Greenway & Ors v Johnson Matthey Plc

The five Claimants in these proceedings claim damages for breach of statutory duty, negligence and breach of contract arising out of their employment by the Defendant at its chemical plants in Royston (Messrs Greenway, Dryden, White and York) and Brimsdown, Enfield (Mr Cipullo). The Claimants say that they were wrongfully exposed to complex halogenated platinum salts, and consequently developed sensitivity to platinum, which is a personal injury cognisable under the law of tort. The Claimants contend that this personal injury involves serious consequences. In the alternative, the Claimants argue that they have a completed cause of action in breach of contract.

On 12^th June 2014 Master McCloud ordered a split trial as to liability and quantum, and gave directions designed to take the matter forward to today’s hearing date. On 10^th September 2014 Master McCloud gave permission to the Claimants to introduce the claim for breach of contract, and made further pre-trial directions.

Having regard to the parties’ pleadings and to the skeleton arguments, it seems to me that the two key issues for the Court to resolve are:-

whether the Claimants have a completed cause of action in tort; and

whether the Claimants may recover more than nominal damages in respect of their contractual claims.

The basic facts are not in dispute and do not require extensive recitation. Save for Mr Dean White who was a maintenance engineer, the Claimants were chemical process operators. Owing to the risk of sensitisation through exposure to platinum salts, which are produced in consequence of the refining process undertaken at the Defendant’s factories and are used in the making of catalytic converters, the Defendant required routine and regular skin prick testing undertaken by its Occupational Health Department. All the Claimants were found to have become sensitised to chlorinated or halogenated platinum salts; and, in consequence, have been taken off any work involving potential contact with platinum. Four of the Claimants no longer work at this company, and claim substantial damages for loss of earnings or for loss of earning capacity. Mr Daniel Greenway and Mr Simon York, who remain employed by the Defendant, claim that their earnings have been reduced by the restrictions placed on their employment. All the Claimants save for Mr Waynsworth Dryden, seek provisional damages under s.32A of the Senior Courts Act 1981. They accept that those claims also depend on establishing the presence of actionable injury on standard tortious principles.

The precise facts surrounding each individual case are, in reality, immaterial for present purposes because I am required to resolve a point of principle, not the quantum of these claims. The Defendant does not dispute the fact that each Claimant suffered the platinum sensitivity claimed, and also does not contest its breach of duty under Regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992 and Regulations 7 and 12 of the Control of Substances Hazardous to Health Regulations 1994. An issue does arise whether the Defendant may contest, or has been deemed to admit, the Claimants’ remaining formulations of claim, but I will consider that matter subsequently.

I permitted Mr Steinberg for the Claimants to call one of his clients to give oral evidence, so as to provide greater flavour and context to the claims. In the result, I was assisted by hearing the oral evidence of Mr Dean White, who testified to the major effects his platinum sensitivity has had on his career in this particular niche of the engineering industry. Once he was removed from his ‘hands on’ role, and became a co-ordinator with administrative and supervisory responsibilities, he felt extremely uncomfortable, occasionally embarrassed, and always dissatisfied. In the end, he did not want to continue in this capacity and gave notice.

It is clear from the witness statements which I have read and considered that the other four Claimants have similar stories to tell. During the course of his oral argument, Mr Steinberg gave helpful summaries of their experiences, and I am grateful for those.

The medical evidence in this case is, in effect, agreed. At one stage, the sole area of possible disagreement related to the significance of the differences between pleural plaques and platinum sensitisation, because Dr John Moore-Gillon for the Defendant was not made aware of exactly how the Claimants were advancing their case on this topic. However, there are distinctions in physiological terms between these two conditions, but whether they are relevant distinctions for the purposes of the law of tort gives rise to matters of law rather than to aspects of medical expertise.

What follows is my summary of the reports of Dr R.M. Rudd, for the Claimants, and Dr John Moore-Gillon, for the Defendant, and in particular their joint report dated 13^th September 2014.

Repeated exposure to platinum salts may give rise to sensitisation which, in turn, may engender an allergy. Sensitisation is defined by the presence of IgE antibodies in the immune system of the individual, and may be ascertained by either a skin prick test (in which a minuscule amount of the substance at issue is injected into the skin, resulting in the development, in cases of sensitisation, of a raised red area), or by a blood test. The presence of some IgE antibodies, without more, does not create symptoms – indeed, they are part of the body’s immune response to exposure to an antigen - but various manifestations of allergy, including rhinitis, dermatitis and asthma, may result if these antibodies interact with mast cells causing the latter to release chemical mediators including histamine.

The common ground between the experts set out at paragraphs 7-15 of their joint report is a sufficient platform to resolve the points of law I am asked to determine. In those circumstances, I set out those paragraphs in full:-

Dr Moore-Gillon does not disagree with the gist of paragraphs 6(1)-(3) of Dr Rudd’s report dealing with the differences between pleural plaques and platinum sensitivity. In my judgment, those paragraphs are uncontroversial in the sense that they accurately describe the nature, aetiology of and prognosis for pleural plaques as explained in relevant House of Lords authority, and also correctly summarise the agreed expert position on platinum sensitivity. Accordingly, I set out these paragraphs in full:-

Slight further exposure to asbestos will not materially worsen pleural plaques whereas slight further exposure to platinum salts is likely to increase the degree of sensitisation and may result in asymptomatic sensitisation becoming symptomatic.

Pleural plaques do not themselves turn into any other asbestos attributable injury whereas asymptomatic sensitisation may turn into symptomatic sensitisation i.e. allergy.

The presence of pleural plaques does not place any restriction on the type of work that an individual may undertake other than avoidance of further significant asbestos exposure which current legislation requires be avoided by all individuals whether they have pleural plaques or not, i.e. the individual with pleural plaques is not more restricted in the jobs that he can do than a person without pleural plaques. In contrast, the presence of asymptomatic sensitisation to platinum salt does give rise to restrictions on working capacity which do not apply to persons who do not have platinum sensitisation.”

The first issue which arises for my determination is whether the Claimants have suffered ‘actionable injury’ for the purposes of the law of tort. At this stage of the analysis, the parties are agreed that the position is the same under both of the pleaded causes of action in tort.

In Cartledge v Jopling ([1962] 1 QB 189 (CA) and [1963] AC 758 (HL)) the plaintiffs, while employed as steel dressers in the defendant’s factory, contracted pneumoconiosis, a disease in which slowly accruing and progressive damage may be done to the lungs of an individual exposed to fine silica dust without his knowledge. The issue was whether the claims were statute barred, and that issue depended on when the cause of action accrued; or, put another way, when actionable injury or damage first occurred.

The trial Judge, Glyn-Jones J’s, key findings of fact are noted at [1963] AC 758, pages 761-2:-

I was taken during the course of argument to various passages in all three judgments of the Court of Appeal (Sellers, Harman and Pearson LJJ), but for present purposes I mention only two passages in the judgment of Pearson LJ. First, at page 208:-

Secondly, at page 210:-

Thus, the Court of Appeal proceeded on the basis that pneumoconiosis was asymptomatic but could be diagnosed by the presence at X-ray of marked scarring to lung tissue. Further, as Harman LJ made explicit (at page 202), ‘the injury to the lung makes the sufferer far more susceptible to tuberculosis or bronchitis or other pulmonary afflictions’.

The Court of Appeal fully recognised that the outcome, albeit logical and well-founded in principle, was capable of working injustice because the limitation clock was ticking against a Plaintiff who would not necessarily know that he had any compensatable injury. In due course, but only after the case had gone to the House of Lords, the Limitation Acts were amended to remedy this state of affairs.

The House of Lords upheld the Court of Appeal’s decision, with the same reluctance.

Lord Reid held that a cause of action accrues as soon as the tortious act causes “personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot be discovered by the sufferer” (pages 771/2). He did not specify the personal injury he was referring to, although he did mention what would be observable at X-ray.

Lord Pearce, after setting out the facts as found by the Judge, said this (at pages 778-779):-

Thus, whether or not Lord Pearce felt that this was a borderline case, what was decisive for him was the evidence of lung damage in the form of scarring of tissue, observable at X-ray, and the fact that in event of subsequent disease or exceptional exertion ‘he may suffer from his hidden impairment’. The absence of symptoms or present physical symptoms did not prevent there being a completed cause of action.

Mr Steinberg emphasised the absence of present symptomatology and knowledge as being crucial to the ratio of Cartledge. However, one needs to see what there was as much as what there was not. Approaching the matter without reference to subsequent authority, I consider that Cartledge v Jopling was predicated on the findings of (a) exposure to fine silica particles causing a progressive disease process including scarring to otherwise healthy lung tissue, (b) an enhanced susceptibility to serious lung conditions including bronchitis and tuberculosis, and (c) a potential loss of physiological function which might have manifested itself in extreme circumstances. It is true that only Lord Pearce made point (c) explicit, although it flows directly from the first instance judge’s finding of act, and it is therefore debatable whether it forms part of the ratio of the case. It is also true that Pearson LJ appears to have regarded a reduction in future earning capacity as being a salient feature of the injury. On the other hand, this was in the context of a piece of reasoning which included a present reduction in ability to resist infection. Overall, points (a) and (b) above are certainly part of the ratio, and point (c) may well be.

In Rothwell v Chemical and Insulating Co Limited (2008) 1 AC 281, the House of Lords decided that asymptomatic pleural plaques did not constitute injury capable of giving rise to a claim for damages in tort. The presence of pleural plaques was evidence that lung tissue had been penetrated by asbestos fibres, but did not in themselves increase susceptibility to other asbestos-related diseases or shorten life expectancy. The plaques were, accordingly, entirely harmless, and not an aspect of any progressive disease process.

On my understanding of its reasoning, the House of Lords in Rothwell did not seek to reinterpret its earlier decision in Cartledge, although – as has been pointed out in the parties’ written submissions – their Lordships’ individual formulations of the legal test varied slightly. For Lord Hoffmann the test (in tort claims generally) involved the “abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy” (at 289D). For Lord Hope, the test was whether there was “real damage, as distinct from damage which is purely minimal” (at 297E). For Lord Rodger, the test was “material damage” (at 311F). It might be argued that some of the formulations tend to circularity. What may be more valuable is to consider how the test was applied to the facts of both Cartledge and Rothwell itself.

As for Cartledge, Lord Hoffmann said this (at 289G-H):-

Lord Hope made similar points at paragraphs 47 and 49 of his Opinion, which I set out in full:

In a nutshell, Mr Steinberg’s submission was that his clients had sustained actionable injury or damage because (a) it was probable that their sensitisation would progress to allergy (see paragraph 8 of the Joint Report, paragraph 11 above, and c.f. pleural plaques), (b) in the absence of further exposure, there would be no progression, and (c) it was a direct and necessary consequence of the foregoing that restrictions were placed on their working activities so as to obviate (a). Mr Steinberg relied on Pearson LJ’s reasoning in Cartledge (see paragraph 16 above) in support of proposition (c). In essence, the harm or damage – and, consequently, the actionable injury - was the amalgam of or inextricable nexus between the presence of the antibodies, which was a relevant physiological change, and the reduction in earning capacity (whether compensated under Smith v Manchester or on a multiplier/multiplicand basis).

I agree that there are factual differences between the instant cases and Rothwell. In particular, further exposure to asbestos fibres would not materially worsen the pleural plaques, although it might well engender a different, asbestos-related disease process. Also, the progression from sensitisation to allergy can be envisaged as being along a direct causal pathway. In contrast, as Mr Steinberg elegantly put it, the pleural plaques were a biological cul-de-sac.

Critically, however, that progression would not occur if an employee is removed from the source of the sensitisation, namely exposure to relevant platinum salts. In such circumstances, the sensitisation will either remain constant (the antibodies will remain in the system but will not increase) or it will diminish: in both instances, without symptoms. Accordingly, that progression will not occur in any of the five cases I am considering. My interpretation of the passage in Pearson LJ’s judgment on which Mr Steinberg relies is that pneumoconiosis may progress even if the sufferer is removed from the source of the dust, but the risk is higher if exposure continues, rendering it both sensible and necessary to take preventative measures. In my view, this passage does not assist Mr Steinberg’s argument because, in its approach to the question of what is actionable injury, it presupposes the existence of a disease process which is real and present.

In my judgment, one cannot define the actionable injury by the steps which are taken to prevent it. Those steps may result in economic loss, but that is not the same as, or an ineluctable component of, the injury. The correct approach is to analyse the sensitisation in terms of the physical (or physiological) harm it may be causing, not any financial loss which may be consequent upon that harm. The sensitisation is no more, and no less, than the presence of antibodies which in themselves are not harmful. They may become harmful if they endure or multiply to the extent that they subsequently interact with mast cells such that histamine is generated, but that harmful state of affairs requires further exposure. Thus, something more has to happen before actionable injury may be sustained, and that something more cannot as a matter of logic and principle be the very thing (sc. the preventative measures) which precludes the development and manifestation of symptoms, in other words injury.

Properly analysed, therefore, this is a claim for pure economic loss. Mr Kent Q.C. submitted that general damages for pain, suffering and loss of amenity would not be awarded on these facts, and I agree. That cannot be determinative of the issue, but it serves to indicate the true nature of the claim.

Mr Kent also submitted that pure economic loss is outside the ambit of the relevant obligation in tort, whether arising in negligence simpliciter or for breach of statutory duty. I did not understand him to submit that this was an additional, free-standing basis for repudiating these claims, since it would depend on the primary conclusion that there was no actionable injury. However, I agree with Mr Kent that the purpose of the tortious obligation, however framed, is to safeguard employees from the risk of personal injury, not from financial harm per se: see Lord Hoffmann in SAMCO v York Montague and others [1997] AC 191, at 211B and 212D-F (set out in full under paragraph 45 below); and, by analogy, Arden LJ in Vibixa Ltd v Komori UK Ltd and others [2006] 1 WLR 2472, at 2488F-H in particular. In that case, the concept of ‘welfare’ in the Health and Safety at Work etc Act 1974, and subordinate legislation, did not comprehend, without more, interests of an economic nature.

Mr Kent advanced other arguments opposing Mr Steinberg’s case, but in the circumstances I do not consider that it is necessary to address these.

The Claimants have not suffered actionable injury, and the claim in tort must, therefore, fail.

This is the claim which the Claimants introduced by amendment pursuant to the Order of Master McCloud dated 10^th September 2014. Mr Steinberg frankly told me that the purpose the amendment was to cater for the possibility that the Court might rule that his clients had not suffered actionable injury. In the event that they had, the contract claim would obviously be otiose.

The implied term relied on by the Claimants for the purpose of this claim is exactly co-extensive with the Defendant’s obligation under the general law of tort to provide and maintain a safe place and system of work, and to take reasonable care for the Claimants’ safety. It is not an implied term required to give business efficacy to the contract or to reflect the parties’ unexpressed intentions; rather, it arises because the law imposes it in view of the relationship between the parties. As I remarked in oral argument, all employers’ liability claims in tort may also be regarded as claims in contract, for breach of that implied term. In practice, such claims are very rarely brought, because it is more convenient, and more conventional, to frame the cause of action solely in tort.

The Claimants expressly eschew any claim for nominal damages for breach of contract. Such a claim would avail them not at all. In order to achieve something of real and concrete benefit, they must establish that the breach of contract relied on has caused them substantial loss and damage.

Before addressing the merits of the Claimants’ argument, it is necessary to touch on a pleading point. The claims as originally constituted were purely in tort; more specifically, in breach of statutory duty and in negligence. The Defences, which were not drafted by Mr Kent, admitted ‘breach of duty’ without discriminating between the two formulations of that duty. I accept Mr Kent’s explanation that, given that the Defendant was advised that it had no defence to the breach of statutory duty claim, there was no point contesting the negligence claim, but the fact remains that the latter was not placed in issue. Under the rules, the negligence claim was, in effect, admitted. For the reasons which I have already outlined, the Claimants then pleaded an alternative claim in contract. Mr Kent arrived on the scene and amended his client’s Defences so as to plead a bare denial of the negligence and contract claims. No particulars of the denial were given, contrary to CPR Part 16.5. The Defences pleaded that it would be disproportionate to give such particulars, since the contract claim placed the Claimants in no better position. In such circumstances, it seems to me that the Defendant must be confined to that point of law and cannot be permitted to contend that, as a matter of fact, it was neither negligent nor in breach of the implied term. Ultimately, Mr Kent accepted that this was the case.

Mr Steinberg also sought to argue that an admission of breach of statutory duty is necessarily an admission of negligence. He relied on high authority which, in my view, does not go that far. Indeed, in an authority he did not cite, London Passenger Transport Board v Upson [1949] AC 155, Lord Wright at page 168 explained that breach of statutory duty is not to be equated with negligence in all cases. The one may inform the other, but they are not legal synonyms (unless, I would add, the statutory duty in play imposes something akin to a reasonable care obligation).

A contractual claim in these circumstances is certainly novel. Its possibility was mentioned by Lords Hope and Scott in Rothwell, although the point did not arise for decision. A contractual claim would scarcely ever arise in a case involving inhalation of asbestos fibres owing to the implacable six year limitation period, and the long ‘incubation period’ which is required. It would be fair to say that Lord Scott could see little reason why a contractual claim should not succeed.

The way in which Mr Steinberg advances the contractual claim was both compact and beguiling. In essence, he submitted that the loss claimed is within the scope of the relevant duty, that it is not a pre-requisite of this claim that personal injury be sustained, and that the loss suffered was a natural consequence of the breach, falling within the first limb of Hadley v Baxendale 156 E.R. 145; (1854)9 Ex. 341. Mr Steinberg naturally recognised that the claim could be characterised as being one for pure economic loss, rather than for economic loss consequent on physical damage, but he contended that the distinction between economic loss and physical damage was a false or legally irrelevant one for these purposes. The question to be asked, and answered, is whether the loss falls within the envelope of the contractual duty. Even in the absence of personal injury, Mr Steinberg submits that his clients have suffered non-trivial harm or loss, and are therefore entitled to more than nominal damages, because they have sustained (at the very least) a loss of earning capacity.

I am unable to accept Mr Steinberg’s submissions on this issue. I agree that the critical question is whether the losses in question are within the scope of the Defendant’s contractual duty, but in order accurately to answer that question it is necessary to analyse the type or kind of damage, or loss, which is at issue.

This is the exercise which Lord Hoffmann specifies in SAMCO v York Montague and others [1997] AC 191 at 211A/B and 211H. Moreover, in a critical passage of his Opinion at 212D-F, one sees the following:

Thus, if the claim is for breach of statutory duty, the scope of the duty is ascertained by discerning the purpose of the duty from the statutory scheme. A similar exercise applies in other tortious claims where the common law imposes the relevant obligation. The position is slightly more complicated where the claim is for breach of an implied contractual duty. In the circumstances of SAMCO, the exercise was said to entail construing the agreement as a whole in its commercial setting. In my judgment, in circumstances where the law imposes an implied term in view of the relationship between the parties, essentially for reasons of policy, and that implied term is in substance the same as the tortious obligation which arises for exactly the same reasons, it seems obvious that the exercise embodies a consideration of the scope of the rule or principle of public policy which creates, or impresses, the duty.

In my judgment, the scope of the rule of public policy in operation in these cases, and all cases of employers’ liability, is to safeguard the health, safety and welfare of employees from the careless acts and omissions of their employers; and, in the event of breach, where personal injury is suffered to require the payment of condign compensation. The concepts of health, safety and welfare, properly understood, embody the notion of protection from personal injury and not from economic or financial loss suffered without personal injury. Put another way, it is because the implied contractual duty is precisely conterminous with and reflects the obligations imposed by the law of tort – and, in particular, the tort of negligence – that the outcome must be the same however the cause of action is sought to be classified.

I should add, although the point was not argued, that the Claimants’ case is not advanced by considering the post-Addis v Gramophone [2009] AC 488 authorities such as Malik v BCCI SA [1998] AC 20, Johnson v Gore Wood & Co [2002] 2 AC 1 and Johnson v Unisys Ltd [2003] 1 AC 518. These were all cases where the claims could be examined within the ambit of the relevant duty, typically the obligation of mutual trust and confidence. The instant claims cannot be envisaged in that manner.

Thus, the answer to Mr Steinberg’s submission is that the Claimants’ pure economic loss falls outside the parameters of the Defendant’s duty, and the claim in contract must fail.

These claims fail and there must be judgment for the Defendant.