Greenway & Ors v Johnson Matthey Plc

Asymptomatic sensitisation to a hazardous substance is not actionable personal injury where the sensitisation itself causes no physical harm and symptoms will not develop without further exposure. Restrictions imposed to prevent future injury, and the resulting loss of earning capacity, do not convert that condition into actionable damage. The tortious duties owed by an employer protect employees from personal injury, not economic loss standing alone. An implied contractual duty to provide a safe system of work, imposed by the employment relationship, has the same scope where it reflects the tortious obligation. Accordingly, pure economic loss caused by preventative employment restrictions falls outside both duties in the absence of actionable personal injury.

Five employees of Johnson Matthey Plc claimed damages after occupational testing showed that they had become sensitised to halogenated platinum salts. They had no symptoms, but were removed from work involving potential exposure and claimed consequential losses, including reduced earnings and loss of earning capacity.

The claims were pleaded in breach of statutory duty, negligence and breach of an implied contractual term requiring a safe place and system of work. Liability and quantum had been split, and the contractual claim was added by amendment. The central questions were whether the sensitisation amounted to actionable injury in tort and whether the contractual claims permitted recovery beyond nominal damages.

1. The tort claims failed. The court treated Cartledge v Jopling ([1962] 1 QB 189 (CA); [1963] AC 758 (HL)) as involving an existing disease process. The relevant features included progressive lung scarring, increased susceptibility to serious pulmonary conditions and possible loss of physiological function. The reasoning did not make every asymptomatic physiological change actionable.
2. Rothwell v Chemical and Insulating Co Ltd ([2008] 1 AC 281) confirmed the significance of whether the physical condition itself was harmful. The claimants’ sensitisation consisted of antibodies which were harmless unless further exposure caused interaction with mast cells and the development of symptoms. Because removal from exposure prevented that progression, there was no present actionable injury.
3. Actionable injury could not be defined by the preventative steps taken to avoid future symptoms. Employment restrictions might cause economic loss, but that loss was not itself personal injury. The claims were therefore claims for pure economic loss, outside the purpose of the tortious duties owed by an employer. The court relied by analogy on SAMCO v York Montague ([1997] AC 191) and Vibixa Ltd v Komori UK Ltd ([2006] 1 WLR 2472).
4. The implied contractual term was co-extensive with the relevant tortious obligation. Applying the scope-of-duty analysis in SAMCO v York Montague, the term protected employees’ health, safety and welfare from personal injury, not financial loss unconnected with personal injury. The contractual claims therefore also failed.
5. The defendant was confined by its pleadings to the legal point that the contractual claim placed the claimants in no better position. The court also observed that breach of statutory duty is not invariably equivalent to negligence, referring to London Passenger Transport Board v Upson ([1949] AC 155).
6. There was judgment for the defendant.

First-instance proceedings. The judgment records that Master McCloud ordered a split trial on liability and quantum on 12 June 2014 and permitted the contractual claim to be added by amendment on 10 September 2014. The High Court then determined the liability issues.