“It is perfectly clear that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded. Those trapped in the crash at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim’s estate.”
“2. Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury.” (ii). Lord Hope: “50…I would hold however that there is no cause of action because the pleural plaques in themselves do not give rise to any harmful physical effects which can be said to constitute damage, and because of the absence of a direct causative link between them and the risks and the anxiety which, on their own, are not actionable…” (iii). Lord Scott: “65. In considering these issues a number of well-established principles of law, not in dispute before your Lordships, nor I believe at any stage in this litigation, need to be kept firmly in mind. First, a cause of action in tort for recovery of damages for negligence is not complete unless and until damage has been suffered by the Claimant. Some damage, some harm, some injury must have been caused by the negligence in order to complete the Claimant’s cause of action. In Page v Smith (1995)…, a case about a psychiatric illness caused by a motorcar accident…, Lord Lloyd of Berwick said that “personal injuries include any disease and any impairment of a person’s physical or mental condition”
“…where a material damage occurs, and is connected with (the mental pain or anxiety), it is impossible a jury, in estimating it (i.e. the material damage), should altogether overlook the feelings of the party interested.”
“89…Counsel for the Claimants accepted that, by itself, the present risk that they might eventually develop asbestosis or mesothelioma does not give rise to claim for damages. He also accepted, on the authority of Hicks v Chief Constable of South Yorkshire Police (1992)… that even extreme anxiety amounting to fear of impending death is not actionable. By itself, therefore, the anxiety felt by the Claimants about the risks of developing serious disease in the future is not actionable.”
“11…The terms “physical injury” and “personal injury” tend to be used interchangeably in the authorities, and in the documentation in this case, and this is reflected in this judgment, there being no psychiatric injury to complicate the matters. ... 23. The speeches in the Rothwell case possibly shed a little further light on the identifying features of actionable personal injury… 24. First, it seems to have been accepted that the concept of personal injuries includes a disease or an impairment of a person’s physical condition… 25. Secondly, it was underlined that to be actionable, the damage had to be more than negligible… 27. It can be seen from the passages referred to above that, as well as the usual reference to “pain, suffering and loss of amenity”: personal injury has been seen as a physical change which makes the Claimant appreciably worse off in respect of his “health or capability”…, and also “impairment”
“40. The physiological changes to the Claimants’ bodies may not be as obviously harmful as, say loss of a limb, or asthma or dermatitis, but harmful they undoubtedly are. The Cartledge case…establishes that the absence of symptoms does not prevent the condition amounting to actionable personal injury, and an acceptance of that is also implicit in the sun sensitivity example, in which the symptoms would only be felt upon exposure to sunshine, just as the symptoms here would only be felt upon exposure to platinum salts. What has happened to the Claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. They have, in my view, suffered actionable bodily damage or personal injury, which, given its impact on their lives, is certainly more than negligible. … 47. I would distinguish this case from the Rothwell case…the sensitisation of the Claimants in this case marks that they have already been exposed to platinum salts, but unlike the plaques, it constitutes a change to their physiological make up which means that further exposure now carries with it the risk of an allergic reaction, and for that reason they must change their everyday lives so as to avoid such exposures. Putting it in other way, they have lost part of their capacity to work or, as the Claimants put it in argument, they have suffered a loss of bodily function by virtue of physiological change caused by the company’s negligence.”
“19. In Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128 Sir Murray Stuart-Smith examined the authorities to which I have referred and drew the following conclusion, at p136: “Dyslexia…may in itself be an “impairment of a person’s mental condition”
“…In no case is it laid down that hidden physical injury of which a man is ignorant cannot, by reason of his ignorance, constitute damage…there is no legal principle that lack of knowledge in the plaintiff is to reduce the damage to nothing or make it minimal.” pp 778-9. • In Carder v Exeter University[2016] EWCA Civ 790 . Lord Dyson MR said, in the context of a case of asbestosis: “22. It can be seen that, in the context of asbestosis, the words “disease” and, “impairment”, “injury”, “disability” are used interchangeably. I do not find this helpful. With respect to the House of Lords in Rothwell’s case…it is unprofitable to consider whether a particular medical condition should be characterised as “disease” or an “injury”
“38. Awarding damages for fear is an extension of the existing law only if a distinction is drawn between physical and mental injuries. No such distinction is justifiable: robustness and determination to carry on – both demonstrated to a considerable extent by the TCs – is a factor in assessing damages, not determining whether there has been an injury. Once the law has determined that minor insults are recoverable if they consist of an injury, the protection is provided by the rule that trifling damage is irrecoverable. The law does not require a further, new, protection discriminating between different manifestations of physiological change.”
“The difficulty with these submissions is that they are directly contrary to the law established by numerous authorities over many years in English law that no damages are awarded unless there is physical harm or there is a recognisable psychiatric disorder. No physical harm is alleged in this case and Mr Radcliffe found no evidence of a psychiatric disorder: in these circumstances it is not open to a court to find that there is an injury of sufficient severity to entitle a claimant to damages. See for example Reilly v Merseyside RHA (1995)… Emotional responses to unpleasant experiences of even the most serious type do not found a claim for damages: see also McLoughlin v O’Brian(1983) AC 4 10. Lord Bridge at p. 431 G-H. Nor in my view, is this an area of law in which the court should infer that there has been an injury where the experts in the field do not.”
“the closest the courts have come thus far is in Hussain v Chief Constable of West Mercia Constabulary[2008] EWCA Civ 1205 , where C alleged that discrimination by the police amounted to misfeasance in public office/tort not actionable per se.”
“19 …Like Stanley Burton LJ I have concluded that it is not “material damage”
“12. The Claimant and his neighbours were in fear and could not resist the forced removal for fear of being assaulted. He was forced to walk to the local Post with other men, women and children. He saw others being beaten en route, although he himself was not assaulted on the journey. He felt shock, anxiety and fear… (Kabare Post) 15. People were beaten and were in fear of being beaten in posts of this nature and it is likely that the Claimant was in such fear. (Villagisation) 21. The Claimant was not permitted free movement from the village and was forced to undertake work. Forced labour during villagisation. … 25. The Claimant saw white soldiers with his own eyes, wearing uniforms and dressed ready for war, near the forest. He was afraid and felt he would be shot at any time. He was aware that the soldiers would shoot and kill people. This was intimidating and he lived in fear… 27. The Claimant lived in fear of arbitrary maltreatment and punishment…” (b) Part 18 Response “Detention at Kabare Post”: Paragraph 15 “it is likely that the Claimant was in…fear [of being beaten]”
“18. I followed instructions because I was determined to get independence and the white man would eventually leave us. I was afraid of the white man because I knew he would shoot me at any one time. The people from the forest come to the village during the night and be shot.” (d) Transcript of evidence: “Mr Gullick: could the work clearing the bushes have been to stop the Mau Mau from hiding in the bushes? A. Yes, it was to protect them from coming to the residential areas because we would clear the bushes from where the trenches - the defence trench was coming into the village, coming into where we were staying. That’s the bushes we would clear. Q. Were you guarded by the Home Guards during the work? A. Yes, they were guarding - they were guarding us to work and they were being paid by the British. And I don’t know whether for sure they were being paid - Q. Was that - A. - But they were employed by the British… Q. Were you guarded by the Home Guards during the work? Q. Was that - A. - But they were employed by the British… Mr Gullick…were the Home Guards guarding you to protect you and the other workers from the Mau Mau? A. I don’t know whether they were connected with the other groups during that time, although they were supposed to – they were supposed to attack the Mau Mau but not to beat us… Mr Justice Stewart… “They” – that’s the Home Guard – “were supposed to attack the Mau Mau but not beat us”, on what basis does he say that’s what they were supposed to do? A. When they were beating – when they were - they were staying with us and they were telling us to fight the Mau Mau so we didn’t know whether they belonged to the government or they were also part of the Mau Mau, because they would tell us “you go and beat the Mau Mau”, yet they were with us…”
“Cs seek the Court’s finding that their human rights were engaged in order to frame the exercise of the Court’s function as a public body in determining the issue of law before it. If there is any question of whether fear comes within the definition of “any impairment” for the purposes of the Act, an application of principles of human rights should tip the balance… as long as one human right is engaged Cs’ human rights are engaged for the purposes of the Court’s determination of this issue.”
“However, since the very essence of the applicants’ right of access was not impaired and the restrictions in question pursued a legitimate aim and were proportionate, it is not for the court to substitute its own view for that of the state authorities as to what would be the most appropriate policy in this regard.”