The recent House of Lords ruling on pleural plaques caused by negligent exposure to asbestos could save the insurance industry million of pounds, says law firm Browne Jacobson.
The decision will have the immediate impact of defeating claims brought by those will pleural plaques – hardened areas within the lung due to exposure to asbestos - many of which have been awaiting for clarification from the ruling. Browne Jacobson understands that hundreds of potential cases waiting in the wings will now not be progressed, much to the relief of insurers.
The judgement brings much needed clarity to an area of law that was prompting many insurers to make significant financial provisions, should the cases be brought to court, according to claims insurance specialist Adrian Shardlow from Browne Jacobson.
He said: "While the recent ruling is most welcome by the industry, there are still areas of some concern, of which insurers need to be aware.
"While there is now clarity on the significant matter of plaques, there is still a chance that some cases may be brought under the basis of breach of contract. However, we understand that damages in this type of case are likely to be much smaller.
"The basis of the judgement appears, on the face of it, sound – asymptomatic ‘injury’ will be denied a remedy. Of course, should those who are negligently exposed to asbestos develop a harmful disease, it is of only right that they have a remedy in damages and the decision will not prevent this".
"However, the decision not to compensate those negligently exposed to asbestos did not sit comfortably with all and the possibility of contractual breach was raised. The comments in the Judgement are very much speculative and any such claims bring with them obvious limitation issues. We will wait and see if this really is the end for pleural plaques".
It was accepted in the test cases heard by the House of Lords that the Claimants had:
- Negligently been exposed to asbestos dust during the course of their employment;
- Developed pleural plaques as a consequence of that exposure.
The issues the House of Lords were asked to consider were whether the mere presence of pleural plaques and the associated anxiety gave rise to personal injury for which there was a cause of action.
The presence of the plaques does not, in itself, cause symptoms or asbestos related diseases. Rather, it is an indicator of asbestos fibres in the lungs, which may independently cause life-threatening disease.
Actionable Damage
Taking the concept of actionable damage to its basic level, in order for there to be a cause of action for damages for personal injury caused by a Defendant's negligence, 3 elements must combine – there must be (1) a negligent act or breach of statutory duty, which (2) causes injury and (3) the Claimant must suffer material damage as a result.
Of course, the first element was not in issue as it was accepted that the Defendants had been negligent. It was the remaining elements which the House of Lords considered.
It was acknowledged that in the strict sense the presence of pleural plaques in the lungs may well constitute an injury or even disease – there had been a ‘physical change’ in the Claimant’s body. However, was there actionable damage? The House of Lords thought not.
Lord Hope considered that the fundamental point was that the presence of plaques was not in itself harmful. They do not cause any material damage and so do not give rise to a cause of action.
Aggregation Theory
It was put to the House that even if the plaques did not in themselves constitute actionable damage, when combined with the risk of future disease and the associated anxiety they then amounted to damage.
It was considered that neither the presence of plaques nor the anxiety due to the risk of disease (which of course could not be caused by the plaques) individually or collectively gave rise to a cause of action.
This does seem an entirely sensible conclusion - if the physical injury does not give rise to a cause of action when standing alone, it cannot become actionable damage when combined with anxiety which does not in itself constitute damage. However, it follows that if there is an actionable injury, then the anxiety for future risks may be taken into account when considering damages.
Psychiatric Illness
All but one of the appeals were dismissed on the basis there was no cause of action. The remaining appeal brought by Mr Grieves was distinct in that he had developed a recognised psychiatric condition after becoming aware of the presence of plaques. He suffered not merely anxiety but clinical depression. The issue was whether it was foreseeable that an employee of reasonable fortitude would suffer psychiatric injury as a consequence of the breach of duty.
In finding against Mr Grieves, the House of Lords distinguished the facts from Page v Smith (1996), a case in which the Claimant had recovered damages after suffering psychiatric reaction following a minor road traffic accident, despite no physical injury being sustained. It was decided that recoverability for damages should be confined to persons who suffer psychiatric injury caused by the defendant's negligence or its immediate aftermath. This was not the case with Mr Grieves – indeed, Lord Roger pointed out that it was not the exposure to asbestos which gave rise to the psychiatric reaction but rather the doctor informing him of the presence of plaques.
Contractual Remedy?
Whilst it was made expressly clear that the claims were based on tort rather than breach of contract, the potential for a contractual remedy is raised within the judgment of Lord Scott.
Both Lord Scott and Lord Hope shared regret that Claimants who have genuine feelings of anxiety, which was undoubtedly caused by the Defendant’s breach of duty, should be denied a remedy. Whilst accepted that a cause of action in tort cannot be based upon the presence of asymptomatic pleural plaques, it is suggested that exposure to asbestos dust may justify an award of contractual damages under the contract of service which existed between the Claimant and employer.
In such a scenario, damage need not be shown to establish a cause of action. Rather, it was anticipated by Lord Scott that employees would be entitled to compensation as a consequence of the employer exposing them to a risk of contracting asbestos related disease. Damages would, however be minimal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
