JOHNSTON v NEI INTERNATIONAL COMBUSTION LTD; ROTHWELL v CHEMICAL & INSULATING CO LTD & OTHERS; TOPPING v BENCHTOWN LTD; GRIEVES v FT EVERARD & OTHERS

Last Updated: 7:01pm BST 24/10/2007

House of Lords
Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance
October 17, 2007

Asbestos – Causes of action – Employers’ liability – Pleural membrane – Psychiatric harm – Risk – Pleural plaques – Risk of future disease and consequent anxiety – Actionable damage – Asbestos fibres – Anxiety – Risk of diseases – Fear of future injury – Person of reasonable fortitude – Psychiatric injury – s. 32a Supreme Court Act 1981

FACTS

The appellants (C) appealed against a decision ([2006] EWCA Civ 27, [2006] 4 All ER 1161) that pleural plaques caused by negligent exposure to asbestos, which were not in themselves damage that could give rise to a cause of action, did not become actionable damage when aggregated with the risk of future disease and consequent anxiety. One of the appellants (G) appealed against a decision that psychiatric injury suffered by him was not a reasonably foreseeable consequence of the negligence. C, who had been negligently exposed to asbestos dust by the respondent employers, had developed pleural plaques. The presence of such plaques did not usually occasion any symptoms. The plaques did not cause asbestos related diseases, but they signalled the presence in the lungs and pleura of asbestos fibres that might independently cause life-threatening or fatal diseases. G had developed not merely anxiety but clinical depression, a recognised psychiatric illness, in consequence of being told that his pleural plaques indicated a significant exposure to asbestos and the risk of future disease. C submitted that, although they had no free-standing claim for the risks of developing diseases in the future as it was not pleural plaques themselves that gave rise to them and they had no free-standing claim for their anxiety, taken in combination, those various elements amounted to an injury that was more than negligible.

ISSUE

Whether pleural plaques caused by negligent exposure to asbestos, which were not in themselves damage that could give rise to a cause of action, did amount to actionable damage when aggregated with the risk of future disease and consequent anxiety, neither of which in itself was actionable.

HELD (appeals dismissed)

(i) The symptomless plaques were not damage that could found a cause of action. Neither the risk of future disease nor anxiety about the possibility of that risk materialising amounted to damage for the purpose of creating a cause of action, Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176 and Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65 applied. Although the law allowed the risk of future disease and consequent anxiety to be taken into account in computing the loss suffered by someone who had actually suffered some compensatable physical injury, in the absence of such compensatable injury, there was no cause of action under which damages could be claimed and, therefore, there could be no computation of loss in which the risk and anxiety could be taken into account, Brunsden v Humphrey (1884-85) LR 14 QBD 141 considered. Also, the pleural plaques did not amount to damage when aggregated with the risk of future disease or anxiety. It was not possible, by adding together two or more components, none of which in itself was actionable, to arrive at something that was actionable. Further, the Supreme Court Act 1981 s. 32A, which allowed a claimant to obtain provisional damages where there was a chance that a serious disease would develop in the future, did not support the aggregation theory. The provision made it clear that it applied only where the claimant had a cause of action.

(ii) G’s psychiatric illness was not a reasonably foreseeable consequence of his employers’ breach of duty. It was not foreseeable that the creation of a risk of an asbestos-related disease would cause psychiatric illness to a person of reasonable fortitude, Page v Smith [1996] AC 155 distinguished on the facts.

David Allan QC, Ivan Bowley, Frank Burton QC and Harry Steinberg (instructed by Thompsons) for the appellants. Michael Beloff QC, Michael Kent QC, Michael

JONES v ROYAL DEVON & EXETER NHS FOUNDATION TRUST

Last updated: 7:12 PM BST 09/04/2008
Queen’s Bench Division
King J
March 20, 2008

Clinical negligence – Measure of damages – Psychiatric harm – Death of newborn baby – Prolonged pathological grief reaction – Recoverable damages – Fatal Accidents Act 1976 – s. 3(1) Fatal Accidents Act 1976

FACTS

The court was required to determine the quantum of damages to be awarded to the claimant (J) in respect of her claim for damages for bereavement and psychiatric injuries with consequential loss arising from the death of her daughter (B) through the admitted negligence of the defendant NHS trust (D). B had suffered from hypoxic ischemic encephalopathy at birth, which meant that she could only survive on life support and the outlook for her was hopeless. The life support was withdrawn the day after B’s birth resulting in her death. A coroner’s inquest into B’s death did not begin until two years afterwards and D did not admit liability for B’s death until three years after it occurred. The medical experts jointly agreed that J suffered from an adjustment disorder that manifested itself through a number of symptoms that included sleeping disorders, loss of concentration and anxiety. J contended that she was entitled to damages for (1) psychiatric injury she had suffered through B’s death and the prolonged investigation into that death; (2) counselling sessions and other non-medical therapies that she had completed; (3) the cost of a wake following B’s death.

ISSUES

(1) Whether J was entitled to damages for psychiatric injury she had suffered through B’s death and the prolonged investigation into that death.

(2) Whether J was entitled to counselling sessions and other non-medical therapies that she had completed.

(3) Whether J was entitled to the cost of a wake following B’s death.

HELD (damages assessed)

(1) J suffered from the effects of a prolonged pathological grief reaction exacerbated by the effects of trauma, guilt and self-blame, and regardless of whether J’s mental health symptoms warranted a diagnostic term she continued to be affected in a negative way by her experiences. Applying the Judicial Studies Guidelines, that psychiatric injury fell within the moderately severe category and J was entitled to recover general damages of £20,000 in respect of it.

(2) There was no strict test that, for the cost of non-medical therapies to be recoverable they had to have been recommended by a medical practitioner, McMahon v Brett [2003] EWHC 2706 (QB) considered. The appropriate test was whether such treatment was reasonable, not remote and was proportionate. That assessment included a consideration of whether the alternative therapies were akin to medical expenses in that an individual had shown that he obtained positive benefit from them in the relief of his condition, whether for physical or psychological reasons. J had undoubtedly obtained real benefit from the counselling that she received from various therapists and she was entitled to damages of £2,000.

(3) J was entitled pursuant to the Fatal Accidents Act 1976 to bereavement damages of £10,000 and a further £2,763 in respect of the costs of B’s funeral and the erection of a headstone. However, the cost of a wake was not a recoverable expense within the meaning of s. 3(1) of the Act.

Simon Readhead QC (instructed by Parlett Kent, Exeter) for the claimant. Abhijeet Mukherjee (instructed by in-house solicitor) for the defendant.