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