Greenway & Ors v Johnson Matthey Plc

For negligence and breach of statutory duty claims for personal injury, a claimant must establish material physical injury. A physiological change that is harmless in itself and produces no detrimental physical effects is insufficient. Economic loss caused by preventative removal from a hazardous workplace does not convert that change into actionable injury, nor is it recoverable as advance mitigation without an underlying cause of action. An employer’s implied duty in contract and tort protects health and safety from physical injury, but does not generally extend to holding employees harmless from pure economic loss. Express contractual arrangements addressing the relevant employment risk may preclude any wider implied term. Where the contract assumes no such responsibility, tort does not impose a broader obligation.

The claimants appealed from Jay J’s judgment following a trial on liability. They had been exposed to platinum salts while working at the defendant’s factories and had developed platinum sensitisation. They were removed from exposed work and several lost their employment or associated earnings, but none had developed platinum allergy.

The High Court held that sensitisation was not actionable physical injury, that the consequential losses were pure economic loss, and that only nominal contractual damages were recoverable. The appeal concerned whether sensitisation constituted actionable injury and whether the employment contracts or tort imposed duties covering the claimed financial losses.

The Court of Appeal unanimously dismissed the appeal.

1. The admitted breaches under the Workplace (Health, Safety and Welfare) Regulations 1992 and the Control of Substances Hazardous to Health Regulations 1994 did not establish liability without actionable damage. Under the conventional analysis, a personal injury claim in negligence or breach of statutory duty requires material physical injury caused by the breach.
2. Cartledge v Jopling [1962] 1 QB 189; [1963] AC 758 and Rothwell v Chemical and Insulating Co. Limited [2007] UKHL 39; [2008] 1 AC 281 showed that an asymptomatic physical change may be actionable where it amounts to material, harmful damage or a hidden impairment capable of detrimental effects in ordinary life. Platinum sensitisation was only the presence of antibodies. It was not harmful in itself and caused no actionable physical injury once exposure ceased.
3. The claimants’ lost earnings resulted from preventative removal from exposure. That was pure economic loss. It did not transform the underlying physiological change into injury. Loss said to be incurred by mitigation is recoverable only where the claimant already has a right of action for the relevant wrong.
4. The implied contractual duty owed by an employer protects the employee’s health, safety and welfare from physical injury. It does not generally extend to a duty to hold the employee harmless from financial loss without physical injury. The contracts, construed in their commercial setting, contained specific provisions dealing with testing, redeployment, enhanced pay and termination compensation. Those provisions indicated the extent of Johnson Matthey’s assumed financial responsibility.
5. The contract was the primary source of the parties’ obligations. In the absence of an implied contractual term protecting these losses, tort could not impose a wider duty to compensate for pure economic loss. The specific duty recognised in negligent-reference cases did not apply: there was no direct request, specific assumption of responsibility, or comparable proximity to an identified financial opportunity.
6. The established physical-injury threshold was a bright-line rule. Its application to a marginal case did not justify creating a new duty in contract or tort. The appeal was therefore dismissed.

• Court of Appeal (Civil Division) — Dismissed the claimants’ appeals and upheld the liability judgment.
• High Court of Justice, Queen’s Bench Division — Jay J held that the claimants had suffered no actionable physical injury, had no completed tort cause of action, and could recover no more than nominal damages for breach of contract.