Daniel Greenway and Others v Johnson Matthey Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Davis |
| Judgment Date | 28 April 2016 |
| Neutral Citation | [2016] EWCA Civ 408 |
| Docket Number | >Case No: B3/2014/4159, B3/2014/4168, B3/2014/4170 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 April 2016 |
[2016] EWCA Civ 408
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JAY
HQ13X05919
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Davis
and
Lord Justice Sales
>Case No: B3/2014/4159, B3/2014/4168,
B3/2014/4171, B3/2014/4169,
B3/2014/4170
Frank Burton QC, Harry SteinbergQC &Edward Ramsay (instructed by Slater & Gordon (UK) LLP) for the Claimants
Michael Kent QC (instructed by Weightmans) for the Defendant
Hearing dates: 23 February 2016
This is an appeal from the judgment of Jay J in a trial on the issue of liability in which he held that the respondent ("Johnson Matthey") was not liable in damages to the appellants for breach of statutory duty, negligence or breach of contract arising out of their employment by Johnson Matthey at its chemical plants in Royston (Messrs Greenway, Dryden, White and York) and Brimsdown, Enfield (Mr Cipullo).
The judge held that the appellants had no completed cause of action in tort and were not entitled to recover anything more than nominal damages for breach of contract. He held that they had not suffered any physical injury as necessary to give them a cause of action in tort, on the basis of which they could claim damages for consequential loss of earnings suffered by them. He analysed their claim as being, in truth, a claim for pure economic loss. The judge also held that the losses the appellants claimed to have suffered were outwith the scope of the relevant contractual duty owed to them by Johnson Matthey under their contracts of employment.
In this court, alongside their challenges to these rulings by the judge, the appellants were given permission by Aikens LJ in advance of the hearing to argue a case not put below, namely that if their losses are properly to be regarded as in the nature of pure economic loss, Johnson Matthey owed each of them a duty of care in tort to hold them harmless from that sort of loss. Accordingly, we heard wide-ranging submissions on this point which had not been made to the judge.
The factual background
Each of the appellants worked for Johnson Matthey in factories making catalytic converters. The production process involved use of platinum salts. The factories were not properly cleaned. Johnson Matthey does not contest its breach of duty in that regard 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. As a result, each of the appellants was exposed to platinum salts in the course of their employment to a greater extent than they should have been.
There are two conditions to which exposure to platinum salts can give rise. A first stage is that an individual can become sensitised to platinum salts ("platinum sensitisation"). Platinum sensitisation does not have symptoms or create any adverse effects for the individual in carrying on ordinary life. It is detectable by the reaction of the skin to a skin prick test. The medical expert evidence at trial, as accepted by the judge, was to the effect that an individual who has merely been sensitised to platinum salts "is not limited in any way in the course of their life except that they must avoid circumstances in which they are exposed to platinum salts." Platinum salts are not encountered in everyday life, but only in relation to certain specialist workplace environments.
Sensitisation can be the first step in the process whereby, with continued exposure to platinum salts, an individual develops a full–blown allergy to platinum salts ("platinum allergy"). An individual who develops platinum allergy may show symptoms such as running eyes or nose, skin irritation or bronchial problems. It was common ground that an employee who came to suffer platinum allergy as a result of improper exposure to platinum salts at work would have suffered physical harm or injury of a kind sufficient to give rise to a cause of action in tort.
By reason of the potentially harmful effects from development of platinum allergy, the appellants' trade union had negotiated a collective agreement with Johnson Matthey. This was incorporated into the individual contracts of employment of the appellants. The collective agreement provided for regular skin prick testing of individuals employed in the relevant locations every three months to screen for anyone who might have developed platinum sensitisation and thus would be at risk of progressing to develop platinum allergy; for individuals who had a reaction to the skin prick test to be removed from work which exposed them to platinum salts and, if possible, redeployed elsewhere by Johnson Matthey to a work environment in which they would not be so exposed; and for any employee who could no longer remain working in a factory as a result of platinum allergy and could not be redeployed to be dismissed under special termination conditions which included what was referred to as an " ex gratia" compensation payment, which was in fact a matter of contractual entitlement. In addition, individuals working in factory areas in which there could be exposure to platinum salts were paid salary at a higher rate.
Each of the appellants was employed by Johnson Matthey to work in areas in its factories in which they were capable of being exposed to platinum salts. Accordingly, each of them was screened under these testing arrangements. Each of them, at a point in his employment, tested positive for platinum sensitisation; and at that point he was removed from that workplace environment. For different reasons, four of them could not be redeployed within Johnson Matthey's workforce or their redeployment failed, and each was then dismissed or resigned. These appellants, apart from Mr White, received the relevant " ex gratia" payments under the collective agreement terms, but as was made clear by those terms this did not preclude them from bringing a claim against Johnson Matthey. Mr Greenway remained employed by Johnson Matthey in work settings which did not involve exposure to platinum salts; he claims that he has suffered financial loss through loss of promotion prospects with the company.
The appellants then commenced these proceedings against Johnson Matthey. They claim significant loss of earnings as a result of losing their relatively highly paid jobs working in the areas of the factories in which it was known that there was an increased risk of exposure to platinum salts and being unable to take up work in any other work environment in which such exposure might arise.
Discussion
The claim in tort: damages for physical injury and consequential loss
It is common ground in relation to the standard causes of action pleaded in tort in negligence and for breach of statutory duty which were in issue at first instance that in order to establish liability the appellants have to show that they had suffered actionable physical injury. The appellants maintain that they have done, because their bodies have undergone a physical change by acquiring platinum sensitisation (as revealed by the skin prick test) and this has had an adverse effect upon them, as it has meant they have lost their jobs and cannot work in an environment in which they might be exposed to platinum salts. The judge reviewed relevant authority and held that they had not suffered an actionable injury, and that properly analysed the appellants were claiming damages for pure economic loss: paras. [13]–[36].
In my view, the judge was right about this.
The appellants rely on Cartledge v Jopling: [1962] 1 QB 189, CA, and [1963] AC 758, HL. The judge provides a careful and helpful analysis of the case. It concerned a claim by men employed as steel dressers in the defendant's factory who contracted pneumoconiosis, a disease in which slowly accruing and progressive damage may be done to the lungs of an individual exposed to fine silica dust without his knowledge. The question in the case was whether the claims were statute-barred; this depended on when the cause of action in tort first accrued through the occurrence of an actionable physical injury.
The key findings of fact by the trial judge are noted at [1963] AC 758, 761–2, as follows:
"The disease was caused by the inhalation of invisible and infinitesimal particles of fragmented silica which entered the lymphatic vessels forming part of the lung tissue. Either by their sharpness or by some toxic action they damaged the tissue and caused minute scars. The scarred tissue was inelastic and could not perform the functions of the unscarred tissue. As the amount of scarred tissue increased with continued inhalation of the particles, so the efficiency of the lung tissue was reduced. "The ordinary man in normal health," said the judge, "has when young a substantial surplus of lung capacity upon which he need never call save in the exceptional case of severe illness or extraordinary exertion; and until the damage is sufficiently material to diminish this surplus capacity there may be no indication of shortness of breath or other clinical sign or symptom of lung disease; and if during this stage a patient is removed from exposure to these fine particles of silica, no more damage will be done, and his condition should not further deteriorate in the absence of some complication, and it may well be that he will never become aware or have any reason to suspect...
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