Johnston v NEI International Combustion Ltd [2007] UKHL 39

Workers negligently exposed to asbestos developed pleural plaques, which are asymptomatic fibrous changes in the lung lining. The House of Lords held that symptomless plaques alone, or combined with risk of future disease and anxiety, do not constitute actionable damage in negligence. Psychiatric illness from fear of future disease was also not recoverable without specific foreseeability.

Facts

The claimants were workers who had been negligently exposed to asbestos dust by their employers. As a result, asbestos fibres entered their lungs and caused pleural plaques to form on the pleural membrane surrounding the lungs. The defendants admitted breach of duty in exposing the claimants to asbestos. Medical evidence established that pleural plaques are asymptomatic, cause no physical impairment, do not cause asbestos-related diseases, and do not shorten life expectancy. However, the presence of plaques indicates significant asbestos exposure and a heightened risk of developing serious diseases such as mesothelioma or asbestosis. One claimant, Mr Grieves, developed clinical depression after learning of his plaques.

Issues

Principal Issues

1. Whether symptomless pleural plaques constitute actionable damage in negligence.
2. Whether pleural plaques, combined with the risk of future disease and associated anxiety, can be aggregated to form actionable damage.
3. Whether psychiatric illness caused by anxiety about potential future disease is recoverable.

Judgment

Pleural Plaques as Damage

The House of Lords unanimously held that symptomless pleural plaques do not constitute actionable damage. Lord Hoffmann explained that damage in negligence means being appreciably worse off, and the plaques had no effect on the claimants’ health or capability. The question was not whether plaques could be called an ‘injury’ in some sense, but whether the claimant was appreciably worse off on account of having them.

The Aggregation Theory

The claimants argued that even if plaques, risk and anxiety were individually non-actionable, they could be combined to create a cause of action. The House rejected this argument. Lord Hoffmann held that neither the risk of future illness nor anxiety about that risk is independently actionable, and they cannot be relied upon to create a cause of action that would not otherwise exist. Lord Scott stated that this was a matter of simple logic: none of the three elements could sustain a tort action individually, and aggregating them could not change this fundamental position.

Mr Grieves and Psychiatric Injury

Regarding Mr Grieves’s clinical depression, the House held that he could not recover damages. The principle in Page v Smith, which allows recovery for psychiatric injury without specific foreseeability where physical injury was foreseeable, was distinguished. Lord Hoffmann explained that Page v Smith concerned an immediate response to an accident, whereas Mr Grieves’s illness was caused by apprehension of a possible future event. The House held it would be an unwarranted extension of Page v Smith to apply it to psychiatric illness caused by contemplation of an unfavourable event that had not actually happened.

Implications

This decision established that:

• Symptomless physiological changes that have no adverse effect on health do not constitute actionable damage in negligence
• The ‘aggregation theory’ whereby non-actionable elements can be combined to create a cause of action was firmly rejected
• Psychiatric injury caused by fear of potential future illness is not recoverable under the Page v Smith principle
• Claims for pleural plaques, which had been routinely settled for approximately twenty years, were no longer actionable

The decision clarified the fundamental principle that proof of damage is essential in negligence, and that damage means being appreciably worse off in a way that justifies compensation. The case also confirmed the courts’ reluctance to expand liability for psychiatric injury beyond established categories.

Verdict: All appeals dismissed. The House of Lords held that symptomless pleural plaques, whether alone or combined with risk of future disease and anxiety, do not constitute actionable damage in negligence. Mr Grieves's claim for psychiatric injury was also dismissed as his depression was not reasonably foreseeable and Page v Smith was distinguishable.

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