Actionable Injury in Platinum Salt Sensitisation Claim? Dryden and others (Appellants) v Johnson Matthey Plc (Respondent) [2018] UKSC 18

This week, the Supreme Court handed down judgment in the case of Dryden and others (Appellants) v Johnson Matthey Plc (Respondent) [2018] UKSC 18, involving claimants exposed to platinum salts during the course of their employment. The question for the court, therefore, was whether their exposure, resulting in platinum salt sensitisation, amounted to an ‘actionable personal injury’.

WHAT IS PLATINUM SALT SENSITISATION?

Platinum salt sensitisation is an asymptomatic condition, meaning that it displays no symptoms and is not limiting. However, those detected with sensitisation can develop an allergic reaction, if they are further exposed to chlorinated platinum salts. An allergic reaction usually presents itself in physical symptoms, such as running eyes or nose, skin irritation and bronchial problems.

The medical experts, in Dryden, compared the development of pleural plaques, caused by exposure to asbestos fibres, with platinum salt sensitisation, caused by exposure to platinum salts. They reached the following conclusions:

i.         Slight further exposure to asbestos will not materially worsen pleural plaques, but slight further exposure to platinum salts is likely to increase the degree of sensitisation and may result in asymptomatic sensitisation becoming symptomatic;

ii.         Pleural plaques do not, themselves, turn into any other injury attributable to asbestos whereas asymptomatic sensitisation may turn into symptomatic sensitisation (allergy);

iii.        The presence of pleural plaques does not prevent a person from engaging in particular types of work that would otherwise be open to him or her, asbestos exposure being restricted by law in any event. In contrast, a person who has asymptomatic sensitisation to platinum salts is restricted in the work that he or she can do’.

THE LAW

Cartledge v E Jopling & Sons Ltd regarded an action brought by steel dressers, who had developed Pneumoconiosis. In that case, Lord Pearce opined that:

It is for a judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree … It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the other hand, evidence that in unusual exertion or at the onslaught of disease he may suffer from his hidden impairment tells in favour of the damage being substantial. There is no legal principle that lack of knowledge in the plaintiff must reduce the damage to nothing or make it minimal’.

In Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 the House of Lords rejected the argument that the development of asymptomatic pleural plaques (fibrous thickening of the pleural membrane which surrounds the lungs) constituted an ‘actionable injury’, as they did not give rise to any actual or prospective disability. According to Lord Hoffmann, at paragraph 17 of his judgment, pleural plaques onset ‘symptomless bodily changes with no foreseeable consequences’.

It is clear from the case law, firstly, that personal injuries include diseases and impairments of a person’s physical condition.

Secondly, actionable damage means damage that is ‘material’, ‘more than negligible’ or ‘more than trivial’. There must be ‘real damage’, as distinct from damage which is ‘purely minimal’.

Thirdly, the mere fact that a particular physical condition can be described as an ‘injury’ does not necessarily mean that it amounts to ‘damage of the requisite kind’.

FACTS OF THE CASE

The claimants worked in factories making catalytic converters. They were exposed to platinum salts, involved in the production process, as the defendant company had failed to ensure that its factories were cleaned, breaching both health and safety regulations and common law duties. As a result, the claimants’ sensitisation was detected, by way of screening, and were no longer to work in areas where there was a further risk of chlorinated platinum salts. One of the claimants was subsequently moved into a lower paid role, while the remaining two claimants had their employment with the defendant terminated, along with an ex gratia lump sum. It was understood that this would not replace a compensation claim.

1st INSTANCE AND COURT OF APPEAL DECISIONS

At 1st instance, Mr Justice Jay concluded that the claimants had suffered no actionable personal injury. He contrasted the Rothwell case with Dryden, stating that the progression from sensitisation to allergy as a ‘direct causal pathway’, whereas pleural plaques are a ‘biological cul-de-sac’. However, since the claimants had been removed from exposure, the progression would not occur. As such, ‘nothing short of actual symptoms could amount to actionable injury’.

Subsequently, at the Court of Appeal, Lord Justice Sales endorsed the views of Jay J that no actionable injury had been suffered. The claimants suffered ‘no physical injury’ and was analogous to pleural plaque development discussed in Rothwell. The physical change of platinum salt sensitisation was seen as ‘not harmful in itself in any relevant sense’. Further, the fact that the claimants had been removed from their jobs and suffered financial loss were not capable of converting the condition into an ‘actionable injury’.

SUPREME COURT DECISION

On appeal to the Supreme Court, the claimants submitted that platinum salt sensitisation constituted a physical change to their bodies, amounting to actionable personal injury.

Lady Black, with whom all the judges were in agreement, said, at paragraph 38, that:

... there is no dispute that the physiological changes involved in sensitivity can constitute sufficient personal injury, sufficient damage, to found an action for negligence or breach of statutory duty’.

However, the defendant argued that it ‘would seem perverse and an abuse of language to describe as “injured” someone who merely acquired a new antibody’. Moreover, it sought to align sensitisation with the condition discussed in Rothwell, in that ‘sensitisation is merely an indicator of past exposure to platinum salts as the plaques were an indicator of exposure to asbestos’. The defendant further identified that sensitisation causes ‘molecular changes without symptoms’ and produces ‘a theoretical but no practical risk of symptoms developing’, as platinum salts only exist in ‘specialist workplaces’.

The defendant attempted to distinguish a hypothetical case of sensitisation to the sun, with sensitisation to platinum salts, on the basis that sensitisation would have a greater impact on a prospective claimant.

Lady Black, nonetheless, did not perceive this to be a contrast, as ‘Ordinary everyday life is infinitely variable’.

She went on to explain, at paragraph 39, that:

‘For these claimants, their ordinary everyday life involved doing jobs of a type which, by virtue of their sensitisation, they can no longer do. In those circumstance, I do not see how their situation can be validly distinguished from the person who has developed a sensitivity to the sun’.

Further, her Ladyship followed the authority of Cartledge, i.e. that absence of symptoms does not preclude a condition from amounting to actionable personal injury, before going on to explain, at paragraph 40:

What has happened to the claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off – They have, in my view, suffered actionable bodily damage, or personal injury, given its impact on their lives, is certainly more than negligible’.

In order to strengthen her ruling, the judge raised several analogous professions, by which sensitisation would amount to actionable injury, such as expert perfumers losing their sense of smell and coffee tasters losing their sense of smell and taste. She added, at paragraph 41:

I can see no essential difference between their situation and the present case, where bodily changes have led to the claimants, who were formerly people who could and did work around platinum salts, no longer being able to do so’.

Held at paragraphs 47 and 48:

‘I would distinguish this case from Rothwell. I set out earlier how the doctors saw the distinction between pleural plaques and sensitisation to platinum salts but it is, of course, ultimately a lawyer’s question whether the two conditions are distinguishable. As I see it, it is material that the pleural plaques were nothing more than a marker of exposure to asbestos dust, being symptomless in themselves and not leading to or contributing to any condition which would produce symptoms, even if the sufferer were to be exposed to further asbestos dust. Similarly, the sensitisation of the claimants in this case marks that they have already been exposed to platinum salts, but unlike the plaques, it constitutes a change to their physiological make-up which means that further exposure now carries with it the risk of an allergic reaction, and for that reason they must change their everyday lives so as to avoid such exposure. Putting it another way, they have lost part of their capacity to work or, as the claimants put it in argument, they have suffered a loss of bodily function by virtue of the physiological change caused by the company’s negligence.

As Lord Pearce said in Cartledge (supra para 15), it is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. It is a question of fact that must be determined in the light of the legal principles applicable to personal injury actions, and this case has provided a useful opportunity to clarify some of those principles. The process has led me, for all the reasons I have set out, to differ from Jay J and the Court of Appeal and to conclude that the concept of actionable personal injury is sufficiently broad to include the damage suffered by these claimants, which is far from negligible’.

The full Supreme Court decision can be accessed here.