Dryden and others v Johnson Matthey Plc

A symptomless physiological change is actionable personal injury where it materially impairs a person’s physical capacity and makes that person appreciably worse off. The change must cause real harm which is more than negligible, but it need not cause present pain or symptoms.

Sensitisation caused by negligent exposure is actionable where further exposure is likely to produce an allergy and the resulting need to avoid exposure removes the person’s capacity to undertake work previously performed. This is an existing bodily impairment, rather than a mere risk of future injury. Lost earnings resulting from that injury are consequential loss, not pure economic loss.

The claimants worked in factories operated by Johnson Matthey Plc and were negligently exposed to platinum salts. They developed symptomless platinum salt sensitisation. Further exposure was likely to cause allergic symptoms, so they could no longer work in areas involving possible exposure. They consequently suffered loss of employment or earnings.

Jay J held in [2014] EWHC 3957 (QB) that the claimants had suffered no actionable personal injury and could not recover their pure economic loss in tort or contract. The Court of Appeal dismissed their appeals in [2016] EWCA Civ 408; [2016] 1 WLR 4487.

The central question was whether symptomless sensitisation constituted actionable personal injury. The alternative issue was whether the resulting economic loss was recoverable under an implied contractual term or in negligence.

1. Appeal allowed unanimously. Lady Black, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Lloyd-Jones agreed, held that the claimants had suffered actionable personal injury. They therefore had causes of action in negligence and breach of statutory duty.

2. Actionable personal injury is not confined to conditions causing present pain or symptoms. A hidden and symptomless physical change may suffice. Whether it does is a question of fact and degree, assessed according to whether the change causes material bodily damage and makes the claimant appreciably worse off in health or physical capability. The harm must be real and more than negligible.

3. Platinum salt sensitisation was not merely the benign acquisition of an antibody or a marker of past exposure. It was the first stage of a process by which further exposure was likely to provoke allergic symptoms. The claimants’ physiological condition had changed so that they lost their previous capacity to work around platinum salts. Their need to avoid further exposure impaired their bodily capacity for work and materially affected their everyday lives.

4. Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 was distinguished. Pleural plaques were harmless markers of asbestos exposure. They caused no symptoms, did not lead or contribute to disease, and did not require the sufferer to change everyday life. Platinum salt sensitisation, by contrast, altered the body so that further exposure carried a risk of allergy and had to be avoided.

5. Cartledge v E Jopling & Sons Ltd [1963] AC 758 established that the absence of symptoms or knowledge does not prevent a condition from amounting to actionable injury. Its approach supported treating material physiological impairment as actionable even before symptoms appeared.

6. The collective agreement did not create the claimants’ incapacity. Its protective provisions responded to the physiological condition already caused by the employer’s breach. Nor were the claimants merely claiming for a risk of future allergy. Sensitisation was an existing injury in its own right.

7. Once sensitisation was classified as actionable injury, the resulting loss of earnings was not pure economic loss. Personal circumstances affecting the practical impact of the sensitisation, such as imminent retirement, concerned the quantum of damages rather than the existence of injury. The alternative claims for pure financial loss therefore required no determination.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The court held that platinum salt sensitisation was actionable personal injury and that the claimants had causes of action in negligence and breach of statutory duty.
2. Court of Appeal: In [2016] EWCA Civ 408; [2016] 1 WLR 4487, the court dismissed the claimants’ appeals and held that they had suffered no actionable personal injury. It also rejected the alternative claims for pure economic loss in tort and contract.
3. High Court: In [2014] EWHC 3957 (QB), Jay J held that the claimants had sustained no actionable personal injury. He characterised their loss as pure economic loss and rejected the tortious and contractual claims.