Johnston v. NEI International Combustion Ltd

Facts

The claimants had been exposed to asbestos in the course of their employment, in breach of their employers' duty of care. As a result they developed pleural plaques, which are areas of thickened tissue on the pleura of the lung. Plaques cause no symptoms and no impairment of lung function and do not themselves lead to asbestos-related disease, but they show that the person has been exposed to asbestos and so is at a slightly increased risk of developing serious conditions such as mesothelioma. Some of the claimants were also anxious that they would develop such a disease.

Issue

Whether pleural plaques, which are symptomless, are damage sufficient to complete a cause of action in negligence; and whether the plaques, the risk of future disease and anxiety about it can together amount to actionable damage although none does alone.

Held

The claims failed. Pleural plaques were not in themselves actionable damage because they caused no harm to health; the risk of developing a serious disease was not damage; the anxiety, which did not amount to a recognised psychiatric illness, was not actionable; and the three could not be aggregated to produce damage.

Ratio

• Damage is the gist of an action in negligence, and symptomless physical changes that do not impair health or function are not damage; a mere risk of future harm is not damage either.
• Anxiety falling short of a recognised psychiatric injury is not actionable damage, and combining several elements, none of which is actionable alone, does not produce a cause of action.

The judgments

Key reasoning

• A plaintiff in negligence must show damage, which means harm to the body or mind that is material, and a physical change that is harmless in itself does not qualify.
• A risk of future illness, even if it results from the breach of duty, is not damage; a claimant may claim only if and when the risk eventuates, subject to the rules of limitation and to the possibility of a provisional damages award.
• Anxiety is not actionable unless it reaches the level of a recognised psychiatric illness, and adding it to the other elements did not change that.

Where it fits in the module

In Tort (FHS), on the Damage topic, Rothwell is the leading modern authority on whether physical change without symptoms is damage. It is read with Cartledge v E Jopling & Sons Ltd [1963] AC 758 and Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, with the cases on psychiatric harm and anxiety, and with Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10. The FHS debate asks what damage means in the tort of negligence, whether the House was right to give legal significance to a threshold of symptoms, and how the courts should respond to the legislature's contrary decision in Scotland, which shows that policy can lead to a different answer on identical medical facts.

Criticisms

• The approach rewards a defendant whose negligence has caused a physical change visible on a scan and a real increase in the risk of fatal disease, so that negligence which has produced no immediate symptoms is treated as harmless.
• Refusing to aggregate the three elements, which together cause real distress, relies on a technical view of damage and is hard to reconcile with the idea that the purpose of tort is to compensate for wrongs that cause real detriment.
• A rule that a claimant has to wait until disease develops, and then sue, produces an unfair burden on those with real anxiety, and the possibility of provisional damages gives only limited protection.
• The decision placed weight on avoiding a flood of claims and a burden on employers and insurers, which is a policy judgment that the courts are not well placed to make, as the opposite decision of the Scottish Parliament shows.