Rothwell v Chemical Insulating Co [2008] 1 A.C. 281

All peoples making up C were workers who had developed pleural plaques as a result of occupational exposure to asbestos dust. While the plaques themselves do not cause symptoms or diseases, they signal the presence of asbestos fibres in the lungs which may independently cause life-threatening or terminal diseases. As a result, a diagnosis of pleural plaques may cause a patient to contemplate his future with anxiety or lead to clinical depression. In the 1980s, 3 cases at first instance dealt with the question of whether pleural plaques were actionable damage. In all 3 cases the judges found for C. In one case, the judge held that C’s anxiety for the future and the risk of future diseases should be considered when calculating damages. Since these decisions, claims were regularly settled on the basis that pleural plaques are actionable injury. Insurers making up D moved to challenge the practice.

• Were pleural plaques actionable damage?
• Were anxiety and the risk of developing future diseases actionable in isolation?
• Did the development of pleural plaques, when aggravated by anxiety and future risk, amount to actionable damage?

The House of Lords rejected the claims based on asymptomatic pleural plaques. On the medical evidence, the plaques did not impair health, cause other asbestos diseases or themselves increase the risk of developing them. Anxiety about future disease and the risk of such disease could not be added to a harmless physical change to create actionable damage. One claimant's recognised psychiatric illness required separate consideration but failed on the relevant foreseeability analysis. The decision does not mean that physical injury is required before psychiatric injury can ever be actionable. Nor does it mean every symptomless bodily change is harmless: the question concerns its actual effect on health or physical capability.

Asymptomatic pleural plaques which do not impair health or capability are not actionable damage in negligence under the English common-law rule. Adding anxiety and a risk of future disease does not make them so. Recognised psychiatric illness remains a separate category requiring its own duty and foreseeability analysis.

Rothwell requires actual actionable harm, not proof of exposure or a bodily marker alone. Dryden later distinguished platinum-salt sensitisation because it materially restricted the claimants' capacity to work safely in their previous environment. The comparison prevents a simplistic rule that symptomless conditions are never injuries. Territorial scope also matters: Scotland and Northern Ireland subsequently enacted legislation concerning asbestos-related conditions. A UK-wide answer should identify that statutory difference rather than treating Rothwell's English common-law result as uniform throughout the country.