Greenway & Ors v Johnson Matthey Plc

The Court of Appeal dismissed the appellants' appeal against Jay J's finding that Johnson Matthey was not liable in damages for breach of statutory duty, negligence or breach of contract arising from workplace exposure to platinum salts. The court applied established authorities (notably Cartledge v Jopling and Rothwell) to hold that mere platinum sensitisation, detectable only by skin prick test and asymptomatic if exposure ceases, does not constitute actionable physical injury for the purposes of tortious personal injury claims. Where no actionable physical injury exists, consequential financial losses are pure economic loss and are not recoverable in tort absent a recognised duty to protect against such loss. The court further held that no term should be implied into the appellants' employment contracts to make the employer liable to hold employees harmless against the claimed financial consequences, particularly given the collective agreement provisions (including periodical testing, redeployment and special termination payments) which already regulated the parties' allocation of economic risk.

Background and parties:

• The five appellants were employees of Johnson Matthey at sites where platinum salts were used. Routine skin-prick testing, redeployment and special termination payments were provided for by a collective agreement incorporated into their contracts.
• Johnson Matthey admitted breaches of health and safety regulations (regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992 and regulations 7 and 12 of the Control of Substances Hazardous to Health Regulations 1994), which resulted in greater exposure to platinum salts.

Nature of the claim and relief sought:

• The appellants sued for damages in tort (negligence and breach of statutory duty) and in contract for loss of earnings and other financial losses said to have flowed from their removal from higher-paid jobs after testing positive for platinum sensitisation.

Procedural posture:

• This was an appeal from a decision of Jay J in the Queen's Bench Division (case ref HQ13X05919) dismissing substantive liability. The Court of Appeal heard additional argument that had not been run at first instance: that Johnson Matthey owed a tortious duty to hold employees harmless against pure economic loss.

Issues framed by the court:

1. Whether platinum sensitisation (a physiological change revealed by skin prick testing but asymptomatic if exposure ceases) constituted actionable physical injury sufficient to ground a tort claim and thereby allow recovery of consequential loss of earnings.
2. Whether the appellants could recover their financial losses in contract, either by applying ordinary principles of contractual construction (SAAMCO guidance) or by implying a term in law that the employer would hold employees harmless from such economic loss.
3. Whether a duty in tort existed to protect employees from the type of pure economic loss claimed.

Court's reasoning and conclusion:

• The court followed the line of authority that a cause of action for personal injury requires material physical injury caused by the defendant's breach. Platinum sensitisation was likened to asymptomatic pleural plaques in Rothwell: a physiological change which, provided exposure ceases, is harmless in itself and does not constitute actionable damage. Cartledge was considered distinguishable because the lung scarring there caused material physical impairment even if asymptomatic at first.
• Consequently, the appellants' financial losses were pure economic loss arising from preventive measures and were not recoverable in tort absent an actionable physical injury.
• On the contractual point, the court applied SAAMCO-style reasoning and refused to imply a broad term obliging the employer to hold employees harmless from such economic loss. The collective agreement expressly addressed redeployment, testing, enhanced pay and special termination payments; given those express allocations of risk, it was not fair, just or reasonable to imply a more extensive contractual duty.
• Because no implied contractual term was found, the suggested novel tort duty to protect against pure economic loss also failed.

The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that platinum sensitisation detectable only by tests but not harmful if exposure ceases is not actionable physical injury for tortious personal injury claims; financial losses caused by removal from exposed work are pure economic loss and not recoverable in tort absent a recognised duty. Further, no term should be implied into the employment contracts to make the employer liable to hold employees harmless for that financial loss, particularly given the collective agreement provisions that already governed redeployment, testing and enhanced termination payments.

Appeal from the High Court of Justice, Queen's Bench Division (Jay J) (case HQ13X05919). Jay J had held defendant not liable in damages for breach of statutory duty, negligence or breach of contract; the Court of Appeal dismissed the appellants' appeal and upheld those conclusions: [2016] EWCA Civ 408.