Dryden & Ors v Johnson Matthey PLC [2018] UKSC 18

Employees exposed to platinum salts through their employer's negligence developed platinum salt sensitisation, preventing them from working in areas risking further exposure. The Supreme Court held this asymptomatic physiological change constituted actionable personal injury, reversing the lower courts' decisions.

Facts

The claimants worked for Johnson Matthey Plc in factories producing catalytic converters, a process involving the use of platinum salts. In breach of its duties under health and safety regulations and at common law, the company failed to ensure that the factories were properly cleaned, exposing the claimants to platinum salts. As a consequence, each claimant developed platinum salt sensitisation.

Platinum salt sensitisation is, in itself, asymptomatic. It involves the development of IgE antibodies, detectable by a skin prick test. However, further exposure to platinum salts is likely to trigger allergic reactions in most sensitised individuals, producing symptoms such as running eyes, skin irritation and bronchial problems. Once sensitisation was detected via routine screening, the claimants were no longer permitted to work in areas where further exposure might occur. One claimant was redeployed at reduced pay; the other two had their employment terminated. A collective agreement between the company and trade union provided for testing, redeployment and termination arrangements, including an ex gratia payment.

Issues

The central question was whether platinum salt sensitisation, an asymptomatic physiological change, constitutes actionable personal injury capable of founding claims in negligence and breach of statutory duty. If it does not, a secondary issue arose as to whether the claimants could recover damages for pure economic loss under an implied contractual term or in tort.

Arguments

Claimants’ arguments

The claimants contended that sensitisation was a physical change to their bodies amounting to material damage, leaving them worse off than before the breach of duty. They had lost the capacity to work in environments involving potential exposure to platinum salts, which was a real loss of amenity qualifying as actionable personal injury. They relied principally on Cartledge v E Jopling & Sons Ltd [1963] AC 758.

Respondent’s arguments

Johnson Matthey argued that sensitisation was a benign molecular change, merely the acquisition of an antibody, and not harmful in itself. The condition was analogous to the pleural plaques in Rothwell v Chemical & Insulating Co Ltd [2008] AC 281. The claimants’ inability to do their jobs stemmed from the collective agreement, not the sensitisation itself, and any loss was pure economic loss not recoverable in tort or contract. The company emphasised that platinum salts are not encountered in everyday life.

Judgment

The Supreme Court (Lady Black giving the lead judgment, with Lady Hale, Lord Wilson, Lord Reed and Lord Lloyd-Jones agreeing) unanimously allowed the appeal.

Lady Black reviewed the leading authorities. In Cartledge, Lord Pearce had held that hidden, symptomless physical injury could constitute actionable damage, observing that it was a question of fact whether a person had suffered material damage by physical changes in the body. In Rothwell, pleural plaques were held not to be actionable because they were mere markers of asbestos exposure, symptomless, not leading to any other condition, and not rendering sufferers worse off in their health or capability. Lord Hoffmann had described damage as “an abstract concept of being worse off, physically or economically”.

Lady Black rejected the company’s attempt to characterise sensitisation as merely the acquisition of another benign antibody. She observed that counsel for the respondent had accepted that sensitivity to something encountered in everyday life (such as sunlight) would amount to actionable injury. The distinction drawn by the company, that platinum salts were not part of everyday life, was rejected: ordinary everyday life is infinitely variable, and for these claimants their everyday life involved work which, due to sensitisation, they could no longer perform.

The Court held that the claimants’ bodily capacity for work had been impaired. Before sensitisation they had the capacity to work in the platinum salt areas; that capacity was lost through the physiological change caused by the company’s breach. This constituted actionable bodily damage more than negligible in its impact. Lady Black drew analogies with coffee tasters or perfumers whose senses of smell or taste were impaired by negligence, situations where actionable injury would readily be recognised.

The case was distinguishable from Rothwell. Unlike pleural plaques, which were symptomless markers with no potential to produce symptoms even on further exposure, platinum salt sensitisation constituted a physiological change carrying a real risk of allergic reaction on further exposure, necessitating a change to everyday life. The claimants had suffered a loss of bodily function or part of their capacity to work.

Once the sensitisation itself was identified as actionable injury, arguments that the claim was really for economic loss, or that the restriction on work was caused by the collective agreement rather than the sensitisation, fell away. The restrictions were responses to the sensitisation, and similar restrictions would apply regardless of any collective agreement.

Implications

The decision clarifies the concept of actionable personal injury at common law. It confirms that asymptomatic physiological change may amount to actionable personal injury where it results in a material impairment of the claimant’s physical capacity, including capacity to perform their work. The test is whether the claimant has been made appreciably worse off in their health or capability, as a question of fact in each case.

The judgment confirms the continued authority of Cartledge: a hidden, symptomless physical change can constitute actionable damage. It also delineates the limits of Rothwell: that case turned on the fact that pleural plaques were truly inert markers of exposure with no functional consequence, not on any general principle that asymptomatic conditions cannot be actionable.

The decision is of practical importance to employees exposed to sensitising agents in specialised workplaces, and to employers and insurers concerned with industrial disease claims. It recognises that a loss of bodily capacity to perform particular work, flowing from a physiological change, may itself be compensable injury, without the claimant having to show overt symptoms. The Court expressly noted that quantum, rather than actionability, is the correct forum for considering features such as imminent retirement or a change in career intentions, which might reduce the impact of the injury on the individual claimant. As the claimants succeeded on the primary ground, it was unnecessary to determine the alternative claim for pure economic loss.

Verdict: Appeal allowed. The Supreme Court held unanimously that platinum salt sensitisation constitutes actionable personal injury, giving the claimants a cause of action in negligence and breach of statutory duty against Johnson Matthey Plc.

Source: Dryden & Ors v Johnson Matthey PLC [2018] UKSC 18