UK: English House Of Lords Slams Door On "Worried Well" Claims

Last Updated: 11 February 2008
Article by Rod Freeman and Matthew Hibbert

Rothwell v Chemical And Insulating Co Ltd And ORS - The Pleural Plaques Litigation1

Introduction

In a long-awaited decision, the English House of Lords, on 17 October 2007, unanimously dismissed the Pleural Plaques Litigation appeals. In so doing it confirmed the Court of Appeal's view that pleural plaques do not constitute a compensable injury, and nor does psychiatric injury caused as a result of asbestos exposure.2

The decision will come as a huge relief for employers who historically used asbestos in their business or had it in the fabric of their buildings, and even more so for the insurance industry, which stood to lose in excess of Ł1 billion in the event of the House of Lords ruling the other way. The verdict also firmly shuts the door on the possibility of "worried well" claims appearing in English courts.

Background

Pleural plaques are a scarring of the lung membranes (pleura) caused by exposure to asbestos. They are almost always symptom-free, but they are evidence of asbestos fibres in the lungs and pleura, which give rise to an increased risk of the development of more serious asbestos related conditions, such as asbestosis, lung cancer or mesothelioma. Plaques typically develop 20 or more years after exposure to asbestos, but can develop earlier.

The claimants in these appeals all had pleural plaques as a result of asbestos exposure during earlier employment. The question before the House of Lords was whether the presence of this symptom-free internal scarring, in combination with an increased risk of future serious disease, and consequent anxiety on the part of the claimants, could give rise to a claim for damages. In Patterson v Ministry of Defence,3 the High Court held that it could, and, on that basis, plaques claims had regularly been settled, until the insurance industry decided to challenge the position in these test cases two years ago. Although at first instance the High Court held that the earlier authority was correct,4 the Court of Appeal last year, with some difficulty, decided that it was not.5

Judgment

In a robust judgment, the House of Lords dismissed the claimants' appeal. The Lords had no difficulty in unanimously holding that symptomless plaques do not in themselves constitute an actionable injury. Lord Hoffman pointed out that

"proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage",

and Lord Hope said that there must be

"real damage, as distinct from damage which is purely minimal.... Where that element is lacking, as it plainly is in the case of pleural plaques, the physical change which they represent is not in itself actionable."

The House of Lords also pointed out that it was well established that neither an increased risk of future illness, nor anxiety caused by this, could alone form the basis of a claim.

The claimants' case, that a cause of action could be made out by the aggregation of the plaques, the future risks and the anxiety, was also given short shrift. Lord Scott of Foscote noted that neither plaques, risks nor anxiety could, in this context, sustain a tort action and therefore their aggregation could not succeed in creating one because

"nought plus nought plus nought equals nought".

Lord Rodger of Earlsferry gave a further reason for rejecting the aggregation theory, namely that the anxiety and the risks are not actually associated with the plaques themselves

"the plaques alert the claimants to a heightened risk...but they would not be a cause of the illness if it did develop".

The House of Lords also dismissed the appeal of Mr Grieves, a claimant who had developed a recognised psychiatric illness as a result of anxiety caused by the plaques. Lord Hoffmann, with whom the other Lords agreed, said that, applying traditional principles, the psychiatric illness was not a reasonably foreseeable consequence of the creation of a risk of an asbestos related disease. He also rejected the Page v Smith6 approach to recovery for psychiatric injury – namely, that if physical injury is a foreseeable consequence of a breach of duty then it is also possible to recover for psychiatric injury – on the basis that no physical injury had occurred in Mr Grieves' case. To allow recovery for psychiatric injury in the absence of actual physical injury would, he said, extend the Page v Smith doctrine.

Comment

Plaques is the most common condition of those exposed to significant quantities of asbestos, and had these appeals been allowed the likelihood is that courts would have been flooded with plaques claims. Whilst this judgment was very much grounded in legal principles rather than based on policy reasons, there is no doubt that difficult issues would have arisen had the appeals been allowed. Claimants aware that they had plaques would have been put in a position whereby they would have had to bring proceedings to ensure that any more serious condition they might subsequently develop would not be time-barred. This would have been a clear encouragement to increased litigation, and would have likely also seen an increase in claimant recruiting, through means such as "scan vans" (mobile x-ray units paraded around shopping centres by claims management companies and lawyers). A judgment for claimants on this issue might also have led to the beginning of "worried well" claims, even beyond the field of asbestos litigation, where claimants who are not injured but have an increased risk of future injury are able to recover damages for their anxiety and the cost of medical monitoring.

English courts have struggled in recent years to deal with the difficult and unique issues raised by asbestos claims, in particular the challenges posed by the long time lapse between exposure to asbestos and the development of any symptoms. In this context, a judgment based on traditional English law principles is to be welcomed, particularly as it will prevent courts being clogged up by cases involving claimants without physical injuries.

If this judgment is considered to be unfair by some who feel that those who have been exposed to asbestos ought to be compensated even if no noticeable injury has occurred, that does not point to the judgment of the Lords being incorrect or unjust. It simply demonstrates that the litigation system is not the proper place for dealing with the unique problems of compensation raised by the asbestos tragedy.

It is important to remember that this is not a case about whether people who have been injured by asbestos can recover damages. Quite the contrary, it is about whether people who have been exposed to asbestos, but who have suffered no physical impairment, and may never do so, should be able to sue now. The Lords, relying on long-established legal principles, have confirmed that the right to sue arises when, and only when, physical impairment occurs.

Absent legislative intervention, this judgment brings to a conclusion the debate about whether plaques are a compensable disease. Such intervention would of course be possible, and was seen in the aftermath of the House of Lords judgment in Barker, a case involving mesothelioma sufferers, last summer.7

To date, there is no suggestion that the Government will overturn the effect of this ruling by legislation in England and Wales: during a debate in the UK House of Commons in January 2008, Bridget Prentice, the Under-Secretary of State for Justice, said that such legislation "would change the law of negligence so fundamentally that it would not be an appropriate process". In Scotland however, the position is different. In November 2007 the Scottish Justice Secretary, Kenny MacAskill, announced that a bill would be introduced to the Scottish Parliament at the earliest opportunity to reverse the judgment. The bill, if passed, will allow people who are negligently exposed to asbestos and subsequently diagnosed with pleural plaques to continue to be able to sue for damages. The bill would also allow claims to be made for asymptomatic asbestos and pleural thickening. The provisions of the bill are to take effect from the date of the House of Lords judgment.

The Scottish approach, which has been criticised by the Association of British Insurers, raises the problem of a "postcode lottery" for asbestos victims' ability to claim damages, and there remain several questions to be answered on how two sets of legislation would be workable, for instance where a claimant was exposed to asbestos in both England and Scotland.

Subject to Parliamentary timetabling, it is expected that the bill will be introduced to the Scottish Parliament before its summer recess. A partial regulatory impact assessment on the proposed bill was issued for consultation on 6 February 2008. The consultation is open until 4 April 2008 and all those interested can take part at http://www.scotland.gov.uk/consultations.

Footnotes

1 [2007] UKHL 39.

2 Grieves & Ors v FT Everard & Sons and British Uralite Plc & Ors [2006] All ER (D) 187 (Jan). See Rod Freeman and Emma Nicholson, "Court of Appeal holds that pleural plaques are not compensable", European Product Liability Review 22 (March 2006), p2.

3 [1987] CLY 1194.

4 Grieves & Ors v FT Everard & Sons and British Uralite Plc & Ors [2005] EWHC 88 (QB). See Rod Freeman and Kevin O'Connor, "High Court holds that pleural plaques are compensable...", European Product Liability Review 18 (March 2005), p24.

5 Supra note 2.

6 [1996] AC 155.

7 Barker v Corus (UK) Plc and related appeals [2006] UKHL 20, in which the House of Lords held that a negligent defendant's liability in respect of a claimant's mesothelioma was several only. The effect of that decision was overturned within months by the UK Government's introduction of the Compensation Act 2006 which reimposed joint and several liability on defendants in mesothelioma cases. See Rod Freeman and Matthew Hibbert, "Winding back the clock on Fairchild", European Product Liability Review 23 (June 2006), p23; Matthew Hibbert and Nick Palmer, "Compensation Bill: asbestos case prompts call for amendment", European Product Liability Review 23 (June 2006), p19, and Matthew Hibbert and Gemma Steel, "Late amendments to UK Compensation Act increase liability in asbestos cases", European Product Liability Review 24 (September 2006), p13.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.