In Greenway -v- Johnson Matthey PLC  EWHC 3957 (QB) Mr Justice Jay decided that there was no claim in law for claimants whose exposure to substances at work led to their developing sensitivity to platinum.
A number of claimants had become sensitive to platinum salts as a result of their exposure whilst working with the defendant. They changed jobs and had considerable claims for loss of earnings. The judge had to determine whether they had a claim in law.
WAS THERE AN ACTIONABLE INJURY IN TORT?
The judge found that there was not. He considered the decision of the House of Lords in Rothwell -v- Chemical and Insulating Co Limited (2008) 1 AC 281. Where it was held that exposure to asymptomatic pleural plaques did not give rise to injury capable of a claim for damages in tort. The claimant argued that the case could be distinguished. The judge did not agree.
- I agree that there are factual differences between the instant cases and Rothwell. In particular, further exposure to asbestos fibres would not materially worsen the pleural plaques, although it might well engender a different, asbestos-related disease process. Also, the progression from sensitisation to allergy can be envisaged as being along a direct causal pathway. In contrast, as Mr Steinberg elegantly put it, the pleural plaques were a biological cul-de-sac.
- Critically, however, that progression would not occur if an employee is removed from the source of the sensitisation, namely exposure to relevant platinum salts. In such circumstances, the sensitisation will either remain constant (the antibodies will remain in the system but will not increase) or it will diminish: in both instances, without symptoms. Accordingly, that progression will not occur in any of the five cases I am considering. My interpretation of the passage in Pearson LJ’s judgment on which Mr Steinberg relies is that pneumoconiosis may progress even if the sufferer is removed from the source of the dust, but the risk is higher if exposure continues, rendering it both sensible and necessary to take preventative measures. In my view, this passage does not assist Mr Steinberg’s argument because, in its approach to the question of what is actionable injury, it presupposes the existence of a disease process which is real and present.
- In my judgment, one cannot define the actionable injury by the steps which are taken to prevent it. Those steps may result in economic loss, but that is not the same as, or an ineluctable component of, the injury. The correct approach is to analyse the sensitisation in terms of the physical (or physiological) harm it may be causing, not any financial loss which may be consequent upon that harm. The sensitisation is no more, and no less, than the presence of antibodies which in themselves are not harmful. They may become harmful if they endure or multiply to the extent that they subsequently interact with mast cells such that histamine is generated, but that harmful state of affairs requires further exposure. Thus, something more has to happen before actionable injury may be sustained, and that something more cannot as a matter of logic and principle be the very thing (sc. the preventative measures) which precludes the development and manifestation of symptoms, in other words injury.
- Properly analysed, therefore, this is a claim for pure economic loss. Mr Kent Q.C. submitted that general damages for pain, suffering and loss of amenity would not be awarded on these facts, and I agree. That cannot be determinative of the issue, but it serves to indicate the true nature of the claim.
This being a claim for pure economic loss it was not a claim that could be sustained in tort.
THE CLAIM FOR BREACH OF CONTRACT
The claimants had, belatedly, amended their claim to plead breach of contract. The judge found that the claims in contract could not be sustained.
- Thus, if the claim is for breach of statutory duty, the scope of the duty is ascertained by discerning the purpose of the duty from the statutory scheme. A similar exercise applies in other tortious claims where the common law imposes the relevant obligation. The position is slightly more complicated where the claim is for breach of an implied contractual duty. In the circumstances of SAMCO, the exercise was said to entail construing the agreement as a whole in its commercial setting. In my judgment, in circumstances where the law imposes an implied term in view of the relationship between the parties, essentially for reasons of policy, and that implied term is in substance the same as the tortious obligation which arises for exactly the same reasons, it seems obvious that the exercise embodies a consideration of the scope of the rule or principle of public policy which creates, or impresses, the duty.
- In my judgment, the scope of the rule of public policy in operation in these cases, and all cases of employers’ liability, is to safeguard the health, safety and welfare of employees from the careless acts and omissions of their employers; and, in the event of breach, where personal injury is suffered to require the payment of condign compensation. The concepts of health, safety and welfare, properly understood, embody the notion of protection from personal injury and not from economic or financial loss suffered without personal injury. Put another way, it is because the implied contractual duty is precisely conterminous with and reflects the obligations imposed by the law of tort – and, in particular, the tort of negligence – that the outcome must be the same however the cause of action is sought to be classified.
- I should add, although the point was not argued, that the Claimants’ case is not advanced by considering the post-Addis v Gramophone  AC 488 authorities such as Malik v BCCI SA  AC 20, Johnson v Gore Wood & Co  2 AC 1 and Johnson v Unisys Ltd  1 AC 518. These were all cases where the claims could be examined within the ambit of the relevant duty, typically the obligation of mutual trust and confidence. The instant claims cannot be envisaged in that manner.
- Thus, the answer to Mr Steinberg’s submission is that the Claimants’ pure economic loss falls outside the parameters of the Defendant’s duty, and the claim in contract must fail.
SUMMARY: NO CAUSE OF ACTION
Four of the claimants had ceased to work for the defendant to avoid the risk of sensitivity. Each was, of course, at a disadvantage in the labour market. However the particular nature of this “injury” was such that they had no claim. The consequence of the sensitisation was that they had to avoid being exposed to platinum salts. If they avoided exposure then they had no greater risk of developing symptoms than an individual who was not exposed. The absence of symptoms meant that this was not a claim for “injury” but pure economic loss. The judge held that they claim could not be sustained in tort or in contract.