Johnston (Original Appellant and Cross-respondent) v. NEI International Combustion Limited (Original Respondents and Cross-appellants)Rothwell (Original Appellant and Cross-respondent) v. Chemical and Insulating Company Limited and others (Original Respondents and Cross-appellants)Topping (Original Appellant and Cross-respondent) v. Benchtown Limited (formerly Jones Bros Preston Limited (Original Respondents and Cross-appellants)(Conjoined Appeals)Grieves (Appellant) v. F T Everard & Sons and others (Respondents)

In negligence, a physical change is actionable only when it causes material damage beyond the negligible. Symptomless pleural plaques which neither impair health nor increase the risk of disease are not compensatable damage. The independently non-actionable risk of future disease and anxiety about that risk cannot be aggregated with the plaques to create a cause of action.

A recognised psychiatric illness is damage, but an employer is liable only where that illness was reasonably foreseeable. Unless the employer knows or ought to know of a particular vulnerability, it may assume that its employee is a person of ordinary fortitude. The special rule for psychiatric injury following an actual accident does not extend to illness caused by apprehension that a disease may develop in the future.

The claimants were former employees who had been negligently exposed to asbestos dust. They developed symptomless pleural plaques which indicated significant exposure but did not impair their health, cause other asbestos-related disease or increase the risk of such disease. The claimants sought damages for the plaques together with the independently arising risk of future disease and anxiety about that risk. Mr Grieves also developed clinical depression and irritable bowel syndrome after learning of his condition.

Holland J held in ten test cases that the plaques alone were not actionable but accepted that plaques, risk and anxiety could together constitute damage: [2005] EWHC 88 (QB). In seven cases, a majority of the Court of Appeal reversed that conclusion, Smith LJ dissenting: [2006] EWCA Civ 27; [2006] ICR 1458.

The central questions were whether asymptomatic plaques constituted actionable damage, whether plaques could be aggregated with risk and anxiety, and whether Mr Grieves could recover for his psychiatric illness.

1. Disposition. Lord Hoffmann delivered the leading speech. Lord Hope of Craighead, Lord Scott of Foscote and Lord Rodger of Earlsferry gave concurring reasons, and Lord Mance agreed with all the members of the House. The claimants’ appeals were dismissed unanimously.
2. Actionable damage. Per Lord Hoffmann, Lord Hope, Lord Scott and Lord Rodger, damage is an essential element of negligence. A physical alteration is not sufficient merely because it can be described as an injury or disease. It must make the claimant appreciably worse off and must exceed the negligible threshold identified in Cartledge v E Jopling & Sons Ltd [1963] AC 758. The plaques were asymptomatic, did not impair health, did not shorten life and neither caused nor increased susceptibility to other disease. They therefore caused no actionable damage.
3. Aggregation. All five Law Lords rejected the aggregation theory. The independently non-actionable plaques, risk of future disease and anxiety could not collectively create a cause of action. Under the single-action rule, future risk and consequential anxiety may affect damages after actionable injury has occurred. They cannot determine whether a cause of action exists. Section 32A of the Supreme Court Act 1981 likewise presupposes an existing cause of action before provisional damages may be awarded. The contrary approaches taken in the earlier pleural-plaque cases were displaced.
4. Psychiatric illness. Mr Grieves had suffered recognised psychiatric damage, but his employers were not liable for it. Per Lord Hoffmann, applying Hatton v Sutherland [2002] ICR 613, the threshold question was whether psychiatric illness of this kind to this employee was reasonably foreseeable. In the absence of known vulnerability, an employer may assume ordinary fortitude. There was no evidential basis for finding that a person of ordinary fortitude would suffer psychiatric illness from learning of a future asbestos-disease risk, and the employers had no relevant knowledge of Mr Grieves’s unusual vulnerability.
5. Scope of the primary-victim rule. The House distinguished Page v Smith [1996] AC 155. That decision concerned psychiatric injury following an actual accident which foreseeably might have caused physical injury. It did not extend to psychiatric illness caused by apprehension that a harmful event might occur at an uncertain future date. Such an extension would conflict with the caution against expanding the established categories expressed in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455.
6. Further matters. Lord Hope observed that limitation time had not begun to run for a claimant who might later develop an actionable asbestos-related disease. Lord Scott noted the possible relevance of contractual remedies, and Lord Hope and Lord Mance also left that issue open. No contractual claim had been pleaded or argued. The employers’ cross-appeals concerning hypothetical quantum did not arise.

1. House of Lords: The House dismissed the claimants’ appeals unanimously: [2007] UKHL 39. The employers’ cross-appeals on hypothetical quantum did not arise.
2. Court of Appeal: By a majority, the court allowed the employers’ appeals and held that symptomless pleural plaques, risk and anxiety did not constitute actionable damage. Smith LJ dissented: [2006] EWCA Civ 27; [2006] ICR 1458.
3. High Court: Holland J held that pleural plaques alone were not actionable but accepted that plaques, risk and anxiety could together constitute sufficient damage: [2005] EWHC 88 (QB).