Full Judgment Text & Judicial Ruling

2018 S C M R 1018 [Supreme Court of UK] Present: Lady Hale, President, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones DRYDEN and others---Appellants Versus JOHNSON MATTHEY PLC---Respondent Decided on 21st March, 2018. (On appeal from [2016] EWCA Civ 408) Tort--- ----Negligence--- Duty of care--- Employer-employee--- Actionable personal injury--- Scope--- Financial losses of employees on redeployment or termination---Claimants were employed by the defendant (employer) at chemical plants on processes involving platinum salts---In breach of statutory duty the claimants were exposed to higher levels of platinum salts than they should have been---Such platinum sensitisation was not itself physically harmful but lead to allergic reaction involving physical symptoms on further exposure to platinum salts---Claimants' contracts of employment provided for regular checks to screen employees for development of platinum sensitisation, and for sensitised employees to be removed from work areas subject to exposure for possible redeployment and, if redeployment were not possible, for the termination of their employment on special conditions---After such checks, the claimants were found to have developed sensitivity to platinum salts and accordingly were redeployed or dismissed, or resigned---Claimants brought proceedings alleging, inter alia, negligence on the part of the defendant and seeking damages for loss of earnings as a result of losing relatively well paid employment in areas of the plants where it was known that there was an increased risk of exposure to platinum salts---Trial judge found that platinum sensitisation in itself was not a physical injury sufficient to give rise to a cause of action in tort---Court of Appeal upheld decision of Trial judge on the basis that platinum sensitisation did not give rise to detrimental physical effects in the course of ordinary life---Held, that negligence and breach of statutory duty were not actionable in and of themselves---Claimants had to establish that there had been damage in the form of actionable personal injury---Personal injury could be seen as a physical change which made the claimant appreciably worse off in respect of his health or capability, including an injury sustained to person's physical capacity of enjoying life, and as an impairment---Personal injury could also be hidden and symptomless---Absence of symptoms did not prevent a condition amounting to actionable personal injury---In the present case if an individual suffering from platinum sensitization was exposed again to platinum salts, his body was likely to produce allergic symptoms---When an individual became sensitised, such change to his body meant that he lost his capacity to work around platinum salts---Claimants' sensitisation carried the risk of an allergic reaction in the event of further exposure to platinum salts and they had to change their lives to avoid such exposure---Defendant acknowledged that if the claimants had developed a sensitivity to something encountered in everyday life, such as sunlight, they would have sustained actionable damage because they would not be able to carry on with their ordinary life---Claimants' ordinary lives involved doing jobs of a type which, by virtue of their sensitisation, they could no longer do---Such sensitization could not be distinguished from the person who developed a sensitivity to sunlight---Physiological changes to the claimants' bodies were undoubtedly harmful---Bodily capacity of claimants for work had been impaired and they were therefore significantly worse off---Once the sensitisation was identified as an actionable injury in its own right, the defendant's argument that the claimants were claiming only for their lost earnings and therefore for pure economic loss also fell away---Claimants had suffered bodily damage amounting to an actionable personal injury in both negligence and breach of statutory duty---Appeal was allowed accordingly. Cartledge v E Jopling & Sons Ltd [1963] AC 758, HL(E) and Fair v London & North-Western Railway Co (1869) 21 LT 326, 327 ref. Rothwell v Chemical & Insulating Co Ltd [2008] AC 281, HL(E) distinguished. Robert Weir QC and Patrick Kerr (instructed by Leigh Day) for Appellants. Michael Kent QC and Peter Houghton (instructed by Weightmans LLP (Leicester)) for Respondent. Dates of hearing: 27th and 28 November, 2017. JUDGMENT 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."…

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