(back to preceding text)

    78.  The claimants in these appeals were all exposed to asbestos dust while working for the relevant defendants. The defendants all admit that they were at fault in exposing them to the dust. As a result of the exposure, asbestos fibres entered the claimants' lungs and some of them worked their way through to the pleura. There they gave rise to plaques which were detected by x-rays and CT scans. It is common ground that the plaques are not symptomatic: they do not cause the claimants pain nor do they disable them in any way. But they do indicate that the quantity of fibres in the claimants' lungs is significant. According to the evidence, the risk that they may develop asbestosis or mesothelioma is significantly higher in men with plaques than in men who have been exposed to asbestos dust in the workplace but who have not developed plaques. For that reason, during the hearing before the House, the plaques were said to function as a marker or litmus test for this increased risk.

    79.  For about twenty years pleural plaques have been regarded as actionable. Courts have awarded damages for them. Employers and their insurers have settled many claims for damages for them. Even though this has not resulted in an unmanageable flood of claims, in the present cases the defendants and their insurers have taken a stand. They wish to close the gates by establishing that asymptomatic plaques are not actionable. They failed before Holland J, but succeeded in the Court of Appeal: [2006] ICR 1458. With leave of the Court of Appeal, the claimants now appeal to this House.

    80.  It is important to emphasise that the injuries for which the claimants, apart from Mr Grieves, seek damages are the pleural plaques, associated risks of developing diseases and associated anxiety. For instance, in Mr Downey's case the particulars of injuries state:

"The claimant has contracted pleural plaques as recited in the medical report of Dr Lawrence dated 26 October 2001.

The claimant is at risk of future development of asbestosis (1%), diffuse pleural thickening (1%) and mesothelioma (5%) and as a result suffers anxiety for his future health and welfare."

    In his submissions before the House Mr Burton QC put the claim in two ways: as a claim for the pleural plaques simpliciter, and as a claim for the pleural plaques with the associated risks and anxiety.

    81.  Mr Grieves gives as his details of injury:

"The claimant, who was born on the 23rd February 1940, is 63 years of age and has developed asbestos related pleural plaques. The claimant relies on the report of Dr Robin Rudd, Consultant Physician, dated 23 July 2003 which is served herewith.

There is a chance that at some future time the claimant will develop: (i) diffuse pleural thickening, (ii) asbestosis, (iii) malignant mesothelioma (iv) lung cancer.

The claimant is anxious about the risks of malignancy."

Even though Mr Grieves refers only to his anxiety about the risks of malignancy, in fact, he became clinically depressed and developed irritable bowel syndrome after being told that he had pleural plaques. So, in this respect, his case is different. I deal first with the other claimants.

    82.  As Lord Scott of Foscote points out, the appellants base their claims on the law of tort, not on the law of contract. The significance, if any, of the distinction in the present context was not addressed by counsel and does not call for consideration on this occasion.

    83.  So far as the law of tort is concerned, it is trite that "the ground of any action based on negligence is the concurrence of breach of duty and damage" and that "a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible": Watson v Fram Reinforced Concrete Co (Scotland) Ltd and Winget Ltd 1960 SC (HL) 92, 109 per Lord Reid, and Cartledge v E Jopling & Sons Ltd [1963] AC 758, 771-772 per Lord Reid, respectively. These statements need to be refined slightly for the purposes of the present appeals.

    84.  The asbestos fibres cannot be removed from the claimants' lungs. In theory, the law might have held that the claimants had suffered personal injury when there were sufficient irremovable fibres in their lungs to cause the heightened risk of asbestosis or mesothelioma. But the courts have not taken that line.

    85.  In Cartledge v E Jopling & Sons Ltd [1963] AC 758, 779, Lord Pearce, with whom the other members of the House agreed, saw the relevant question as being "whether a man has suffered material damage by any physical changes in his body." The physical changes that Lord Pearce had in mind were those associated with the actual onset of pneumoconiosis. Indeed the whole question in the case revolved around the plaintiffs having that disease before they could know of it, not around the noxious dust having accumulated in their lungs during their employment between 1939 and 1950.

    86.  The point was focused in Brown v North British Steel Foundry Ltd 1968 SC 51 when the pursuer tried an argument that had not been run in Cartledge. The Law Reform (Limitation of Actions etc) Act 1954 was passed on 4 June 1954 but was not to affect any action or proceeding if the cause of action arose before that date. The Lord Ordinary found that the pursuer did not begin to suffer from pneumoconiosis until 1955. But the pursuer contended that the injury had been done to his lungs by 1949 because he had been inhaling dangerous dust for some years before that and, as subsequent events showed, he was susceptible to pneumoconiosis in 1949. So the cause of action had arisen at that date. The First Division of the Court of Session rejected that argument. Lord President Clyde held that there was no cause of action in 1949 and added, at pp 64-65:

"To create a cause of action, injuria and damnum are essential ingredients. In the present case there is no evidence of any injuries to the workman's lungs in 1949. He had then merely a deposit of dust in his lungs, which might or might not subsequently create an injury. But, in addition, he had then sustained no damnum. He could not then have been awarded damages for any loss, because at that stage he had sustained no loss of wages and had suffered none of the discomforts and disabilities which, he avers, followed upon the onset of pneumoconiosis and which in fact flowed from the outbreak of that disease in 1955."

As Lord Guthrie pointed out, at p 68, the problem considered by this House in Cartledge v E Jopling & Sons Ltd could not have arisen if the pursuer's contention had been sound.

    87.  In summary, three elements must combine before there is a cause of action for damages for personal injuries caused by a defendant's negligence or breach of statutory duty. There must be (1) a negligent act or breach of statutory duty by the defendant, which (2) causes an injury to the claimant's body and (3) the claimant must suffer material damage as a result.

    88.  In these cases the claimants do not suggest that the presence of the asbestos fibres in their lungs constitutes an injury. Rather, they argue that the plaques constitute an injury - the plaques are "a physical change" in their bodies, as envisaged by Lord Pearce in Cartledge [1963] AC 758, 779. Taken by themselves, however, the plaques are benign and asymptomatic. So, even assuming that the plaques could constitute a relevant 'injury' to the claimants' bodies, they do not cause them any material damage and so do not give rise to a cause of action. There is a small risk that, if the number of plaques increases, they may then cause the claimants some discomfort. But the mere existence of that risk does not give rise to a present claim for damages: Gregg v Scott [2005] 2 AC 176. "The mere possibility of damnum will not found a claim to reparation": Brown v North British Steel Foundry Ltd 1968 SC 51, 68 per Lord Guthrie. If the risk were to eventuate, then at that stage the claimant concerned would have a claim for damages for the effects of the condition that he developed.

    89.  Under reference to Gregg v Scott, counsel for the claimants accepted that, by itself, the present risk that they might eventually develop asbestosis or mesothelioma does not give rise to a claim for damages. He also accepted, on the authority of Hicks v Chief Constable of South Yorkshire [1992] 2 All ER 65, 69d-f, that even extreme anxiety amounting to fear of impending death is not itself actionable. By itself, therefore, the anxiety felt by the claimants about the risks of developing a serious disease in the future is not actionable. But he argued that, if you aggregated the three elements of the non-actionable pleural plaques, the non-actionable risk of developing diseases and the non-actionable anxiety, you produced an actionable claim. The logical difficulties of such an approach are self-evident and, in my view, insurmountable.

    90.  Of course, if the plaques were an actionable injury, the risk that they might eventually result in a harmful condition would be an element in any claim. So, too, would the related anxiety. But the starting point for the claimants' alternative argument is that the plaques are not an actionable injury. In other words, the law treats them as a condition that is not serious enough to require its intervention. Very understandably, the claimants may be anxious about the plaques, just as they may be anxious about all sorts of other problems and potential problems in their lives. Such anxiety is a normal human emotion. But, if the plaques themselves are not a condition for which the law will intervene to give damages, it would make no sense for it to give damages for anxiety associated with the plaques.

    91.  There is a further, even more important, objection to the argument. The claimants' anxiety is not actually about any risk to their health caused by the plaques themselves. Rather, they are worried that at some time in the future they may develop asbestosis or mesothelioma as a result of the accumulation of fibres in their lungs. The plaques alert the claimants to a heightened risk of that happening, but they would not be a cause of the illness if it did develop. So, on the alternative approach, the claimants are seeking to make the plaques actionable by adding in a risk that they may develop a disease that would not be caused by the plaques but by the accumulation of fibres in their lungs. Putting the point another way, a claimant with plaques would have a claim for damages for the risk that he would develop asbestosis or mesothelioma, when a claimant without plaques, but with exactly the same risk of developing those diseases, would have no claim. The plaques would be nothing more than a "hook" on which to hang a claim for damages for something which they did not cause. My noble and learned friend, Lord Hoffmann, rejected that approach in Gregg v Scott [2005] 2 AC 176, 288-289, paras 86-90, and, for the reasons he gave, I would reject it in this case too.

    92.  I would accordingly dismiss the appeals by the claimants other than Mr Grieves. I now turn to his appeal.

    93.  Like the other claimants, Mr Grieves puts his case in two ways. The first, based simply on the presence of the plaques, must fail for the reasons that the other claimants' cases must fail. Similarly, the mere risk that his plaques may become symptomatic or that he may develop asbestosis or mesothelioma in future does not give rise to a claim for damages. He says, however, that he can claim damages for the depression and associated irritable bowel syndrome that he developed as a result of being told about the plaques on his pleura.

    94.  Again, two possible approaches were mooted in submissions before the House. The first was to treat his claim as one for psychological harm suffered by a claimant who was at risk of suffering physical injury in the form of asbestosis or mesothelioma. Mr Grieves would be a primary victim of the defendant's wrongdoing and would be entitled to recover damages for his psychiatric injury, even if it had not been foreseeable: Page v Smith [1996] AC 155. Alternatively, Mr Grieves would have a free-standing claim for the reasonably foreseeable psychological harm that he suffered as a result of learning about the pleural plaques.

    95.  My Lords, in Page v Smith the plaintiff suffered psychiatric harm as a result of being exposed to, but escaping, instant physical harm. In other words, he developed his illness as an immediate response to a past event. Here, by contrast, Mr Grieves developed his illness on learning of a risk that he might possibly develop asbestosis or mesothelioma at some uncertain date in the future. In Creutzfeldt Jakob Disease Litigation Group B Plaintiffs v Medical Research Council [2000] Lloyd's Rep Med 161 the plaintiffs had taken part in a clinical trial organised by the defendants. It included an injection carrying the risk of infecting them with a potentially lethal dose of the CJD agent. It was reasonably foreseeable, and the defendants foresaw, that, over a long period, the patients would suffer psychiatric injury as a result of learning of the risk that they would develop CJD. Morland J held that the defendants owed the plaintiffs a duty of care. Nevertheless, he rejected their argument that they were in the same position as the victim in Page v Smith. Their illness was not caused by the immediate effects of a past traumatic event: it was triggered by their awareness of the risk that they would develop CJD and the nature of that condition. In my view that was a valid distinction, which applies in the case of Mr Grieves also. Allowing his claim would constitute an expansion of the rule in Page v Smith, contrary to the 'thus far and no further' guidance of Lord Steyn in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455, 500A-E.

    96.  Mr Kent drew attention to a further, associated, point of distinction. In Page v Smith the mechanism (the crash) which caused the onset of the plaintiff's psychiatric harm was the same mechanism as had been liable to result in physical harm to him. Here, by contrast, the mechanisms are different. The risk that Mr Grieves would develop asbestosis or mesothelioma was caused by the defendant's wrongdoing. On the other hand, his depression is due to his doctor intervening to tell him about the plaques and to the events following on that, including, possibly, some misinformation provided to him by other people. The distinction confirms that an award of damages for Mr Grieves' illness would go further than the award for the plaintiff's illness in Page v Smith.

    97.  Mr Allan QC submitted, however, that this distinction could not stand in the light of the application of Page v Smith in Simmons v British Steel plc [2004] ICR 585 where the pursuer's mental illness was a consequence, not of the injuries which he suffered in the accident, but of his anger at the defenders' negligence in allowing the accident to happen. But in Simmons, as in Page v Smith, the illness was prompted by the pursuer's reaction to a very unpleasant event that had actually occurred, not by his contemplation of the risk that something unpleasant might occur in the future. Moreover, his claim was for a psychiatric illness brought on by an accident in which he had suffered a far from trivial physical injury. In my view Simmons is not authority for the application of Page v Smith in this case.

    98.  For these reasons I would reject the first basis on which Mr Grieves' claim for psychiatric injury is put.

    99.  Mr Allan argued that, leaving aside Page v Smith, the defendant owed Mr Grieves a duty of care not to cause him foreseeable psychiatric harm. I have no doubt that the defendants owed him a duty of care not to cause him psychiatric harm as a result of developing asbestosis or mesothelioma. In practice, a claim for such harm would simply be an element in his overall claim for damages for the illness. But what he asserts is the very different duty to take reasonable care not to cause him psychiatric harm as a result of learning of the risk that he would develop these illnesses. Again, in my view, it would be anomalous to recognise such a duty when the law considers that the risk itself is not actionable. That can only be because the law proceeds on the view that ordinarily people in such a position can be expected to handle that information, very unpleasant though it is, without suffering any morbid effects. Moreover, as already pointed out, the mechanism which caused Mr Grieves' illness was not the defendants' act in exposing him to the asbestos dust, but the doctors' telling him of the heightened risk that he would develop asbestosis or mesothelioma in the future.

    100.  Mr Allan sought to rely on the Creutzfeldt Jakob Disease case. There, however, Morland J held that it was foreseeable that the victims would hear about their plight, not only from doctors and counsellors, but from angry, ill-informed, relatives and from sensational media reports which would tend to highlight or sensationalise the risk of the potential terrible outcome. On this basis he held that the psychiatric injury was foreseeable and that the defendants had foreseen it. They were accordingly under a duty of care to avoid it. None of those special circumstances was present in Mr Grieves' case. Indeed, Dr Menon considered that his case was 'relatively unique' because he had long-standing anticipatory fears of developing the disease, which had been present since he had learned about the dangers of exposure some decades before. On the evidence there were no particular circumstances which would have alerted the defendants to the possibility that Mr Grieves would react any differently, in this way, from other men who were told of the risks and who could be expected to deal with them without suffering any psychiatric injury. In these circumstances I am satisfied that his illness was unforeseeable and that he has no claim for damages in respect of the depression and associated irritable bowel syndrome from which he suffers.

    101.  For these reasons, as well as those given by my noble and learned friends, Lord Hoffmann, Lord Hope of Craighead and Lord Scott of Foscote, I would also dismiss Mr Grieves' appeal.

LORD MANCE

My Lords,

    102.  I have had the benefit of reading in draft the opinions of all of your Lordships. In agreement with all of your Lordships and for reasons given in those opinions, I agree that these appeals fall to be dismissed.

    103.  More specifically, I agree with the reasons given in the opinions of my noble and learned friends, Lord Hoffmann, Lord Scott of Foscote and Lord Rodger of Earlsferry, for concluding that the pleural plaques did not by themselves constitute or involve injury and damage sufficient to enable an action to lie in tort and that such injury and damage cannot in law be found by "aggregating" the pleural plaques, the risk of future asbestos-related disease and/or the anxiety experienced in relation to such risk, in circumstances where none of such factors alone will suffice.

    104.  On the application of Page v Smith [1996] AC 155 in the appeal by Mr Grieves, assuming that case to have been correctly decided, I agree that it can and should be distinguished on its facts for reasons given by all of your Lordships. As interpreted by the majority of the House in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455, it concerned psychiatric injury arising as an immediate consequence of an obvious accident, in which the claimant could foreseeably have been physically injured at the time. However, like my noble and learned friend, Lord Hope, I would leave open the correctness of Page v Smith for another day. I see some force in the criticisms that have been levied against it, and I am not confident that it does not cause uncertainty and argument (the latter indeed in this case). On the one hand psychiatric illness resulting over time from the exacerbation of a physical condition contributed to by anger about the occurrence of a past accident (in which the claimant did, it is true, suffer a physical injury) was held recoverable irrespective of foreseeability in Simmons v British Steel plc [2004] ICR 585, in reliance on Page v Smith. On the other hand, the present case establishes that psychiatric illness arising from the stress of belated discovery of a continuing risk of future physical illness arising from past exposure to asbestos dust is not actionable, in the absence of specific foreseeability. Some artificiality may be a necessary result of the controls on which the law insists in this area. But this distinction, although one that I endorse if necessary, is not, I think, particularly happy. However, it is unnecessary to say more about it in this case.