David Harris is a Civil Law practitioner with a special interest in PI 

For many years, claims brought by claimants who have developed pleural plaques have been settled by insurance companies on the basis that pleural plaques constitute an ‘actionable’ injury.

That practice has now been brought to an end by the House of Lords’ decision in the case of Johnston and others v. NEI International and others [2007] UKHL 39. The House of Lords were asked to consider the question 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. In answering that question, the House of Lords went back to first principles.

1) a cause of action in tort for recovery of damages for negligence is not complete unless and until damage has been suffered by the claimant;

2) a physical condition caused by a negligent act or omission has to reach a certain threshold beyond the minimal in order for it to constitute an injury for which damages in tort can be claimed;

3) a state of anxiety produced by some negligent act or omission but falling short of a clinically recognisable psychiatric illness does not constitute damage sufficient to complete a tortuous cause of action;

4) in the absence of any physical injury having been caused, a risk, produced by a negligent act or omission, of an adverse condition arising at some time in the future does not constitute damage sufficient to complete a tortuous cause of action.

Applying these principles, the Lords held that the formation of pleural plaques does not, by itself, suffice to complete a tortious cause of action in negligence. Furthermore, the anxiety that can accompany the development of pleural plaques is not actionable, either in its own right or in conjunction with the physical presence of the pleural plaques. The situation is not much better, in terms of a claim brought in negligence, for those that develop recognisable psychiatric illnesses as a result of the formation of pleural plaques. The Lords held, in the case of a man that developed a depressive illness as a result of the presence of the pleural plaques, that it was not reasonably foreseeable that the creation of a risk of an asbestosis-related disease would cause psychiatric illness to a person of reasonable fortitude and, furthermore, to apply the principle in Page v. Smith [1996] AC 155 to a pleural plaques claim would be an unwarranted extension of that principle.

The only glimmer of hope given by the Lords for those suffering with the anxiety caused by the formation of pleural plaques was the suggestion that a claim for breach of contract may succeed where a claim in common law negligence would fail. Lord Scott made the point that damage does not have to be shown in order to establish a cause of action for breach of contract. All that is necessary is to prove the breach of a contractual duty such as the duty to provide a safe working environment for employees and an environment where reasonable precautions have been taken to avoid exposure to injurious asbestos dust.