The Supreme Court has broadened what constitutes an actionable personal injury, which will have important implications going forward for employers and insurers.
The High Court and Court of Appeal had rejected the Claimants arguments that asymptomatic platinum salts sensitivity constituted an actionable personal injury. The Supreme Court found otherwise.
The Claimants worked for the Defendant making catalytic converters. As the factories were not appropriately cleaned, the Claimants were exposed to and became sensitised to platinum salts.
People sensitised to platinum salts produce a particular type of antibody in their immune systems, which is only activated when exposed to more of these salts. If there is no exposure the condition remains asymptomatic, creating no adverse effects for the individual. Further additional exposure however can lead to the development of a platinum allergy.
In order to prevent further exposure, the Claimants were removed from their regular posts. They eventually handed in their notice. The Claimants argued that they had sustained an actionable injury because the sensitivity had directly led to a reduction in their earning capacity as they could no longer work in their former posts.
At trial in the High Court, the judge held that the Claimants did not have a cause of action in tort for personal injury, or a claim for damages in contract or a valid claim in tort for pure economic loss, and dismissed the claim.
Court of Appeal decision
The Court of Appeal agreed with the trial judge, stating that various arguments raised by the Claimants were rejected because the need for actual personal injury was "deeply embedded in the law". The Claimants had to show that they had suffered actionable personal injury in order to establish liability.
The Court of Appeal found they were unable to do so, since, on the medical evidence, platinum sensitisation is not harmful. It was held to be "a physiological change analogous to the development of pleural plaques in the lungs" as identified in Rothwell v Chemical & Insulating Co Limited and not a 'hidden impairment' akin to the lung scarring from pneumoconiosis discussed in Cartledge v E Jopling.
The claims for breach of contract or in tort for pure economic loss were also dismissed. There was deemed to be no implied contractual term or any duty inherent in the contractual relationship requiring the Defendant to protect the Claimants from financial harm.
The Claimants appealed to the Supreme Court.
Supreme Court decision
The Supreme Court unanimously allowed the appeal. Lady Black concluded that the concept of actionable personal injury is sufficiently broad enough to include the Claimants' damage.
The case of Rothwell, which dealt with the development of pleural plaques, was considered to be distinguishable, and the following distinctions between pleural plaques and platinum sensitivity were highlighted:
- Slight further exposure to asbestos will not materially worsen pleural plaques, but further exposure to platinum salts for the Claimants may result in a platinum allergy;
- Pleural plaques do not turn into any other injury attributable to asbestos, whereas the Claimants may have suffered from a platinum allergy if further exposed to platinum salts;
- Pleural plaques do not prevent a party from engaging in certain types of work, notwithstanding the current legal restrictions of working with asbestos.The Claimants were restricted, irrespective that the scope of work they could not carry out might be limited.
Agreeing with the decision in Cartledge, that the absence of symptoms do not prevent a condition from amounting to actionable personal injury, the Claimants were found to have suffered an impaired bodily capacity to work, and were "therefore, significantly worse off."
It was noted the Claimants had suffered "actionable bodily damage, or personal injury, which given its impact on their lives, is certainly more than negligible."
What can we learn?
- This is a landmark decision in respect of what constitutes an actionable injury. The clear emphasis in the judgment between the ‘markers’ of pleural plaques in Rothwell, and the ‘physiological change’ in this case is likely to result in broader application of the judgment, with many instances of ‘physiological changes’ which leave a party worse off now resulting in a cause of action.
- It is now clear that should an employer's negligence result in a physiological change to an employee, then the employee may be entitled to claim compensation for any financial losses resulting, even in the event that the physiological change is asymptomatic.
- The judgment may also prompt additional claims for minimal and imperceptible injuries, with the argument likely to be advanced that the physiological change has left a claimant worse off in some measure. This could be particularly relevant in noise induced hearing loss claims, where any de minimis yet measurable hearing loss or damage to the cilia in the inner ear, could now be argued as precipitating deafness in a claimant.
- There are likelybe a variety other industries where claimants have developed sensitivity to materials with which they work, such as preserving agents in cosmetics and paints and metals such as nickel and cobalt.
- Ordinarily, if an employer's negligence has caused an asymptomatic sensitivity to these materials, then moving the employee to other duties to prevent the development of a full allergy would not have resulted in a cause of action. In light of this case, an employer is no longer offered this protection.
- Questions will remain about whether or not damages for this sort of 'injury' would be nominal, but it is possible that further claims following this decision will be advanced across a variety of industries. The actions of claimant lawyers following this decision, particularly in light of possible claims migration following the impending whiplash reforms should be watched closely by businesses and insurers alike.