October 2007 

Asbestos Claims: Pleural Plaques claims: the door left ajar?

Johnston v NEI International Combustion Limited, Rothwell v Chemical and Insulating Company Limited and others, Topping v Benchtown Limited, Grieves v FT Everard & Sons and others [2007] UKHL 39

On Wednesday 17th October 2007 the House of Lords ruled that patients diagnosed with pleural plaques, an asbestos related condition, were not entitled to compensation. This ruling overturns a number of first instance decisions from the early 1980s that had established pleural plaques as compensatable damage.

Whilst the ruling has been criticised as being unduly harsh, there are compelling legal and factual grounds in support of the Law Lords' decision.

Pleural plaques are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in exceptional circumstances, they cause no symptoms, and they do not lead to other asbestos-related diseases. They do, however, signal the presence in the lung of asbestos fibres, which may cause asbestosis or mesothelioma, both life-threatening diseases. As a result, patients diagnosed with pleural plaques may become anxious about their future, and some suffer clinical depression.

The claims were brought in tortious negligence. To establish a cause of action, the claimants had to prove: (i) that there had been a negligent breach of duty by their employers; (ii) that the breach had caused an injury; and (iii) that they had suffered material damage/loss as a result.

The issue was whether pleural plaques amount to "damage" under the law of tort. Lord Hoffmann defined damage as "an abstract concept of being worse off", and held that a simple physical change, which has no effect on a person's health, is not sufficient to amount to damage. In addition, the damage has to be material, or at least not negligible, and the Lords agreed that even if the plaques impair physical condition, such impairment is not significant enough to give rise to an actionable breach.

The claimants also ran other arguments: relying on Patterson v Ministry of Defence [1987] CLY 1194, they argued that aggregated together, the pleural plaques, risk of future injury and resulting anxiety formed a cause of action. All Law Lords rejected this aggregation argument on the ground that none of the items to be aggregated gave rise to a cause of action in the first place.

One claimant also alleged that his anxiety/depression had been triggered by seeing the results of x-rays of his lungs. However, the x-rays had been taken many years after the date of exposure to asbestos dust, and the Law Lords dismissed this argument on the basis of, inter alia, lack of foreseeability.

The judgment is the end result of a decision by the relevant insurers to bring test cases to court to challenge the widespread practice since the 1980s of settling claims for pleural plaques. Although no doubt a pleasing outcome, insurers should bear in mind that the claimants would still have a right to claim compensation, should they subsequently develop asbestosis or mesothelioma. The Law Lords made it clear that for the purposes of such claims, the limitation period had not yet started to run.

Moreover, the claims were brought in tort only. The claimants were unsuccessful because material damage is one of the key elements of a negligence action in tort. However, three of the Law Lords (Lords Hope, Scott and Mance) pointed out that the claimants may well have had a cause of action in contract: proving a breach of the contract is sufficient to establish a cause of action, regardless of the amount of loss actually suffered. The breach of contract in such cases would be the failure by the claimants' employers to provide a safe working environment. Lord Scott went as far as specifying what type of damages might be claimed - damages to compensate employees for subjecting them to the risk of contracting future life-threatening asbestos-related diseases - and pointed out which sections of the Limitation Act the claimants might be able to rely on to bring the claims - sections 11 and 14, which, effectively, extend time to bring personal injury claims.

Notwithstanding the judgment in this case, therefore, employee plural plaques claimants may still be able to obtain compensation for the anxiety and increased risk of contracting potentially fatal diseases.

On Wednesday 17th October 2007 the House of Lords ruled that patients diagnosed with pleural plaques, an asbestos related condition, were not entitled to compensation. This ruling overturns a number of first instance decisions from the early 1980s that had established pleural plaques as compensatable damage.

Whilst the ruling has been criticised as being unduly harsh, there are compelling legal and factual grounds in support of the Law Lords' decision.

Pleural plaques are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in exceptional circumstances, they cause no symptoms, and they do not lead to other asbestos-related diseases. They do, however, signal the presence in the lung of asbestos fibres, which may cause asbestosis or mesothelioma, both life-threatening diseases. As a result, patients diagnosed with pleural plaques may become anxious about their future, and some suffer clinical depression.

The claims were brought in tortious negligence. To establish a cause of action, the claimants had to prove: (i) that there had been a negligent breach of duty by their employers; (ii) that the breach had caused an injury; and (iii) that they had suffered material damage/loss as a result.

The issue was whether pleural plaques amount to "damage" under the law of tort. Lord Hoffmann defined damage as "an abstract concept of being worse off", and held that a simple physical change, which has no effect on a person's health, is not sufficient to amount to damage. In addition, the damage has to be material, or at least not negligible, and the Lords agreed that even if the plaques impair physical condition, such impairment is not significant enough to give rise to an actionable breach.

The claimants also ran other arguments: relying on Patterson v Ministry of Defence [1987] CLY 1194, they argued that aggregated together, the pleural plaques, risk of future injury and resulting anxiety formed a cause of action. All Law Lords rejected this aggregation argument on the ground that none of the items to be aggregated gave rise to a cause of action in the first place.

One claimant also alleged that his anxiety/depression had been triggered by seeing the results of x-rays of his lungs. However, the x-rays had been taken many years after the date of exposure to asbestos dust, and the Law Lords dismissed this argument on the basis of, inter alia, lack of foreseeability.

The judgment is the end result of a decision by the relevant insurers to bring test cases to court to challenge the widespread practice since the 1980s of settling claims for pleural plaques. Although no doubt a pleasing outcome, insurers should bear in mind that the claimants would still have a right to claim compensation, should they subsequently develop asbestosis or mesothelioma. The Law Lords made it clear that for the purposes of such claims, the limitation period had not yet started to run.

Moreover, the claims were brought in tort only. The claimants were unsuccessful because material damage is one of the key elements of a negligence action in tort. However, three of the Law Lords (Lords Hope, Scott and Mance) pointed out that the claimants may well have had a cause of action in contract: proving a breach of the contract is sufficient to establish a cause of action, regardless of the amount of loss actually suffered. The breach of contract in such cases would be the failure by the claimants' employers to provide a safe working environment. Lord Scott went as far as specifying what type of damages might be claimed - damages to compensate employees for subjecting them to the risk of contracting future life-threatening asbestos-related diseases - and pointed out which sections of the Limitation Act the claimants might be able to rely on to bring the claims - sections 11 and 14, which, effectively, extend time to bring personal injury claims.

Notwithstanding the judgment in this case, therefore, employee plural plaques claimants may still be able to obtain compensation for the anxiety and increased risk of contracting potentially fatal diseases.