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 £1 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.

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