Member Article

Employers' Liability For Negligent Exposure to Asbestos

Case law summary with Watson Burton LLP Law FirmThe recent case of Rothwell v Chemical & Insulating Co Ltd. [2006] EWCA Civ 27 is important for employers defending exposure to asbestos claims and claimants bringing such claims.

It is also of general application in relation to causation of loss in personal injury claims. The Court of Appeal found that the presence of pleural plaques, which had caused anxiety and the risk of the future onset of symptomatic diseases, was not sufficient basis for a claim and the recovery of damages.The case was an appeal by six employers in relation to claims brought by former employees for exposure to asbestos.

The majority of the employees had developed pleural plaques in the lungs, which are caused by inhalation of asbestos fibres, but are symptomless in 99% of cases, and do not in themselves threaten or lead to other asbestos induced conditions. One of the employees had developed a depressive illness through worrying about the consequences of his asbestos exposure, and the others alleged that they were entitled to compensation to reflect the anxiety they had suffered, and the risk of the future onset of symptomatic diseases.

None of the three heads of damage (i.e. the plaques, the future risk and the anxiety) were significant enough in themselves to found a cause of action:• Damage founding a cause of action in English law need not be substantial, but it must be more than minimal. The plaques were held to be only minimal damage, as they tend to be symptomless and cause no pain in the vast majority of instances. • Where injury caused by negligence carries with it the chance that the claimant will suffer further physical damage in the future, the general damages awarded will be increased to reflect the chance of this adverse outcome, but no claim can be made in respect of the risk of contracting a future disease if this is not consequent upon some physical injury

Worry about what may happen in the future can impair the enjoyment of life, and where physical injury is caused by negligence a claimant’s general damages will include compensation for pain and suffering, but the English Courts have never entertained a claim for fear of future illness where this is not the potential consequence of physical injury. The claimants argued that even if insufficient in themselves to found a claim, the three elements taken together entitled them to damages. The Court of Appeal by a majority of 2-1 did not find this argument attractive. There was no legal precedent for aggregating three heads of claim which, individually, could not found a cause of action, so as to cause sufficient damage to give rise to a legal claim. The claimants were therefore not entitled to any compensation.

The Court did grant leave to appeal to the House of Lords, so time will tell whether this decision is reversed.If you have any queries in relation to this case, please contact Claire Waller at Watson Burton LLP (claire.waller@watsonburton.com)

This was posted in Bdaily's Members' News section by Ruth Mitchell .