Rothwell v Chemical & Insulating Co. Ltd. & Anor

The Court of Appeal held that symptom-free pleural plaques caused by negligent asbestos exposure are not, without more, actionable damage where they produce no symptoms or impairment. A risk of future asbestos disease cannot be recovered as a free-standing head of damage, and anxiety about that risk cannot supply the missing damage. Three individually non-actionable matters cannot be aggregated to create a cause of action. The same conclusion applied where asbestos fibres, evidenced by plaques, were treated as the injury. A depressive illness caused by fear of disease was not recoverable under the primary-victim rule in Page v Smith [1996] 1 AC 155 without evidence that psychiatric injury was foreseeable in a person of reasonable fortitude. If actionable physical injury exists, provisional damages may reflect anxiety, while final awards must properly value future risks.

The Court heard eight conjoined appeals arising from ten asbestos-related personal injury claims tried as test cases before Holland J. On 15 February 2005, the judge found for the claimants and held that pleural plaques, together with the risks of future disease and related anxiety, could complete a cause of action.

Six appeals concerned liability for negligent asbestos exposure. Mr Rothwell had localised pleural thickening but was treated as a test case. Mr Grieves claimed damages for a depressive illness allegedly caused by anxiety about future asbestos disease. Mr Hindson accepted liability and appealed only against the assessment of damages. The central issues were whether the various consequences of asbestos exposure could be aggregated to constitute actionable damage and whether psychiatric injury caused by fear of future disease was recoverable.

1. Disposition. The majority, Lord Phillips CJ and Lord Justice Longmore, allowed the liability appeals in the cases of Mears, Jackson, Downey, Topping, Johnston and Rothwell. They also allowed Mr Grieves’s appeal. Mr Hindson’s quantum appeal was allowed and remitted to the judge for further assessment.
2. Actionable damage. Negligence is not actionable without damage, and the damage must be more than minimal. Symptom-free pleural plaques, which ordinarily cause no impairment of bodily function, did not satisfy that threshold: Cartledge v Jopling [1963] AC 758 supplied no basis for treating such minimal physical change as actionable. The risk of future disease was not independently recoverable without physical injury, and anxiety about that risk could not operate as a free-standing head of damage.
3. Aggregation. The court rejected the argument that plaques, the risk of future asbestos disease and consequent anxiety could be aggregated when each element was individually insufficient to found a claim. The presence of asbestos fibres, evidenced by plaques, was no more capable of founding a cause of action. The question of when pleural thickening becomes actionable was left open.
4. Psychiatric injury. The majority held that the primary-victim principle in Page v Smith [1996] 1 AC 155 could not be extended to a person negligently exposed to asbestos who later developed psychiatric illness through fear of disease. There was no evidence that psychiatric injury was foreseeable in a person of reasonable fortitude. The alternative stress-at-work principles, including Barber v Somerset CC [2002] ICR 613, could in principle apply where such foreseeability was established, but it was not established here.
5. Damages. The majority stated that, if actionable physical injury existed, provisional damages under section 32 A of the Supreme Court Act 1981 could reflect anxiety about future disease. A final award would have to reflect the actual risk of future disease and should not be artificially reduced to encourage a provisional award. In Mr Hindson’s case, the materially different expert assessments and the effect of co-morbid heart disease required individual reassessment and possible further evidence.
6. Dissent. Lady Justice Smith would have dismissed the liability appeals. She considered pleural plaques to be an injury or disease and held that the plaques, together with appreciable risks caused by the same exposure, constituted material damage. She also considered section 32 A consistent with a single cause of action for all personal injury consequences.

1. Court of Appeal (Civil Division): appeals allowed on liability in six claims and in Mr Grieves’s claim; Mr Hindson’s quantum appeal allowed and remitted.
2. High Court of Justice, Queen’s Bench Division: Holland J gave judgment for the claimants on 15 February 2005, holding that pleural plaques, future disease risks and anxiety could constitute actionable damage.