The Lords’ diagnosis

The House of Lords gave its opinion earlier in the month on the appeal from the Court of Appeal by victims of the asbestos-related lung condition known as pleural plaques. The question to be answered by the Lords was whether someone who has been negligently exposed to asbestos in the course of their employment can sue their employer for damages on the grounds that they have developed pleural plaques.

Pleural plaques are localised areas of thickening around the membrane surrounding the lungs. They are symptomless and have no adverse effect on any bodily function. However, they do signal the presence in the lungs and pleura of asbestos fibres that may independently cause life-threatening diseases such as asbestosis or mesothelioma. As such, a diagnosis of pleural plaques may cause a patient to develop some form of depression or clinical anxiety.

It is important to remember that none of the appellants suffered any life-threatening diseases. One of the appellants, Mr Grieves, did however suffer anxiety and clinical depression and, as a result, irritable bowel syndrome. But this did not occur until he was told about the existence of plaques after an x-ray 20 years after he had first been exposed to the asbestos fibres. More about this later.

Taking pleural plaques first, the Lords upheld the Court of Appeal’s findings that to be successful in any claim for negligence, one must have proof of damage and that such damage must be more than de minimus. This was not the case with pleural plaques. Because these have no symptoms and are essentially harmless, the Lords considered that there was no damage and therefore no cause of action. The appeals failed.

But what about Mr Grieves, who was in a slightly different position because he developed clinical depression when he discovered that he had pleural plaques and, as a result, irritable bowel syndrome? His claim was that, although no claim could be brought because the harm caused by pleural plaques was non-existent, the fact that he suffered from other conditions as a result of the pleural plaques meant he had a cause of action.

His employer didn’t agree and said that his illness was not a foreseeable result of the exposure to asbestos dust.

The Lords said the test was whether the event would have caused psychiatric illness to a person of ‘sufficient fortitude’

Mr Grieves said this didn’t matter – the fact that his employer was negligent in exposing him to the dust meant there was no need to consider whether it should have foreseen his psychiatric illness.

The Lords did not agree with Mr Grieves. Their view was that his illness was not reasonably foreseeable. The test as to what should have been foreseen is whether the event that actually happened (that is, the creation of a risk of an asbestos-related disease) would have caused psychiatric illness to a person of “sufficient fortitude”.

Mr Grieves raised another argument, namely, that the combination of all these symptoms (the pleural plaques, risk of damage and anxiety about the future) should be aggregated so as to allow a cause of action against the employer.

This aggregation theory was also not accepted by their Lordships. Lord Scott said: “Once it is accepted that neither the presence of pleural plaques nor the risk of future asbestos-related disease nor anxiety about the onset in the future of a life-threatening disease can by itself constitute damage so as to complete the cause of action, in tort … neither logic nor principle can support the proposition that the three combined could do so.”

The Lords did leave the door open to a possible claim for breach of contract. After all, each of the appellants was employed under a contract of employment. Each employer would have owed a duty of care to provide a safe working environment to each of the employees. The difference between a claim for breach of contract and a claim for negligence is that in the latter one needs to prove damage that is beyond de minimus whereas in the former a claimant need only show that there is a breach to have a cause of action.