Five law lords including two eminent Scottish Judges, Lord Hope
and Lord Rodger have unanimously decided that pleural plaques do
not amount to actionable damage, ending over twenty years of
compensation payments in these cases. Simpson & Marwick were
heavily involved in advising insurers on the Scots law issues that
arose and in particular on the likely approach of the Scottish law
lords. We are pleased that all five law lords based much of their
decision on these principles.
Lord Hoffman, who gave the main judgement succinctly summarised
the issues. He held that a negligence claim is incomplete without
proof of damage which must be beyond the minimum (di minimis
non curat lex). He said "In all but the most exceptional
cases plaques would never cause any symptoms, did not increase the
susceptibility of the claimant to other asbestos diseases or
shorten their expectation of life".
Lords Hoffman, Scott and Rodger had no difficulty in finding
that plaques could not be categorised as a disease or any
impairment of physical condition. Lord Hope expressed the view that
plaques is a form of injury but stated they were not harmful and
did not give rise to any symptoms. He said "No action lies for
a wrong which has not resulted in some element of loss, injury or
damage of a kind that was reasonably foreseeable and for which the
claimants can sue." and "damages are for injuries that
cause harm not for injuries that are harmless".
The House of Lords rejected the theory put forward by the
claimants in the High Court and the Court of Appeal that although
pleural plaques themselves could not be regarded as an injury, they
did amount to actionable damage if aggregated with the claimant's
anxiety and risk of developing future conditions. The aggregation
theory was rejected by the law lords on the basis that the action
is not complete until damage had been suffered by the claimant.
Lord Rodger provided an illustration as to why the aggregation
theory was illogical. He gave the example of two individuals with
similar exposure to asbestos. Both are anxious in relation to the
risk of developing an asbestos related disease in the future. If
one of those individuals has pleural plaques, then based on the
aggregation theory he is entitled to damages. If the second
individual does not have plaques, he would not be so entitled. Such
a result was in his view illogical.
The law lords also rejected the notion that a claimant suffering
psychiatric injury following his diagnosis of plaques could recover
damages. This issue concerned Mr Grieves who developed a depressive
illness following the diagnosis of plaques. The question in Mr
Grieves' case was whether he was owed a duty of care in respect of
psychiatric illness caused by his anxiety at the risk of future
illness, flowing from the existence of the plaques. The claimants
argued that if psychiatric illness was not foreseeable, Page v.
Smith would make foreseeability unnecessary and should apply.
All five law lords however considered Page v. Smith could
be distinguished and held that it would be an unwarranted extension
of the principles in Page v. Smith to apply it to a
psychiatric illness caused by apprehension of the possibility of an
unfavourable event, which has not actually happened.
The Scottish law lords Rodger and Hope saw some force in the
criticism levied against Page v. Smith but as it could be
distinguished in these cases - left that open for another day. All
five law lords agreed it should not be extended.
Although the House of Lords decision is not binding in Scotland,
there is little doubt that it is extremely persuasive, given that
two highly respected Scottish Judges (Hope and Rodger) concurred
with the English law lords that there was no actionable damage in
these cases, reflecting the long established Scots law principle
that in order for an action to succeed, there must be a concurrence
of damnum and injuria. The damnum/damage
must be more than the minimal. Lord Rodger referred to the Scottish
case of Brown v. North British Steel Foundry where it was
held "the mere possibility of damnum will not found a claim for
reparation".
Lord Hope and Lord Scott however were concerned that the
claimants were denied a remedy where the employers had been in
breach of their contractual duties of care to the employees. Both
raised the possibility that such a contractual breach would justify
an award of contractual damages to compensate them for subjecting
them to the risk of contracting a life threatening asbestos related
disease in the future.
Dr Pamela Abernethy
Partner