Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar: HL 17 Oct 2007

The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but signalled the presence of asbestos in the lungs. The employer appealed a finding of liability.
Held: The claims for damages failed. Since pleural plaques caused no symptoms, did not increase susceptibility to other asbestos-related diseases or shorten life expectancy, their mere presence in the claimants’ lungs did not constitute an injury which was capable of giving rise to a claim for damages.
Lord Hope said: ‘while the pleural plaques can be said to amount to an injury or a disease, neither the injury nor the disease was in itself harmful. This is not a case where a claim of low value requires the support of other elements to make it actionable. It is a claim which has no value at all. Pleural plaques are a form of injury. But they are not harmful. They do not give rise to any symptoms, nor do they lead to anything else which constitutes damage. Furthermore it is not possible to bring the risks of developing a harmful disease into account by applying the ordinary rules of causation. The risks are no doubt due to the same exposure to asbestos. But they are not created by, or in any way contributed to, by the pleural plaques.’
Lord Hoffmann said: ‘Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. ‘

Lord Hoffmann,Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance
[2007] UKHL 39, Times 24-Oct-2007, [2007] ICR 1745, [2007] 4 All ER 104, [2008] LS Law Medical 1, [2007] 3 WLR 877, (2008) 99 BMLR 139, [2008] 1 AC 281, [2008] PIQR P6
Supreme Court Act 1981 32A
England and Wales
CitedChurch v Ministry of Defence QBD 23-Feb-1984
The 62 year old claimant sought damages after working in in the defendant’s dockyard and being exposed to asbestos. Pleural plaques were apparent on X-ray and the pleura would constrict the lung and induce breathlessness; and the asbestos must have . .
CitedSykes v Ministry of Defence QBD 19-Mar-1984
The claimant was exposed to asbestos whilst working for the defendant in the naval dockyard at Portsmouth, and sought damages having developed pleural plaques, but no further damage was expected, save ‘a slightly increased risk of developing a lung . .
CitedCartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
CitedPatterson v Ministry of Defence QBD 29-Jul-1986
The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic.
Held: Material damage sufficient to set time running was the same as damage . .
CitedBrunsden v Humphrey CA 1884
The defendant had negligently caused damage to a cab driver and his vehicle in the same accident. The cab driver obtained damages for the damage to his vehicle.
Held: He was not disentitled from bringing fresh proceedings for damages for . .
CitedMcLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
CitedHicks v Chief Constable of the South Yorkshire Police HL 5-Mar-1992
The plaintiffs sought damages after watching television scenes of the football match at Hillsborough at which their two daughters died after disorder.
Held: Neither the risk of future injury nor anxiety at the prospect of future injury is . .
Appeal fromRothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
CitedSutherland v Hatton; Barber v Somerset County Council and similar CA 5-Feb-2002
Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are . .
CitedBarber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
CitedGregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
CitedOverseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
CitedHughes v Lord Advocate HL 21-Feb-1963
The defendants had left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burned. The . .
CitedOverseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
CitedJolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
CitedBourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
CitedPage v Smith HL 12-May-1995
The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . .
CitedMeikle v Sneddon 1862
The pursuers sought damages for the wrongful arrestment of their ship. They claimed andpound;500 as solatium for injury to their feelings. But the only loss that had been actually sustained was the sum required to relieve the vessel from the . .
CitedStrang v Steuart 1864
The court lamented the amount of court time that had been taken by foolish and absurd litigation about a hedge and ditch which separated the parties’ properties. Nevertheless that it was the duty of the court to deal with the case: ‘We are not . .
CitedWood v Carwardine 2-Jan-1923
The court held that trivial services, the amount of which could be measured, did not amount to ‘attendance’ within the meaning of section 12(2)(i) of the 1920 Act. The rule had to be applied with robust vigour in favour of the tenant unless the . .
CitedWilkes v Goodwin CA 1923
The supply of a cup of tea to a tenant each morning is not sufficient to constitute ‘board’ so as to take the tenancy out of statutory protection. . .
CitedCreutzfeld Jakob Disease Litigation; Newman and Others v Medical Research Council and Another CA 20-Dec-1997
The claimants had been negligently injected as children with Hartree HGH, a human growth hormone that exposed them to the risk of contracting CJD. One issue was whether this rendered the defendants liable for psychiatric illness caused by the shock . .
CitedWhite, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
CitedLynch v Knight HL 17-Jul-1861
Lord Wensleydale said: ‘Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where material damage occurs, and is connected with it, it is impossible a jury, in . .
CitedWatson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
CitedSimmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
CitedThe Law Society v Sephton and Co and others ChD 2004
The Law Society claimed in negligence against the defendant firm of accountants who had wrongly certified the accounts of a firm of solicitors. The Society sought to recover the payments it had made from its compensation fund. The defendant pleaded . .
CitedBrown v North British Steel Foundry Ltd OHCS 1968
The 1954 Act passed on 4 June 1954 but was not to affect any action or proceeding if the cause of action arose before that date. The Lord Ordinary found that the pursuer who sought damages for pneumoconiosis did not begin to suffer from until 1955. . .
At first instanceRothwell v Chemical and Insulating Co Ltd and Another QBD 15-Feb-2005
The claimant had been exposed to asbestos whilst employed by the defendant and sought damages for the pleural plaques which had developed as a consequence. The defendant replied that such plaques and pleural thickening were not a sufficient injury . .
Appeal fromGrieves and others v Ft Everard and Sons and British Uralite Plc and others QBD 15-Feb-2005
Each of the claimants sought damages alleging that having been negligently exposed to asbestos in their working lives, they had developed pleural plaques which had arisen from the ingestion of asbestos.
Held: The court could infer permanent . .

Cited by:
CitedCalvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
CitedFlood v The University Court of the University of Glasgow OHCS 8-Jul-2008
The pursuer, a college lecturer claimed damages for stress related injury suffered as a result of overwork. She had communicated with her managers many times about the overload. Other staff had resigned for similar reasons.
Held: The pursuer . .
CitedYearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
CitedD Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
CitedAxa General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
AppliedWright v Stoddard International Plc and Another (No 2) SCS 23-Oct-2007
(Supplementary Opinion) Lord Uist applied the decision in Rothwell, although on the facts he would not have awarded damages anyway. . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedRecovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
CitedDryden and Others v Johnson Matthey Plc SC 21-Mar-2018
Sensitisation to salt can be personal injury
The claimants, had developed platinum salt sensitisation due to the defendant employer’s breach of health and safety regulations and common law duty, claimed a cause of action for personal injury. Platinum salt sensitisation is, in itself, an . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.259905