Judgments - 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.

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    55.  Secondly, the causal chain between his inhalation of the asbestos dust and the psychiatric injury is stretched far beyond that which was envisaged in Page v Smith [1996] AC 155. That case was concerned with an immediate response to a sudden and alarming accident, for the consequences of which the plaintiff had no opportunity to prepare himself. In this case Mr Grieves inhaled asbestos dust for about eight years. It was not until the end of that period that he became worried. This was because of the risk that he or his wife or daughter might contract a disease in the future. And his depression did not occur until he was told twenty years later about the results of his chest X-ray. He believed then that his worst fears were being realised. But this was because of the information that he had now been given by his doctor, not because of anything that happened or was done to him by his employers while he was inhaling the asbestos. His exposure at work was not to stress, but to risk: Sarah Green, "Risk Exposure and Negligence" [2006] 122 LQR 386, 389.

    56.  It was submitted that Mr Grieves's case fell within the scope of the decision of this House in Simmons v British Steel plc [2004] ICR 585. It was held that the pursuer in that case was in the position of a primary victim of the defendant's negligence: paras 21, 55. But in that case the pursuer suffered a severe blow to his head in the same accident which gave rise to a number of significant physical symptoms that lasted for several weeks. His psychiatric illness was the result of a dermatological condition that he developed because he was angry. That anger had several causes, one of which was the fact that the accident had happened. So the pursuer was within the category of persons who suffer psychiatric injury caused by fear or distress resulting from involvement in an accident caused by the defendant's negligence or in its immediate aftermath. His situation was very different from that of Mr Grieves, whose case falls well outside that category.

    57.  The alternative argument is that Mr Grieves's psychiatric injury was not arbitrarily related to the finding of pleural plaques but was reasonably foreseeable. The judge, Holland J, was not persuaded that it was a foreseeable consequence of the defendants' breach of duty. The majority in the Court of Appeal were unanimous in their view that there was no material that would enable them to make such a finding: [2006] ICR 1458, paras 76. On the view that she took of the case Smith LJ did not need to deal with this point. I agree with the majority that the evidence in this case does not support a finding that Mr Grieves's psychiatric illness was reasonably foreseeable. That complication arose in his case because he had had long-standing, anticipatory fears of developing an asbestos-related disease ever since he had learnt about the dangers of exposure some decades previously. His case was said to be relatively unique in this respect by Dr Menon, who had assessed a cohort of about 80 men with asbestos-related diseases and related mental health problems. This was, of course, a very small sample of the many workmen who have been exposed to asbestos dust.

    58.  Furthermore, all the factors which take Mr Grieves's case beyond the category of cases that was envisaged in Page v Smith [1996] AC 155 are relevant to this argument also. It is not suggested that his psychiatric illness was due to anything that was stressful or alarming about the conditions in which he was working when he inhaled the asbestos. The circumstances that led up to its development were far removed from anything that happened or could reasonably have been foreseen at that time. The question of what was reasonably foreseeable is approached with the benefit of hindsight, in the light of what actually happened: Page v Smith [1994] 4 All ER 522, 549, per Hoffmann LJ. But that does not mean that everything that happened afterwards can be taken, with the benefit of hindsight, to be reasonably foreseeable. In The Creutzfeldt-Jacob Disease Litigation Group B Plaintiffs v The Medical Research Council [2000] Lloyd's Rep Med 161, 166 Morland J held that the circumstances were such that the defendants should have reasonably foreseen the risk of a patient developing psychiatric injury as a result of receiving news and information about the consequences and effects of CJD by 1 July 1977, prior to the date when the patients received the treatment that proved to be harmful. No findings of the kind that he was able to make are available in this case.

Conclusion

    59.  I share the regret expressed by Smith LJ that the claimants, who are at risk of developing a harmful disease and have entirely genuine feelings of anxiety as to what they may face in the future, should be denied a remedy. But they have not yet sustained an injury for which the law can give them a remedy in damages. The question whether employees might have a remedy against their employers in contract has not been explored in the present context, as my noble and learned friend Lord Scott of Foscote points out. There may be room for development of the common law in this area. In that connection it is worth noting a recent assessment of the potential for the development of contractual remedies for employees against their employers by Matthew Boyle, "Contractual Remedies of Employees at Common Law: Exploring the Boundaries" [2007] JR 145. But, for the reasons Lord Scott gives, it would not be appropriate to attempt such a difficult and uncertain exercise in these cases.

    60.  For the reasons given by my noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry whose speeches I have had the opportunity of reading in draft, and for these further reasons of my own, I would dismiss these appeals.

LORD SCOTT OF FOSCOTE

My Lords,

    61.  These conjoined appeals arise out of litigation brought by the appellants against their respective former employers. Each appellant complains that during his employment he was exposed by his employer to asbestos dust and that, as a consequence of the exposure, he inhaled asbestos fibres which remain in his lungs. Asbestos fibres in the lungs can lead to mesothelioma or asbestosis. These are very serious life threatening diseases that can emerge many years after the exposure to asbestos dust has ceased. Medical science has not found any means of forestalling the onset of these diseases once the asbestos fibres have been inhaled. The unfortunate individual who has inhaled the fibres must simply wait and hope for the best.

    62.  None of the appellants has yet contracted any asbestos related disease. It is to be hoped that none will do so. But each of them, ever since his exposure to asbestos dust, has had to live with the risk, a risk estimated by the medical experts who have given evidence in these cases to be in the region of a five per cent chance, and will have to continue to live with that risk until he dies. The effect of the shadow cast by this risk on those who must live under it varies from individual to individual. Some people are more prone to worry than others. One of the appellants, Mr Grieves, has worried about the risk to the point where he has developed psychological symptoms and a depressive illness.

    63.  Medical examinations of each of the appellants have revealed that inhaled asbestos fibres have made their way to the pleural membrane which surrounds the lungs and have there formed themselves into plaques. Pleural plaques are characteristic of asbestos exposure but are in themselves asymptomatic. Their presence, and their size and number, provide an indication of the extent to which the individual has inhaled asbestos fibres but are not themselves causative of asbestos related disease. They cause neither impairment of lung function nor disablement. But because they are proof of the presence in the lungs of asbestos fibres they are an indicator of the extent to which the individual is at risk of developing in the future some such disease. The diagnosis of the presence of pleural plaques may, therefore, contribute to or heighten the anxiety of the individual that he may develop a life-threatening asbestos related disease.

    64.  Each of the appellants has sued the employer, or in some cases employers, who exposed him to asbestos dust. Damages in negligence are claimed. And it is accepted by each of the employers, respondents before your Lordships, that the exposure represented a breach of the duty each owed to its employees. The appellants' claims, however, are tortious claims based on breach of a tortious duty of care or breach of statutory duty - no distinction between these duties has been, or need be, drawn - and the employers have resisted the claims on the ground that as yet none of the appellants has suffered actionable damage. It is accepted that if and when an appellant contracts an asbestos related disease, when, that is to say, the risk under which he is living actually materialises, his employers will be liable to him in damages. But that point has not yet been reached. The present actions are premature, so the respondents, or more accurately their insurers, contend. The issue for your Lordships is whether that is right. Holland J, who tried the case, thought it was not. In the Court of Appeal Smith LJ agreed with him, but the majority, Lord Phillips of Worth Matravers and Longmore LJ, disagreed. They allowed the appeal. The issues now for your Lordships to decide, are, first, whether the presence in the lungs of pleural plaques, a result of the inhalation of asbestos fibres brought about by the exposure of the appellants to asbestos dust, an exposure admitted to constitute a breach of the respondents' duty to them, entitles the appellants to bring an action in tort for damages. The second issue, if the answer to the first is that the presence of pleural plaques is not enough, is whether that presence coupled with the anxiety, produced by knowledge of the risks attendant upon a past exposure to asbestos dust and accentuated by knowledge of the presence in the lungs of pleural plaques, will suffice to create a cause of action in tort for damages. And there is a third issue relating only to Mr Grieves, namely, whether, if the answers to the first and second issues are in the negative, he has a tortious cause of action for the psychiatric injury produced by his worry about the possibility that he may contract an asbestos related disease.

    65.  In considering these issues a number of well established principles of law, not in dispute before your Lordships nor I believe at any stage in this litigation, need to be kept firmly in mind. First, a cause of action in tort for recovery of damages for negligence is not complete unless and until damage has been suffered by the claimant. Some damage, some harm, some injury must have been caused by the negligence in order to complete the claimant's cause of action. In Page v Smith [1996] 1 AC 155, a case about a psychiatric illness caused by a motorcar accident and of which more must be said later, Lord Lloyd of Berwick said at p 190 that

    "'Personal' injuries includes any disease and any impairment of a person's physical or mental condition …"

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 [1963] 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 :

    "It cannot … be in doubt … that the cause of action from such a wrong accrues when the damage - that is, real damage as distinct from purely minimal damage - is suffered."

And Lord Pearce at 779 said that

    "Evidence that those [physical] changes are not felt by [the claimant] and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex."

As I have said, these principles are not in dispute.

    66.  Second, it is accepted that a state of anxiety produced by some negligent act or omission but falling short of a clinically recognisable psychiatric illness does not constitute damage sufficient to complete a tortious cause of action. This has been the law for a long time. Lord Wensleydale in Lynch v Knight (1861) 9 HLC 577, 598 said that

    "Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone …"

He went on, however, to comment that

    "… where a material damage occurs, and is connected with [the mental pain or anxiety], it is impossible a jury, in estimating it [i.e. the material damage], should altogether overlook the feelings of the party interested."

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.

    67.  Third, it is accepted that a risk, produced by a negligent act or omission, of an adverse condition arising at some time in the future does not constitute damage sufficient to complete a tortious cause of action (see Gregg v Scott [2005] 2 AC 176 and Law Society v Sephton & Co [2006] 2 AC 543). The victim of the negligence must await events. Here, too, however, it is common ground that if some physical injury has been caused by the negligence, so that a tortious cause of action has accrued to the victim, the victim can recover damages not simply for his injury in its present state but also for the risk that the injury may worsen in the future and for his present and ongoing anxiety that that may happen.

Are pleural plaques an "injury" for the purposes of the tort of negligence?

    68.  Holland J held that they were not: [2005] EWHC 88 (QB). He held, first, in para.71, that

    "… permanent penetration by asbestos fibres cannot, simpliciter, constitute injury or damage so as to found a cause of action. Penetration that is permanent (that is, such that has defeated the body's natural defences) raises a potential for damage, but no more."

and, secondly, in para 80a that pleural plaques per se could not found a cause of action. He said

    "I am not satisfied that for forensic purposes they can be categorised as a 'disease' nor as an 'impairment of physical condition'."

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

    69.  Holland J accepted the aggregation theory (para.80(c) of his judgment). His reasoning had, I think, two limbs to it. First, he regarded the pleural plaques, although not sufficient per se to complete the tortious cause of action, as constituting nonetheless "physiological damage". Secondly, he held that

    "… when … anxiety is engendered by tortiously inflicted physiological damage it can properly contribute to 'damage' or 'injury' so as to complete the foundation of a cause of action"

    70.  In the Court of Appeal the majority, in the judgment delivered by Lord Phillips, pointed out the problem with Holland J's reasoning, namely, that the pleural plaques, the physiological damage, had "no potential causal nexus with the asbestos-related diseases that the claimants [might] develop in the future" ([2006] ICR 1458, para 35) and that it was the penetration of the chest by asbestos fibres, not the pleural plaques, that would have a causal nexus with the onset of any such disease. In paragraph 36 Lord Phillips posed the following highly pertinent question

    "Can physical changes to the body negligently caused, which are of themselves insufficiently serious to give rise to a cause of action, found a claim in negligence if they carry a risk of causing significant injury and give rise to consequent anxiety? … If the physical change is so insignificant that it cannot, of itself, found a claim, the question arises of why, as a matter of logic or principle, it should open the door to recovery for risk of future injury or for anxiety"

He held that the door should not be opened (para 68).

    71.  Smith LJ's dissenting opinion was based on her view that the pleural plaques did constitute an injury - because in rare cases, although in none of the cases of these appellants, pleural plaques could give rise to symptoms (para.116) and because they were comparable to a lesion on the skin caused by a cut or a burn. She said that she could not accept that a visible tissue change was different in nature from a tissue change hidden within the body. I think, with respect, that the comparison the Lady Justice was drawing was not a helpful one. A scar or lesion on the skin may constitute a tortiously relevant injury because it is disfiguring. A lesion hidden within the body is plainly not of that character. A cut or a burn, provided it is not so trivial as to fall in the de minimis category, is a tortiously relevant injury regardless of the scar it may leave. A cut or a burn hurts when inflicted and often hurts in the process of healing; but there is no point at which the formation of a pleural plaque causes any discomfort. The individual who has been exposed to asbestos dust will not know that the formation of plaques is taking or has taken place unless he or she undergoes an X-ray or other medical scan.

    72.  The learned Lady Justice, having formed the view that the formation of the plaques sufficed to complete the claimants' respective causes of action, did not need to consider the aggregation theory. She did, however, in para.134, say that

    "… the cause of action is complete as the result of the development of plaques, which are an injury and/or disease together with the established risks, both caused by the same exposure. In my view it is not necessary to include any element of anxiety when deciding whether the cause of action is complete".

    73.  My Lords in my view the aggregation theory cannot be accepted. Once it is accepted that neither the presence of pleural plaques nor the risk of future asbestos-related disease nor anxiety about the onset in the future of a life-threatening disease can by itself constitute damage so as to complete the cause of action in tort, there seems to me that neither logic nor principle can support the proposition that the three combined could do so. None of the three is ruled out on a de minimis basis. Asymptomatic pleural plaques do not constitute damage; nor does risk of damage in the future; nor does anxiety about the future. Contrast a mere scratch on the skin which can, conceptually, qualify but may be too trivial to constitute physical damage sufficient to complete a cause of action in tort. A hundred such scratches would be likely to suffice. Ten might do so. It would be a question of degree. The mere simple scratch would fail to suffice not because it was not, conceptually speaking, a physical injury but because it was too trivial to attract the attention of the law of tort. The law of tort is not concerned with trivia; nor should it be. The aggregation theory put forward in these appeals fails, in my opinion, not because the three elements, plaques, risk and anxiety, are in aggregation too trivial, but because none can sustain a tort action. Nought plus nought plus nought equals nought. It is not like an accumulation of scratches.

Contract

    74.  In my opinion, for the reasons I have tried to explain, and for the reasons given by my noble and learned friends, Lord Hoffmann, Lord Hope of Craighead and Lord Rodger of Earlsferry, whose opinions I have had the advantage of reading in draft and with which I am in full agreement, a cause of action in tort cannot be based on the presence of asymptomatic pleural plaques, the attendant anxiety about the risk of future illness and the risk itself. It cannot be so based because the gist of the tort of negligence is damage and none of these things, individually or collectively, constitutes the requisite damage. But the conclusion that none of the appellants (leaving out of account for the moment Mr Grieves' damages claim based on his psychiatric illness) has a cause of action against his negligent employer strikes, for me at least, a somewhat discordant note. Each of the appellants was employed under a contract of service. Each of the employers must surely have owed its employees a contractual duty of care, as well as and commensurate with the tortious duty on which the appellants based their claims. It is accepted that the tortious duty was broken by the exposure of the appellants to asbestos dust. I would have thought that it would follow that the employers were in breach also of their contractual duty. Damage is the gist of a negligence action in tort but damage does not have to be shown in order to establish a cause of action for breach of contract. All that is necessary is to prove the breach. The amount of damages recoverable, once the breach of contract has been proved, is subject to well known rules established by the leading cases and, applying these rules, it might be well arguable that the breach of a contractual duty to provide a safe working environment for employees, an environment where reasonable precautions had been taken to avoid their exposure to injurious asbestos dust, would justify an award of contractual damages to compensate the employees for subjecting them to the risk of contracting in the future a life-threatening asbestos related disease. Damages for breach of contract should, in principle, compensate the victim for being deprived of the contractual benefit to which he was entitled. However these are matters that have not been debated at all, either before your Lordships or in the courts below. Mr Burton QC made expressly clear in the course of the hearing of this appeal that the appellants' claims were based on tort and not on breach of contract. In the absence of claims based on contract and submissions from counsel about the possibilities and limitations of such claims, my speculation as to whether contractual damages claims by the appellants might have been viable can be taken no further. I would, however, observe that sections 11 and 14 of the Limitation Act 1980, which apply to negligence actions for damages for personal injuries, not only apply to actions based on breach of a tortious duty of care but can surely apply also to actions based on breach of a contractual duty of care.

Mr Grieves' damages claim based on his psychiatric illness

    75.  In my opinion, Mr Grieves' claim fails for the forseeability reasons explained by Lord Phillips in the Court of Appeal. As Lord Phillips pointed out (para 76), Holland J had made no finding that Mr Grieves' psychiatric injury was a reasonably foreseeable consequence of his employers' breach of duty and (para 94) no evidence had been adduced to enable such a finding to have been made.

    76.  Mr Burton relied heavily on Page v Smith [1996] 1 AC 155. That was a case in which a collision between two motorcars, brought about by negligent driving, had not caused physical injury to either driver but had caused one of them to suffer a recurrence of a psychiatric condition. The Court of Appeal had held that the defendant was not liable because it had not been reasonable foreseeable that the accident would cause psychiatric injury. The House of Lords, by a majority, allowed the appeal on the ground, per Lord Lloyd of Berwick at 187, that:

    "Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury"

    77.  Mr Kent QC invited your Lordships to depart from Page v Smith and to hold that the recovery of damages in negligence for psychiatric injury depended upon the forseeability of psychiatric injury as a consequence of the negligence but submitted, in the alternative, that Page v Smith was distinguishable from Mr Grieves' case. It was distinguishable, he submitted, because the psychiatric illness had directly resulted from the motorcar collision. There had been no intervening causative event. By contrast, in Mr Grieves' case, his psychiatric illness had not been directly caused by his exposure to asbestos dust but had resulted from his worry about his liability to future illness and his reaction to the X-rays and medical reports which had disclosed the presence of pleural plaques in his lungs. I am in agreement with Mr Kent that Page v Smith is distinguishable on that basis and that a test of forseeability of psychiatric illness as a result of exposure to asbestos dust must be passed if Mr Grieves' damages action is to succeed. For the reasons given by Lord Phillips that test cannot, in my opinion, be passed. I would, therefore, dismiss Mr Grieves' appeal on this issue.

LORD RODGER OF EARLSFERRY

My Lords,

 
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