Is physical injury a necessary component of a personal claim?
Published 17 June 2016
The Claimants worked in a factory making catalytic converters, where the Defendant's failure to clean the factory led to them being exposed to a greater level of platinum salts than they should have been. The Claimants and their colleagues were regularly prick-tested in order to ascertain whether they had been sensitised to the salts and, on becoming sensitised, were removed from exposure to the salts in accordance with their employment contracts. One was successfully redeployed and the other four left the company. All five claimed substantial loss of earnings as a consequence of losing higher paid work.
Breach of duty was conceded and the Court was required to consider whether the development of sensitisation to salts, when coupled with the financial losses suffered, constituted an actionable injury in tort. It was also required to consider whether the Defendant was in breach of an implied term in the Claimants' contracts of employment to protect them from physical injury and whether a further term should be implied into the contracts to protect them from economic loss.
The physiological change of sensitisation to platinum salts does not cause symptoms, nor does it affect day to day life or have an impact on life expectancy, but continued exposure after sensitisation may lead to the development of a platinum allergy.
Lord Justice Sales stood by the principle that it is necessary for actual physical injury to be suffered before a cause of action arises for personal injury in tort and under the implied term in contract and decided that sensitisation does not constitute an actionable injury. He also declined to imply a term in contract that the Defendant owed a duty to protect the Claimants from economic loss. He did not consider that it was for the Court to create a new duty of care in tort or to impose a new implied term in contract to bypass the need for physical injury and concluded by repeating the comment of the House of Lords in D v East Berkshire Community Healthy NHS Trust, 2005 that 'the law does not furnish a remedy for every harm suffered by an individual, and in particular does not do so where the infliction of the harm in question does not constitute a "wrong" in the contemplation of the law'.
As Claimants and their solicitors seek to present claims which fall outside the scope of the low value protocol and the fixed costs regimes, we expect them to seek to pursue novel disease claims in order to maintain their fee income. It is therefore reassuring to see the Court of Appeal close the door on attempts to pursue damages for asymptomatic physiological changes.