Rothwell v. Chemical and Insulating Co. Ltd. and Anr. and other appeals

A group of employees brought an action in negligence for damages against their employer, Chemical & Insulating Co, for exposure to asbestos in the course of their employment.

The employees had been negligently exposed to asbestos and had as a consequence developed pleural plaques. This was the thickening of a layer of fibers on the walls of the lungs, and was a symptom-less condition having no effect on the claimant’s health. However, even though the pleural plaques were not by themselves of any harm, they were an indication that fibers of asbestos had entered the bodies of the employees and could independently cause severe harm to their health.

The Court held that a person who had been negligently exposed to asbestos in the course of his employment could not sue his employer for damages on the ground that he had developed pleural plaques. The symptomless plaques were not compensable damage and proof of damage was an essential element in a negligence claim. The risk of future illness, which was not consequent on the plaques, or anxiety about the possibility of that risk materialising, did not amount to damage for the purpose of creating a cause of action. The appeal was dismissed.

“Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk.” Para. 2.

“Whatever its strict meaning may be, the maxim in its less literal sense can be appealed to in the present context as an expression of legal policy. It is well settled in cases where a wrongful act has caused personal injury there is no cause of action if the damage suffered was negligible. In strict legal theory a wrong has been done whenever a breach of the duty of care results in a demonstrable physical injury, however slight. But the policy of the law is not to entertain a claim for damages where the physical effects of the injury are no more than negligible. Otherwise the smallest cut, or the lightest bruise, might give rise to litigation the costs of which were out of all proportion to what was in issue. The policy does not provide clear guidance as to where the line is to be drawn between effects which are and are not negligible. But it can at least be said that 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.” Para. 47.