Sneddon (1862) 24 D 720 the pursuers claimed damages for the wrongful arrestment of their ship. They claimed £500 as solatium for injury to their feelings. But the only loss that had been actually sustained was the sum required to relieve the vessel from the arrestment, which was less than £10. Lord Justice-Clerk Inglis said at p 723:
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.
46. On the other hand, in Wood v Carwardine  2 KB185 McCardie J held that trivial services, the amount of which could be measured, did not amount to "attendance" within the meaning of section 12(2)(i) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. At p 192 he said that the rule had to be applied with robust vigour in favour of the tenant unless the protective object of the Act was to be substantially defeated. He referred to observations on the maxim in the same context by Bankes LJ in Wilkes v Goodwin  2 KB 86, 93-94, and said that the question of substantiality was an important matter in dealing with the rule.
47. Whatever its strict meaning may be, the maxim in its less literal sense can be appealed to in the present context as an expression of legal policy. 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.
48. In her dissenting judgment, to which I should like to pay tribute, Smith LJ said that the tissue change resulting from the development of the pleural plaques was a physical injury or a disease and that the cause of action was complete when account was taken of the risks of a harmful disease caused by the same exposure. This was on the view that time began to run against the claimant for the purposes of limitation when the plaques were discovered and he was told about the risks: para 134. She did not think that it was necessary to include any element of anxiety when deciding whether the cause of action was complete. But anxiety could be brought into account in the award of damages. In summary, she said, the sum of the very minor physical damage and the much more serious damage comprising the risks amounted to material, actionable damage.
49. This approach does not seem to me, however, to address the fundamental point that, while the pleural plaques can be said to amount to an injury or a disease, neither the injury nor the disease was in itself harmful. This is not a case where a claim of low value requires the support of other elements to make it actionable. It is a claim which has no value at all. Pleural plaques are a form of injury. But they are not harmful. They do not give rise to any symptoms, nor do they lead to anything else which constitutes damage. Furthermore it is not possible to bring the risks of developing a harmful disease into account by applying the ordinary rules of causation. The risks are no doubt due to the same exposure to asbestos. But they are not created by, or in any way contributed to, by the pleural plaques. That can also be said of the anxiety. It is the risk of developing a harmful disease in the future that gives rise to it. So also where the claimant is required to attend for periodical medical examination and is worried about the results. Pleural plaques themselves do not require periodical medical attention. The need for this is due to what the pleural plaques indicate about the extent of the exposure to asbestos.
50. I am not attracted by the other reasons of policy that led the majority in the Court of Appeal to the conclusion that it was undesirable that the development of pleural plaques should give rise to a cause of action: para 67. I would hold however that there is no cause of action because the pleural plaques in themselves do not give rise to any harmful physical effects which can be said to constitute damage, and because of the absence of a direct causative link between them and the risks and the anxiety which, on their own, are not actionable. I would apply the same proposition for the purposes of the limitation rules. Time has not yet begun to run against any of the claimants who may have the misfortune of developing an asbestos-related disease in the future which is actionable.
Mr Grieves's case
51. Mr Grieves is in a different position, because he developed psychological symptoms and was diagnosed as suffering from a depressive illness. He also developed irritable bowel syndrome as a result of his clinical depression. So he claims damages for his depressive illness and his irritable bowel syndrome as well as for his contraction of pleural plaques. He claims that all these consequences should be aggregated to give him a cause of action. He also claims, in the alternative, that as he was exposed to a foreseeable risk of injury by exposure to asbestos dust he is entitled to recover damages for psychiatric injury suffered in consequence of that breach of duty.
52. On his first argument Mr Grieves seeks to bring his case within the ratio of Page v Smith  AC 155. He maintains that he was a primary victim of the respondents' negligence in exposing him to asbestos dust. So it was not necessary in his case to ask whether the respondents should have foreseen that he, as person of normally robust constitution, would suffer psychiatric injury. The respondents advanced various criticisms of that case which, as is well known, has given rise to much controversy. They invited the House to depart from that decision and to hold that, as in the case where damages are sought for physical injury, foreseeability of psychiatric injury should be the test for the recovery of damages by those who suffer psychiatric injury. The effect would be to restore to this branch of the law the principle that was laid down by the Privy Council in Overseas Tankship (UK) ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1))  AC 388, 426, that the essential factor in determining liability for the consequences of an act of negligence is foreseeability of the damage that is complained of. Attractive though that argument is, I would prefer to leave it for another day. On the facts of Mr Grieves's case, Page v Smith is distinguishable.
53. There are two reasons for taking this view. First, the factor that precipitated Mr Grieves's psychiatric illness was not a stressful event caused by the breach of duty, such as the accident which gave rise to Mr Page's nervous shock. As Dr Rajiv Menon, a consultant psychiatrist, records in his report, Mr Grieves had a long-standing, anticipatory fear of developing an asbestos related disease. But he did not become ill until he was told that slight pleural thickening had been detected when his chest was X-rayed in August 2000, more than 20 years after the date when he was last exposed to asbestos dust.
54. In Frost v Chief Constable of South Yorkshire  2 AC 455, 500, Lord Steyn said that, in view of the difficulties that they gave rise to, the only prudent course was to treat the categories as reflected in authoritative decisions such as Alcock v Chief Constable of South Yorkshire Police  1 AC 310 and Page v Smith  AC 155 as settled for the time being but to leave any expansion of this corner of the law to Parliament. In Frost it was argued unsuccessfully that the plaintiffs were entitled to succeed as rescuers. Although the issue in that case was whether they could be classified as secondary victims, I would apply Lord Steyn's cautionary advice to the present case too. The labels that were identified in Page v Smith should not be extended beyond what was in contemplation in that case. The category of primary victim should be confined to persons who suffer psychiatric injury caused by fear or distress resulting from involvement in an accident caused by the defendant's negligence or its immediate aftermath. A person like Mr Grieves who suffers psychiatric injury because of something that he may experience in the future as a result of the defendant's past negligence is in an entirely different category. The immediacy that is characteristic of the situation that applies to primary victims as contemplated in Page v Smith  AC 155 is lacking in his case.