The United Kingdom’s highest court recently decided unanimously in the Rothwell decision that workers who have been exposed to asbestos in the course of their employment and have developed pleural plaques (a condition involving benign growths in the lining of the lungs caused by asbestos exposure) are not eligible to claim compensation in negligence.
Previously, on February 15, 2005, ten pleural plaques test cases at the trial level had been successful in arguing that the workers were entitled to compensation on the basis that the condition, considered in light of the anxiety caused and combined with the risks of developing an asbestos-related disease in the future, amounted to a complete cause of action.
The Court of Appeal subsequently overturned the decision on January 26, 2006, finding that the plaques themselves are harmless and do not constitute a cause of action. The Court of Appeal held that three unactionable “injuries” do not amount to an actionable injury when considered in the aggregate.
The House of Lords considered three issues in their judgment:
i) whether the existence of pleural plaques entitled the workers to bring an action in tort for damages against their employers who had negligently exposed them to asbestos;
ii) alternatively, if the condition of plaques on its own is insufficient, whether the presence of the plaques combined with the anxiety they caused and the risk of future disease would suffice to create a cause of action in tort for damages; and
iii) in relation to only one appellant, whether an individual suffering from a psychiatric illness caused by his anxiety about the possibility of developing an asbestos-related disease, can give rise to a cause of action in tort.
The House of Lords held that, although pleural plaques can be detected by X-ray, the plaques themselves are not actionable because they do not constitute real damage. Since the plaques do not cause any symptoms, nor do they cause any measurable harm in the subject’s health or capability, they cannot constitute damage, which is necessary to claim compensation in negligence.
At paragraph 47 of the decision, Lord Hope states,
an injury which is without any symptoms at all because it cannot be seen or felt and which will not lead to some other event that is harmful has no consequences that will attract an award of damages. Damages are given for injuries that cause harm, not for injuries that are harmless.
With regard to the “aggregation theory”, the Lords further held that the plaques, when combined with the risks of suffering further injury associated with asbestos exposure (but unrelated to the plaques) and anxiety about such risks, did not in the aggregate amount to sufficient injury to constitute a cause of action in negligence.
The Lords also rejected the claim of the appellant, who claimed that he had suffered from depression as a result of his deep-seated fear of developing asbestos-related disease, finding that he did not have a cause of action for his psychiatric illness because it was not reasonably foreseeable that exposure to asbestos would cause psychiatric injury.
Although this decision from the House of Lords makes it clear that British claimants will not be able to recover damages in negligence for their pleural plaques, a majority of the Lords noted that the workers could potentially seek compensation based on breach of contract of employment. As an aside, Lord Scott referred to an employer’s “contractual duty of care” when exposing workers to asbestos in the workplace, including the duty to provide a safe workplace environment. Because breach of contract does not require claimants to demonstrate actual damage, it remains to be seen whether future claimants will be successful by framing their claims under contract law. The extent to which this decision will impact upon Canadian employers also remains to be seen.