Pleural plaques

Rothwell v Chemical & Insulating Co Ltd and another and associated actions HL TLR 24 October

The House of Lords unanimously upheld the majority decision of the Court of Appeal that a person who develops pleural plaques as a result of having been negligently exposed to asbestos in the course of his employment cannot sue his employers for negligence. Pleural plaques do not constitute actionable damage, because, save in very exceptional cases, they are symptomless and do not themselves cause other asbestos-related diseases. Proof of damage is an essential element in a claim in negligence and symptomless plaques are not compensatable damage. Neither does the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purposes of creating a cause of action. In the absence of compensatable injury, there was no cause of action under which damages might be claimed and therefore no computation of loss in which the risk of future illness and anxiety might be taken into account. It followed that the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, was not actionable injury. The same was true even if the anxiety caused a recognised psychiatric illness such as clinical depression. In the words of Lord Scott ‘Nought plus nought plus nought equals nought’.