• In the case of Dryden v Johnson Matthey Plc [2018] UKSC 18, it was held that ‘actionable personal injury’ encompassed asymptomatic sensitisation to platinum salts. Personal injury could be regarded as a physical change making the sufferer appreciably worse off in terms of their health or capability, even if that change was hidden and symptomless.

Facts of the Case

  • C were employed by D, working in factories producing catalytic converters.
  • In breach of its duty under health and safety regulations and the common law, D failed to ensure the factories were properly cleaned and C were exposed to platinum salts.
  • C developed platinum salt sensitisation, an asymptomatic condition. Further exposure to chlorinated platinum salts would likely cause C to develop an allergic reaction involving running eyes or nose, skin irritation, and bronchial problems.
  • During a routine skin test screening, C’s sensitisation was discovered. They were no longer permitted to work in areas where further exposure could occur.
  • One took up a different role within D but, as C claimed, at significantly reduced pay. The other two had their employment terminated.
  • C collectively asserted that each of them suffered financially because of their sensitisation, being unable to take work in any environment (whether with D or another employer) where further exposure might occur.
  • Negligence and breach of statutory duty not being actionable per se, C had to establish each of them suffered actionable personal injury. At both first instance and on appeal, it was held that C had only suffered irrecoverable economic loss.

Issues

  • Did sensitisation to platinum salts constitute a physical change amounting to material damage, thus making it an actionable personal injury?
  • Failing that, could C recover damages for economic loss under an implied contractual term and/or in negligence?

Held by the Supreme Court

  • Finding for C, that sensitisation to platinum salts was an actionable personal injury. Although the concept was not defined in the authorities, personal injury had been seen as including a physical change which made the sufferer appreciably worse off in respect of their health or capability; an impairment; and an injury to the sufferer’s physical capacity to enjoy life. An allergy to platinum salts, which was already agreed to be a personal injury, can only be developed by someone who prior developed sensitisation.

Lady Black

  • “It can be seen from the passages referred to above that, as well as the usual reference to ‘pain, suffering and loss of amenity,’ personal injury has been seen as a physical change which makes the claimant appreciably worse off in respect of his ‘health or capability’ (defined in Rothwell v Chemical and Insulating Co Ltd [2008] AC 281) and as including an injury sustained to a person’s ‘physical capacity of enjoying life’ (quoted in Cartledge v E Jopling & Sons Ltd [1963] AC 758), and also ‘impairment.’ Furthermore, Cartledge established that it can be hidden and symptomless” [27].
  • D cannot escape liability by removing C from places where exposure could occur. Developing a platinum salt allergy is a two-stage process, and D’s negligence and breach of duty has already led the first stage to occur.
  • The argument that platinum salts are not something encountered in everyday life, and thus sensitisation does not amount to actionable injury, rings hollow. For C, ordinary everyday life involved work of a type which, by virtue of their sensitisation, is no longer possible for them.

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