UK: Court of Appeal overturns ruling on asbestos claims

On 26 January 2006 the Court of Appeal ruled that claimants who are suffering from the asbestos–induced effects of pleural plaques in association with a risk of contracting an asbestos-related disease or associated anxiety cannot recover compensation. This decision overturns the High Court ruling in February 2005 in which the judge held that the presence of pleural plaques was sufficient to allow a claim for the related anxiety that the victim would develop a more serious, asbestos-related disease.

Pleural plaques are a type of asymptomatic scarring on the lungs. They are considered to be a marker that a person has been exposed to asbestos and it is generally accepted that a person suffering from pleural plaques will be at greater risk of developing more serious asbestos-related diseases such as lung cancer, asbestosis or mesothelioma. By themselves the physiological changes of pleural plaques are benign and do not constitute damage founding a claim for negligence. Claimants had however been compensated for the additional anxiety associated with pleural plaques since the 1980s.

The High Court had addressed the issue of claims for pleural plaques and associated anxiety in a test case in February 2005 (Grieves & Others v FT Everard & Sons & Others [2005] EWHC 88). It was held then that a claim for pleural plaques alone would not succeed, but that physiological damage caused by the permanent penetration of the chest by asbestos fibres, combined with anxiety relating to the physiological damage, did give rise to a cause of action. The judge indicated that provisional awards should not exceed £4,000 and that final awards (preventing the claimant returning to court in relation to the same asbestos exposure) should not exceed £7,000. (Average awards previously have been in the region of £5,000 for provisional damages and £15,000 for full and final settlements.)

The Court of Appeal has overturned that ruling ([2006] EWCA Civ 27). It was common ground between the parties that the development of pleural plaques alone was not sufficiently significant to constitute damage on which a claim in negligence could be founded. The Court of Appeal held that it is not possible to aggregate this non-actionable head of claim with one (or two) other non-actionable heads (risk of future asbestos-related disease, or anxiety at the prospect of such a disease) so as to constitute sufficient damage to give rise to a legal claim.

A further ruling was made in relation to one claimant (Grieves) with a slightly different case. He had pleural plaques and had allegedly developed not just anxiety but a depressive illness as a result of worrying about his asbestos exposure. The Court of Appeal considered all the recent authorities on psychiatric injury as stand-alone claim or as a claim following from physical injury.

It was held that where it was foreseeable that a person of ‘reasonable fortitude’, if exposed to asbestos, might suffer psychiatric injury as a consequence of anxiety about his/her future health, then it followed the employer had a duty of care. But in Grieves’ case, there was no evidence of this being foreseeable, and the Court of Appeal considered that the law should not be extended to compensate reactions not foreseen in persons of ordinary fortitude.

The outcome of the Court of Appeal case has been hailed as a victory for the employers and insurers, as they faced up to £1 billion worth of claims following the earlier ruling with on average 14,000 cases of pleural plaques diagnosed each year. Asbestos-related illnesses have a long latency period, which means that there is a long period between exposure to asbestos and onset of the disease (between 15 and 50 years). As asbestos was used routinely in buildings and industry until the late 1980s, claims for asbestos-related illnesses are likely to continue for many years.

The claimants have been given permission to appeal to the House of Lords. So it remains a possibility that the position may once again be reversed.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 03/03/2006.