Rothwell v Chemical & Insulating Co. Ltd. & Anor

We heard together eight appeals in respect of ten claims for personal injury which were tried together, as test cases, before Holland J. He gave judgment on 15 February 2005 in favour of the claimants. One of the appeals is by a claimant, Mr Hindson. In his case liability was never in issue, but he appeals against the quantum of the damages awarded by the judge. The other appeals are by defendants. They appeal against the judge’s finding that they were liable to the claimants. Alternatively, they appeal against the quantum of the damages awarded by the judge. In each of those cases, the claimant cross appeals on quantum.

Five of the seven appeals in respect of liability, those of Messrs Mears, Jackson, Downey, Topping and Johnston, raise the issue that led to the trial of these actions as test cases. It is an important issue on which there is no direct authority at appellate level. Each of the claimants was negligently exposed by his defendant employer to asbestos dust. That exposure has had three foreseeable consequences. The claimant has developed pleural plaques. The claimant is at risk of developing one or more long-term asbestos related diseases. The claimant has suffered anxiety at the prospect that he may suffer such disease. It is common ground, for reasons that we shall explain, that none of these consequences, if experienced on its own, would constitute damage capable of founding a cause of action in negligence. The common issue is whether, by aggregating with pleural plaques one or both of the other consequences, sufficient damage can be demonstrated to found a cause of action.

The case of Mr Rothwell differs from the five cases considered above only in that, in the course of the trial, Mr Rothwell was diagnosed as having developed some localised pleural thickening. This was symptomless and did not affect his prognosis. He nonetheless sought permission to withdraw from the trial, but this was refused. His case then proceeded as if it was on all fours with that of the other five claimants. No amendment was made to the particulars of damage in respect of which he claimed. He claimed and was awarded provisional damages on the assumption that he would not, during the remainder of his lifetime, develop “diffuse pleural thickening sufficient to cause symptoms”. No challenge was made of the judge’s ruling that Mr Rothwell’s claim should remain as one of the test cases. The cross-appeal on quantum did not make any claim in respect of the pleural thickening. No Respondent’s Notice was served seeking to rely on the diagnosis of pleural thickening.

Despite this, Mr Frank Burton QC submitted, on behalf of Mr Rothwell, that because he had developed pleural thickening the appeal against liability to him should be dismissed in any event. We do not agree. Pleural thickening raises issues of some difficulty to which we shall refer. So far as Mr Rothwell is concerned, however, we consider we must follow the judge’s approach of treating his case as indistinguishable in principle from those of the other five claimants.

The case of the seventh claimant, Mr Grieves, differs from those that we have so far considered in the following respect. Mr Grieves developed a depressive illness as a result of worrying about the consequences of his exposure to asbestos. He amended his pleading to allege that this was “as a result of being diagnosed with an asbestos-related disease”. He claimed final damages and those awarded included compensation for his depressive disease. Depressive illness can, in some circumstances, constitute sufficient damage to found a claim in negligence. We shall have to consider whether it does so in the case of Mr Grieves.

The final appeal relates to Mr Hindson. The facts of his case resemble those of the first five claimants to whom we have referred, save that the defendant employers did not choose to dispute their liability in his case. The only issue related to quantum. The judge awarded him £7,000. Against that award he appeals.

Asbestos. Asbestos fibres are of two main types: serpentine and amphibole. The former are curly and flexible, typically the product of white asbestos (chrysotile); the latter are straight and stiff, typically the product of blue asbestos (crocidolite) or brown (or grey) asbestos (amosite). The body has mechanisms for the clearance, or for the neutralising of inhaled asbestos fibres, but a proportion of inhaled asbestos will remain in the body for the balance of the lifetime of someone who has been exposed. It is this characteristic of persistence in the body which gives rise to the long term risks associated with asbestos exposure. Clearance occurs more rapidly for serpentine fibres than for amphibole fibres; it is therefore amphibole fibres that give the greater risk of diseases.

Once deposition occurs in the alveolar regions, ‘scavenger cells’ known as macrophages try to engulf the fibres. They succeed with smaller fibres but fail with larger fibres. The cells which fail in their attempts to engulf fibres die and release chemical mediators. These and chemicals generated at the surface of the asbestos fibres are responsible for producing inflammation. If this is sufficiently severe and long lasting, fibrosis (i.e. the laying down of complex protein called collagen) may develop. Removal by macrophages and dissolution in situ succeeds in clearing some of the asbestos fibres from the lungs. Remaining fibres in the lungs commonly become coated with ferroprotein to form ferruginous (or asbestos) bodies.

The Pleura. The movement of the lung in the course of respiration is facilitated by a slippery membrane covering, the pleura. There are two layers to the pleura: the parietal pleura which lines the inside of the rib cage, and the visceral pleura which covers the lungs. Normally there is no gap between these layers which are lubricated with pleural fluid. The pleura is separate from, and not part of the lung. The route by which asbestos fibres reach the parietal pleura has not been fully elucidated.

Pleural Plaques. These are localised areas of pleural thickening with well demarcated edges. They usually develop on the parietal pleura but occasionally develop on the visceral pleura. They consist of bland fibrous tissue. The pathogenesis is uncertain but it is believed that the presence of asbestos fibres leads to a prolonged low-grade inflammatory response resulting in the release of chemical mediators, in turn leading to the laying down of fibrous tissue. The following propositions are common ground:

(a)

Pleural plaques are by far the most common pathological effect of asbestos inhalation on the respiratory system;

(b)

They may occur after occupational exposure at a lower level than is needed to cause asbestosis;

(c)

The frequency and extent of occurrence have a relationship with the quantity of fibres inhaled and the duration of exposure;

(d)

The presence of pleural plaques does not normally occasion any symptoms. Very occasionally, in fewer than 1% of cases, the patient may be aware of an uncomfortable grating sensation on respiration;

(e)

Given an absence of symptoms, the presence of pleural plaques is only established by way of chest x-ray or C.T. scan or on post-mortem autopsy, often incidental to some other investigation. When reading an x-ray it may not always be easy to distinguish between pleural plaques and pleural thickening;

(f)

Pleural plaques are rarely detected during the first 20 years following exposure to asbestos. Moreover, exposure to asbestos does not necessarily result in the development of plaques, notwithstanding the passage of 20 years or more;

(g)

With time plaques may become more extensive;

(h)

Plaques do not in themselves threaten or lead to other asbestos induced conditions nor are they a necessary pre-condition to such conditions; they do not increase the risk of lung cancer; they differ from diffuse pleural thickening; and their pathology is entirely distinct from that of mesothelioma. They evidence exposure to asbestos.

It is useful to cite from Dr. Rudd’s own work on “Occupational Disorders of the Lung”, published in 2002:

“Pleural plaques are not thought to lead directly to any of the other benign varieties of asbestos-induced pleural disease, nor to pose any risk of malignant change leading to mesothelioma. Their presence may indicate, nevertheless, a cumulative level of asbestos exposure at which there is an increased risk of mesothelioma or other asbestos-related disorders. On average, in the absence of any other evidence about exposure it is reasonable to assume that subjects with plaques will have had higher exposure to asbestos than subjects without plaques. The frequency of development of other complications of asbestos exposure in persons with plaques is not a function of the presence of the plaques, but of the asbestos exposure that caused plaques. Since plaques may occur after a wide range of different exposures, the risks of other asbestos-related conditions may differ widely between different populations and individuals with plaques.”

Dr Rudd and Dr Moore-Gillon were asked to express views as to whether pleural plaques signified an ‘injury’ or a ‘disease’. They emphasise that such choice of categorisation does not normally concern the clinician but said that in some (but not all) medical textbooks pleural plaques are categorised as a benign disease.

Pleural Thickening. This is a pleural fibrosis arising from inhalation of asbestos that extends continuously over a variable proportion of the thoracic cavity but without well circumscribed margins – it is diffuse and not demarcated. It usually involves the visceral pleura. If sufficiently extensive it may cause restrictive lung function impairment and breathlessness; occasionally it is the cause of persistent chest pain. In itself the condition is benign. It is not caused only by asbestos exposure, but can be caused by other pathologies such as infection or trauma.

Asbestosis. This is a fibrosis of the lungs caused by exposure to asbestos. A minimum dose of the latter is necessary to bring about the condition; the severity increases with the amount that is inhaled. It does not usually develop within the first 20 years following exposure.

Mesothelioma. This is a malignant terminal tumour found not only, but most commonly, in the pleura. In the main such tumours are caused by exposure to asbestos. The mean latent period between first exposure to asbestos and death from mesothelioma is of the order of 40 years. The incidence of mesothelioma in Western Europe has been increasing: in the United Kingdom it is expected to peak between 2010 and 2020 at some 2,500 – 3,000 cases per annum. There is no cure and death commonly results within 12 to 18 months of the onset of symptoms. It is a very distressing way in which to die.

Lung Cancer. This, as the title implies, is a cancer arising in the lung which can be caused or contributed to by asbestos. As with asbestosis, the risk of such cancer is related to the dose of asbestos – the greater the dose, the greater the risk, particularly if the asbestos is of the amphibole type. In this context there is interaction between the exposure to asbestos and smoking since, as is now well-known, smoking can also be the cause of lung cancer.

We propose at this stage to consider the three heads of damage which, together, the claimants contend can found a cause of action and to explain why, individually, each one will not suffice for this purpose.

Pleural plaques undoubtedly constitute a physiological change in the body. We have described the nature of this change above. For present purposes their relevant feature is that, save in the case of about 1% which no-one has suggested has significance, they are symptomless, have no adverse effect on any bodily function and, being internal, have no effect on appearance. In short, ignoring the 1%, no one is any the worse physically for having pleural plaques.

It has always been the law in England and Wales that, negligence is not actionable per se, it is only actionable on proof of damage. While such damage need not be substantial it must be more than minimal. This is not controversial. In paragraph 8 of his speech in Fairchild, Lord Bingham said:-

“In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage.”

see further Clerk and Lindsell, Torts, 18th edition paragraphs 33-07 note 44 and the old cases there cited.

Lord Pearce in Cartledge v Jopling [1963]AC 758 observed at page 779:-

“It is for a judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree . . . . . It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the other hand evidence that in unusual exertion or at the onslaught of disease he may suffer from his hidden impairment tells in favour of the damage being substantial.”

The principle that judges used to describe as ‘de minimis non curat lex’ is one of policy. It is but one of a number of principles of policy which are of relevance to this appeal. The courts will not allow their process to be used to pursue a claim unless what is at stake justifies the use of the process. A claim for negligence will only lie where damage has been caused that is worth suing for. In Cartledge v Jopling at p. 781 Lord Pearce said:

“The cause of action accrued when it reached a stage, whether known or unknown, at which a judge could properly give damages for the harm that had been done.”

It seems to us that this comes close to the definition of ‘significant injury’ in section 14(2) of the Limitation Act 1980, namely injury in respect of which a claimant:

“would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment”

Indeed, in Patterson v Ministry of Defence (unreported – 29 July 1986) Simon Brown J held that material damage sufficient to set time running was the same as damage necessary to complete a claimant’s cause of action in negligence.

In Cartledge v Jopling the House of Lords approved the judgments of the Court of Appeal. In that court Pearson LJ, [1962] 1 QB 189 at p. 207 expounded two alternative theories as to when actionable damage first accrues in a case of pneumoconiosis, of which he espoused the former. It is, perhaps, worth quoting a passage as giving guidance on the difficult question of when injury passes from being de minimis to being sufficiently significant to found a cause of action:

“…there is from the beginning some injury occurring from day to day, as each of the minute particles which enter the lung tissue causes some microscopic injury and permanent scarring, but a reasonable application of the de minimis rule postpones the first damage for legal purposes to the point at which the accumulated scarring is sufficient to diminish appreciably the elasticity of the lungs and deprive them of much of their reserve capacity; that point is not likely to be reached for several years, and may not be reached for many years, but when it is reached there is the damage completing the cause of action…”

It is common ground in this case, rightly in our view, that the development of pleural plaques is insufficiently significant, of itself, to constitute damage upon which a claim in negligence can be founded.

Where injury caused by negligence carries with it the chance that the claimant will suffer further physical damage in the future, the general damages recoverable by way of a final award will be increased to reflect the chance of this adverse outcome – see Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176, paragraph 67 per Lord Hoffmann. But no claim can be made in respect of the chance of contracting a future disease if this is not consequent upon some physical injury. The reason for this must once again be attributed to policy.

Worry about what may happen in the future can impair the enjoyment of life. Where physical injury is caused by negligence a claimant’s general damages will include compensation for ‘pain and suffering’. McGregor on Damages, 17^th edition, accurately states at paragraph 35-213:

“As to suffering, this would seem to include … fear of future incapacity as to health, sanity or the ability to make a living... ”

to which we would add the fear of premature death. But the English courts have never entertained a claim for fear of future illness, incapacity or death where these are not the potential consequences of physical injury. As Lord Wensleydale put it in Lynch v Knight (1861) 9 HLC 577 at p. 598:

“Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested”

Thus, in the present case, the claimants do not suggest that they could bring a free-standing claim for the anxiety that they have been caused. They claim compensation for this because they claim that it is linked to the development of the pleural plaques.

Here also, the reason why anxiety cannot be treated as a free-standing head of damage is one of policy. Even where the defendant’s conduct foreseeably causes psychiatric injury to a claimant, policy places restrictions upon the circumstances in which this can give rise to a claim in negligence. This will be of relevance when we come to consider the case of Mr Grieves.

We draw attention at this point to two other principles of policy that are relevant. The first is that a claim should be brought within a reasonable time of the cause of action arising. This principle is reflected by the statutes of limitation. They originally posed a problem in circumstances where a claimant might be unaware that a cause of action had accrued, typified in Cartledge v Jopling. That problem has been alleviated by subsequent legislation – currently sections 11, 12 and 14 of the Limitation Act 1980 which provide that the three year limitation period in respect of a claim for personal injury does not begin to run until the claimant is aware that he has sustained significant injury, defined as set out in paragraph 21 above.

The other principle is that litigation should be finite, so that a claimant can only bring one claim in respect of damage attributable to a particular cause of action. This creates a problem where the extent of the damage caused is uncertain because it depends upon what happens in the future. This problem has been alleviated by rules of court which entitle a claimant to opt to recover provisional damages, made pursuant to section 32A of the Supreme Court Act 1981, which provides:

“(1)

This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.

(2)

. . . . . as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person—

(a)

Damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and

(b)

Further damages at a future date if he develops the disease or suffers the deterioration.”

Any claimant may now, therefore, choose to obtain a provisional award.

Holland J did not accept in total the way in which the claimants advanced their case. Before us they have stuck to their guns, advancing the following primary case pursuant to Respondents’ Notices:

“1.

The development of pleural plaques as a result of exposure to asbestos is an injury and/or disease…

2.

Pleural plaques represent irreversible structural damage to the pleura which, in combination with the attendant risks of other asbestos-related diseases (such as mesothelioma, lung cancer and asbestosis) and anxiety suffered as a result of the diagnosis, constitute significant injury sufficient to complete the cause of action in each case”

In advancing these submissions the claimants relied before the judge and have relied before us on three unreported decisions at first instance: Church v Ministry of Defence, Peter Pain J, 23 February 1984; Sykes v Ministry of Defence Otton J, 19 March 1984; Patterson v Ministry of Defence Simon Brown J, 29 July 1986, and on the fact that damages have been awarded in respect of pleural plaques in the 20 years that have followed these decisions.

Holland J held that the question of whether the claimants had a cause of action fell to be determined by applying the tests laid down in Cartledge v Jopling which we have cited above. The judge held that the claimants had been wrong to focus on the pleural plaques. These were not the relevant injury. He held at paragraph 80:

“I start by rejecting any notion that pleural plaques per se can found a cause of action. I am not satisfied that for forensic purposes they can be categorised as a ‘disease’ nor as an ‘impairment of physical condition’. This whole forensic exercise arises because for practical purposes there is no disease, nor is there any impairment of physical condition.”

The plaques were merely pointers to the relevant injury, which was the permanent penetration of the chest by asbestos fibres.

The judge identified the following issues:

“a.

Can that permanent penetration with the implications necessarily flowing from such constitute ‘damage’ or ‘injury’ so as to complete the foundation for a claim in negligence?

b.

If ‘no’, then does the position differ as and when the fact of penetration is confirmed by the finding of pleural plaques?

c.

If ‘no’, then is it only with the onset of significant asbestos related symptoms that the foundation is provided?”

The judge answered the first issue in the negative, for the reasons set out in paragraph 71 of his judgment:

“… inferred permanent penetration by asbestos fibres cannot, simpliciter, constitute injury or damage so as to found a cause of action. Penetration that is permanent (that is, such that has defeated the body’s natural defences) raises a potential for damage, but no more. For damage to found a cause of action such has to be real, other than minimal ...”

The judge went on to answer the second issue in the affirmative, for reasons which appear from the following extracts from paragraph 80 of his judgment:-

“I am satisfied that when, as in the instant cases, anxiety is engendered by tortiously inflicted physiological damage it can properly contribute to ‘damage’ or ‘injury’ so as to complete the foundation of a cause of action. It becomes that which is routinely encompassed in ‘pain and suffering’ or ‘loss of amenity’. I take it to be beyond dispute that a continuing anxiety engendered by a tortiously inflicted external scar can contribute to the compensatable injury and I see no logical difference between that situation and such that arises in the instant situation.”

“…, I cannot myself regard as minimal the presence of asbestos within the body that is permanent, raising a possibility (albeit no higher than that) of the future onset of asbestosis or the even more daunting mesothelioma,”

The claimants rely, by way of alternative submission, on the reasoning of the judge. It seems to us that the difference between the approach of the claimants and the approach of the judge is as follows. The pleural plaques, upon which the claimants rely as constituting the relevant injury, have no potential causal nexus with the asbestos related diseases that the claimants may develop in the future. The penetration of the chest by asbestos fibres, identified by the judge as the relevant injury, will have a causal nexus with any such diseases. The plaques are merely relevant as the evidence which demonstrates extensive penetration of the chest by asbestos fibres.

On the judge’s analysis it does not seem to us that the plaques have more relevance than any other indication of the ingestion of asbestos fibres. Plaques by no means always accompany a particular degree of ingestion of such fibres. Other indicators, such as the degree of exposure, may be more reliable. Furthermore, we think that the judge attached unjustified importance to the role of the plaques as evidence because he mistakenly interpreted Cartledge v Jopling as ruling that there can be no cause of action until damage has been caused which is capable of being discovered, when in fact the case laid down no such requirement. It seems to us that the essential issue in this case is as follows. Can physical changes to the body negligently caused, which are of themselves insufficiently serious to give rise to a cause of action, found a claim in negligence if they carry a risk of causing significant injury and give rise to consequent anxiety? The law attaches particular importance to physical damage as this is the gateway for recovery for secondary effects of negligence which give rise to no free standing claims. If the physical change is so insignificant that it cannot, of itself, found a claim, the question arises of why, as a matter of logic or principle, it should open the door to recovery for risk of future injury or for anxiety.

In focusing on the development of pleural plaques as the trigger of liability, the claimants have selected a physical change which is more readily demonstrable than the piercing of the lung by asbestos fibres, but one that does not itself have the propensity to develop into an asbestos related disease. It merely evidences a degree of exposure to asbestos which carries with it the risk of developing such disease. We propose to consider first the claimants’ primary case before examining the alternative basis for liability which found favour with the judge. We shall start by looking at the relevant authorities, before considering the impact of consideration of policy

In Cartledge v Jopling the issue was whether employees’ claims for breaches of duty causing pneumoconiosis were time barred under the Limitation Act 1939 because more than 6 years had elapsed between the time when their causes of action had accrued and the dates when the writs were issued. The critical issue in each case was when the cause of action arose. The evidence was that inhalation of noxious dust could cause substantial injury to lungs before such injury could be discovered by any means known to science. The evidence was that each claimant had, in fact, developed pneumoconiosis and consequent reduction in lung capacity to an extent that would have been detectable by X-ray prior to the relevant six year period. The statements made by their Lordships as to the extent of injury necessary to found a cause of action were made in the context of physical injury alone. The decision demonstrates the correctness of the proposition that pleural plaques, or indeed the piercing of the lungs by asbestos fibres, could not, of themselves, found a cause of action in that neither condition had any symptom or adverse effect on the functioning of the body. The decision does not, however, afford any assistance with the critical question of whether such physical conditions can be aggregated with the risk of future asbestos related disease and the consequent anxiety so as to constitute damage of sufficient significance to found a cause of action.

In Church v Ministry of Defence the claimant was aged 62 and had been exposed to asbestos when working for the defendants as a dockyard fitter up to 1954. The evidence was first that pleural plaques were apparent on X-ray; second, that it was possible for those plaques to extend so that the pleura would constrict the lung and induce breathlessness; and, third, that the asbestos must have passed through the lung to reach the pleura so that it was probable that there was some concurrent fibrosis. As to the future, it was probable that there would be no future deterioration “but there is undeniably a substantial risk that, the condition having been stable for many years, there will suddenly be a marked progression of lung fibrosis with consequent effect on breathing and on health”. There was an extremely small risk of mesothelioma. For his part the claimant had worried ‘very considerably’.

Counsel for the Ministry submitted that the evidence disclosed no damage. It was “undeniable that some physiological injury has been done” but it was symptomless and unlikely to lead to future incapacity. The damage to the pleura and any damage to the lung should be regarded as minimal. No damages should be awarded for anxiety: it was not substantial and was not ‘attached’ to some physical cause. He cited Cartledge v E. Jopling.

Peter Pain J ruled against the Ministry. He stated that it was an error to consider the pleural plaques on their own. The pleural plaques had to be considered in conjunction with damage that had probably been caused to the lungs; he could not, therefore, regard the damage as minimal. He regarded anxiety as the natural consequence of the radiological finding, so that it was justifiably ‘considerable’ for some months. Saying “I do not think I can rate the damages as being very substantial in this case”, he made a final award of £1,500 general damages; the law did not then permit a claim for a provisional award.

This decision plainly falls to be distinguished from the cases before us. The judge found as a fact that physical damage had been caused to the lungs which could not be described as minimal. Here it is common ground that the physical damage is minimal.

In Sykes v. Ministry of Defence the claimant was aged 62. From about 1938 to 1970 he had been exposed to asbestos. Subsequent X-rays revealed pleural plaques. The evidence was to the effect that these plaques were unlikely to give rise to any future disability. That said, there was, by reason of the claimant’s past exposure to asbestos, “a slightly increased risk of developing a lung cancer and a definite increased risk of developing mesothelioma”. Additionally the Plaintiff had reasonably suffered genuine anxiety.

Counsel for the Ministry made a similar submission to the effect that no injury had been sustained. Otton J rejected this submission saying at page 14G of the transcript:-

“ ….. there has been a definite change in the structure of the pleura due to the presence of the asbestos. In my judgment that amounts to a significant and definite degree of damage which entitled the Plaintiff to compensation as he has established actual damage ….. he is entitled to be compensated not only for the physical damage ….. but also for the aspect of anxiety which seems to me to have a connection with physical damage, to be entirely genuine and thoroughly understandable in a person who has worked in such conditions and has known his workmates to die in the circumstances that he has described. I have also come to the conclusion that he is entitled to be compensated for the risks of lung cancer and mesothelioma.”

In the event a final award was made: £1,500, specifically to reflect physical damage, anxiety and the risks of future disease.

Otton J held that the change in the structure of the pleura constituted by the pleural plaques amounted to a “significant and definite degree of damage” which could not be treated as minimal or negligible and which entitled the plaintiff to compensation as he had established “actual damage”. That finding contrasts with the acceptance on behalf of the claimants in the present case that their pleural plaques do not, of themselves, amount to damage that is sufficiently significant to found a cause of action. For this reason Sykes v Ministry of Defence affords no assistance in resolving the appeals before us.

In Patterson v. Ministry of Defence, the claimant was aged 59 and in the course of his employment from 1942 to 1983 had been exposed to asbestos. X-rays had revealed pleural plaques. The medical evidence identified:-

Counsel for the Ministry repeated the submissions made to Peter Pain J and Otton J. They were rejected: Simon Brown J saying at page 10G of the transcript:-

“I have no doubt whatever that the Plaintiff ….. has suffered material damage. It consists of the symptom – free pleural changes, the risk of pleural thickening deteriorating with the consequences I have indicated, the risk of mesothelioma developing and the understandable worry attendant upon these matters.”

By July 1986 a Plaintiff was able to claim a provisional award and one such had been claimed. In making a provisional award Simon Brown J said: (page 13 C-G):-

“I therefore have to value in combination (a) the present symptom-free pleural changes; (b) the 5%-odd risk of further diffuse changes developing so as to aggravate the plaintiff’s breathlessness, and (c) the anxiety which the plaintiff entirely understandably, and in my judgment reasonably, has hitherto suffered, in particular over the last two years, and to a far more limited degree, the worry he may still experience in the future, even though, as I have sought to emphasize, these future risks are really very small. Doing my best to arrive at a figure which accords reasonably with the scale established by Church and Sykes, both now 2 years old, and with my own views upon the particular facts of the instant case, I assess such damages in the sum of £1,250. There will accordingly be judgment for the plaintiff for damages in that sum assessed on the assumption that the plaintiff will not develop mesothelioma at any future stage.”

Simon Brown J made it plain that he did not consider that “symptom-free pleural changes” could, of themselves, constitute significant damage for the purpose of founding a cause of action – see p.10E. But he also held, at p. 9C that:

“In deciding whether material damage has been caused it is appropriate to have regard not merely to actual physical manifestation of injury, but also to whatever risks consequent upon the original injury may exist of future symptoms becoming manifest”

Simon Brown J cited in support of this proposition Pirelli v Oscar Faber & Partners [1983] 2 AC 1 and its citation of a passage from the speech of Lord Halsbury in Darley Main Colliery v Mitchell (1886) 11 App. Cas. 127 at 132.

Simon Brown J’s decision is directly in point and supports the claimants’ case. He did not, however, carry out any analysis of the issue of whether it was correct to aggregate with physical damage which was too insubstantial to give rise to a cause of action a risk of future damage which could not, of itself, found a cause of action. Nor, with respect, was his application of Pirelli apt. In that case the defendants were negligent in using the wrong material to build a chimney. The consequence of the negligence was that the chimney developed cracks which called for expensive repairs. The cracks developed by April 1970 but were not discovered until November 1977. The House of Lords held, following Cartledge v Jopling, that time began to run for limitation purposes when the damage was caused, not when it was discovered.

The citation from Darley Main Colliery v Mitchell to which Simon Brown J referred read as follows:

“No one will think of disputing the proposition that for one cause of action you must recover all damages incident to it by law once and for ever. A house that has received a shock may not at once show all the damage done to it, but it is damaged nonetheless [then] to the extent that it is damaged, and the fact that the damage only manifests itself later on by stages does not alter the fact that the damage is there; and so of the more complex mechanism of the human frame, the damage is done in a railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time, the later stages of suffering are but the manifestations of the [original] damage done, and consequent upon the injury originally sustained.”

That passage does not support the proposition that if damage, of itself insignificant, is caused by negligence, it will found a cause of action if there is a risk that it may lead to more substantial damage at a later stage.

The Northern Ireland courts appear to consider that pleural plaques constitute, of themselves, sufficient damage to found a cause of action in negligence. Thus, in Bittles v Harland & Wolff [2000] NIQB 13 Girvan J held at paragraph 12:

“In a case such as the present where the plaintiff has been exposed to and has inhaled asbestos dust as a result of the defendant’s negligence and has in consequence developed pleural plaques, the development of the pleural plaques even if asymptomatic represents bodily damage and a personal injury which when combined with the defendant’s breach of a duty of care brings about the establishment of a cause of action against the defendant. It is trite law that for a plaintiff to succeed in an action for negligence he must establish a duty of care, a breach of that duty and consequent damage. Once the plaintiff has suffered the physical bodily damage represented by the pleural plaques his cause of action has accrued and the plaintiff’s claim will relate to all the physical consequences and risks which flow from the negligence. Thus the plaintiff is entitled to recover damages both for the pleural plaques and for the risks of developing more dangerous medical conditions such as asbestosis and mesothelioma. ”

The contrary does not appear to have been argued and we were not referred to any decision in which the defendant raised the issue of principle that has been raised on these appeals.

In Scotland also it appears to have been accepted that “pleural plaques constituted an identifiable injury for which damages were recoverable” – see Gibson v McAndrew Wormald [1998] SLT 562 at p. 563 per Lord Maclean.

We were referred to a number of State decisions holding that symptomless pleural plaques do not constitute damage that is capable of founding a cause of action and that the fact that there is a risk of developing an asbestos related disease does not do so either – see the review of authorities in Nixon v Philip Morris [1999] FCA 1107 at paragraphs 76 to 83. The aggregation issue that arises on these appeals does not appear to have been expressly considered.

The Federal Employers’ Liability Act provides by section 1 that every common carrier by railroad while engaged in interstate commerce shall be liable in damages to any person suffering injury in the course of his employment resulting from the carrier’s negligence. In Norfolk & Railway Company v Freeman Ayers et al. (2003) 538 US 135 the Supreme Court ruled that workmen who were able to prove that they had sustained physical injury as a result of being negligently exposed to asbestos could recover, as part of their damages for pain and suffering, mental anguish as a result of fear of developing cancer. Speaking for the majority of the Court, Ginsburg J at pp. 156-7, after very wide citation of both Federal and State authority, made it plain that damages for such mental anguish could only be recovered by a plaintiff suffering from an asbestos related disease. Furthermore she appeared to approve commentators who drew a distinction between plaintiffs who had suffered “real physical harm” and plaintiffs with pleural thickening that was asymptomatic.

There was considerable debate before us as to the effect of a substantial volume of State authority. This, while not all to the same effect, accorded in general with Ginsburg J’s ruling.

We identified earlier in this judgment established principles of policy that are relevant to these appeals. It seems to us that this court should, so far as possible, achieve a result that accords with those principles. We propose none the less to comment briefly on their merits.

Litigation is expensive and, under our system, the costs fall to be borne by the unsuccessful party. We consider it plainly desirable that claimants should not be permitted to pursue claims for trivial injuries. The fact that negligence has produced a physiological change that is neither visible nor symptomatic and which in no way impairs the bodily functions should not attract legal liability.

We consider that there is obvious justification for the policy that prevents free-standing recovery of damages for being exposed to the risk of contracting a disease. An award of damages in such a case could only be computed on the basis of the chance of contracting the disease. The passage of time is bound to demonstrate that the award was unjust. If the claimant contracts the disease, the award that he has received will be inadequate compensation. If he does not, it will become apparent that he has received a windfall award at the expense of the defendant. This unsatisfactory state of affairs also arises where a claimant who has sustained injury obtains a final award that takes into account the risk of subsequent disease.

Anxiety is a form of psychiatric prejudice that is less serious than one of the recognised forms of psychiatric injury. The law does not recognise a duty to take reasonable care not to cause anxiety. It does not even recognise a duty to take reasonable care not to cause psychiatric injury. Control mechanisms, the creatures of policy, restrict the circumstances in which a defendant will be liable for causing foreseeable psychiatric injury. One can readily appreciate the policy reasons for not imposing a general duty of care not to cause anxiety. Where, however, a defendant has by want of care or breach of statutory duty exposed a claimant to the risk of contracting a disease for which the defendant is potentially liable, it is less easy to see why the defendant should not be liable for foreseeable psychiatric injury or lesser psychiatric prejudice, if this can be shown to be having a significant effect on the claimant. The latter requirement may, however, provide justification for not permitting recovery for anxiety. The difficulty of proving anxiety, of determining the moment at which a cause of action arises and of quantifying damages in respect of both past and future anxiety may be reason enough for not permitting free-standing claims for this form of prejudice. Different considerations apply in respect of psychiatric injury, to which we shall return when considering the case of Mr Grieves.

The first of these principles is reflected in the law of limitation; the second is the requirement to claim compensation in a single action for all the consequences of a wrong. It was the interaction of these two principles which led to the injustice that so troubled their Lordships in Cartledge v Jopling. If these appeals were being heard in the context of the law as it stood at the time of that decision, there would be strong arguments of policy against holding that the existence of pleural plaques, latent and possibly unappreciated, were critical in giving rise to a cause of action that started the limitation period running.

The law has changed since Cartledge v Jopling in that time does not begin to run against a claimant until he is aware that he has sustained personal injury and the claimant can then claim provisional damages, leaving open the possibility for a further claim if an asbestos related disease supervenes. Policy considerations are today more nicely balanced.

It can be argued that the requirement that a claimant should have developed pleural plaques is a useful control mechanism, restricting the circumstances in which damages can be recovered for anxiety and, at the same time, providing certainty as to when such a claim will lie, the more so as it is often the discovery of the existence of the plaques which, however illogically, creates or augments the anxiety. This argument presupposes that it is desirable that claimants should be able to recover damages for anxiety induced by exposure to asbestos. It also raises the question of why those who can demonstrate pleural plaques should have the privilege of being entitled to recover damage for anxiety whereas others, who have been similarly exposed to asbestos, have just as much cause to be anxious, and who may be just as anxious, should have no cause of action.

Mr Michael Kent QC, for the defendants, has persuaded us that there are a number of reasons of policy why it is undesirable that the development of pleural plaques should give rise to a cause of action. We can summarise these as follows. If pleural plaques give rise to a cause of action:

We have demonstrated that there is no legal precedent in this country, beyond first instance decisions, for aggregating three heads of claim which, individually, could not found a cause of action, so as to constitute sufficient damage to give rise to a legal claim. We can see no logical basis for such an approach. Nor can we see any justification for departing from logic or legal principle in the specific case of asbestos induced pleural plaques. Policy points the other way, as do decisions in Australia and the United States. For these reasons, which differ from those of the judge, we have reached the conclusion that the primary way that the claimants put their case is unsound.

Holland J held that the foundation of the claimants’ cause of action was not the pleural plaques themselves, but the penetration of the lungs by asbestos fibres that was evidenced by the existence of pleural plaques. He held that this penetration did not, of itself, give rise to a cause of action but that it did when coupled with the risk that the asbestos fibres would give rise to disease and the anxiety generated about this risk. Is this analysis a more compelling justification for holding that a cause of action has been made out? We do not believe so. Statistics indicate that a small minority of those exposed to asbestos to the extent that they develop pleural plaques will develop an asbestos related disease. In the case of any individual claimant the odds are that the asbestos fibres in his lungs will remain innocuous. We do not consider that the presence of those fibres, as demonstrated by pleural plaques, is any more capable than the existence of the plaques themselves, of founding a cause of action.

Counsel for the claimants argued that if we hold that pleural plaques will not found a cause of action, our judgment will raise problems in relation to pleural thickening. Pleural thickening differs from pleural plaques in that its development tends to reduce lung capacity. We accept that our judgment may focus attention on the question of the stage at which pleural thickening gives rise to a cause of action, but this is an issue which will have to be considered as and when it arises.

For these reasons the appeals by the defendants in the cases of Messrs Mears, Jackson, Downey, Topping, Johnston and Rothwell will be allowed. We appreciate that by this decision we are holding erroneous a practice that courts of first instance in the United Kingdom have been following in these cases for twenty years or so but, for the reasons of policy that we have given, we do not believe that this will result in injustice.

Mr Grieves’ Particulars of Claim, dated 29 July 2003, stated under the heading ‘Details of Injury’ that he had developed pleural plaques, that there was a chance that he would develop specified asbestos-related diseases and that “the Claimant is anxious about the risks of malignancy”. On 16 February 2004 Dr Rajiv Menon produced a Report that attributed a depressive illness suffered by Mr Grieves to anxiety at being exposed to asbestos-related disease and further attributed to the depressive illness a condition of Irritable Bowel Syndrome (‘IBS’) experienced by Mr Grieves. This led, on 13 September 2004 to an updating of Mr Grieves’ Schedule of Special Damage and Future Loss to allege that Mr Grieves had suffered and continued to suffer from a depressive illness and IBS and had, in consequence, sustained loss of earnings and would sustain future loss of earnings.

Holland J dealt with Mr Grieves’ case on exactly the same principles as those of the other claimants, awarding damages totalling £33,292 which included £10,000 general damages and past and future loss of earnings.

Before us Mr Allan QC for Mr Grieves submitted that, if the appeals against the awards in favour of the other claimants were allowed, Mr Grieves remained entitled to his award of damages, which was challenged as inadequate, because he had a free-standing claim for psychiatric injury. This was on the basis that the psychiatric injury sustained had been a foreseeable consequence of the defendants’ breach of duty. Alternatively, because physical injury was a foreseeable consequence of that breach of duty, recovery could be made for psychiatric injury in accordance with the principle in Page v Smith [1996] 1 AC 155 HL. These submissions raise issues of difficulty and importance that tended to be submerged under the generic issues in the appeals, for very little argument was addressed to them.

The relevant facts, as found by the judge, were as follows:

(1)

Mr Grieves’ initial anxieties of the 1960s and 1970s when he was exposed to asbestos fibres were alleviated by X-rays of 1979, 1982 and 1994 which reported no abnormalities;

(2)

An X-ray of 29th August 2000 reportedly showed slight pleural and mucosal thickening. He reacted badly to this news. There was a long interval between the reputed findings and medical re-assurance. He developed irritable bowel syndrome and stopped work as a result in November 2002;

(3)

Dr Rudd examined Mr Grieves on 28th November 2002 for the purpose of the current proceedings; new X-rays revealed no sign of pleural thickening or asbestosis. They did show “possible minimal pleural plaques formation”. He recommended a CT Scan;

(4)

No CT Scan could be arranged before 21st July 2003 which caused additional further anxiety. The CT Scan showed “very small bilateral pleural plaques formation”;

(5)

On 23rd July 2003 Dr Rudd told Mr Grieves that:

(a)

there was a 2% risk of disabling breathlessness arising from diffuse pleural thickening;

(b)

there was a 2% risk of the development of asbestosis;

(c)

there was a 5% risk of the development of mesothelioma;

(d)

the existing risk of lung cancer (resulting from Mr Grieves habit of smoking in his early life) was enhanced to 5%;

(6)

On 1st December 2003 Mr Grieves was examined by a consultant psychiatrist Dr Rajiv Menon who diagnosed the existence of a depressive illness at the time of examination which had already existed for some time. He recommended medication and cognitive behaviour therapy;

(7)

Happily, by the time Mr Grieves gave evidence, he had much improved even though he had taken no medication and participated in no cognitive behaviour therapy. This was because he had had the opportunity to reflect upon Dr Rudd’s diagnosis and prognosis and the relative optimism associated with it. Dr Menon was surprised at his patient’s progress;

(8)

Mr Grieves had suffered a depressive illness which was different from the anxiety proved by the other claimants.

The judge did not find that Mr Grieves’ psychiatric injury was a reasonably foreseeable consequence of the defendants’ breach of duty. There is no material which would enable us to make such a finding. Dr Menon described Mr Grieves case as “relatively unique because he had longstanding, anticipatory fears of developing the disease, which were present ever since he had learnt about the dangers of exposure some decades ago”. It is not possible to deduce from Dr Menon’s report whether employees of reasonable fortitude are liable to suffer psychiatric injury on learning, whether as a result of developing pleural plaques or otherwise, that their exposure to asbestos carries with it a risk of developing mesothelioma, lung cancer or other serious disorder. In these circumstances the issue is whether the approach of the majority of the House of Lords in Page v Smith is applicable to a case such as that of Mr Grieves. That is a question that must be considered in the context of the approach of the English courts to claims for psychiatric injury.

The English courts have never applied a simple test of foreseeability as determinative of the circumstances in which liability arises under the law of negligence for causing psychiatric harm. In McLoughlin v O’Brian [1983] AC 410 at pp. 421-2 Lord Wilberforce stated:

“there remains, in my opinion, just because “shock” in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims.”

The law in relation to psychiatric injury as developed in two different areas where acts or omissions may lead to such injury: 1) ‘accidents’ causing or threatening death or personal injury; 2) stress at work.

In the field of personal injury the development started with Dulieu v White [1901] 2 KB 669, where it was held that a plaintiff could recover in respect of the physical consequences of ‘nervous shock’ caused by reason of “reasonable fear of immediate personal injury to oneself”. Liability was then extended to cover the effect of nervous shock arising from witnessing an accident. In King v Phillips [1953] 1 QB 429 Lord Denning MR produced the pithy proposition that “the test for liability by shock is foreseeability of injury by shock” – p.440.

In McLoughlin v O’Brian [1983] 1 AC 410 Lord Wilberforce laid down a number of control mechanisms to apply in relation to claims for psychiatric injury as a result of reaction to death or physical injury caused to another. The person killed or injured should normally be a close relative of the claimant; the claimant should be at the scene of the accident or come on the aftermath of it; the claimant should witness the accident or its aftermath by sight or sound – it was not enough merely to be told about it.

Alcock v Chief Constable of Yorkshire Police [1992] 2 AC 310 involved claims by relatives of spectators killed in the Hillsborough disaster. The House of Lords unanimously approved Lord Wilberforce’s control mechanisms. Lord Oliver identified two categories of victim, the ‘primary victim’ being a person killed or injured by the negligence of another and the ‘secondary victim’, a person whose psychiatric injury arose as a reaction to witnessing an accident to a primary victim. Lord Wilberforce’s control mechanisms were relevant to claims by a secondary victim. The following descriptions of the cause of the psychiatric injury giving rise to the cause of action should be noted: “a sudden assault on the nervous system” per Lord Keith at p. 398; “shock in the context of this cause of action involves the sudden appreciation of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period in time of more gradual assaults on the nervous system”, per Lord Ackner at p. 400, “a sudden and unexpected shock to the plaintiff’s nervous system” per Lord Oliver at p. 411.

With this background, we turn to Page v Smith. The facts were unusual. The plaintiff was the driver of a car which collided with another with an impact of some force but which, while causing damage to the vehicles, did not cause physical injury to either driver. The experience, however, was held to have resulted in a recrudescence of a chronic fatigue syndrome from which the plaintiff had previously suffered, with the result that he could never work again. The Court of Appeal held that the defendant was not liable because it was not reasonably foreseeable that the accident would cause the plaintiff psychiatric injury. They applied Lord Denning’s words – “the test for liability for shock is foreseeability of injury by shock”.

In the House of Lords a critical issue was whether this was the right test. A minority, Lord Keith and Lord Jauncey, thought that it was and that the claim should be dismissed. The majority disagreed. Lord Lloyd of Berwick gave the leading speech. Having referred to Alcock v Chief Constable of South Yorkshire Police and cases which preceded it, he said at p. 184:

“In all these cases the plaintiff was the secondary victim of the defendant’s negligence. He or she was in the position of a spectator or bystander. In the present case, by contrast, the plaintiff was a participant. He was himself directly involved in an accident and well within the range of foreseeable physical injury. ”

Lord Lloyd then examined the reasoning of the Court of Appeal and observed that in cases where a claimant sustains physical injury and consequent psychiatric illness, no question of the foreseeability of the latter arises. At p. 187 he posed the question:

“We now know that the plaintiff escaped without external injury. Can it be the law that this makes all the difference? Can it be the law that the fortuitous absence of actual physical injury means that a different test has to be applied? Is it to become necessary, in ordinary personal injury claims, where the plaintiff is the primary victim, for the court to concern itself with different “kinds” of injury?”

He answered that question with the following proposition of law, which he described as a ‘provisional conclusion’:

“Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant’s negligence, the nervous shock cases, by which I mean the cases following on from Bourhill v Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury.”

At pp.188-9, when considering the merits of his provisional conclusion, Lord Lloyd remarked:

“Liability for physical injury depends on what was reasonably foreseeable by the defendant before the event. It could not be right that a negligent defendant should escape liability for psychiatric injury just because, though serious physical injury was foreseeable, it did not in fact transpire. Such a result in the case of a primary victim is neither necessary, logical nor just. To introduce hindsight into the trial of an ordinary running-down action would do the law no service.”

After considering authority Lord Lloyd decided that this was not inconsistent with his provisional conclusions and ended his speech with the following propositions:

“1.

In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims.

2.

In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. These control mechanisms have no place where the plaintiff is the primary victim.

3.

In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight, however, has no part to play where the plaintiff is the primary victim.

4.

Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different “kinds of damage”.

5.

A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him.”

In the course of his speech Lord Lloyd expressed the view that the Court of Appeal had been wrong to conclude that, on the facts of the case, it was not reasonably foreseeable that a person of reasonable fortitude would sustain psychiatric injury as a result of the collision in which the plaintiff was involved. The other two members of the Committee who were in the majority, Lord Ackner and Lord Browne-Wilkinson, agreed with Lord Lloyd’s reasoning, but each expressed the view that, on the facts of the case, psychiatric injury had been foreseeable.

Lord Lloyd’s formulation of principle in Page v Smith has not been without its critics, not least Lord Goff of Chievely in his dissent in Frost v Chief Constable of South Yorkshire Police [1992] AC 455. The decision is none the less binding on this court. The issue is whether Lord Lloyd’s test of liability can be applied to the facts of this case. Lord Lloyd’s test was applied in the context of a road traffic accident in which the plaintiff was a participant and which, for that reason, foreseeably exposed him to the risk of physical injury. The report of Norfolk v Western Railway suggests that the American Supreme Court has adopted a similar approach. At paragraph 146 Ginsburg J referred to the ‘zone-of-danger’ test:

“That test confines recovery for stand-alone emotional distress claims to plaintiffs who: (1) “sustain a physical impact as a result of a defendant’s negligent conduct”; or (2) “are placed in immediate risk of physical harm by that conduct” that is, those who escaped instant physical harm, but were “within the zone of danger of physical impact”.”

Following Metro North Commuter Rail Co. v Buckley 521 US 424 138 L. Ed. 2d 560 (which involved exposure to asbestos but no physical manifestation of disease) the Supreme Court held that the zone-of-danger test could not properly be extended so as to render a defendant who negligently exposed a plaintiff to the risk of asbestos-induced cancer liable for emotional distress caused by the fear of developing cancer.

By similar reasoning we do not consider that the test in Page v Smith can properly be extended so as to render a defendant who negligently exposes a claimant to the risk of contracting a disease liable for free-standing psychiatric injury caused by the fear of contacting the disease. In so holding we are mindful of the view expressed by Lord Steyn in Frost v Chief Constable of South Yorkshire, paragraph 500:

“(T)he law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify … In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in [case law] as settled for the time being, but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way that is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.”

For these reasons we reject Mr Allan’s submission that Mr Grieves is entitled to recover damages for his psychiatric illness under the principle in Page v Smith.

We turn to the alternative route by which recovery can be made for free-standing psychiatric injury. It is well established that an employee can recover for psychiatric injury caused as a result of being exposed to stress at work provided that certain requirements are satisfied. Those requirements were set out by Hale LJ in Barber v Somerset CC [2002] ICR 613 at pp631-2 in a passage that was approved when the case reached the House of Lords. Hale LJ’s starting point was that an employer was usually entitled to assume that his employee was up to the usual pressures of the job. The threshold question was thus whether it was reasonably foreseeable that the particular employee was liable to suffer psychiatric injury as a result of those pressures. A duty to take steps to reduce pressure would only arise if a reasonable employer should have foreseen that he was exposing his employee to the risk of psychiatric injury and this normally involved knowledge that the employee had a particular vulnerability.

In Melville v Home Office [2005] EWCA Civ 6; [2005] ICR 782 this court held that, where an employer had knowledge that particular stresses carried with them the risk of psychiatric injury to employees, failure to implement recommended precautions against such injury could attract liability without any need to demonstrate knowledge that an employee was particularly vulnerable.

How, if at all, do these principles apply to a case such as that of Mr Grieves? We are here dealing, not with stress at work causing psychiatric injury in the course of employment, but exposure to noxious substances at work causing psychiatric injury as a result of anxiety after employment has ceased. On principle, were the evidence to establish that it was foreseeable that men of reasonable fortitude, if exposed to asbestos dust, might suffer psychiatric injury as a consequence of anxiety about their future health, then it should follow that employers would owe a duty of care not to expose employees to that risk. As we have said, however, there is no evidence in this case that would enable us to find that such a risk was foreseeable.

We were referred to two authorities which are relevant in the present context. In The Creutzfeldt-Jacob Disease Litigation Group B Plaintiffs v Medical Research Council [2000] Lloyds Law Rep (Medical) 161 Morland J had to rule on preliminary issues in a group action. The claimants had been negligently injected as children with Hartree HGH, a human growth hormone that exposed them to the risk of contracting CJD. The relevant issue was whether this rendered the defendants liable for psychiatric illness caused by the shock of learning of the risk to which they had been exposed. Morland J held that the defendants should reasonably have foreseen that they were exposing the claimants to the risk of sustaining psychiatric injury in this way and that they were liable for so doing. He held at p. 168:

“I can see no logical reason why foreseeability of or responsibility for shock and psychiatric injury should be limited to an area of time contemporaneous or almost contemporaneous to the negligent physical event i.e. the injection of Hartree HGH. If the psychiatric injury was reasonably foreseeable it should be untrammelled by spatial physical or temporal limits (see per Lord Scarman in McLoughlin at page 414A).”

Morland J’s conclusion is in line with that which we have reached above.

The question remains of whether a claimant should be entitled to recover damages for psychiatric injury caused by anxiety at the risk of sustaining a disease where a person of reasonable fortitude would not have reacted in this way. Fletcher v The Commissioners of Public Works in Ireland [2003] 1 IR 465 is a decision of the Irish Supreme Court which is directly in point. The plaintiff was negligently exposed by the defendants to asbestos dust. This led to anxiety, which developed into “reactive anxiety neurosis”, which the court treated as a recognisable psychiatric illness. The trial judge found that it was reasonably foreseeable that a person of ‘normal fortitude’ would suffer from the kind of anxiety and develop the psychiatric condition experienced by the plaintiff. He awarded the plaintiff substantial damages.

This decision was reversed by the Supreme Court, essentially on grounds of policy. Two judgments were delivered, with each of which the other three members of the court agreed. Keane CJ differed from the trial judge in finding that the plaintiff was a man of ordinary fortitude. He commented:

“41.

… I think that such a person, on being informed that there was no more than a minimal risk of his contracting the disease, would not have permitted so remote a contingency to disrupt his family, working and social life, any more than he would have allowed all the risks to which we are subject to every turn of our lives, including the tobacco smoke pollution in much of our environment, to have a similar effect.”

At the same time he held:

“40.

I see little difficulty in arriving at a conclusion that, in a case such as the present, it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric disorder as a result of his taking medical advice and being informed that he was at risk of contracting the disease of mesothelioma, even though at the time of the proceedings he had not actually contracted that disease. Moreover, that result should also follow, irrespective of the extent of the risk. If, for example, the advice of Professor Clancy had been that as a matter of probability he would contract the disease and the plaintiff had, in the result, suffered the psychiatric disorder of which he now complains, it would seem to me unjust and anomalous that the defendants should escape liability. The fact that the advice he received was that he was at no more than a very remote risk of contracting the disease would not be a reason, in principle, for relieving the defendants of liability in limine. If they ought to have foreseen that the plaintiff would be at risk of contracting mesothelioma and, as a result, might also suffer psychiatric injury, the fact that the psychiatric injury would not have been suffered by a person of ‘ordinary fortitude’ is not material: the general principle that the wrongdoer must take his victim as he finds him should, in the absence of other considerations, apply.”

The Chief Justice went on to distinguish the facts of the case from those of claimants who suffered psychiatric injury as a result of ‘shock’. The claim for psychiatric injury as a result of apprehension of disease broke new ground, and it was relevant to have regard to policy considerations when considering whether such a claim should lie.

He identified two policy considerations that weighed against admitting Mr Fletcher’s claim. The first was:

“the undesirability of awarding damages to plaintiffs who have suffered no physical injury and whose psychiatric condition is solely due to an unfounded fear of contracting a particular disease” (paragraph 55)

The second was the adverse effect on funds available for health care that would follow from the flood of claims that might be anticipated if damages were recoverable in such circumstances. He concluded:

“58.

At an earlier point in this judgment, I expressed the view that the law would be in an unjust and anomalous state if a plaintiff who was medically advised that he would probably suffer from mesothelioma as a result of his negligent exposure to asbestos could not recover damages for a recognisable psychiatric illness which was the result of his being so informed. I am also satisfied, however, that in cases where there is no more than a very remote risk that he will contract the disease, recovery should not be allowed for such a psychiatric illness. That is because the policy considerations which I have summarised point clearly to the necessity for imposing some limitation on the number of potential claims which might otherwise come into being.”

The judgment of Geoghegan J was to similar effect.

We have some difficulty in reconciling the Chief Justice’s finding that it was reasonably foreseeable that the plaintiff would suffer psychiatric injury as a result of fear of disease with his finding that a person of ordinary fortitude would not have done so. He made reference to the ‘eggshell skull’ principle, but that is a principle that enables a claimant to recover damages for an injury the extent of which was not foreseeable. Despite this difficulty, we concur with the result reached in Fletcher. It would be possible to postulate that an employer who negligently exposes an employee to the risk of sustaining a disease should be liable for psychiatric injury resulting from anxiety at the risk of such disease, even if this is not a reaction to be foreseen in an employee of ordinary fortitude, but so to do would be to extend the law in a manner not supported by established principle. We have not been persuaded that it would be right to make such an extension.

For these reasons the appeal against the judgment in favour of Mr Grieves is allowed.

Having regard to our conclusions on liability, issues in relation to damages are academic in the case of all appeals, save that of Mr Hindson. We propose, however, to make some brief comments on those parts of the judgment of Smith LJ which address damages.

Had the claimants sustained actionable physical injury, we consider that an award of provisional damages could properly reflect anxiety at the risk of sustaining mesothelioma or other serious asbestos related disease consequent upon the breach of duty that caused the physical injury. The appropriate amount would depend upon the facts of the particular case. One person may make light of a risk the fear of which may blight the life of another. We would not dissent from Janet Smith LJ’s conclusion that compensation for significant anxiety would normally be expected to fall within a bracket of £4,000 to £6,000, although the facts of an individual case might make appropriate an award falling on either side of this bracket.

We agree, for the reasons given by Smith LJ, that the judge’s approach in respect of these awards erred in principle. A final award which will preclude a claim should mesothelioma or some other disease result from the breach of duty in respect of which suit is brought must fully reflect the risk that such a consequence will be suffered, even if that risk is relatively modest. Had there been liability, we would have endorsed the assessment of damages made by Janet Smith LJ in respect of Mr Grieves.

Liability was admitted in the case of Mr Hindson. The only issue before us relates to the amount of the damages awarded to him. We agree with Smith LJ that the judge erred in principle in holding that the distinction between the views of the two experts was insufficiently significant to justify alternative awards. The parties accepted that we could not be expected to choose between the two experts, but hoped that we might be able to make alternative assessments of damages on the assumption that each was correct. Unfortunately this is not a straight-forward exercise, having regard to the implications of the co-morbidity caused by Mr Hindson’s smoking. Concentration on the much more important general issues raised by these appeals obscured the difficulties that arise in the case of Mr Hindson and, if his claim cannot now been settled, the most satisfactory course must be to refer it back to the judge so that he can deal with it in accordance with the principles identified by Smith LJ. On that basis the appeal of Mr Hindson will be allowed.

I have read the joint judgment of Lord Phillips CJ and Longmore LJ and, with considerable diffidence, I have decided that I must dissent from its conclusion. However, the first 58 paragraphs are not contentious and I gratefully adopt their exposition of the issues and the law and turn, with only a brief further introduction, to an explanation of my own conclusions.

The main issue in this appeal is whether a claimant has a completed cause of action where he has been exposed to asbestos dust in breach of duty, is suffering from symptom-free pleural plaques and is at significantly increased risk of developing an asbestos-related malignant disease, about which he is anxious. In posing the question in this way, almost as if it were a question of law, one must not forget that whether a claimant has suffered actionable injury is a question of fact to be determined in the individual case. However, because there are many claimants who are in the position that I have just described, it is important that they, defendants and their respective advisers should know how a judge is likely to decide that issue of fact in such a case.

In the law relating to actions for personal injuries, it is well-established that the nature or gist of the action is the occurrence of damage as the result of the breach of duty relied on and that, for the cause of action to be complete, the damage must be more than minimal. The damage must comprise or at least include some personal injury. In the Limitation Act 1980, personal injury is said to include any disease or impairment of the body or mind.

As has been explained in the joint judgment, exposure to asbestos may cause five different conditions of the lung and pleura. These are pleural plaques, diffuse pleural thickening, asbestosis, lung cancer and mesothelioma. Mesothelioma is an extremely painful terminal condition and the death is usually very distressing. At present, doctors think (although they are not sure) that the condition can be triggered by a single asbestos fibre within the pleura. However, they also believe that the risks of developing the disease are related to the extent of exposure; it is said to be dose-related. It occurs much more frequently in those who have had moderately heavy exposure in the course of their employment but it is also found in those who have been exposed to the much lower levels found in neighbourhood exposure or by the handling of clothing contaminated by asbestos dust. Very occasionally indeed, it is found in a person who has no known exposure to asbestos. For a person who has not had occupational exposure to asbestos, the lifetime risk of developing mesothelioma is as low as 1 in 10,000. For a person who has been exposed to sufficient asbestos to develop pleural plaques, the risk will typically be between 1% and 5%, depending on the dose of asbestos received. It follows that any claimant who has pleural plaques will also be at a significantly increased risk (at least one hundred-fold and possibly five hundred-fold) of developing mesothelioma. I mention this because it is often said that the mesothelioma risk faced by claimants such as these is very small. So it may be, but the increased risk they face is very substantial. It is, of course, important to recognise that it is not the presence of the pleural plaques which gives rise to the increased risk of mesothelioma but the asbestos exposure.

The risk of developing lung cancer as the result of asbestos exposure is also dose-related. Typically, a claimant who has developed pleural plaques will carry a risk of developing lung cancer of the order of 1% to 3%. However, smoking also gives rise to a risk of lung cancer. In those who have been exposed to asbestos and cigarette smoke, the two risks potentiate each other. They are thought to be multiplicative rather than additive. Thus, if a man has a 10% risk of lung cancer from smoking and a 2.5% risk of lung cancer as the result of asbestos exposure, he faces a total risk of lung cancer of 25%. The effect of the asbestos exposure is to increase his (self-induced) risk from 10% to 25%.

Not surprisingly, many of the men who have had significant exposure to asbestos dust are anxious about the risks to their future health. However, it is well established that the risk of serious disease and the concomitant anxiety are not in themselves enough to found a cause of action. To found the cause of action, there must be damage which includes personal injury. That damage must be material, which means that it must be more than minimal. As Lord Pearce put it in Cartledge v Jopling [1963] AC 758, at page 781, a cause of action accrued when ‘a judge could properly give damages for the harm that had been done’. As I understood the Appellants’ contention, they accepted that, if the personal injury or disease carries with it an inherent risk of deterioration or an inherent risk that another disease or condition might develop, those risks can be taken into account in determining whether the damage crosses the threshold of materiality. That was the position in Cartledge, where the injury was a form of early pneumoconiosis. This condition had the potential to deteriorate so as to produce symptoms; it also apparently carried a risk that tuberculosis might develop. The injury was held to be more than minimal at a time when it was symptom-free and the plaintiff was unaware that he had it. With pleural plaques, the position is different. The inherent risk of deterioration is very slight and the risks of serious deterioration arise not from the plaques themselves but from the asbestos exposure, which is, of course, the same exposure as has caused the plaques. In the present case, the question is whether, when proving that he has suffered material damage, a claimant with symptom-free pleural plaques can pray in aid, as part of his damage, the risks of serious illness which result from the same exposure as caused the plaques.

As was pointed out in the majority judgment, this question was not addressed by the House of Lords in Cartledge. It did not arise. I agree with the view expressed in that judgment that there is no binding authority on this point. For that reason, the majority has concluded that the question can and should be determined by policy considerations. I do not agree and consider that the question can and should be answered by the application of established legal principle to a new factual situation. That is what I propose now to attempt.

The first question is whether these respondents have suffered any personal injury at all and, if so, what it is. Holland J found that pleural plaques are not an injury, disease or impairment but held that the presence within the body of unneutralised asbestos fibres does amount to an injury. The respondents did not seek to support this finding with any vigour. For the reasons given in the majority judgment, I agree that the judge’s conclusion on this point cannot be sustained. Either the pleural plaques are an injury (and/or disease) or there is no personal injury at all.

The argument for the appellants was that pleural plaques are not an injury or disease, although they do represent a change in the pleural tissue. The appellants rely on the agreed evidence that the plaques are symptom-free and progress to cause symptoms in less than 1% of cases. Even then the symptoms which might result from this remote possibility are not serious ones, comprising only discomfort. Additionally, pleural plaques do not themselves carry an increased risk of pleural thickening, asbestosis, mesothelioma or lung cancer; it is the asbestos exposure which gives rise to the risk of these conditions rather than the presence of the pleural plaques. Thus, say the appellants, the judge was right to hold that they were not an injury or disease.

The respondents’ case, (as set out in the respondents’ notice) was that the pleural plaques do amount to an injury although not one which, standing alone, would be sufficiently serious to cross the de minimis threshold and complete the cause of action. They submit that the plaques are an abnormal and permanent tissue change caused by the asbestos exposure. Plaques are analogous to scar tissue.

In my judgment, such a tissue change does amount to an injury. I say so for two reasons. First, it is accepted that pleural plaques do amount to an injury in those rare cases where they are sufficiently extensive to give rise to symptoms. However, in such a case, it is not the symptoms which are the injury; it is the plaques themselves. The presence or absence of symptoms goes only to the question of how serious the injury is. One cannot say that the pleural plaques are an injury if they are sufficiently extensive to cause symptoms but not if they are limited and symptom-free. The plaques are of the same nature whether they are extensive or limited and, in my view, if extensive plaques are an injury, so are limited ones.

My second reason is related to the first. In the course of argument, it appeared to be common ground that a tissue change giving rise to a benign lesion on the surface of the body does amount to an injury, and not merely because such a lesion will usually have been caused by a cut or a burn. Even if caused by some non-traumatic mechanism such as radiation, it is accepted that it would be an injury. The appellants argue that such a lesion is different from pleural plaques because the lesion on the skin is noticeable and causes embarrassment. It has a cosmetic effect, which sounds in damages. I accept, of course, that the damages for a lesion on the skin will take account of the cosmetic effect but it is the lesion which is the injury and the cosmetic effect merely increases the damages. I cannot accept that a visible tissue change is different in nature from a tissue change which is hidden within the body. If pleural plaques were to form on the skin instead of on the pleura, they would be an injury, not because they had a cosmetic effect but because they were a tissue change.

It does not matter for the purposes of my decision but I would also hold that pleural plaques are a disease. They are capable of progressing without further exposure to asbestos due to a process within the body. To my mind that process characterises them as a disease. I would say that the pleural plaques are an injury because they are an abnormal tissue change and that they are also a disease because they are capable of progression. I do accept, however, that, unless the plaques are extensive, they are not, in themselves, sufficiently serious to complete the cause of action because they are not sufficient to warrant an award of damages from a judge.

Does the law permit a claimant to complete his cause of action by bringing into account, in addition to the minimal physical injury he has suffered, all the other consequences of the same breach of duty? Holland J held that it does and also held that, when the risks of other serious asbestos-related diseases and the concomitant anxiety are added in, the total damage will cross the de minimis threshold.

Leaving aside a risk which is assessed at more than 50%, which does not arise in these cases and to which different considerations may apply, the appellants argued that a claim for the risk of developing a more serious condition and the associated anxiety can be brought in only in respect of the risks that arise out of the condition which constitutes the physical injury. They submit that that was made plain in Cartledge v Jopling.

Mr David Allan QC for the respondents submitted that Cartledge v Jopling did not say any such thing. The issue did not arise for consideration. All three members of this Court accept that submission. However, Mr Allan suggested that some of the dicta in Cartledge indicate an approach that is helpful to the respondents’ case. Bearing in mind that their Lordships were not concerned with the question before this Court, I do not think that much weight can be attached to these indications. However, it is worth recording that, at page 774, Lord Evershed said that it could no longer be in doubt that, in a personal injury action, ‘the cause of action from such a wrong accrues when the damage – that is real damage as distinct from purely minimal damage – is suffered’. It was suggested that the use of the word ‘damage’ indicated that, in assessing materiality, it was the whole of the damage that had to be considered rather than just the personal injury. At page 771, Lord Reid said:

“it is now too late for the courts to question or modify the rules that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot be discovered by the sufferer, and that further injury arising from the same act at a later date does not give rise to a further cause of action.”

It appears to me that their Lordships used the word ‘damage’ and ‘injury’ interchangeably. They were not concerned with the question which is now before the court namely whether it is the existing physical damage and its inherent risks which must pass the de minimis threshold or whether it is possible to include all the effects of the wrongful act. I conclude therefore that Lord Pearce’s use of the word ‘damage’ as opposed to ‘injury’ is not significant. However, Lord Reid’s reminder that a further injury arising at a later date from the same wrongful act does not give rise to a further cause of action does, to my mind, suggest that what he had in mind when speaking of ‘personal injury beyond what was negligible’ was all the consequences of the wrongful act, whether or not they had yet occurred. The same point was made at greater length by Lord Pearce at page 780 where he cited the old case of Fitter v Beal [1701] 12 Mod. 543 as authority for the same proposition, namely that only one action may be brought in respect of all the damage from personal injury. Those references do, I think, give some support for the respondents’ contention but it is very limited.

Second, Mr Allan submitted that the respondents’ contention derived support from Patterson v Ministry of Defence (unreported – 29 July 1986), one of the pleural plaque trilogy of cases from the 1980s. He accepted that neither Church v Ministry of Defence (unreported – 23 February 1984) nor Sykes v Ministry of Defence (unreported – 19 March 1984) was of assistance. In Church, Peter Pain J had considered only the physiological damage when deciding whether the de minimis threshold had been passed. He considered the plaques themselves as being minimal but held, on the medical evidence before him, that there was probably some early asbestosis present, which carried a risk of progression so as to give rise to a loss of lung function. The judge held that, looking at the totality of the physical changes, the physiological damage was more than minimal. The case was on all fours with Cartledge.

In Sykes, Otton J said at page 14 F of the transcript:

“I have to decide whether the physiological damage which was done to the plaintiff and which I have described is to be treated as minimal or negligible, …. . I have come to the conclusion that one has to look at the evidence as a whole. As I have indicated, there has been a definite change in the structure of the pleura due to the presence of the asbestos. In my judgment, that amounts to a significant and definite degree of damage which entitled the plaintiff to compensation, as he has established actual damage.”

The judge then went on to consider the risk of mesothelioma and held that, standing alone, that risk would not sound in damages. However, once the plaintiff had established that he had suffered some physical damage which was actionable he would also be entitled to be compensated for the risks of exposure. In Patterson, Simon Brown J, as he then was, doubted whether Otton J had really held that pleural plaques were, of themselves, sufficient physical damage to be actionable. He noted the judge’s reference to looking at the evidence ‘as a whole’. However, it seems to me that Otton J did indeed hold that pleural plaques in themselves were sufficient to cross the de minimis threshold. These two cases do not support Mr Allan’s contention; rather they support the appellant’s submission that it is the physiological damage (and its inherent risks) which must be sufficient to cross the threshold.

However, in Patterson, Simon Brown J took a different approach. At page 9C of the transcript, he said:

“In deciding whether material damage has been caused, it is appropriate to have regard not merely to actual physical manifestations of injury, but also to whatever risks consequent upon the original injury may exist of future symptoms becoming manifest”

Then, at page 10G, he said:

“… I have no doubt whatever that the plaintiff in the instant action has suffered material damage. It consists of the symptom-free pleural changes, the risk of the pleural thickening deteriorating with the consequences I have indicated, the risk of mesothelioma developing and the understandable worry attendant upon these various matters.”

In my view, Simon Brown J’s approach provides some support for the respondents’ contention. The risk of mesothelioma, which arose not from the pleural disease but from the prior exposure, was taken into account. So was worry, which must have related mainly to the risks of future onset of other conditions rather than the discovery of the conditions then present. It is pointed out in the majority judgment that Simon Brown J’s reliance on the case of Pirelli v Oscar Faber & Partners [1983] 2 AC 1 was inapt. I accept that that is so. However, this remains a decision of an eminent jurist and must be regarded as providing some support for the respondents’ case.

The only other decision directly in point is that of Holland J in the instant case. This dearth of authority is not altogether surprising. Most personal injury actions arise out of traumatic injuries to the person and the physical injury is usually of sufficient severity to be actionable. In disease cases, the historical position was that plaintiffs did not sue until they had symptoms because they did not know until then that they had suffered an injury. With the advent of X-rays, it became possible to demonstrate that there was an actionable injury before the plaintiff was aware of it. Cartledge pointed to the limitation difficulties that this created for plaintiffs and, very soon afterwards, the law of limitation in personal injury actions was changed so that time did not begin to run until the plaintiff first knew or ought to have known that he had suffered a significant injury. After that time, there was no need to focus on when the cause of action arose, as there had been in Cartledge. Actionability in disease cases did not then give rise to any interest until the trilogy of MOD cases in the 1980s. There can be no doubt that, after these three cases, both lawyers and insurers working in this field accepted that plaintiffs with pleural plaques were entitled to damages. It is not clear whether they did so on the basis that the pleural plaques themselves were actionable or on the basis that it was permissible to bring into account the risk of mesothelioma (and/or lung cancer) which flowed from the asbestos exposure and/or or the anxiety attendant on those risks. Many hundreds of cases of pleural plaques (with risks and anxiety) have been settled since that time. Many more have been fought on the issue of quantum of damages but none on the issue of actionability. It appears that no other industrial disease has given rise to the legal problems that exist in asbestos-related disease.

The respondents’ second submission is that section 32A of the Supreme Court Act 1981 demonstrates the correctness of their contention. Section 32A(1) provides:

“This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as the result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.”

As is well known, the purpose of this provision was to alleviate the problem which arose as the result of the rule which requires a plaintiff to sue in respect of all the risks of deterioration and the development of other personal injury consequences arising from a wrongful act. A typical case was that of a claimant with a head injury who might develop epilepsy many years after the accident. If he was compensated for the risk of that happening and it did not materialise, he would have recovered more than he should have done; if the risk did materialise, he would have recovered nowhere near enough. The section permitted him to take an immediate award of provisional damages, assessed on the assumption that the epilepsy would not develop, and to reserve the right to return to court for a further award in the future if it did. As applied to a case such as Cartledge v Jopling, the section would permit a claimant with silicosis to reserve for the future the right to return if he developed tuberculosis. In that situation, the risk of tuberculosis would have arisen from the silicosis itself and not from the exposure to stone dust. However, it is plain from the words of the section that the provision is not limited to the risk of deterioration of the existing condition or the risk of onset of a new condition consequent upon the existing condition but also applies to the risk of any serious condition resulting from the ‘act or omission giving rise to the cause of action’. So, as applied to asbestos cases, the section allows a claimant who has asbestosis to reserve the right to return if he develops mesothelioma, even though the mesothelioma does not arise from the asbestosis but from the asbestos exposure. There have been many cases in which that has been done. So far as I am aware, it has never been suggested that it should not have been.

There have also been many cases in which provisional damages have been awarded for pleural plaques with the risks of other more serious diseases left to the future. The appellants acknowledge that but submit that this should not have been allowed to occur; it was wrong in principle. This point was argued mainly in respect of quantum of damage but is related to the main contention on actionability. The appellants contended that the true position is that each condition or disease that can be caused by asbestos exposure gives rise to a separate cause of action. That means that, not only is a claimant unable to bring into account on ‘materiality’ the risks of developing other asbestos-related conditions, he cannot claim damages in respect of those other conditions even if his existing condition, standing alone, crosses the materiality threshold. The other conditions are to be treated quite separately. Accordingly, section 32A does not come into play in respect of other asbestos-related diseases. The only section 32A right open to a claimant with an asbestos-related condition is to claim for the deterioration in his existing condition and any other serious disease or condition which stems from that existing condition itself.

The respondents submitted that it is well-established that there is only one cause of action for all the personal injuries caused by the wrongful act or omission which founds the cause of action and that, if one form of personal injury comes into existence, the cause of action accrues for all the personal injury consequences of that wrongful act or omission. Since the post-Cartledge amendment of the limitation provisions, once a claimant is aware of one consequence of the act or omission, he must sue in respect of all consequences or face the danger of being time-barred. Damages were and are recoverable for the risk of future consequences. At common law, the courts became accustomed to evaluating future risks. Now, under Section 32A, the claimant has the choice whether to opt for provisional damages or to accept a final award which will include an evaluation of the risk. The purpose of section 32A was limited to permitting claimants to defer part of their damages. It was not intended to change the underlying law of personal injury actions in respect of the recoverability of damages for the risk of future consequences. In passing section 32A, Parliament recognised and implicitly affirmed the old rule that there is only one cause of action for all the personal injury consequences of a wrongful act or omission. If the claimant’s cause of action for the consequences of asbestos exposure must include all personal injury consequences, his damage is the sum total of all those consequences. Therefore it is that damage which must be considered when the judge is deciding whether the damage is sufficient to cross the threshold of materiality.

In my view, the respondents’ submissions are correct. I agree that section 32A was not intended to change the underlying law in relation to personal injuries. In my view, the wording of section 32A is consistent only with the proposition that a claimant has only one cause of action for all personal injury consequences of a wrongful act or omission. The wording of the section is not consistent with the notion that the same exposure to asbestos can and does give rise to separate torts in respect of each consequence. Because he has only one cause of action, as soon as the claimant knows that he has one personal injury consequence, he must sue for all such possible consequences. Under section 32A, he is able to defer the assessment of that part of his damages which relate to future risks, instead of having to accept them now, imperfectly assessed, as he was required to do at common law. Whether he chooses a provisional or final award is a matter for him. The important point is that, because he has only one cause of action, his damage must include the risks that other serious conditions might eventuate. Therefore, both the existing condition and the future risks must be brought into account when the judge is considering whether the damage is more than minimal.

The risks of developing malignant disease accrue during the asbestos exposure and could be established by the time that exposure ceases. It will probably be several more years before any sign of an asbestos-related disease becomes apparent. In the case of a man who has developed pleural plaques, the exposure will be such that he will face a risk of mesothelioma of between 1% and 5%, that is an increase of 100 to 500 times his unexposed risk. That is to leave out the risk of developing lung cancer which, to a large extent, is dependent on the claimant’s smoking habit. In my view, it follows from the extent of the risk of mesothelioma alone, that, by the time pleural plaques develop, the claimant must have suffered material as opposed to minimal damage. Of course, the claimant may well be quite unaware of this and does not therefore bring an action until, for some reason, he has a chest x-ray and the plaques are discovered. He will be told about the risks. At that time, time begins to run against him for limitation purposes as he has (and may have had for some years) a significant injury. It is also almost inevitable that he will have suffered some anxiety as the result of learning about the risks which he faces. It is possible that he has had some concern about his past exposure for a long time but this will have increased when he learned the details of the risks he faces. I would hold that the cause of action is complete as the result of the development of plaques, which are an injury and/or disease together with the established risks, both caused by the same exposure. In my view it is not necessary to include any element of anxiety when deciding whether the cause of action is complete. However, anxiety can be brought into account. In any event, it is accepted that, if the cause of action is complete, damages are recoverable for associated anxiety and that should include the continuing anxiety which the claimant will almost certainly feel, however well he is reassured about the benign nature of the plaques themselves. That will be so, particularly as he will be required to attend for periodic medical examination and x-ray and is likely to worry about the results.

In summary, I would hold that, in cases of pleural plaques such as are found in this group of cases, the claimant’s cause of action is complete at the time when the pleural plaques formed because, by that time, he was already subject to appreciable risks of other serious conditions arising from the same wrongful act. In considering whether he has suffered material damage, it is permissible and indeed necessary to consider all the damage that he has then suffered. The sum of the very minor physical damage and the much more serious damage comprising the risks amounts to material, actionable, damage.

A good deal of the argument during the appeal was concerned with issues of policy. As I have indicated, I have felt able to reach a conclusion derived from established principle and do not consider that policy issues should be allowed to determine these appeals. However, if my analysis is wrong, as the majority has held, it would be appropriate to consider policy issues.

At paragraph 66 of the majority judgment, there is a summary of the policy considerations that were advanced by Mr Michael Kent QC in support of the appellants’ contention that it is undesirable that the development of pleural plaques should give rise to a cause of action. Unlike the majority, I do not find those submissions persuasive.

Mr Kent submitted that it was not in the public interest that, in order to protect his position on limitation, a claimant might be obliged to bring a claim for pleural plaques when he would prefer to wait until he developed symptomatic disease. There may be such claimants, although I confess I did not come across any who complained of this when, in practice at the Bar, I had to advise clients of their position. In any event, if any potential claimant wished to defer making a claim until he had a symptomatic condition, no doubt he could tell the insurers of his preference and ask that they grant him a limitation amnesty.

The submission that it was undesirable that a claimant should bring a claim for pleural plaques because such proceedings are stressful and might result in an increase in the anxiety for which damages are claimed seems to me to be of potentially wide application. Legal proceedings are indeed stressful and do sometimes lead to an increase in anxiety; that can result in an increase in the damages in all sorts of cases of personal injury. That cannot amount to a policy reason why the claimant should not be permitted to claim. In any event, claimants must be treated as responsible adults. If they seek advice, they should be told the truth about their condition and the risks they face and allowed to make their own decisions about whether they wish to sue. It smacks of paternalism to suggest that they should be shielded from proper advice and discussion about their condition.

It was suggested that there is a danger that those persons who make a living out of litigation will encourage exposed workers to have CT scans to see whether they have pleural plaques and might be able to sue. There is no suggestion that this has yet happened to any appreciable extent. The evidence was that, in most cases, pleural plaques are discovered as an incidental finding during unrelated investigations. I accept that the activities of ‘ambulance- chasing’ claims farmers may have an adverse effect but it seems to me that the way to deal with that problem is by the regulation of their activities rather than by taking measures affecting the substantive law.

Mr Kent suggested that some claimants will be tempted to claim a final award, thereby gambling that they will not contract a serious disease. In short, the imprudent claimant and his family are to be saved from his own folly. The law has never sought to protect claimants from their own folly, save where there is evidence of incapability. In any event, there will be some claimants who have quite sensible reasons for wishing to have all issues dealt with while they are in good health. If Parliament wishes to change the law so that claimants cannot claim for future risks but must wait until the risk materialises, so be it. Until then, the law is well settled and it does not seem to me that any special rules should be made in asbestos cases.

It was suggested that the costs of litigation in cases such as these are disproportionate to the damages recoverable. However, the figures produced to the Court, which related only to the costs paid by defendants to successful claimants did not, in my view, support that proposition. The appellants did not produce figures to prove their point. They maintained that the costs of investigation and claims handling on their own side were heavy, due to the nature of the cases. I accept that the investigation of claims of this kind may be difficult and time-consuming but that is often because employers have not kept adequate records of past employment and witnesses cannot be found or have become very old or died. But I cannot see why those difficulties should militate against the interests of the injured workman. It is not his fault if the employer did not keep proper employment records. It is not the workman’s fault that there is no adequate record of the working conditions. I cannot accept that this kind of argument should be allowed to weigh in the question of whether a claimant should be entitled to sue for a particular kind of injury. If this kind of argument were to have validity, the same argument would have to be applied to many cases of noise-induced deafness and hand/arm vibration syndrome, in most of which cases the damages are modest and the costs of investigation may be substantial.

It was said that it was unjust that the right to recover damages should depend on the fortuitous development of pleural plaques. I accept that, if a workman who faces risks of malignant disease with attendant worry deserves compensation, it may appear irrational to allow it to the ones who have pleural plaques but to deny it to those who do not. Arguably, if those with pleural plaques should have damages, so should all men who face these worrying risks. The law does not permit that result. There must be some physical injury or there can be no cause of action. But if (as I would hold) the law permits a man who has pleural plaques and risks of malignancy to recover damages, I do not think it right that he should be deprived of them just because the law will not permit them to another man with similar risks but no plaques. Sometimes, the law does draw apparently arbitrary lines and it may be hard to the person who falls on the wrong side of the line. But that unfairness is not a reason for saying that everyone should be transferred to the ‘non-recovery’ side of the line.

In addition to those points recorded in the majority judgment, Mr Kent also submitted that it is not in the public interest that claimants should be allowed to bring claims for trivial injuries; they should be required to wait until they have suffered a physical injury of substance. This would give rise to no injustice, he said, if the risks of more serious disease do not materialise. I accept that the law should not recognise trivial injuries. But I do not accept that these claimants have trivial injuries. In my view, the risks of malignant disease and attendant worry constitute present harm which should sound in damages. I think that a man in the position under discussion deserves compensation. It is interesting that all the four High Court judges who have been required to consider whether to award damages in these circumstances (Peter Pain, Otton, Simon Brown and Holland JJ) have found a way of making an award. The intellectual processes by which they have arrived at their conclusions have differed but each has arrived at the same result. I venture to suggest that that is because, having seen the claimants and having heard their evidence, they felt that it would be just to award damages and unjust not to. I also venture to suggest that most people on the Clapham omnibus would consider that workmen who have been put in the position of these claimants have suffered real harm. I do not think that they would regard these consequences of asbestos exposure as trivial and undeserving of compensation.

Nor was I impressed with the suggestion that the number of claims for pleural plaques might overwhelm the courts or deplete the funds available for the compensation of more seriously injured claimants. Those problems may arise in the United States of America but there is no evidence that they have arisen here or are likely to arise. First, as I have already pointed out, it has been accepted for the past 20 years that pleural plaques are actionable. The courts have not been overwhelmed by such cases. There is no evidence that there will be a significant increase in the number of cases in the future. Nor is there any evidence that funds available for compensation have been so depleted by asbestos claims in England and Wales that they might run out. That may have happened as the result of litigation in the United States but damages are much higher there. In this country they are modest.

Accordingly, if policy considerations were to play a role in the determination of this appeal, I would hold that the need to do justice to these injured claimants, in accordance with what I believe are the expectations of most reasonable people, should outweigh the policy considerations advanced by the appellants.

For those reasons, I would dismiss all the appeals on the issue of actionability. That being so, there is no need for me to deal with the separate issues raised in the appeals of Rothwell and Grieves.

In the light of the decision of the majority to allow the appeal on the issue of actionability, all questions of quantum of damage are academic, save in the case of Hindson, where liability was conceded. However, it is appropriate to deal with the issues raised.

As Lord Phillips CJ and Longmore LJ explained in the introduction to their judgment, of the nine claimants that Holland J found had a cause of action arising from wrongful exposure to asbestos and the development of pleural plaques, seven opted to accept provisional damages and an order pursuant to section 32A of the Supreme Court Act 1981, whereby they would be entitled to return to the court for the assessment of further damages if they were to develop a more serious asbestos-related disease in the future. The judge awarded each of them £4,000 as provisional damages, designed to reflect the anxiety which they have suffered and will suffer in future. The appellants contend that that award was too high; the respondents cross appeal contending that the awards were too low.

The other two claimants, Mr Storey and Mr Grieves and also Mr Hindson (in respect of whom liability had been admitted) opted for a full and final award of damages. Mr Storey and Mr Hindson were awarded £7,000. Mr Grieves was awarded general damages of £10,000 (plus some special damages and future wage loss as to which there is no appeal). Each of these three claimants also claimed prospective financial loss but the judge refused to make any award. The appellants have appealed all three awards of general damages contending that they were too high. Mr Grieves and Mr Hindson cross appeal contending that the level of general damages was too low and that the judge should have been prepared to make an award of prospective financial loss.

It is not necessary for the purpose of this judgment to set out the medical evidence relating to each of the individual claimants in this group. Typically, the claimants were in their sixties and had pleural plaques which were not giving rise to any symptoms. Each described the state of anxiety which he had experienced on realising that he had pleural plaques and was at risk of developing malignant disease. The judge held that the claimants were to be compensated for that anxiety. In each case he accepted that the anxiety was genuine, although he regarded it as largely misplaced and considered that, now that the claimants had been reassured that the risks they faced were only small and that the presence of pleural plaques did not indicate any increased risk of malignancy, the anxiety was likely to abate. The judge did not attempt to evaluate the anxiety suffered by each individual claimant. He appears to have thought that it would be invidious to attempt such an exercise. In any event, he had been invited to indicate the appropriate range for cases of this kind.

The judge referred to the award of £1,250 in the case of Patterson v MOD and observed that, allowing for inflation, that award would now be worth about £2,500. He accepted the submission of Mr Allan Gore QC that it was appropriate to increase the sum to be awarded to reflect the increased awareness of the public and of past asbestos workers as to the serious consequences of asbestos related cancers. He said that for that reason, he was prepared to increase the awards to a bracket of £3,500 to £4,000 but no more. He was invited to consider a range of awards made by Circuit Judges over the past twenty years, which showed that the usual bracket for a provisional award was between £5,000 and £7,000. He declined to follow those awards, saying that he could see no justification for departing so far from Patterson and the early final awards of Church and Sykes, which were broadly consistent with Patterson. In the event, as I have said, he awarded each claimant £4,000, saying that the top of the bracket was appropriate because these men had had to face the additional stress of involvement in protracted test litigation.

To this court, the appellants made two submissions. Their first argument was a logical extension of their submission on actionability. If that submission failed and the court were to hold that these claimants had a cause of action, the appellants submitted that that must be because the court had held that the plaques, taken together with the anxiety they engendered and the tiny risk that they themselves would become symptomatic amounted to sufficient damage to complete the cause of action. As I have said earlier, the essence of their submission was that each asbestos-related disease gave rise to a separate cause of action, even though all were caused by the same exposure. Accordingly, they submitted that a provisional award for these claimants should amount to no more than a few hundred pounds. The judge had erred in bringing into account the anxiety that the claimant had suffered and would suffer on account of the prospect that he might develop a malignant condition, which anxiety was not caused by the pleural plaques.

I would reject that submission for the same reasons that I would dismiss the appeals on actionability. I am of the view that there is but one cause of action for the wrongful exposure to asbestos and that all personal injury consequences must be sued for at the same time. I reject the notion that the development of the various conditions gives rise to separate causes of action. It follows that I reject the appellants’ submission that the judge erred in awarding damages for the anxiety which is related to the risks of the development of malignant diseases. In my view, he was right to do so.

The appellants’ second argument lay in the alternative. If their primary contention was rejected and the court were to hold that the judge was right to include in the award the effect of anxiety about the risks of malignancy, he ought to have followed the approach taken in the cases of Patterson, Church and Sykes, updated for inflation. He ought not to have acceded to the claimants’ submission that the general level of awards should be raised to reflect the judicial and public understanding of the extremely unpleasant consequences of developing mesothelioma.

The respondents contended that the judge had not made sufficient allowance for this change of understanding. We were referred to the schedule of awards made by other judges since the 1980s, which, as I have said, suggests a level of award between £5,000 and £7,000. None of those awards had been challenged in the Court of Appeal. We were urged to accept that the judges who have dealt with these cases in recent years now have great experience of cases of this kind and also of other types of case where the damages are modest. That enabled the judges to put the pleural plaques cases into context. Their conclusions were the foundation for the bracket of £5,000 to £6,000 suggested in the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases. In response to the suggestion advanced by the appellants that the judges sitting in the county courts did not have the same opportunity as Holland J had had to examine the facts in detail and peruse the medical records, we were shown an example of an assessment undertaken by His Honour Judge Hickinbottom, from which it was apparent that the judge had examined all the relevant material and had made a most careful assessment.

The respondents also sought to draw a comparison with the awards made for injury to feelings in cases of race and sex discrimination. In Vento v The Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, at paragraph 65, this Court laid down some general guidance on awards for injury to feelings. It said that awards ranging between £500 and £5,000 would be appropriate for ‘less serious cases, such as where the act of discrimination is an isolated or one-off occurrence’. That, submitted the respondents, showed that the right bracket for anxiety in these cases should not be less than £5,000. Speaking for myself, I do not find that analogy entirely helpful for two reasons. First, injury to feelings is different in kind from anxiety. Although anxiety may be an element within injury to feelings, awards in those cases must also reflect such feelings as insult and disappointment at the thwarting of honourable ambition. Second, the Court in Vento was seeking to set out broad guidelines distinguishing between very serious cases where there had been a campaign of discrimination and less serious cases where the discrimination had been short lived. Having said that, in Vento the Court cited with approval a passage from the judgment of the EAT in HM Prison Service v Johnson, [1997] ICR 275 (given as it happens by me) where it was said that, in assessing compensation, tribunals should remind themselves of the value in every day life of the sum they have in mind. This could be done either by reference to purchasing power or to earnings. Also, tribunals should bear in mind the need for public respect for the level of awards made. In my view, judges assessing damages for personal injury should also bear in mind the purchasing power of the award they have in mind and should also strive to set the award at a level which well informed members of the public would regard as reasonable and fair.

It is well-established that this Court will not interfere with an award of damages unless it appears that the judge has erred in principle or has made an award which is outside the appropriate bracket. This Court will not interfere simply because the members of the court would have awarded somewhat more or less. After some hesitation, I have come to the conclusion that the bracket of awards set by Holland J was too low. I have hesitated because I recognise that Holland J is very experienced in the assessment of damages. The fact that the trial judge has seen the claimant usually requires this Court to pay considerable deference to the view he has formed. However, in these cases, the judge expressly declined to make an individual assessment of the extent of the anxiety suffered and to be suffered by the claimants. He was asked to set a bracket and he did so by considering the claimants collectively. He set a very narrow bracket, in effect implying that all claimants will suffer in much the same way and to the same extent. That general approach is not criticised by the parties, although the respondents contend for the wider bracket of £5,000 to £7,000.

In my view, the bracket of £3,500 or £4,000 is too narrow. It does not permit a judge any real leeway to recognise the different factors, which are bound to arise in some cases. It seems to me that either the Courts should decide that there must be a conventional figure for anxiety (as for loss of expectation of life) or else there should be a bracket which allows the judge some real measure of discretion. I would opt for the latter because I consider that fixed sums are contrary to the compensatory principle and often give rise to dissatisfaction.

What should the bracket be? Holland J accepted that the old award of Patterson is now too low, even after updating for inflation. I agree. It was decided, in relative isolation, at a time when there was less understanding and appreciation about the effects of malignant asbestos related disease than there is today. Holland J could not see any justification for raising the damages above £4,000. I do. I accept the submission that the circuit judges who have decided cases of this kind in recent years have substantial experience of fixing damages in modest cases of all kinds and have a good sense of what is appropriate. Damages for different kinds of injury should correlate with each other approximately. I think that regard should be given to the level of awards that has developed in recent years, unchallenged in this Court until now.

I also think that the well-informed member of the public, aware of the purchasing power of money and the current level or earnings would regard £3,500 as a very small award for the anxiety which will normally be suffered by anyone learning that he faces an increased risk of developing malignant disease. That is not to ignore the decision of this Court in Heil v Rankin [2001] QB 272, where it was held that there was no need to raise the general level of awards in cases below £10,000, in order to provide fair and reasonable compensation in the light of modern social conditions. That is right but the reason why there was no need to do that was because the court concluded that awards for modest injuries had not fallen behind in the way that the larger awards had done. It would be wrong therefore to ignore the way in which county court decisions in this type of case have progressively responded to the changing appreciation of the nature of asbestos disease and the purchasing power of money and the level of earnings.

Having said that, I myself would not go quite as far as some of the county court decisions suggest. I would say that, in a typical case of a claimant with pleural plaques and anxiety about his future health, the award should usually be about £5,000. I would suggest that the bracket for the usual range of cases should be £4,000 to £6,000 but that judges should feel free to go outside that bracket for particular reasons. In the present cases, I do not feel able to distinguish between the claimants. They appear to be typical cases and £5,000 would seem appropriate. However, I think that Holland J was right to recognise the effect of involvement in this litigation and, if it were not academic, I would have awarded each of them £5,500. I would have dismissed the appeals and allowed the cross-appeals to that extent.

As I have said, Holland J awarded £7,000 to Mr Storey and Mr Hindson. He described that as being an uplift over the provisional awards of £4000. So the judge gave a 75% uplift to reflect the risks that each of these claimants faced of developing malignant disease in the future. Mr Grieves received more on account of his psychiatric condition. However, it appears that the judge awarded him the same amount as the others for the future risks.

Mr Storey faced a 3% chance of developing mesothelioma and a 1% increased risk of developing lung cancer. Mr Grieves had a 5% risk of mesothelioma and a 3% increased risk of lung cancer. Mr Hindson’s risks were much higher. He had a 5% risk of mesothelioma and 15% increased risk of lung cancer.

In approaching the assessment of final awards of general damages Holland J recognised that the object was to value the risks of future deterioration in the claimants’ health. Nonetheless, he thought it appropriate to consider the position of a typical claimant, rather than to examine the particular circumstances of the individual claimants. That that was so can be demonstrated by the fact that, without any explanation, he made the same award of general damages for Mr Hindson, who faced a 20% risk of malignancy as for Mr Storey, who faced only a 4% risk.

The judge took as his starting point the authorities of Church and Sykes, in each of which cases a final award of £1,500 had been made. Updated for inflation, those awards would now be about £3,500. He observed that recent cases suggested a much higher level of award, starting at about £12,500 and going up as high as £22,500 but that in none of those cases had the judge explained why he had departed so radically from the level awarded in Church and Sykes. He concluded that the higher awards were probably affected by other factors such as psychiatric injury which were not apparent to him and which he was not seeking to take into account in the present exercise.

In respect of an award of £12,500, the judge noted that this represented an uplift of about 100% over the level of provisional awards recently made in the county court. He said that he felt that there was continuing persuasive force in Church and Sykes and that he was unable to accept the correctness of the recent awards. Then he said:

“The essential problem for me lies in the focus of the award. Consistently, Courts seem to focus almost exclusively upon the potential condition (what is it worth, as discounted?) rather than upon that which on the balance of probability will occur.”

He then mentioned Mr Grieves, who had a 5% risk of developing mesothelioma and observed that there was a 95% chance that he would not, which was a near certainty. He said that he was not prepared to introduce a 100% uplift on the provisional award to accommodate a near minimal risk.

The Judge then dealt with a submission made by Mr Patrick Limb, counsel for one of the defendants, to the effect that any claimant who had opted for a final award must be taken to have received medical and legal advice and to have discounted the future risks in favour of an immediate payment. The judge posed the rhetorical question:

“Why should the Court place such a significant value on risks that the claimant himself is inclined to discount on medical advice?”

He did not provide an immediate answer. However, when summarising his reasons for concluding that the appropriate bracket for final awards was £6,000 to £7,000, he referred first to the persuasive authority of Church and Sykes but recognised that some uplift was necessary to take into account the current perception of asbestos and the risks arising from exposure. Second, he said that he was unable to adopt the approach current in the County Courts. He could not explain or justify ‘total abandonment of the early moderation’. He said that he could not equate awards starting at £12,500 with the strong overall probabilities that the identified risks would not materialise. Finally he said:

“This is an area in which moderation is at a premium. On balance of overall probabilities, any uplift over the provisional award will prove to be excessive in most cases. Further and in any event, the less the uplift the more pressure to heed responsible legal advice so as to opt for a provisional award.”

The appellants repeated their earlier submission that, because each kind of asbestos disease gave rise to a separate tort, a final award in a pleural plaques case should be no higher than the very modest provisional award. That would be because the pleural plaques cannot of themselves give rise to any serious deterioration or other serious condition. For the reasons I have already given, I would reject that submission.

In the alternative, if the judge’s general approach was right, the appellants sought to uphold his approach of awarding a modest uplift over the level of the provisional award, reflecting what the judge regarded as the overwhelming probability that the risks would not materialise.

The respondents submitted that the judge’s approach to the assessment of a final award was flawed. First, it was not appropriate to consider the claimants as a group. They faced different risks and a final award ought to reflect those differing risks. Second, there was no justification for taking the provisional award as a benchmark and determining a proportionate uplift for the final award. That may be a convenient way of arriving at a figure but it was not soundly based. The provisional award was intended very largely to reflect anxiety about the claimant’s future health. There was no relationship between the value of that award and the appropriate value of the risks of the onset of malignant disease.

The judge had also erred in his approach to the question of risk. He had been too anxious to make the point that the risks were very unlikely to materialise. Provided that the risks were not fanciful, the law required him to assess their value: see Mallett v McGonagle [1970] AC 166 per Lord Diplock at page 176. If the risk was so small as to be fanciful, no award at all would be justified. The judge had not said that the risks were fanciful. It was not right to discount the risks on the ground that the events were improbable. If probability were the test, the claimants would be entitled to nothing for future risks, as none of them could show a probability.

The respondents submitted that the correct principled approach to the assessment of general damages for future risks was to take an approximate full value figure for each condition and apply the appropriate percentage risk. Thus, the usual award in a case of mesothelioma is about £60,000. A claimant who faces a 1% risk would recover £600. The usual award in a case of lung cancer is about £45,000 to £50,000. Taking the higher figure for the purpose of illustration, a claimant with a 10% increased risk of lung cancer due to asbestos exposure would recover £5,000. A claimant with those combined risks would recover £5,600. If there were also a risk of asbestosis, some modest addition would have to be made for that. That was more difficult as the range of full awards for that condition was very wide. It could be anything from £25,000 to £45,000. In the event, it was submitted that a proper approach in these cases would be to take an average figure of say £50,000 as the full value of a case of malignant disease and apply the total risk factor for malignant disease. The risk of other less serious conditions such as pleural thickening and asbestosis could safely be left aside.

Whatever sum was arrived at in this way would be added to the sum which would have been awarded as provisional damages. On the respondents’ submission, that would be £6,000. In that way, the respondents explained the range of final awards made in recent years by judges in the county court, which fell within a bracket of £12,500 to £20,000.

The respondents also submitted that the judge had been wrong to adopt reasons for keeping the awards low. He had said that in this type of case, moderation was at a premium. There was no reason why cases of pleural plaques with the risks of other diseases should be treated any differently from any other type of case. Nor was the judge right to seek to discourage claimants from taking final awards by reducing the damages below what would otherwise be right. Parliament had permitted claimants to choose whether to take a provisional or final award and it was not right to apply pressure to make them opt for a provisional award. Some claimants had perfectly sensible reasons for opting for a final award.

In my view there is force in the respondents’ criticisms of the judge’s approach. First, I accept that, in the assessment of the value of their risks, claimants must be treated individually. It cannot be right and just, in my view, that a claimant who has a 20% risk of developing a malignant disease should receive the same amount as one with a 4% risk.

Second, I accept the respondents’ submission that the judge should not have sought to keep the damages down. Damages should seek to compensate so far as possible. Granted, it is virtually impossible to achieve the right figure in the assessment of risks. Yet, courts have to do their best. Unless and until Parliament decides to impose provisional awards on claimants who face future risks, the courts should do their best to assess the value of those risks without seeking to discourage claimants from opting for a final award or penalising them if they do.

Third, I do not think that a standard uplift on the provisional damages award is the right approach. It may be convenient but it is not logical. I accept that the principled approach is that suggested by the respondents. That was the practice usually followed when I was at the Bar, when, before the advent of provisional damages, risks for future sequelae, such as epilepsy, often had to be assessed. I do not suggest that the calculation should be followed precisely in every case. There may be special circumstances in which it is not appropriate. For example, if a claimant has another morbid condition, unrelated to asbestos, which is likely to reduce his expectation of life substantially, it may well be appropriate to reflect that in the assessment of the damages for the risks of malignant asbestos disease. But such considerations apart, the respondents’ submission seems to me to be correct. I would add, however, that I consider that the element of the award which reflects the future risk should be discounted for accelerated receipt. This submission was made by Mr Feeny, counsel for the respondent (defendant) in the case of Hindson. However, no obviously satisfactory way of doing this is evident. The only practicable way seems to be to assume that the onset of disease and/or death will occur about half way through the remaining span of expected life and to make an approximate adjustment.

For those reasons, I would dismiss the appellants’ appeals against the final awards of general damages and, in principle, allow the cross appeals.

I now turn to consider the cross appeal in the case of Grieves and the appeal in the case of Hindson, both of which challenge the judge’s refusal to make any award for prospective financial loss. Although the judge stated the general proposition that, in these cases, he found such claims to be speculative, he did accept that, in some cases, a claim might be justified. For that reason, I consider it appropriate to deal with that issue as it arises in the individual cases.

Mr Grieves was estimated to be facing a 2% risk of developing symptomatic pleural thickening, a 2% risk of asbestosis, a 5% risk of mesothelioma and an increased risk of 3% of lung cancer due to asbestos exposure. He had suffered a psychiatric injury as the result of learning of his asbestos-related condition and risks. I do not propose to set out the details of that. The judge awarded an additional £3,000 over the standard level of £7,000 awarded to the other two claimants who took final awards. We heard no criticism of the judge’s assessment of that aspect of the award.

In my view, the correct approach to the final award of general damages in Mr Grieves’ case would be to add £3000 (for the psychiatric injury) to the sum of £5,500 which I would have awarded to the rest of these claimants who had sought provisional awards. To that, I would have added 8% of £50,000, to represent the future risks, which is £4,000, which sum would have to be discounted by the appropriate factor for accelerated receipt.

Mr Grieves also claimed an award of prospective future loss. This comprised a lost years’ claim for 50% of his pension amounting to £31,000 and the estimated costs of nursing care (£12,500) in the event that he developed a malignant disease. No challenge was made as to the accuracy or reasonableness of those figures as such. Counsel submitted that the correct percentage to apply was 7.85% rather than 8%. I have little doubt that the reasoning was correct but, in my view, if a calculation of prospective loss is to be made, there is no point in attempting such precision. The whole exercise is so uncertain that to differentiate between 7.85% and 8% lends a spurious degree of accuracy to the process.

The real question is whether or not any award should have been made in this case. The judge held that the whole exercise was too speculative to be embarked upon. First, he said that the calculation itself was speculative. That does not appear to be so at least so far as Mr Grieves’ loss of pension is concerned. The annual rates of the pensions were established. The claim for 50% for the lost years is a conventional approach. The estimate of £12,500 for care is in line with the amounts awarded in such cases and the contrary was not suggested. The real uncertainty arises as to whether these losses will ever be suffered at all as the result of asbestos exposure. But that is precisely the same uncertainty as bedevils the assessment of risk in the context of general damage. In my view, unless the risk of developing the disease is fanciful, the exercise of assessing the financial consequences of the risk must be undertaken. It is difficult and unsatisfactory but so are many aspects of the assessment of damages, for example, loss of earning capacity.

I would have held that, in the case of Grieves, there should have been an award of prospective financial loss based upon 8% of the sums claimed, discounted for accelerated receipt. However, all this is academic in the light of the majority judgment on actionability.

Mr Hindson was born in 1948 and worked as a lagger for nearly ten years, during which time he was heavily exposed to asbestos. In 2003, he became aware that he had developed pleural plaques. That came to light as a coincidental finding while he was under investigation for a suspected heart attack. The pleural plaques cause no symptoms or loss of lung function. However, he faces risks of developing asbestosis, lung cancer and mesothelioma. He had been anxious on learning that he had developed pleural plaques.

Dr Rudd provided a medical report on the instruction of Mr Hindson’s solicitors. He recorded a history of asbestos exposure and of cigarette smoking. He noted that Mr Hindson had had a heart attack in 2003 and had suffered from angina since then. Mr Hindson gave evidence that, after that event, he had returned to work. Dr Rudd recorded that, in January 2004, Mr Hindson had undergone an angioplasty and a stent had been inserted into the left anterior ascending artery. Mr Hindson gave evidence that he had returned to work after that procedure. Dr Rudd advised that Mr Hindson faced a 2% risk of developing diffuse pleural thickening sufficient to cause breathlessness, a 2% risk of developing asbestosis associated with breathlessness, a 5% risk of developing mesothelioma and a significant increase in the risk of developing lung cancer. This was assessed at 15% on the following basis. As a smoker, Mr Hindson was at a 10% risk of developing lung cancer, regardless of asbestos exposure. The effect of asbestos exposure was to increase that risk 2.5 fold, thereby producing a risk of 25%. Thus, the increased risk due to asbestos exposure was 15%.

Dr Rudd also advised on the effect of these risks on Mr Hindson’s expectation of life. In 2003, when Dr Rudd reported, an average man aged 54 (as Mr Hindson then was) had an expectation of life of 26.3 years. Dr Rudd estimated that Mr Hindson’s expectation of life was reduced by 10 years on account of his heart disease and his continuing habit of cigarette smoking. He then estimated that the risks of malignant disease due to asbestos had reduced his expectation of life by a further three years.

The employers instructed Dr Charles Hind. He recorded a similar history of asbestos exposure, cigarette smoking and heart disease. His estimates of the risks Mr Hindson faced and the reduction in his expectation of life due to the risks of asbestos disease were markedly different from those given by Dr Rudd. He assessed the risk of diffuse pleural thickening at 1%, asbestosis at 1% and mesothelioma at 2%. Also he considered that, unless Mr Hindson were to develop asbestosis, he would not be at any increased risk of developing lung cancer. If he were to develop asbestosis (such that it could be detected at autopsy even if not during life) Dr Hind was of the view that Mr Hindson’s risk of developing lung cancer would be of the order of 15% to 20% as the result of past asbestos exposure and smoking. So far as life expectancy was concerned, Dr Hind agreed with Dr Rudd that, as Mr Hindson had not given up smoking, his loss of expectation of life due to heart disease would be 10 years. Dr Hind disagreed that asbestos-related disease would further reduce expectation of life by three years; his estimate was only 6 to 12 months.

It was not thought appropriate, in the context of litigation designed to determine actionability, that the judge should be asked to decide which of these two differing medical opinions was correct. The judge was asked to assess Mr Hindson’s damages on both bases, leaving it to the parties to reach agreement if they could and, if not, to return to the court at a later stage. In the event, the judge did not do so. He said that the differences between the two doctors were of no real significance.

For Mr Hindson, Mr Frank Burton QC submitted that, on the basis of Dr Rudd’s estimate, it was plainly wrong that he should have been awarded the same sum as Mr Storey. He faced a risk five times greater than Mr Storey. Mr Burton based his submissions throughout on Dr Rudd’s evidence. However, for the sake of completeness, I mention that, on the basis of Dr Hind’s estimate, Mr Hindson’s risk of future malignancy was only about 2%, as nothing could be added in for a risk of lung cancer that was, of itself, dependent on a 1% risk of asbestosis.

Applying the principle which I set out above to Dr Rudd’s estimates, Mr Hindson should have been awarded 20% of £50,000 which is £10,000 (discounted for accelerated receipt) in addition to the £5,500 which, in my view, should have been awarded for the provisional element. On the basis of Dr Hind’s opinion, the additional sum should have been 2% of £60,000 (the approximate general damages figure for a case of mesothelioma) which is £1200 (to be discounted for accelerated receipt). Thus, in my view, there was a potential difference of real significance between the opinions of the two doctors.

However, as Mr Feeny for the respondent to this appeal pointed out, Mr Hindson had complicating factors not present in the case of Mr Storey or Mr Grieves. He had a co-morbid condition, namely heart disease, from which he was already suffering. He had had a heart attack; he had returned to work. He had had a stent inserted and had returned to work. He was still suffering from angina. Mr Feeny submitted that these factors could not be ignored. He submitted that, for that reason, the judge was right to treat Mr Hindson in exactly the same way as the other claimants and to award him the standard sum for future risks.

I would be minded to accept Mr Feeny’s submission that the co-morbid condition cannot be ignored. However, I cannot accept that the judge was right to treat him in the same way as the other claimants. As I have said, the risks of future harm must be dealt with on an individual basis. In Mr Hindson’s case, that entailed consideration of the effect of heart disease.

If Mr Feeny’s submission is to be accepted, the problem is to say how and to what extent the award for future risks should be reduced on account of the heart disease. How, in practice, do the existing heart disease, its likely future course and the consequent loss of expectation of life impinge on the asbestos- related risks? As to this, we received no detailed submissions and it appears to me that there may be a need for further medical evidence. At the end of the hearing before this Court, Mr Burton attempted to deal with these issues, but it appeared to me that the material was not available for that to be satisfactorily achieved. Without such submissions, I do not think I can do justice to the assessment of Mr Hindson’s damages. Accordingly, with regret, I have concluded that I cannot make an award and, in the absence of agreement, this matter must be remitted to the judge for further consideration, in the light of the principles expounded by this Court.

So far as concerns the claim for prospective financial loss, I face a similar but even more acute difficulty. Holland J rejected the claim simply because he regarded it as too speculative. As I have said, in my view, that general approach was wrong. The judge should have examined the claim and made findings in respect of it. I do not think that this Court can do so. For example, the claim was based on the contention that Mr Hindson would (absent the onset of asbestos disease) work until the age of 70. There is an obvious issue as to the feasibility of him being able to do that in the light of his heart disease. Apart from that, it does not appear that there were any significant challenges to the schedule of loss advanced. Nor, as I understood Mr Feeny’s submissions, was there any real challenge to the validity of Mr Burton’s suggested approach to the ways in which the global claim should be discounted for the asbestos-related risks and for accelerated receipt. However, as I have said, the interrelation of the effect of the heart disease and asbestos risks requires submissions and possibly further medical evidence. It may be that, when they are received, the judge would be justified in saying that the claim for prospective loss is too speculative and must be dismissed. In any event, I suspect that any assessment in his case will have to be made by the application of a broad brush, rather than a formula. It is with real regret, given that Mr Hindson is the only claimant who is entitled to damages, that I am unable to reach a final conclusion in his individual appeal. Absent agreement, the case must be remitted to the judge.