(691) PLEURAL PLAQUES: BACK DOWN THE MESOTHELIOMA TRACK?
The House of Lords issued its unanimous judgment in the English appeal Johnston v NEI International Combustion  UKHL 39 on 17 October 2007 (http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/johns-1.htm). The gist of the case and its decision is summarised thus by Lord Hoffmann:
1. The question is whether someone who has been negligently exposed to asbestos in the course of his employment can sue his employer for damages on the ground that he has developed pleural plaques. These are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases. But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma. In consequence, a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression.
2. Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk.
Lords Hope and Rodger were both on the panel and refer to Scots law and its parallel requirement before an action can arise in delict, expressed most elegantly in the Latin tongue: damnum iniuria datum. Both also seem to accept that the employee might have a claim in contract against the employer (paras 59, 82), with Lord Hope referring to Matthew Boyle’s article, Contractual remedies of employees at common law: exploring the boundaries (2007 Juridical Review 145); the point is however most fully discussed by Lord Scott (see para 74), observing that claims for breach of contract are not limited by a requirement of damage in the same way as tortious (or delictual) ones. But it should be noted that damages for distress caused by breach of contract are far from straightforward, especially in the employment context, and that the sums likely to be awarded in such cases are not high (MacQueen & Thomson, Contract Law in Scotland (2nd edition, 2007), para 6.28). Be all that as it may, Johnston was applied in the Court of Session within a week, in Wright v Stoddard International plc  CSOH 173 (http://www.scotcourts.gov.uk/opinions/2007CSOH173.html), a delict case which had been previously sisted to await the outcome of the Law Lords’ deliberations on the subject ( CSOH 138) (http://www.scotcourts.gov.uk/opinions/2007CSOH138.html).
The House of Lords decision predictably led to pressure from the groups supporting the victims of asbestos-related diseases and their families, with calls for legislation reversing the outcome in the same way as happened in 2006 following the House of Lords decision in the mesothelioma case, Barker v Corus  2 AC 572 (see Nos 555, 575, 579, 585). It will doubtless prove difficult for politicians to resist this pressure, given public sympathy for the unfortunate victims of asbestos poisoning; but whether a delictual right of action in respect of pleural plaques would be worth very much in the way of damages, along with the existence of a contractual claim anyway, will stay the legislative urge is surely a moot point. One also wonders what happened to all the objections, popular with politicians not so long ago, to a compensation culture (see Nos 462, 513). A counter-point is that insurance companies had been paying out on pleural plaque claims from the mid-1980s until a quite recent change of approach which led to the Johnston case.
The recurrence of asbestosis-related issues in the legal news also provides an opportunity to refer to a Scottish mesothelioma case missed by Scots Law News when the decision was issued on 5 April 2007 but providing a possibly unique example of the Court of Session in effect applying a Bill before it had received Royal Assent. In Dow v West of Scotland Shipbreaking Co Ltd  CSOH 71 (http://www.scotcourts.gov.uk/opinions/2007CSOH71.html), Lady Paton set down a procedure by which claims by a mesothelioma sufferer and his relatives under the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 could be combined in a single action. At the time of the decision the Act was still a Bill, albeit one which had completed its third reading in the Scottish Parliament and had been passed; it was however still awaiting Royal Assent. Lady Paton also noted that the Act was intended to have retrospective effect. The gist of Lady Paton’s decision was that the sufferer should raise the action initially, and this would be subject to a timetable under the Rules of Court; if a settlement was reached before the pursuer’s death, the action should then be sisted until that death, whereupon the pursuer’s relatives could be sisted to that action and their claims added to it. If however the pursuer survived to have a judgement on his claim, the relatives would have to bring a second independent action after his death.