Daniel Greenway and Others v Johnson Matthey Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 26 November 2014 |
| Neutral Citation | [2014] EWHC 3957 (QB) |
| Docket Number | Case Nos: HQ13X05919, HQ13X05157, HQ13X05158, HQ13X00560 and HQ13X00189 |
| Court | Queen's Bench Division |
| Date | 26 November 2014 |
[2014] EWHC 3957 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case Nos: HQ13X05919, HQ13X05157, HQ13X05158, HQ13X00560 and HQ13X00189
Harry Steinberg and Edward Ramsay (instructed by Slater & Gordon) for the Claimants
Michael Kent QC (instructed by Weightmans LLP) for the Defendant
Hearing date: 12 th November 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The five Claimants in these proceedings claim damages for breach of statutory duty, negligence and breach of contract arising out of their employment by the Defendant at its chemical plants in Royston (Messrs Greenway, Dryden, White and York) and Brimsdown, Enfield (Mr Cipullo). The Claimants say that they were wrongfully exposed to complex halogenated platinum salts, and consequently developed sensitivity to platinum, which is a personal injury cognisable under the law of tort. The Claimants contend that this personal injury involves serious consequences. In the alternative, the Claimants argue that they have a completed cause of action in breach of contract.
On 12 th June 2014 Master McCloud ordered a split trial as to liability and quantum, and gave directions designed to take the matter forward to today's hearing date. On 10 th September 2014 Master McCloud gave permission to the Claimants to introduce the claim for breach of contract, and made further pre-trial directions.
Having regard to the parties' pleadings and to the skeleton arguments, it seems to me that the two key issues for the Court to resolve are:-
i) whether the Claimants have a completed cause of action in tort; and
ii) whether the Claimants may recover more than nominal damages in respect of their contractual claims.
The Evidence
The basic facts are not in dispute and do not require extensive recitation. Save for Mr Dean White who was a maintenance engineer, the Claimants were chemical process operators. Owing to the risk of sensitisation through exposure to platinum salts, which are produced in consequence of the refining process undertaken at the Defendant's factories and are used in the making of catalytic converters, the Defendant required routine and regular skin prick testing undertaken by its Occupational Health Department. All the Claimants were found to have become sensitised to chlorinated or halogenated platinum salts; and, in consequence, have been taken off any work involving potential contact with platinum. Four of the Claimants no longer work at this company, and claim substantial damages for loss of earnings or for loss of earning capacity. Mr Daniel Greenway and Mr Simon York, who remain employed by the Defendant, claim that their earnings have been reduced by the restrictions placed on their employment. All the Claimants save for Mr Waynsworth Dryden, seek provisional damages under s.32A of the Senior Courts Act 1981. They accept that those claims also depend on establishing the presence of actionable injury on standard tortious principles.
The precise facts surrounding each individual case are, in reality, immaterial for present purposes because I am required to resolve a point of principle, not the quantum of these claims. The Defendant does not dispute the fact that each Claimant suffered the platinum sensitivity claimed, and also does not contest its breach of duty under Regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992 and Regulations 7 and 12 of the Control of Substances Hazardous to Health Regulations 1994. An issue does arise whether the Defendant may contest, or has been deemed to admit, the Claimants' remaining formulations of claim, but I will consider that matter subsequently.
I permitted Mr Steinberg for the Claimants to call one of his clients to give oral evidence, so as to provide greater flavour and context to the claims. In the result, I was assisted by hearing the oral evidence of Mr Dean White, who testified to the major effects his platinum sensitivity has had on his career in this particular niche of the engineering industry. Once he was removed from his 'hands on' role, and became a co-ordinator with administrative and supervisory responsibilities, he felt extremely uncomfortable, occasionally embarrassed, and always dissatisfied. In the end, he did not want to continue in this capacity and gave notice.
It is clear from the witness statements which I have read and considered that the other four Claimants have similar stories to tell. During the course of his oral argument, Mr Steinberg gave helpful summaries of their experiences, and I am grateful for those.
The Medical Evidence
The medical evidence in this case is, in effect, agreed. At one stage, the sole area of possible disagreement related to the significance of the differences between pleural plaques and platinum sensitisation, because Dr John Moore-Gillon for the Defendant was not made aware of exactly how the Claimants were advancing their case on this topic. However, there are distinctions in physiological terms between these two conditions, but whether they are relevant distinctions for the purposes of the law of tort gives rise to matters of law rather than to aspects of medical expertise.
What follows is my summary of the reports of Dr R.M. Rudd, for the Claimants, and Dr John Moore-Gillon, for the Defendant, and in particular their joint report dated 13 th September 2014.
Repeated exposure to platinum salts may give rise to sensitisation which, in turn, may engender an allergy. Sensitisation is defined by the presence of IgE antibodies in the immune system of the individual, and may be ascertained by either a skin prick test (in which a minuscule amount of the substance at issue is injected into the skin, resulting in the development, in cases of sensitisation, of a raised red area), or by a blood test. The presence of some IgE antibodies, without more, does not create symptoms – indeed, they are part of the body's immune response to exposure to an antigen — but various manifestations of allergy, including rhinitis, dermatitis and asthma, may result if these antibodies interact with mast cells causing the latter to release chemical mediators including histamine.
The common ground between the experts set out at paragraphs 7–15 of their joint report is a sufficient platform to resolve the points of law I am asked to determine. In those circumstances, I set out those paragraphs in full:-
"7. Platinum sensitisation may occur in response to complex halogenated platinum salts, and not to platinum or platinum compounds generally. Sensitisation to platinum salts may be present in an individual before they develop any physical symptoms of that sensitisation. The fact of sensitisation, though, may be demonstrated by skin prick testing.
8. If exposure continues after sensitisation has occurred (as demonstrated by positive skin prick test) then most (but not all) individuals thus exposed will develop physical symptoms relating to one or more of the eyes, nose, chest and skin.
9. Occasionally, these symptoms may occur in exposed individuals in the absence of positive skin prick tests. This may mean that the observed symptoms are in actual fact unrelated to the platinum salt exposure. They may, though, be thus related and such a circumstance reflects the fact that skin prick tests are not a totally reliable means of demonstrating sensitisation.
10. If exposure ceases (or at the least is very markedly reduced) when skin prick tests are positive, but before there are any symptoms of sensitisation, then the degree of sensitisation often reduces.
11. Those who are sensitised to platinum salts as demonstrated by the presence of positive skin tests, but do not have any symptoms, will not develop such symptoms unless there is further exposure.
12. Accordingly, the fact of sensitisation cannot be perceived by the sensitised individual unless he or she is exposed again to platinum salts. Thus, exposure by skin prick testing will give rise to an itchy weal of skin. If (and only if) the sensitisation has proceeded to the point where there are eye, nose, chest or skin manifestations then exposure by these routes will give rise to the associated symptoms.
13. An individual who has been sensitised, as demonstrated by positive skin prick tests, but who has no eye, nose or respiratory symptoms is not limited in way in the course of their life except they must avoid circumstances in which they are exposed to platinum salts.
14. For those who have already developed symptoms, cessation of exposure may lead to abolition of the symptoms, although this is not invariable.
15. Sensitisation to platinum salts is a specific matter. An individual who is sensitised in this way is not at greater risk of becoming sensitised in other substances, either in the work-place or in the environment generally. A platinum salt-sensitised individual who has no further exposure is not at greater risk of developing asthma or rhinitis in later life than is an individual who has not become platinum sensitised."
Dr Moore-Gillon does not disagree with the gist of paragraphs 6(1)-(3) of Dr Rudd's report dealing with the differences between pleural plaques and platinum sensitivity. In my judgment, those paragraphs are uncontroversial in the sense that they accurately describe the nature, aetiology of and prognosis for pleural plaques as explained in relevant House of Lords authority, and also correctly summarise the agreed expert...
To continue reading
Request your trial
-
Dryden and Others v Johnson Matthey Plc
...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 re......
-
Mrs Susan Saunderson & Others v Sonae Industria (UK) Ltd
...without more, inconvenience and distress. I examined the relevant jurisprudence on this issue in my recent decision in Greenway and others v Johnson Matthey Plc [2014] EWHC 3957 (QB). Although, at the time of writing, I am aware that my decision is en route to the Court of Appeal, I am conf......
-
Dryden v Johnson Matthey: The Boundaries of Actionable Damage
...his person, or his physical capacity of enjoying life.’11Lord Pearce also cited Asquith LJ in Haygarth vGrayson Rollo that ‘General7 [2014] EWHC 3957 (QB), [2016] EWCA Civ 408 at [30] (the case was referred to as GreenwayvJohnson Matthey in the lowerCour ts in referenceto another claimant f......