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 necessary to complete a claimant’s cause of action in negligence. The court rejected arguments that this was yet insufficient damage: ‘I have no doubt whatever that the Plaintiff has suffered material damage. It consists of the symptom – free pleural changes, the risk of pleural thickening deteriorating with the consequences I have indicated, the risk of mesothelioma developing and the understandable worry attendant upon these matters.’ A provisional award was made: ‘I therefore have to value in combination (a) the present symptom-free pleural changes; (b) the 5%-odd risk of further diffuse changes developing so as to aggravate the plaintiff’s breathlessness, and (c) the anxiety which the plaintiff entirely understandably, and in my judgment reasonably, has hitherto suffered, in particular over the last two years, and to a far more limited degree, the worry he may still experience in the future, even though, as I have sought to emphasize, these future risks are really very small. Doing my best to arrive at a figure which accords reasonably with the scale established by Church and Sykes, both now 2 years old, and with my own views upon the particular facts of the instant case, I assess such damages in the sum of andpound;1,250. There will accordingly be judgment for the plaintiff for damages in that sum assessed on the assumption that the plaintiff will not develop mesothelioma at any future stage.’
‘[S]ymptom-free pleural changes’ could not, of themselves, constitute significant damage for the purpose of founding a cause of action but ‘In deciding whether material damage has been caused it is appropriate to have regard not merely to actual physical manifestation of injury, but also to whatever risks consequent upon the original injury may exist of future symptoms becoming manifest’
Judges:
Simon Brown J
Citations:
Unreported 29 July 1986, [1987] CLY 1194
Jurisdiction:
England and Wales
Citing:
Cited – Darley Main Colliery Co v Mitchell HL 1886
The owner of land whose land was affected by subsidence in 1868 and who received compensation from those who had worked coal and caused the subsidence, was able, in 1882 when further subsidence took place causing further injury, to bring a fresh . .
Cited – Pirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .
Cited by:
Cited – Rothwell 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 . .
Cited – 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 . .
Cited – AXA 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 . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Limitation, Damages
Updated: 25 May 2022; Ref: scu.238189