Defining Damage in the House of Lords
| Date | 01 November 2008 |
| Author | Gemma Turton |
| Published date | 01 November 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00726.x |
De¢ning Damage in the House of Lords
GemmaTurton
n
This comment examines the recent House of Lords decision in Roth well vChemical and Insulating
Co Ltd. It concludes that despite seeming unsympathetic to claimants, the decision is to be wel-
comed for the clarity it brings to the tortof negligence by de¢ning the concept of damage more
precisely.
The recent decision of the House of Lords in Rothwell vChemical and Insulating
Co Ltd
1
held that asymptomatic pleural plaques cause d by negligent exposure to
asbestos are insu⁄cient to constitute actionable damage in negligence and that
this obstacle to recoverycannot be side-stepped by aggregating the plaques with
the risk of future asbestos-related illness and anxiety about this risk, neither of
which individually constitutes an actionable harm. Furthermore, in Grieves v
F T Everard & Sons Ltd which was joined with the appeal in Rot hwell it was held
that where the degree of the anxiety is such that the victim su¡ers psychiatric
illness, the employerdoes not owe a dutyof care to his employee in respectof this
harm. Clearly this decision will have a signi¢cant impact on claimants and
insurers since su¡erers of pleural plaques have been able to recoverfor these losses
for many years followinga series of ¢rst instance decisions onthe matter.
2
Whilst
we can sympathise with the substantial number of claimants who will now be
unable to recover, this decision is to be welcomed for improving the clarity of
the law. It will also have a positive impact on those claimants for whom the risk
of future asbestos-related disease materialises resulting in signi¢cant losses since it
ensures that it is the ¢nal damage, rather than the risk of it, that is compensated.
PLEURALPLAQUES AND THE LANGUAGE OF ILLNESS, DISEASE
AND DAMAGE
The House of Lords decided that amedically recognised change in the condition
of the bodydoes not automaticallyconstitute damagefor the purposes of the tort
of negligence. Lord Ho¡mann drew the distinction between negligence and
causes of action that are actionable without proof of damage, continuing to state
that
n
Universityof Birmingham. I wish to thank Claire McIvor, SarahGree n and Robert Cryer aswell as
the anonymous referees for the valuablecomments they made on earlier drafts of this article.
1Rothwell vChemicaland Insulating CoLtd and another,ToppingvBenchtown Ltd (formerlyJones BrosPreston
Ltd), JohnstonvNEI InternationalCombustion Ltd,Grieves vF T Everard & Sons Ltd and another[2 007]
UKHL 39; [2008] 1AC 281.
2ChurchvMinistryof Defence (1984)134 NLJ623; SykesvMinistryof DefenceThe Times 23 March 1984;
PattersonvMinistryof Defence [1987]CLY1194.
10 0 9
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(6) 987^1014
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