Simon Anderson summarises the Supreme Court’s decision in Dryden & others v Johnson Matthey Plc  UKSC 18Simon Anderson
The claimants worked in the manufacture of catalytic converters. As such they were routinely exposed to platinum salts used in the production process and developed sensitisation. There was no dispute that this was in breach of the employer’s regulatory and common law obligations.
It is trite law that negligence and breach of statutory duty are not actionable in and of themselves. It is necessary for claimants to establish that there has been damage in the form of actionable personal injury. Platinum slat sensitisation is in itself an asymptomatic condition. However, further exposure results in an allergic reaction. The question for the Supreme Court, therefore, was whether absent further exposure the claimants had a cause of action?
At first instance Mr Justice Jay concluded that their loss was purely economical in terms of their inability to continue in their employment, and as such was irrecoverable. The claim in contract failed also because the employer’s duty was to protect employees from personal injury, not economic loss. The Court of Appeal (Sales LJ) dismissed the appeals, finding that platinum salt sensitisation was “not harmful in itself in any relevant sense.”
The Supreme Court necessarily had to return to two key decisions of the House of Lords. First in time was Cartledge v E Jopling & Sons Ltd  AC 758, which was relied upon by the Claimant. The second was Rothwell v Chemical and Insulating Co Ltd  AC 281, on which the Defendant’s case rested.
Cartledge concerned latent pneumoconiosis of which the sufferers were unaware at the material time. Although symptomless, and not yet causing them any physical inconvenience, the physical injury to the claimants’ lungs was held to constitute actionable damage. Rothwell involved employees who had been exposed to asbestos dust and had developed pleural plaques as a result. The plaques were regarded as harmless in themselves. Hence the House of Lords concluded that there had been no compensable physical injury.
On reviewing the authorities Lady Black concluded:
- That the concept of personal injuries includes a disease or an impairment of a person’s physical condition. An impairment may nevertheless be hidden, as was the case in Cartledge.
- Actionable damage must be more than negligible, and must amount to “real damage” that can be said to be material.
- An injury does not necessarily constitute damage, therefore physical changes are not of themselves actionable. As Lord Hoffman stated in Rothwell “damage in this sense is an abstract concept of being worse off, physically or economically, so the compensation is an appropriate remedy.”
Paraphrasing, the test appears to be whether an individual is, or is likely to be, appreciably worse off on account of their condition.
In the present case Lady Black saw it as significant that those who had been sensitised were financially disadvantaged in being unable to work in that part of the company’s operation in which they would be at risk of exposure to platinum salts. Factually, their case was distinguishable from Rothwell. Whereas pleural plaques do not, themselves, turn into any other injury attributable to asbestos, asymptomatic sensitisation may turn into symptomatic sensitisation in the form of an allergic reaction if the individual returns to the same work.
Moreover, the defendant accepted that sensitisation can constitute sufficient personal injury where the sensitivity is to something in everyday life, such as sunlight, as the sufferer would not be able to go about their ordinary life. As Lady Black observed, for these claimants their everyday life involved doing jobs of the type which, by virtue of their sensitisation, they could no longer perform.
This decision carries with it the caveat that whether an individual has suffered material damage by any physical changes in his body is essentially a question of fact.
In conclusion, the concept of actionable personal injury is sufficiently broad to include latent damage where the effect on the suffer is significant.
Simon Anderson is ranked in Tier 1 for Personal Injury and clinical negligence (The Legal 500, 2017).