Last reviewed 15 July 2015
The recent case of Greenway and others v Johnson Matthey PLC (2015), High Court, is of significance to any employee who suffers sensitisation from substances in the workplace. It is also an important case in the general context of personal injury law, specifically whether compensation for purely financial loss may be awarded where there is an issue as to whether employees in fact suffered personal injury.
Greenway (G) and four others were employed by Johnson Mathey (JM) as chemical process operators. Chlorinated or halogenated platinum salts produced during the refining process carried out at JM’s factories were used to make catalytic converters.
Due to the risk of sensitisation through exposure to platinum salts, JM required employees to undergo routine and regular skin prick testing. G and four others were found to have become sensitised to chlorinated or halogenated platinum salts. For legal purposes, this sensitisation amounted to a personal injury which could give rise to a claim in negligence. All five employees were taken off work which involved potential contact with platinum. Four of them resigned. They could not carry out further work involving contact with platinum. They claimed compensation for loss of earnings or loss of earning capacity for negligence and for breach of contract. The employer admitted breach of duty. The issues for the court were as follows:
whether the employees had a civil cause of action
whether they could claim more than nominal damages.
The decision of the High Court was as follows:
The claims failed.
When the employees were removed from exposure to platinum salts, which were the cause of the sensitisation, any progression from sensitisation to allergy would not occur.
The sensitisation would either remain constant, when antibodies would remain in the system but would not increase, or would diminish, in both situations, without symptoms.
Actionable injury cannot be defined by the steps taken to prevent it. These steps might result in economic loss. That is not the same as, or an essential component of, the injury.
The correct approach was to analyse the sensitisation in terms of the physical or physiological harm which it might be causing, not any financial loss which might result from that harm.
Properly analysed, the employees’ claims were for pure economic loss. The nature of civil liability for negligence is to protect employees from the risk of personal injury, not for pure economic loss.
In relation to breach of contract, the implied contractual term which the employees put forward was the same as the employer’s obligation to provide and maintain a safe place and system of work and to take reasonable care for the employees’ safety.
The critical question was whether economic losses were within the scope of the employer’s contractual duty. It was necessary to analyse the type of damage which was in issue.
Where, for policy reasons, the law imposes an implied term as a result of the relationship between the parties, and that implied term is basically the same as the obligation which may give rise to liability in negligence for exactly the same reasons, there must be consideration of the scope of the rule or principle of public policy which creates or impresses the duty.
The public policy in this case was to safeguard the health, safety and welfare of employees from the careless acts and omissions of their employers. These concepts embody the notion of protection from personal injury, but not from economic or financial loss suffered without personal injury.
The High Court judge is reported to have made the following comments:
“In my judgment, one cannot define the actionable injury by the steps which are taken to prevent it. Those steps may result in economic loss, but that is not the same as, or an ineluctable component of, the injury. The correct approach is to analyse the sensitisation in terms of the physical (or physiological) harm it may be causing, not any financial loss which may be consequent upon that harm. The sensitisation is no more, and no less, than the presence of antibodies which in themselves are not harmful. They may become harmful if they endure or multiply to the extent that they subsequently interact with mast cells such that histamine is generated, but that harmful state of affairs requires further exposure. Thus, something more has to happen before actionable injury may be sustained, and that something more cannot as a matter of logic and principle be the very thing (sc. the preventative measures) which precludes the development and manifestation of symptoms, in other words injury.”
The decision of the court in this case was based, partly, on the decision of the House of Lords in Rothwell and others v Chemical and Insulating Co Ltd (2007). In that case, four claimants who suffered from asbestos-related pleural plaques appealed from the Court of Appeal decision that their employers were not liable for personal injury. The decision of the House of Lords included the following:
A person who developed pleural plaques as a result of having been negligently exposed to asbestos in the course of his employment could not sue his employers in negligence.
Pleural plaques, a fibrous thickening of the pleural membrane which surrounds the lungs, does not amount to actionable damage because, except in very exceptional cases, they were symptomless and did not themselves cause other asbestos-related diseases.
Proof of damage was an essential element in a claim for negligence. Symptomless plaques were not compensatable damage.
The risk of future illness or anxiety about the possibility of that risk materialising did not amount to damage for the purpose of creating a cause of action.
Except in the most exceptional cases, the plaques could never cause any symptoms, did not increase the claimants’ susceptibility to other diseases or shorten their expectation of life. They had no effect on their health at all.
It has been reported that the Court of Appeal has granted permission for the five claimants to appeal to the Court of Appeal in the Greenway case. This means that the case is not yet concluded and that the important legal issues involved will be considered in detail at the appeal stage.
The general principle, in English law, relating to compensation for personal injury, is that pure economic loss cannot be recovered. Compensation for personal injury is generally assessed under a number of headings including the following:
Pain and suffering
Loss of amenity
Loss of earnings
Loss of pensions
Damages for care.
In relation to compensation for pain and suffering, the amount of compensation is assessed according to a tariff set out in the Judicial Studies Board Guidelines.
The decision in the Greenway case, that there was, in fact and/or law, no personal injury, meant that the claimants could not therefore claim for purely financial loss. If the Court of Appeal were to reverse the decision and allow the appeal, then the general principles dealing with compensation for personal injury would apply.