Rothwell v Chemical and Insulating Co  UKHL 39
NEGLIGENCE – ASBESTOS-RELATED ILLNESS – PSYCHIATRIC DAMAGE – NATURE OF COMPENSATABLE DAMAGE
The appellants had all previously been successful in negligence actions brought against their employers for exposing C to asbestos in the course of their work. The actionable damage in each case was the presence of so-called ‘pleural plaques’, which were not in themselves harmful, or evidence of a fatal asbestos-related illness, but were evidence of exposure to significant quantities of asbestos, and thus signalled an increased chance of developing such an illness in the future. C argued that, though the plaques themselves were not actionable in and of themselves, the anxiety induced in C (one appellant suffered clinical depression) taken in combination with the plaques themselves, was a compensatable form of damage. Judgement was given for C at first instance, who appealed after this decision was reversed by the Court of Appeal.
Whether the symptomless plaques were, in and of themselves, a form of actionable damage; whether the fear and anxiety caused by knowledge of the plaques, and their ominous implications, was a form of actionable damage and, if not, whether the two could amount to actionable damage when taken in concert, with their effects viewed as cumulative.
In dismissing the appeal the House of Lords found that the plaques, which were symptomless in all but the most exceptional cases, did not amount to actionable damage; they did not increase the risk of future illness, they were merely evidence of exposure to significant quantities of asbestos. Moreover, the fear and anxiety caused by awareness of the plaques could not be actionable, as there was no initial damage from which to compute this loss; the plaques were not actionable and could not be rendered so by reference to a separate head of claim which was also not actionable.