Grieves v Everard and Sons and Another and associated claims

[2007] UKHL 39

HOUSE OF LORDS

Appellate Committee

Lord Hoffmann

Lord Hope Of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Mance

Johnston
(Original Appellant and Cross-respondent)
and
NEI International Combustion Limited
(Original Respondents and Cross-appellants)
Rothwell
(Original Appellant and Cross-respondent)
and
Chemical and Insulating Company Limited

and others

(Original Respondents and Cross-appellants)
Topping
(Original Appellant and Cross-respondent)
and
Benchtown Limited (formerly Jones Bros Preston Limited)
(Original Respondents and Cross-appellants) (Conjoined Appeals)
Grieves
(Appellant)
and
F T Everard & Sons

and others

(Respondents)

Appellants:

David Allan QC

Ivan Bowley

Frank Burton QC

Harry Steinberg

(Instructed by Thompsons)

Respondent:

Michael Beloff QC

Michael Kent QC

Michael Rawlinson

Sophie Allan

(Instructed by Halliwells LLP)

SESSION 2006-07

on appeal from: [2006] EWCA Civ 27

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

LORD HOFFMANN

My Lords,

Summary

1

The question is whether someone who has been negligently exposed to asbestos in the course of his employment can sue his employer for damages on the ground that he has developed pleural plaques. These are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases. But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma. In consequence, a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression.

2

Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk.

The earlier rulings

3

In the 1980s the actionability of pleural plaques was considered in three decisions at first instance. In all three cases the judges found in favour of the plaintiffs. But their reasoning was not altogether consistent. The first case was Church v Ministry of Defence (1984) 134 NLJ 623, an action by a fitter who had until 1954 worked with asbestos in the naval dockyard at Chatham. A routine X-ray in 1980 revealed pleural plaques. Peter Pain J said (at p. 6) that it was "an error to treat the pleural plaques on their own." There was, he said, damage caused "by the asbestos passing through the lungs and causing the plaques to form." Adding that to the plaques themselves, it was not damage "so minor that the law should disregard it."

4

A month later Otton J gave judgment in a similar case ( Sykes v Ministry of Defence The Times, 23 March 1984). The plaintiff had worked with asbestos in the naval dockyard at Portsmouth. The judge was referred to the decision of Peter Pain J in the Church case but his reasoning was not quite the same. In the opinion of Otton J, there was no need to add anything to the plaques to produce compensatable damage. It was enough that there had been a "definite change in the structure of the pleura". That gave the plaintiff a cause of action and therefore, in calculating the damages, one could take into account the risk of other diseases and the plaintiff's anxiety. As the judge awarded a global sum of £1,500 damages for "the three elements of physical damage, anxiety and the risks of further complications", he did not have to explain how he would have calculated damages for the symptomless plaques alone.

5

Patterson v Ministry of Defence [1987] CLY 1194 was another similar case from the naval dockyard at Chatham. Simon Brown J did not accept that a "symptom-free physiological change" such as a plaque was an actionable injury. If Otton J had decided the contrary, he disagreed. But the plaques together with the risk of future disease and anxiety could add up to a cause of action. The reasoning of Simon Brown J was therefore based upon what was called, in argument before your Lordships, a theory of aggregation. The proposition was that a physiological change which is not compensatable damage can be aggregated with risk and anxiety (neither of which would by themselves give rise to a cause of action) to create a cause of action.

6

Since these decisions, claims have regularly been settled on the basis that pleural plaques are actionable injury. But now the insurers have decided to challenge the practice. Ten test cases were selected for trial before Holland J, who also found that the plaques were actionable. In seven cases the insurers appealed to the Court of Appeal, which reversed the decision of the judge. Four of the claimants now appeal to your Lordships' House. In order to decide the point, it is necessary to go back to first principles.

The concept of actionable damage

7

Some causes of action arise without proof of damage. Trespass and breach of contract are examples. Proof of the trespass or breach of contract is enough to found a cause of action. If no actual damage is proved, the claimant is entitled to nominal damages. But a claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one's health or capability.

8

How much worse off must one be? An action for compensation should not be set in motion on account of a trivial injury. De minimis non curat lex. But whether an injury is sufficiently serious to found a claim for compensation or too trivial to justify a remedy is a question of degree. Because people do not often go to the trouble of bringing actions to recover damages for trivial injuries, the question of how trivial is trivial has seldom arisen directly. It has however arisen in connection with the Limitation Act, under which the primary rule is that time runs from the date on which the cause of action accrues. In an action for negligence, that means the date upon which the claimant suffered damage which cannot be characterised as trivial. To identify that moment was the vital question in Cartledge v E Jopling & Sons Ltd [1963] AC 758, in which the employees had suffered death or serious injury from damage to their lungs caused by exposure to fragmented silica. At a date earlier than the commencement of the limitation period their lungs had suffered damage which would have been visible upon an X-ray examination, reduced their lung capacity in a way which would show itself in cases of unusual exertion, might advance without further inhalation, made them more vulnerable to tuberculosis or bronchitis and reduced their expectation of life. But in normal life the damage produced no symptoms and they were unaware of it. The House of Lords affirmed the view of the trial judge and the Court of Appeal that a cause of action had arisen and the claims (as the law then stood) were statute-barred.

9

The members of the Court of Appeal and the House of Lords used slightly different words to express the degree of injury which must have been suffered. In the Court of Appeal ( [1962] 1 QB 189) Harman LJ spoke (at p 199) of loss or damage "not being insignificant" and Pearson LJ said (at p 208) that the cause of action accrues when "the plaintiff concerned has suffered serious harm". In the House of Lords ( [1963] AC 758) Lord Reid said (at pp 771-772) that the cause of action accrues when the wrongful act has caused personal injury "beyond what can be regarded as negligible". Lord Evershed (at p 774) spoke of "real damage as distinct from purely minimal damage". Lord Pearce (with whom all the rest of their Lordships agreed) said (at p 779):

"It is for a judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree… It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the other hand, evidence that in unusual exertion or at the onset of disease he may suffer from his hidden impairment tells in favour of the damage being substantial."

Are pleural plaques actionable damage?

10

Holland J found that the plaques in themselves were not damage which could found a cause of action. He said (at para 80a):

"I start by rejecting any notion that pleural plaques per se can found a cause...

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