Dryden v Johnson Matthey: The Boundaries of Actionable Damage
| Author | Jarret J. Huang |
| Date | 01 July 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12428 |
| Published date | 01 July 2019 |
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Modern Law Review
DOI: 10.1111/1468-2230.12428
Dryden vJohnson Matthey: The Boundaries
of Actionable Damage
Jarret J. Huang∗
In Dryden vJohnson Matthey, the claimants sought to recover in tort for becoming sensitised
to platinum salts by the defendant’s negligence. The Supreme Court found, unanimously,
that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as
actionable damage. However, the court only provided two ‘indicative factors’ for when damage
was ‘actionable’: whether there had been some impairment, and whether the effect of that
impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of
the judgment, and produces undesirable broader consequences. It misses an opportunity for the
Court to provide guidance on developments in tort like preventive damages, claimant-specific
loss, and the broader raison d’ˆ
etre of tort. A narrow and constrained adjustment to the law to
permit recovery in negligence of pure economic loss for preventive damage could haveachieved
the same result without relying on somewhat convoluted mental gymnastics.
INTRODUCTION
Encapsulating precisely what ‘actionable damage’ in negligence entails has
proved challenging. Tettenborn and Nolan suggest that it is a tautological
term.1For Nolan, ‘if a form of interference with the claimant’s interests is
actionable, then it is a form of “damage”, and if it is not actionable then it is
not’.2This in turn reflects Tettenborn’s view that damage ‘wavers uncertainly
between tangible loss and the more nebulous idea that the claimant has been
deprived of something he was entitled to’. The subtle differences between
questions of damage, loss, liability, and actionability converge to raise funda-
mental questions of precisely what it is tort law seeks to achieve, and whether
its purpose is to remedy losses suffered, protect certain rights and interests, or
some combination of the two.3
∗BA (Law) (Cambridge), LLM (Harvard). The author wishes to thank Harry Francis Millerchip and
Jenna Hare for their kind comments on this area of law. All errors in the article are the author’s own.
None of the views expressed herein may be takento be representative of the organisations the author
is affiliated with.
1 See further, A. Tettenborn, ‘What is a Loss?’ in J. W. Neyers, E. Chamberlain, and S. W. Pitel
(eds), Emerging Issues in Tort Law (Oxford:Har t, 2007); and D. Nolan and A. Robertson, ‘Rights
and Private Law’ in D. Nolan and A. Robertson (eds), Rights and Private Law (Oxford, Hart:
2012).
2 D. Nolan, ‘Damage in the English Law of Negligence’ (2013) 4 JETL 259, 266.
3 See further, R. Stevens, Tor t s a n d Ri g h t s (Oxford: OUP, 2007); and A. Beever, Rediscovering the
Law of Negligence (Oxford, Hart: 2007).
C2019The Author. The Modern Law Review C2019The Moder n Law ReviewLimited. (2019)82(4) MLR 737–750
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