Johnston v NEI International Combustion Ltd [2007] UKHL 39

A claimant developed asymptomatic pleural plaques from negligent asbestos exposure at work. The House of Lords held that the plaques, being harmless and causing no physical impairment, did not constitute actionable 'damage' in tort, overturning previous authorities on asbestos-related personal injury claims.

Facts

This case, heard alongside several other similar appeals (notably Rothwell v Chemical & Insulating Co Ltd), concerned Mr Johnston, who was exposed to asbestos dust whilst employed by the defendants, NEI International Combustion Ltd. This exposure was admitted to have been negligent. As a result, Mr Johnston developed pleural plaques. Pleural plaques are areas of fibrous thickening on the lining of the lungs. Crucially, they are asymptomatic; they do not cause any symptoms, pain, or breathlessness, and do not themselves develop into other asbestos-related diseases like asbestosis or mesothelioma. However, their presence indicates significant past asbestos exposure and signifies an increased risk of developing such serious conditions in the future. Mr Johnston also claimed to suffer from anxiety due to the knowledge of the plaques and the associated future risks. The Court of Appeal had held that the plaques did constitute actionable damage. This was appealed to the House of Lords.

Issues

The central legal issue before the House of Lords was whether asymptomatic pleural plaques, caused by a breach of an employer’s duty of care, constitute ‘damage’ sufficient to found a cause of action in the tort of negligence. A secondary issue was whether anxiety and distress about the risk of future illness, falling short of a recognised psychiatric illness, could constitute actionable damage.

Judgment

The House of Lords unanimously found that asymptomatic pleural plaques do not constitute actionable damage. The Law Lords overturned the decision of the Court of Appeal and concluded that a claim in negligence requires proof of actual damage that makes the claimant worse off, which the mere presence of benign plaques does not do.

Lord Hoffmann’s Reasoning

Lord Hoffmann, giving one of the leading judgments, distinguished between a physical change and legally recognised ‘damage’. He argued that not every physical alteration to the body amounts to damage for the purposes of tort law. The damage must be more than minimal and must be detrimental. He stated:

Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change.

He reasoned that pleural plaques do not impair health, cause symptoms, or shorten life expectancy. They are merely a marker of exposure to asbestos. Therefore, the claimant was not ‘worse off’ in a way the law of tort could compensate. To allow a claim would be to compensate for exposure to a risk of future injury, which is not a principle recognised in English law.

Lord Hope’s Reasoning

Lord Hope of Craighead agreed, applying the principle of de minimis non curat lex (the law does not concern itself with trifles). He questioned whether the physiological change could be considered a material injury.

The question is whether the changes that have taken place in his body can properly be described as an injury that is more than negligible.

He concluded they could not. He also addressed the claim for anxiety, holding that a ‘recognised psychiatric illness’ is required for compensation. General anxiety about the future, whilst understandable, is not a category of harm that the law compensates in negligence actions. He stated, ‘The risk of future illness and the anxiety that it creates are not actionable’.

Lord Scott’s Reasoning

Lord Scott emphasised the benign nature of the plaques themselves, noting that they caused no impairment and had no potential to become malignant.

The plaques do not give rise to any symptoms. Nor do they cause any damage to the lungs. There is no evidence that they have in the present case, or ever do, develop into asbestos-related lung disease or any other illness.

He concluded that the plaques could not, therefore, be described as a disease or an injury. They were a ‘physical manifestation of exposure to asbestos dust’ but not damage in themselves.

Implications

The decision was highly significant and controversial. It overturned what had become a settled practice over two decades of awarding compensation for pleural plaques. The judgment established a stricter definition of ‘damage’ in personal injury claims, clarifying that a benign physiological change, even if resulting from a negligent act, is not compensable unless it is detrimental to the claimant’s health or function. This had the immediate effect of barring thousands of pending claims for pleural plaques in the UK. The decision led to political pressure and subsequent legislation in Scotland (the Damages (Asbestos-related Conditions) (Scotland) Act 2009) and Northern Ireland to reverse its effect in those jurisdictions, though it remains the law in England and Wales. It represents a key authority on the fundamental element of ‘damage’ in the tort of negligence.

Verdict: The claimant’s appeal was dismissed and the defendant’s cross-appeal was allowed. The House of Lords held that asymptomatic pleural plaques do not constitute an injury or disease capable of giving rise to a claim for damages in tort.

Source: Johnston v NEI International Combustion Ltd [2007] UKHL 39