Pleural plaques litigation

The House of Lords today unanimously dismissed the joined appeals by Claimants in Johnston, Rothwell and others [2007] UKHL 39. Michael Kent QC presented the main argument on behalf of the successful Respondents on the instructions of EL insurers Zurich Commercial and Norwich Union (instructing Halliwells) as he had in the Court of Appeal and at first instance.

These cases raised the question whether claimants had established a cause of action for damages arising out of exposure to asbestos in the course of their employment when the only physical manifestation of this exposure was the presence of pleural plaques (benign asymptomatic lesions on the lining of the lung). The House rejected an argument that the Appellants were entitled to damages on the basis that the combination of the presence of the plaques, the risks of malignant disease associated with the exposure (but not enhanced by the plaques) and their anxiety about such risks might be aggregated so as to constitute sufficient damage to complete a cause of action in tort. The House further rejected a separate argument, in the case of Grieves, that the fact that his anxiety had manifested itself in a recognised psychiatric illness enabled him nevertheless to recover damages for such injury concluding that this injury was too remote a consequence of the employer's breach of duty. The rule in Page v Smith [1996] AC 155, though it was not the occasion to depart from it as erroneous, was held to be of limited scope and to be confined to cases of similar fact namely where the psychiatric injury arises as an immediate consequence of an actual or threatened accident exposing the Claimant to the risk of physical injury then and there. It had no application to case where the Claimant experienced a brooding fear that he might, at some time in the future, suffer illness or disease. This decision is important as reaffirming the principle that the Courts do not award damages in tort for the mere risk of injury or damage however anxious the Claimant may have become. Correspondingly those who have been exposed tortiously to asbestos do not have, for limitation purposes, time running against them unless and until one of the serious asbestos related diseases manifests itself. It brings to an end more than twenty years of litigation in which, following first instance decisions in the 1980s, such claims were permitted and which had, until a decision by insurers to test the point again was taken, increased significantly both in numbers of claims brought and in the quantum of awards.

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