Factual and Procedural Background
Several former employees (collectively, “Plaintiffs”) were negligently exposed to asbestos dust during their employment with various employers (“Defendants”). Medical imaging later revealed that each Plaintiff had developed symptom-free pleural plaques—fibrous thickening on the pleural membrane. Although harmless in themselves, the plaques indicate that asbestos fibres remain in the lungs and that there is an elevated risk of developing serious diseases such as asbestosis or mesothelioma. Plaintiffs issued tort claims in negligence seeking damages for: (i) the existence of pleural plaques, (ii) the associated risk of future disease, and (iii) anxiety (or, in one case, clinical depression) arising from that risk.
Ten test actions were tried together before Judge Holland in the High Court. He held in favour of Plaintiffs. On appeal, the Court of Appeal (majority) reversed, concluding that pleural plaques are not actionable damage; Judge Smith dissented. Four claimants then appealed to the House of Lords, which delivered the opinion summarised here.
Legal Issues Presented
- Whether asymptomatic pleural plaques constitute actionable damage in negligence.
- If not, whether pleural plaques combined with (a) heightened risk of future disease and/or (b) associated anxiety can, by aggregation, amount to actionable damage.
- For one Plaintiff who developed clinical depression, whether Defendants owed a duty of care in respect of psychiatric injury triggered by learning of the plaques and future risk.
Arguments of the Parties
Plaintiffs' Arguments
- Pleural plaques represent a “definite pathological change” and therefore qualify as physical injury.
- Even if plaques are de minimis, they can be “aggregated” with risk and anxiety to cross the threshold of actionable damage (relying on earlier first-instance decisions and the “single action rule”).
- For the Plaintiff with clinical depression, Page v Smith removes any requirement that psychiatric injury itself be foreseeable once physical injury is foreseeable.
Defendants' Arguments
- Pleural plaques are symptomless, cause no functional impairment, and will not of themselves lead to disease; therefore they are not compensable damage.
- Risk of future illness and anxiety about that risk are not actionable heads of damage in the absence of independent physical harm (Gregg v Scott; Hicks).
- The “aggregation theory” is unsound because it attempts to create liability from elements each of which is non-actionable when considered separately.
- In the psychiatric claim, the illness was not reasonably foreseeable and Page v Smith should either be distinguished or reconsidered.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Cartledge v E Jopling & Sons Ltd [1963] AC 758 |
Damage must be “beyond what can be regarded as negligible” for a negligence claim to accrue. |
Used to show that pleural plaques, unlike the covert pneumoconiosis in Cartledge, have no harmful effect and so fall below the actionable threshold. |
| Gregg v Scott [2005] 2 AC 176 |
Pure risk of future harm is not a compensable loss. |
Cited to reject claims based solely on increased risk of asbestos-related disease. |
| Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65 |
Fear or anxiety unaccompanied by injury is not actionable. |
Supported rejection of damages for anxiety absent independent actionable harm. |
| Page v Smith [1996] AC 155 |
Primary victims can recover for psychiatric injury without separate foreseeability once physical injury is foreseeable. |
Distinguished: Plaintiff’s depression arose from fear of future illness, not from involvement in an accident. |
| Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 |
Limits extension of Page v Smith; warns courts not to enlarge categories without Parliament. |
Relied on as authority for a cautious, restrictive approach. |
| Church v Ministry of Defence (1984) |
First-instance view that plaques plus fibre penetration constituted actionable injury. |
Reviewed as historical but not followed. |
| Sykes v Ministry of Defence (1984) |
Held plaques alone actionable because they were a structural change. |
Reasoning expressly rejected. |
| Patterson v Ministry of Defence [1987] |
Introduced “aggregation theory.” |
Aggregation theory disapproved. |
| Brunsden v Humphrey (1884) 14 QBD 141 |
“Single action rule” – claimant must recover all losses in one action. |
Clarified that the rule presupposes the existence of a cause of action; cannot create one. |
| Bourhill v Young [1943] AC 92 |
Psychiatric injury must be foreseeable in a person of reasonable fortitude. |
Applied when assessing foreseeability of psychiatric injury. |
| Creutzfeldt-Jakob Disease Litigation [2000] Lloyd’s Rep Med 161 |
Example where psychiatric injury from learning of medical risk was foreseeable. |
Distinguished: no equivalent foreseeability evidence for Plaintiff with depression. |
| Simmons v British Steel plc [2004] ICR 585 |
Psychiatric injury following physical injury may be recoverable without separate foreseeability. |
Distinguished on facts; accident context absent here. |
Court's Reasoning and Analysis
1. Pleural plaques as damage. Judge Hoffmann (for the majority) accepted Judge Holland’s factual finding that plaques are symptomless, cause no impairment, do not shorten life expectancy, and do not heighten susceptibility to disease. On first-principle analysis, such minimal physiological change does not make a claimant “appreciably worse off,” and therefore fails the de minimis threshold required in negligence.
2. Rejection of the “aggregation theory.” Neither (a) risk of future disease nor (b) anxiety about that risk is independently actionable (Gregg; Hicks). The court held it conceptually unsound to combine three non-actionable elements to manufacture actionable damage; “nought plus nought plus nought equals nought.” The statutory provisional-damages regime (Supreme Court Act 1981, s 32A) presupposes an existing cause of action and therefore cannot legitimate aggregation.
3. Psychiatric claim of Plaintiff with depression. The majority distinguished Page v Smith. Here, the psychiatric illness was triggered decades after exposure by information about future risk; it was not an immediate reaction to a traumatic accident. Applying the ordinary test from Bourhill v Young, the court found no evidence that a person of reasonable fortitude would foreseeably suffer psychiatric illness in such circumstances. Consequently, no duty of care was owed in respect of that illness.
4. Policy considerations. While acknowledging sympathy for Plaintiffs, the House preferred a principled approach over speculative policy fears. Recognising claims for harmless plaques would generate liability without coherent limits and contradict established negligence principles.
Holding and Implications
Holding: The House of Lords dismissed all appeals. Asymptomatic pleural plaques do not constitute actionable damage, either alone or in combination with risk and anxiety. The psychiatric claim also fails because such injury was not reasonably foreseeable and Page v Smith is inapplicable.
Implications: Employees who develop pleural plaques from negligent asbestos exposure cannot sue in tort unless and until they suffer a compensable physical or psychiatric injury that meets traditional thresholds. Insurers are not liable for claims based solely on plaques. The decision preserves existing boundaries on actionable damage and limits the reach of Page v Smith. No new precedent was set regarding contractual duties; that question remains open for future consideration.