After Johnson Matthey Plc breached its duty and exposed them to platinum salts, the claimants developed platinum salt sensitisation. The condition caused no symptoms, but further exposure was likely to bring on an allergy, so they could no longer do that work and said they had lost earnings. The Supreme Court held that the sensitisation was itself actionable personal injury and allowed their appeal.
Exposure at work
The claimants worked for Johnson Matthey Plc in factories making catalytic converters, a process using platinum salts. In breach of its duties under health and safety regulations and at common law, the company failed to keep the factories properly cleaned. The claimants were exposed to platinum salts and developed platinum salt sensitisation.
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Sensitisation is asymptomatic. The immune system produces an IgE antibody, which a skin prick test can reveal as a small raised red, sometimes itchy, lump. If exposure continues, most but not all sensitised people develop an allergy, with symptoms such as running eyes or nose, skin irritation or bronchial problems. Without further exposure, those symptoms do not appear. Platinum salts are encountered only in certain specialised workplaces. A sensitised person is not otherwise limited in ordinary life, but cannot work where further exposure might occur.
Routine screening detected the condition. The company then stopped the claimants working where further exposure might cause allergy. One took another role with the company, which he said was at a significantly reduced rate of pay. The other two were dismissed. Each said that he had lost earnings because he could no longer work, for this or any other employer, where further exposure might occur.
A collective agreement with their trade union provided for regular skin tests, redeployment of sensitised employees where possible, and special termination terms, including an ex gratia lump sum, if someone could no longer continue because of platinum allergy. It acknowledged that a dismissed employee would normally claim compensation. The termination payment was not a substitute for such a claim, and accepting it did not waive one.
The dispute and the courts below
Negligence and breach of statutory duty are not actionable without damage. The parties agreed that an actual platinum salt allergy would be personal injury. They disagreed about whether symptomless sensitisation was enough. If it was not, the claimants sought damages for economic loss under an implied employment term and in negligence.
At a trial of liability, Jay J held that there was no actionable personal injury. He treated the claim as one for pure economic loss, which was not recoverable in tort. He rejected the contract claim because, in his view, the implied duty protected employees from personal injury, not from financial loss where there was no such injury. The antibodies were not harmful in themselves, and removal from exposure meant that allergy would not develop. Financial consequences, and the steps taken to prevent allergy, could not turn the condition into injury.
The Court of Appeal dismissed the appeals. Sales LJ, with whom the other members agreed, considered the physiological change not harmful in any relevant sense and analogous to the pleural plaques in Rothwell v Chemical & Insulating Co Ltd. Removal from the jobs was financially detrimental, but he treated that loss separately as pure economic loss and as a form of advance mitigation. There is no general tortious duty to protect against pure economic loss, and he found none here. He also agreed that the employment contracts contained no implied term protecting the claimants from pure economic loss, so a tort claim for that loss could not succeed either.
Symptomless change and actionable injury
Lady Black, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Lloyd-Jones agreed, considered Cartledge v E Jopling & Sons Ltd and Rothwell. In Cartledge, steel dressers had developed pneumoconiosis, and substantial lung damage could exist without their knowledge. The House of Lords held that hidden, symptomless physical injury can be actionable. Lord Pearce said that it was a question of fact whether physical changes had caused material damage, and that the claimant’s ignorance did not reduce that damage to nothing. The claims were nevertheless statute-barred.
In Rothwell, pleural plaques caused by asbestos exposure were, save in very exceptional cases, symptomless and did not cause other asbestos-related diseases. They merely signalled the presence of fibres which might independently cause serious disease. The House of Lords held that they were not compensatable injury. Any future risk and anxiety came from the exposure, not the plaques. Damage had to be more than negligible. Lord Hoffmann described the relevant damage as being worse off so that compensation is appropriate, not a physical change with no perceptible effect on health or capability.
The doctors agreed that sensitisation differed from plaques. Slight further asbestos exposure would not materially worsen plaques, whereas slight further exposure to platinum salts is likely to increase sensitisation and may make it symptomatic. Plaques do not themselves become another asbestos-related injury, whereas asymptomatic sensitisation may become allergy. Plaques do not restrict the work someone can do; sensitisation does.
Why sensitisation amounted to injury
Johnson Matthey argued that acquiring an antibody was a normal, benign bodily change, not damage to tissue, and that the claimants had symptomless molecular changes with only a theoretical risk of symptoms once removed from exposure. It said the collective agreement, rather than the sensitisation, prevented them doing their old jobs, since they had continued working until the skin test revealed a condition that must already have existed. Financial consequences could not be added to the physiological change to create personal injury.
Lady Black rejected that characterisation. The relevant question was how this antibody behaved. Further exposure was likely, in most people, to produce allergic symptoms which the parties accepted would be actionable injury. She described allergy as developing in two stages: sensitisation, then allergy. Screening before this work was intended to exclude people genetically disposed to allergy. When the claimants started, they could do the work, and the sensitisation stage still gave a safety net and a chance of removal before allergy developed. The company’s breach removed that safety net and their capacity to work around platinum salts.
Counsel for the company accepted that sensitivity to something in everyday life, such as sunlight, would be a personal-injury “deficit” because ordinary life could not continue. Lady Black did not accept the suggested distinction that platinum salts are absent from everyday life. Everyday life varies, and for these claimants it included jobs they could no longer do. Cartledge shows that the present absence of symptoms is not decisive; as with sensitivity to sunlight, symptoms would appear only on exposure. She illustrated the point with a coffee taster or fragrance worker whose specialised sense was impaired only in a way that mattered to that job. She saw no essential difference: these claimants’ bodily capacity for work had been impaired, they were significantly worse off, and the damage was more than negligible.
Arguments about timing and the collective agreement worked only if sensitisation was benign. Lady Black held that the injury already existed before the test revealed it. The work restrictions responded to the sensitisation. The need to avoid further exposure would exist whether or not this agreement applied and whoever the employer was. Working in ignorance before the positive test, without yet developing symptoms, did not show that continued exposure would have been safe. Once sensitisation was itself actionable injury, the claim was not merely one for lost earnings. Someone about to retire, or no longer wanting that work, would raise a question about the amount of damages, not about whether injury had occurred.
She distinguished Rothwell because plaques were only a marker of exposure and did not lead to or contribute to symptomatic disease even after further exposure. Sensitisation also marks past exposure, but it changes the body’s make-up so that further exposure carries a risk of allergy. The claimants therefore had to alter their everyday lives and had lost part of their capacity to work. Whether a physical change is material damage is a question of fact. On these facts, actionable personal injury was wide enough to include the damage, which was far from negligible. The alternative claim for pure financial loss did not need to be decided.
Verdict: The Court unanimously allowed the appeal. The claimants’ sensitisation was actionable personal injury, enabling their negligence and statutory duty claims to proceed. The amount of damages was outside this appeal.
Source: Dryden and others v Johnson Matthey Plc [2018] UKSC 18
