Johnston v. NEI International Combustion Ltd

The House of Lords held that asymptomatic pleural plaques caused by negligent occupational exposure to asbestos do not constitute actionable damage in tort. The Court applied the principle from Cartledge and related authorities that an actionable personal injury must cause more than minimal or purely evidential physical change. It rejected the "aggregation" theory that non-actionable plaques, the risk of future disease and anxiety about that risk together amount to actionable damage. The Court also confirmed that neither the risk of future illness nor non-clinical anxiety, standing alone, create a cause of action (see Gregg v Scott and Hicks v Chief Constable of the South Yorkshire Police). Section 32A of the Supreme Court Act 1981 (provisional damages) does not extend tort liability to situations where no actionable injury exists.

One appellant (Mr Grieves) alleged recognised psychiatric illness (depressive disorder) caused by knowledge of plaques; the Lords held that psychiatric illness is actionable but his claim failed for lack of reasonable foreseeability of psychiatric injury and on the facts was distinguishable from Page v Smith. All appeals were dismissed.

This was a conjoined appeal by employees who had been negligently exposed to asbestos and later found to have pleural plaques on imaging. The plaintiffs sought damages in negligence for the plaques, the increased risk of future asbestos-related disease (for example mesothelioma or asbestosis) and the anxiety caused by awareness of that risk. The appeals arose after trials before Holland J (the trial judgment is reported at [2005] EWHC 88 (QB)), and a subsequent decision of the Court of Appeal ([2006] EWCA Civ 27) which allowed the insurers' appeals. The appeals to the House of Lords considered whether symptomless pleural plaques, or the aggregation of plaques, risk and anxiety, give rise to an actionable injury in tort, and whether a particular appellant who developed clinical depression could recover for psychiatric injury.

The House examined: (i) the threshold for actionable personal injury (drawing on Cartledge v E Jopling & Sons Ltd and related authorities); (ii) whether pleural plaques are by themselves harmful or merely evidential of exposure; (iii) whether non-actionable elements can be aggregated to produce actionable damage; and (iv) the law on psychiatric injury and foreseeability (considering Page v Smith, Hatton v Sutherland and Barber v Somerset County Council).

The Lords concluded that pleural plaques are, save in exceptional cases, asymptomatic and harmless and therefore do not amount to actionable damage. They rejected aggregation of plaque, risk and anxiety as a means of creating a cause of action because none of the components is actionable and there is no causal nexus by which plaques produce the asserted future diseases or the anxiety (the plaques only evidence exposure). The court reaffirmed that risk of future illness and non-clinical anxiety are not independently actionable (per Gregg v Scott and Hicks) and that section 32A Supreme Court Act 1981 permits provisional damages only where a cause of action already exists. On psychiatric injury, the House acknowledged psychiatric illness as compensable but held Mr Grieves' clinical depression was not reasonably foreseeable by the employers in the circumstances and his case was distinguishable from Page v Smith; his appeal was therefore dismissed.

Procedural posture: appeals from the Court of Appeal following trial before Holland J; the House dismissed the appeals and declined to develop alternative contractual remedies which were not argued before it.

Appeals dismissed. The House held that asymptomatic pleural plaques do not constitute actionable injury in negligence; the risk of future asbestos-related disease and non-clinical anxiety are not actionable and cannot be aggregated with plaques to create a cause of action. A discrete psychiatric illness can be actionable, but on the facts Mr Grieves' clinical depression was not reasonably foreseeable and his claim failed. Section 32A Supreme Court Act 1981 does not permit recovery where no cause of action for present injury exists.

Trial before Holland J ([2005] EWHC 88 (QB)), appeal to the Court of Appeal where the insurers succeeded ([2006] EWCA Civ 27), with leave to appeal to the House of Lords which handed down judgment in [2007] UKHL 39.