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177
Introduction to the Annotations to
Johnston v. NEI International Combustion Ltd
MIQUEL MARTÍN-CASALS*
1. The Case
In
Johnston v. NEI International Combustion Ltd
and conjoined cases (known at earlier stages as
Rothwell v. Chemical & Insulating Co Ltd
(and conjoined cases))
1
the House of Lords, upholding unanimously the previous decision of the Court of Appeal,
2
held that the presence of pleural plaques, whether or not combined witha risk of developing an asbestos-related disease and anxiety about that risk, doesnot constitute actionable or compensatable damage and, therefore, cannot form the basis of a claim in negligence.
3
In this case each of the claimants had been exposed to asbestos in the courseof their employment, and they brought an action against their corresponding employ-ers. Because of this exposure, they developed pleural plaques, which are small local-ized areas of fibrosis found within the pleura of the lung. Pleural plaques may occurafter occupational exposure at a lower level than is needed to cause asbestosis, andthe frequency of their occurrence and extent is related to the amount inhaled andthe duration of exposure. Although they constitute a physiological change in the body, they do not normally cause any symptoms. They do not in themselves threatenhealth or lead to the other asbestos-induced conditions, nor indeed are they a neces-sary pre-condition for any of the asbestos-related diseases.
However, pleural plaquesare a marker of exposure to asbestos, and they signal the presence in the lungs andpleura of asbestos fibres that may independently cause life-threatening diseases suchas asbestosis, lung cancer, or mesothelioma. By contrast, exposure to asbestos doesnot necessarily result in the development of plaques. Given an absence of symptoms,the presence of pleural plaques is generally established by means of chest X-rays,and they are rarely detected during the first twenty years following exposure. They
*
Professor of Civil Law, Observatory of European and Comparative Private Law, University of Girona (Spain). Member of the
European Group on Tort Law
and of the Spanish REDPEC. The author wishes to express his indebtedness to the Spanish Ministry of Science and Innovation for funding theFFI2008-00647
R&
D
project.
1
UKHL 39 [2007], 4 All ER 1047 [2007].
2
EWCA Civ 27 [2006], 4 All ER 1161 [2006].
3
Among many other English comments on this decision, see
K. Oliphant
, ‘England and Wales’, in
European Tort Law 2007
, eds H.
Koziol
& B. C.
Steininger
(Wien/New York: Springer, 2008),239, 5–14 and G.
Turton
, ‘Defining Damage in the House of Lords’,
Modern Law Review
71, no. 6(2008): 987–1014.
European Review of Private Law 2-2009[177-247] © Kluwer Law International BV |Printed in the Great Britain
178
are the most common clinical manifestation following exposure to asbestos – withanything up to 16,000 new cases per year in the UK alone.
4
High Court decisions in the 1980s had awarded damages for negligent expo-sure to asbestos, which had given rise to pleural plaques. Thus, in
Church v. Ministry of Defence
5
and
Sykes v. Ministry of Defence
,
6
Peter Pain J and Otton J, respectively,held that symptomless pleural plaques, on their own, were sufficient to constitutecompensatable damage. In
Patterson v. Ministry of Defence
,
7
Simon Brown J formu-lated what was to be known as the ‘aggregation theory’ by holding that although a ‘symptom-free physiological change’ such as pleural plaques was not in itself anactionable injury, when combined with the risk of future disease and anxiety, it couldcreate a cause of action. A successful claim regularly received an award for provisionaldamages of between GBP 5,000 and GBP 7,000 (leaving open the possibility of a fur-ther claim if the claimant subsequently developed mesothelioma or another asbestos-related disease) or a full and final award of between GBP 12,500 and GBP 20,000.
8
In 2005, the insurance industry took ten test cases to the High Court. Ineach case, the claimant had been negligently exposed by his employer to asbestosdust and, as a consequence, had developed pleural plaques, was at risk of devel-oping one or more long-term asbestos-related diseases, and had suffered anxiety about the prospect that he might suffer one of these diseases. Additionally, one of the claimants (Mr Grieves) sought damages for the psychiatric illness and irritable bowel syndrome, which he suffered as a result of his diagnosis. Mr Justice Hollandhanded down his first-instance judgment rejecting arguments that pleural plaquesdo not constitute a significant injury.
9
The High Court, which followed the aggrega-tion approach, upheld the claimants’ entitlement to compensation. It held that they had demonstrated an injury when the condition was considered in light of the anxi-ety caused, together with the risks of developing an asbestos-related disease in thefuture. The presence of these three elements established a complete cause of action.However, it reduced the amount awarded to provisional damages to GBP 4,000 andfull and final damages to GBP 7,000.Eight of these cases proceeded to the Court of Appeal, which in January 2006 overturned this decision by a majority, ruling that the plaques themselves areharmless and unactionable.
10
Although it agreed that ‘pleural plaques undoubtedly
4
According to D.
Pugh
& M.
Rawlinson
, ‘Legal Analysis: Pleural Plaques - No Harm Done’,
Post Magazine
(25 Oct. 2007): 9,14.
5
134 NLJ 623 (1984).
6
The Times, 23 Mar. 1984.
7
CLY 1194 [1987].
8
See
Ministry of Justice
, Pleural Plaques: Consultation Paper CP 14/08, 9 Jul. 2008, <www.justice.gov.uk/docs/cp1408.pdf>, 2 Jan. 2009, 4, 7.
9
EWHC 88 (QB) [2005].
10
EWCA Civ 27 [2006].
179
constitute a physiological change in the body’, it held that they cannot establish a basis for a cause of action:For present purposes their relevant feature is that, save in the case of about 1% which no one has suggested has any significance, they are symptomless,have no adverse effect on any bodily function and, being internal, have noeffect on appearance. In short, ignoring the 1%, no one is any worse physi-cally for having pleural plaques.
11
The Court of Appeal held that this does not change when they are combined with twofurther individually unactionable heads of claim, that is, the risk of future injury andanxiety at the prospect of future injury. Three unactionable ‘injuries’ should not giverise to an actionable injury on being considered in the aggregate. The court held by a majority that there was no legal precedent for aggregating heads of claim that were not in themselves actionable and that there were solid policy grounds for not allowing claims based solely on a risk of contracting a disease in the future or on anxiety about that risk.Four of the claimants appealed to the House of Lords against the judgment of the Court of Appeal. The House of Lords rejected the ‘aggregation theory’ andupheld the Court of Appeal decision in the judgment under annotation. Each of theLaw Lords considered whether pleural plaques in themselves were an actionabledamage, and all of them concluded that they were not.Lord Hoffman held at paragraph [2] that:Proof of damage is an essential element in a claim in negligence and in my opin-ion the symptomless plaques are not compensatable damage. Neither do therisk 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 thelaw allows both to be taken into account in computing the loss suffered by some-one who has actually suffered some compensatable physical injury and thereforehas 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 thereforeno computation of loss in which the risk and anxiety may be taken into account.At paragraph [19], he added that:One is not concerned with whether the plaque is in some sense ‘injury’ or a ‘disease’. The question is whether the claimant has suffered damage. That means: is he appreciably worse off on account of having plaques? The rare
11
[2006] EWCA Civ 27, at 18.
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