Dryden and Others v Johnson Matthey Plc
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Reed,Lady Hale,Lord Lloyd-Jones,Lady Black |
| Judgment Date | 21 March 2018 |
| Neutral Citation | [2018] UKSC 18 |
| Court | Supreme Court |
| Date | 21 March 2018 |
[2018] UKSC 18
Lady Hale, President
Lord Wilson
Lord Reed
Lady Black
Lord Lloyd-Jones
Appellants
Robert Weir QC
Patrick Kerr
(Instructed by Leigh Day)
Respondent
Michael Kent QC
Peter Houghton
(Instructed by Weightmans LLP (Leicester))
Heard on 27 and 28 November 2017
( with whomLady Hale, Lord Wilson, Lord ReedandLord Lloyd-Jonesagree)
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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...
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