What makes an injury ‘actionable’? The Supreme Court offers some guidance

Although Dryden v Johnson Matthey PLC [2018] UKSC 18 is a case involving industrial disease, the Supreme Court’s decision has wider significance in helping to clarify what makes a personal injury actionable’.

The Facts

The Appellants worked for the Respondent in factories making catalytic converters. Platinum salts were used in the production process. The respondent, in breach of health and safety duties, failed to ensure that the factories were properly cleaned and as a result the Appellants were exposed to platinum salts. This exposure led them to develop platinum salt sensitisation, a condition where the immune system produces IgE antibodies. This condition shows no symptoms but further exposure to platinum salts is likely to cause an allergic reaction with symptoms such as bronchial problems, rhinitis, or skin or eye irritation.

When the Appellants sensitisation was detected, the Respondent no longer permitted them to work in areas where they might be exposed to platinum salts and develop reactions. The Appellants claimed they suffered financially because they had to take up different roles with the Respondent at a reduced rate of pay or because they had their employment terminated.

The Judgment

The Supreme Court dealt with the following questions:

a) Does platinum salt sensitisation qualify as an actionable personal injury?
b) Alternatively, can the Appellants recover damage for economic loss under an implied contractual term and/or in negligence?

The cases of Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 (pleural plaques which caused no symptoms, did not increase susceptibility to other asbestos related diseases or shorten life expectancy were not considered to be an ‘actionable personal injury’) and Cartledge v E Jopling & Sons Ltd [1963] AC 758 (pneumoconiosis which resulted in substantial injury to the lungs without the sufferer being aware of the disease was considered to be ‘actionable harm’) were considered in detail.

The Supreme Court allowed the Appellants appeal against the dismissal of their claims at first instance and in the Court of Appeal.
Lady Black took the opportunity to clarify the legal principles applicable to personal injury claims and gave a clear judgment with which the rest of the Court agreed.

The following points are of particular note:

• Negligence and breach of duty are not actionable per se. A Claimant needs to establish that there has been damage in the form of ‘actionable’ personal injury. Personal injury includes a disease or an impairment of a person’s physical or mental condition. To be actionable the damage has to be more than negligible. Damages
are given for injuries that cause harm, not for injuries that are harmless.

• Personal injury has been seen as a physical change which makes the Claimant ‘appreciably worse off in respect of his health or capability’ (Rothwell) and as including an injury sustained to a
person’s ‘physical capacity of enjoying life’ (Cartledge) and also an ‘impairment’. It can be ‘hidden and symptomless’ (Cartledge).

• Actionable personal injury can include asymptomatic conditions. Asymptomatic conditions are distinguishable from symptomless change.

• The Appellants became sensitised as a result of exposure to platinum salts. This change to their body meant they lost their capacity to work around platinum salts. Their bodily capacity for work was impaired and they were therefore significantly worse
off by virtue of the physiological change caused by the Respondent’s negligence.

• Rothwell was distinguished. In that case pleural plaques were nothing more than a symptomless marker of exposure to asbestos dust and would not lead to or contribute to any condition that would
produce further symptoms even with further exposure. However, sensitisation carries the risk of an allergic reaction in the event of further exposure and the Appellants had to change their lives to avoid such exposure. Therefore sensitisation is not a benign and symptom free molecular change but is an actionable personal injury.

• Because sensitisation was identified as an actionable injury in its own right, the Respondent’s argument that the Appellants were claiming only for their lost earnings and therefore pure economic loss was not considered further.

This case will hopefully provide some assistance in clarifying the threshold between de minimis injuries not attracting compensation, and material injuries, even if symptomless and hidden.

Should you wish to discuss this matter or instruct Joanna, please call the clerks on 0117 921 1966.