The House of Lords has issued a decision which will be welcomed by employers. It has confirmed the earlier decision of the Court of Appeal that damages are not payable where the employer’s negligence leads to anxiety or distress but no physical injury.
The decision involved a claim for compensation from employers by employees who had been diagnosed as having ‘pleural plaques’. These are fibrous scar tissue in the lungs which are the result of exposure to asbestos. They are benign, but indicate that the risk of developing mesothelioma and other lung cancers is raised. It was admitted by that their exposure to asbestos was due to the negligence of the employer.
The claimants argued that notwithstanding that they as yet had no disease, the increased risk of developing disease caused them distress. Most of the claimants sought ‘provisional damages’ – an award based on the probability that they would develop lung disease. The action of one of the claimants was also based on the fact that he had developed clinical depression as a result of the fear he had of developing lung cancer following his becoming aware that he had pleural plaques.
The Lords did not accept that the employer was liable in either case. Development of the plaques was insufficient basis for a claim. They were not of themselves harmful and the mere fear of a future illness was not a factor which could of itself give rise to a claim for damages. In the case of the claimant with the psychiatric injury, the Lords concluded that the psychological injury, though real, was not the ‘reasonably forseeable’ result of the exposure to asbestos and thus also could not give rise to a claim. In the words of Lord Hoffman, ‘Applied to the broader question of psychiatric illness, that means that in the absence of contrary information, the employer is entitled to assume that his employees are persons of ordinary fortitude.’
The decision involved a claim for compensation from employers by employees who had been diagnosed as having ‘pleural plaques’. These are fibrous scar tissue in the lungs which are the result of exposure to asbestos. They are benign, but indicate that the risk of developing mesothelioma and other lung cancers is raised. It was admitted by that their exposure to asbestos was due to the negligence of the employer.
The claimants argued that notwithstanding that they as yet had no disease, the increased risk of developing disease caused them distress. Most of the claimants sought ‘provisional damages’ – an award based on the probability that they would develop lung disease. The action of one of the claimants was also based on the fact that he had developed clinical depression as a result of the fear he had of developing lung cancer following his becoming aware that he had pleural plaques.
The Lords did not accept that the employer was liable in either case. Development of the plaques was insufficient basis for a claim. They were not of themselves harmful and the mere fear of a future illness was not a factor which could of itself give rise to a claim for damages. In the case of the claimant with the psychiatric injury, the Lords concluded that the psychological injury, though real, was not the ‘reasonably forseeable’ result of the exposure to asbestos and thus also could not give rise to a claim. In the words of Lord Hoffman, ‘Applied to the broader question of psychiatric illness, that means that in the absence of contrary information, the employer is entitled to assume that his employees are persons of ordinary fortitude.’
