Dryden and others v Johnson Matthey Plc

Facts

The claimants worked in a platinum refinery run by Johnson Matthey and were exposed to platinum salts. They became sensitised, meaning their immune systems reacted to the salts, so that further exposure would risk an allergic response, though they had not yet developed symptoms. They were therefore moved to work without exposure, with consequences for their employment and earnings. They claimed damages for negligence and breach of statutory duty.

History

The claims failed in the courts below, which held that sensitisation did not amount to damage, and the claimants appealed to the Supreme Court.

Issue

Whether sensitisation to platinum salts, a physical change that increases the likelihood of an allergic reaction on further exposure but does not by itself cause symptoms, constitutes damage sufficient to ground a claim in negligence.

Held

Appeal allowed. Sensitisation was actionable damage because it was a physical change in the body that caused harm in the form of a significant vulnerability and the need to avoid exposure.

Ratio

• Damage in the sense required for negligence includes a physical change to the body that is more than minimal and is harmful, as distinct from a mere risk of future harm, and a bodily change which makes the claimant susceptible to illness and affects what they can do is such damage.
• The test of damage is a question of law, not whether the claimant has symptoms, and sensitisation which had practical consequences for the claimants' health and work prospects met it.

Key reasoning

• The claimants' bodies had been altered by an immune response, so what they suffered was a physical change, not just an increased chance of developing a condition in the future.
• The change was harmful because it left them at risk of an allergic reaction on further exposure, and in practice meant they could not continue in the work they had been doing, so it affected their health, capacity to work and earning prospects.
• This is distinguishable from a case where the alteration, such as pleural plaques, has no effect on the claimant's health or functioning and where the concern is only the risk of a separate disease later.

Where it fits in the module

For FHS Tort, Dryden is a starred case on damage as the gist of negligence. It tests where the line is drawn between a risk of future harm, which is not damage, and a present physical change that is, and so connects to debates over pleural plaques in Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39 and to claims based on exposure to risk. Students must be able to articulate the criteria for damage and to assess whether the distinction drawn is principled.

Criticisms

• The court's distinction between a harmful alteration and a mere risk is hard to apply in practice, since in each case a bodily change creates a risk and the court relies on its practical effects to categorise it.
• The decision turns on the claimants' loss of employability, a financial consequence, which blurs the boundary between physical damage and pure economic loss.
• The result sits uneasily with Rothwell, where the House of Lords refused to treat asymptomatic bodily changes as damage, and the explanation that Dryden involves practical consequences may seem to depend on the claimants' circumstances rather than principle.