The Supreme Court has recently confirmed that an asymptomatic physiological change caused by an employer's negligence can constitute an actionable personal injury, thus overturning previous decisions of the High Court and Court of Appeal.
Case facts
The Appellants were negligently exposed to platinum salts by their employer, the Respondent, and developed platinum salt sensitivity (PSS). Although PSS is in itself an asymptomatic condition, further exposure to platinum salts can cause an allergic response. After the Appellants developed PSS, the employer no longer permitted them to work in areas where they might be exposed to platinum salts, moving them to different, less well-paid teams within the company or terminating their contracts. The Appellants suffered financial loss as a result. The relevant question for the Court was whether PSS qualifies as an actionable personal injury, or whether, as the Respondents argued, this was simply a claim for pure economic loss.
Decision
In allowing the appeal, the Supreme Court found that PSS does qualify as an actionable personal injury and that the Appellants had a cause of action in negligence/statutory duty against the company.
The Court rejected the Respondent's argument that there was no practical risk of the Appellants encountering platinum salts in ordinary life, stating that "[O]rdinary life is infinitely variable" and that the Appellants' "ordinary lives" involved doing jobs which they were no longer able to do. The Court also rejected the Respondent's argument that the Appellants' injury was the same as the injury suffered by the claimants in Rothwell v Chemical & Insulating Co Ltd. In Rothwell, the claimants had developed pleural plaques as a result of exposure to asbestos fibres – these were not found to constitute an actionable personal injury. Although on face value these asymptomatic injuries looked similar, the Court noted three important distinctions:
- pleural plaques were not materially worsened by further exposure to asbestos, whereas further exposure to platinum salt may materially worsen PSS;
- pleural plaques do not turn into any other injury attributable to asbestos, whereas PSS may turn into symptomatic sensitisation in the form of allergies; and
- the presence of pleural plaques does not restrict the types of work open to a particular person, whereas, PSS impaired the Appellants' capacity for work.
After PSS was identified as an actionable injury, the Respondent’s argument that this was simply a claim for lost earnings (i.e. pure economic loss) fell away.
Implication
This case provides an element of clarity on the margins of injury, especially where the harm suffered is not immediately identifiable, and is highly relevant to manufacturers whose employees are exposed to potential safety risks as part of their employment. However, we note that the Court once again avoided concretely defining the term "personal injury", thus we would expect future cases to again probe the tricky intersection between harm and liability.
The judgment can be accessed here: https://www.supremecourt.uk/cases/docs/uksc-2016-0140-judgment.pdf
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