Sensitisation not an actionable injury

scales2Can individuals successfully claim for personal injury with physiological change but no actual symptoms? William Chapman, barrister at 7 Bedford Row, suggests that Greenway v Johnson Matthey provides clarity on actionable injuries.

The Court of Appeal, Civil Division, dismissed the claimants’ appeal against the judge’s decision that the defendant was not liable in damages to them for breach of statutory duty, negligence or breach of contract arising out of their employment by the defendant at its chemical plants. Among other things, it held that the presence of economic loss did not convert a physiological change, which did not, in itself, qualify as an actionable injury. Further, since there was no implied contractual term according to which the defendant was obliged to protect the claimants in relation to their financial losses arising in the circumstances of the case, so, equally, there could be no duty in tort to protect them in relation to the pure economic loss they had suffered by reason of those financial losses.

What were the key issues before the court?

The claimant employees of the defendant had been negligently, and in breach of the employer’s statutory duty and in breach of contract, exposed to excessive amounts of platinum. They had developed ‘platinum sensitisation’. When this was discovered they were removed from their line of work that put them in contact with platinum and suffered economic loss as a result. The contract provided for an ex gratia payment in such circumstances but did not preclude an employee from bringing a claim for damages for personal injury.

The key issues were whether:

  • ‘platinum sensitisation’ as distinct from ‘platinum allergy’ amounted to a physical injury—platinum sensitisation is asymptomatic and will not give rise to any health problems in the absence of further exposure to platinum
  • the admitted economic loss fell out with the admitted breach of contract
  • the admitted economic loss that flowed from ‘platinum sensitisation’ should be recoverable in tort and/or contract

The Court of Appeal rejected:

‘…an attack by the appellants, from various different directions, on the conventional view that under the law governing the relationship between employer and employee, whether in contract or in tort, an employee needs to be able to show that he suffered physical injury…in order to be able to claim substantive damages which cover also the financial losses he has suffered as a result of such injury’.

How does this inform our understanding of damages for physical injury and consequential loss?

The Court of Appeal has scored a ‘bright line’ between those who qualify as suffering from a physical injury and those who do not. In doing so the court has accepted that there will be ‘marginal cases [that] fall close to the dividing line created by the rule yet fail to satisfy it’ and that:

‘the law does not furnish a remedy for every harm suffered by an individual, and in particular does not do so where the infliction of the harm does not constitute a ‘wrong’ in the contemplation of the law…’

What tipped the case against the claimants on this issue was that they were not suffering any adverse physical symptoms now and would never suffer adverse physical symptoms in the future. That was distinguished from, for example, the position in Cartledge v Jopling [1963] AC 758, [1963] 1 All ER 341 where the claimants contracted pneumoconiosis, which ‘makes the sufferer far more susceptible to tuberculosis or bronchitis or other pulmonary afflictions’.

How did the Court approach the claim in contract?

The court refused to imply into the contract any term that held the employee harmless from economic loss caused by a breach that did not cause physical injury. It was a particular factor in this case against implying such a term that the contract did provide for an ex gratia payment. Those examples on previous authority where the court had imposed obligations on employers that covered pure economic loss involved a voluntary assumption of responsibility by the employer where it has been ‘fair, just and reasonable’ to impose the obligation.

What are the practical implications of this decision?

There are many employees who are exposed to chemicals and run the risk of becoming sensitised to them if the employer does not take adequate care. In order to protect themselves in advance they or their union will wish to ensure the contract expressly provide adequate compensation in the event they become sensitised

If they do become sensitised but do not suffer (and will never suffer) symptoms any claim in tort is doomed to fail. The judgment at least provides clarity to potential claimants and their lawyers. There should be no implications for employees who contract dermatitis or compromise their pulmonary function as a result of negligent exposure.

Are there any unresolved issues in this area of law?

It was an important factor against implying a term into the contract that the contract did expressly provide for an ex gratia payment. An interesting question is whether the courts would be prepared to imply a term where the contract was silent on the consequences of a breach of health and safety measures leading to economic loss. One can imagine a set of facts—say where there had been a gross failing of health and safety measures that severely handicapped the employees finding alternative employment—where there would be a substantial injustice if there were no remedy for the employee.

Interviewed by Nicola Laver. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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