• In the case of Rothwell v Chemical Insulating Co [2008] 1 A.C. 281, it was held that pleural plaques caused by negligent exposure to asbestos (not in themselves actionable damages) did not amount to actionable damage when aggravated with the risk of future disease and consequent anxiety.

Facts of the Case

  • 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.
  • 10 test cases were selected for trial, where it was held that plaques were actionable. In 7 cases, the insurers succeeded in reversing the decision on appeal.
  • 4 people making up C appealed to the House of Lords to uphold the initial ruling.

Issues

  • 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?

Held by the House of Lords

  • Finding for D, that pleural plaques were not actionable damage. Save in the most exceptional cases, the plaques would never cause symptoms, did not increase susceptibility to other diseases or shorten expectation of life.
  • Neither the risk of future disease nor anxiety amounted to actionable damage. They could be factors when determining damages, but C needed to suffer actionable physical injury to claim.
  • Pleural plaques did not amount to damage when aggregated with the risk of future disease or anxiety.
  • It was not reasonably foreseeable that creating a risk of asbestos-related diseases would cause psychiatric illness to a person of reasonable fortitude. As such, C’s psychiatric injury was not actionable.

Lord Hoffman

  • A negligence claim requires proof of damage. Damage is an abstract concept of being worse off, physically or economically, so that compensation is appropriate. It does not mean simply a neutral physical change or one which makes one better.
  • When C suffers actionable personal injury, he must recover damages in one action for all damages suffered or will be suffered in consequence for that duty. However, without demonstrable personal injury C cannot recover for potential future injury.
  • Counsel for C has argued for a departure from th Page v Smith rule that psychiatric injury is actionable if physical injury is a reasonably foreseeable consequence of the negligence. The case has had no shortage of critics, but it does not appear to have caused any practical difficulties.
  • “Morland J observed that if Page v Smith were given the wide interpretation for which counsel for C argues, psychiatric injury caused by the apprehension of illness related to exposure to asbestos, radiation, or contaminated food would become actionable, even though C had actually suffered no physical injury. Whether such liability would have the disastrous consequences for society which the judge predicted may be debatable, but it would involve an extension of the principle to cases which I do not think were contemplated by the House” [34].

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