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In March 2018, the Supreme Court had the opportunity to reconsider the concept of personal injury in negligence claims in Dryden and others v Johnson Matthey plc [2018] UKSC 18. However, this judgment may be criticised on two principal grounds. First, Lady Black’s analysis is logically inconsistent, as it does not sufficiently distinguish personal injury from economic loss and is ultimately circular and contradictory. Second, Lady Black establishes a subjective test for the concept of damage that is not only likely to result in practical difficulties but is also incompatible with a rights-based view of tort law. This article will propose an alternative and more principled means of achieving the same outcome as Lady Black, given the importance of compensating claimants for injustice.

1. Facts: Dryden and others v Johnson Matthey plc (2018)

The claimants were employees in chemical farm red zones, where there was a risk of exposure to platinum salts. Due to the defendant employer’s breach of duty under the health and safety regulations and at common law, the claimants were exposed to high levels of platinum salts and consequently developed a sensitivity to it. Whilst this was asymptomatic, upon further exposure the claimants could develop an allergic reaction. There was therefore a collective agreement that they could no longer work in these zones; pursuant to this, they were redeployed, dismissed or had to resign. The claimants brought proceedings in negligence, seeking damages for loss of earnings as they lost the capacity to be employed in this or a similar environment.

2. The Court of Appeal judgement

Negligence is a tort that is not actionable per se, meaning there must be recognised damage in order to succeed on the claim. In Dryden, the physiological change which resulted from the exposure to platinum salts was the development of antibodies. The Court of Appeal considered this not to be ‘harmful in itself’ [30] in Greenway & Ors v Johnson Matthey Plc. The court contrasted the facts and outcomes of Rothwell v Chemical & Insulating Co Ltd and Cartledge v E Jopling & Sons Ltd[1] with those in Dryden. In the former, pleural plaques were held not to constitute actionable harm, whereas in the latter scarring of lung tissue met the requirements. The Court of Appeal concluded that the injury complained of in Dryden was analogous to the pleural plaques in Rothwell. It could be differentiated from the scarring of the lung tissue in Cartlege on the ground that platinum salt sensitivity does not have ‘the potential by itself to give rise to detrimental physical effects in the course of ordinary life’ [30]. The court further held that the resultant removal of the claimants from their employment and the consequent financial damage could not convert the harmless physiological change into actionable injury [31]. Therefore, the claimants had suffered pure economic loss and were unable to obtain compensation.

3. The Supreme Court judgement

In overturning the Court of Appeal, Lady Black gave the unanimous judgment of the court in favour of the claimants. She recognised that a symptomless physical change can be injurious [40]. This argument is first and foremost a negative one: the symptomless nature of the sensitivity does not bar a claim. Lady Black then outlined the characteristics of personal injury, using Cartledge and Rothwell, defining it as ‘…a physical change which makes the claimant appreciably worse off in respect of his health or capability and as including an injury sustained to a person’s physical capacity for enjoying life’ [27].  The court found that the physiological change experienced by the claimants, the development of the antibodies, led to the loss of their capacity to continue working in the red zones [47] and that they were thus appreciably worse off.

4. Critique of Lady Black’s reasoning

Lady Black argued that the physiological change is actionable damage per se, and that the claim is therefore not one of pure economic loss. However, her argument proceeds on the basis that, in determining whether the development of antibodies constituted an actionable physical injury, the court must consider that the claimants had to find new employment. She thus defined physical injury by reference to the economic loss which arises due to the physical injury. Yet, in order to conclude that the claimant suffered physical injury that is distinct from any economic loss, Lady Black would have to show that the injury is intrinsically harmful even if it does not result in any economic loss. For instance, a broken leg would pass this test. However, Lady Black failed to establish this and instead pointed to the loss of employment to illustrate the harmful nature of the injury: the ‘change to [the claimants’] bodies meant that they lost…their capacity to work around platinum salts’ [37]. This is evidently circular, because without the loss of future employment (a strictly economic consequence), Lady Black would not have considered the injury to be actionable per se.

Lady Black further claimed that even if an employee had been about to leave the job when the sensitisation was discovered, it would still be actionable [45]. However, this contradicts the previous argument – that the reason the claimants can recover is that they lost their capacity to work [37]. A person who would have retired within a few days of the skin test would experience no practical harm on the basis of the sensitisation, as members of the public are not normally exposed to platinum salts given adherence to health and safety regulations[2]. In such a case, the claimant ought properly to fall under the doctrine in Rothwell; namely, that where a physiological change does not cause harm, it is not actionable injury[3]. Lady Black distinguished that case from Dryden on the basis that, in contrast to the victims in Rothwell, the claimants in Dryden had to make changes to their everyday lives [47]. However, this distinguishing feature does not apply to the categories of claimants, such as retirees, she mentions at [45]. 

5. The Subjective Test and a Rights-Based View of Tort Law

Furthermore, Lady Black’s test is subjective, as she makes the question of damages dependent upon the particular claimant and circumstances of the case. This is illustrated by the defendant’s analogy to sensitivity to sunlight, which would constitute actionable injury, as any member of society would be negatively affected by it [38]. By contrast, platinum salt sensitivity only results in a loss to the claimants by virtue of their circumstances. Thus, there is a shift from an objective analysis of the surrounding facts of the injury (i.e. the fact that sunlight is omnipresent), to subjective consideration of the circumstances of the claimant in question (i.e. employment).

Consequently, it is now plausible that two claimants could be injured in the same manner, but that only one of them would have ‘actionable personal injury’. That Lady Black intended this consequence is clear from her example of coffee tasters, who are employed because of their refined sense of smell and taste. Supposedly, if their senses were impaired in a way that would be ‘of absolutely no consequence to anyone [else], but meant that they could no longer do their jobs’ [41], they could recover for their injury. However, in the reverse, if these hypothetical claimants lost their ability through a breach of duty, but were not employed as coffee tasters, they would have no claim as the injury would be of ‘absolutely no consequence’.

As a result, judges must now ascertain whether an injury subjectively detriments the claimant’s defendant’s breach of duty. For instance, suffering hearing loss (analogous to Lady Black’s example of coffee tasters) would fail the de minimis test of personal injury, unless there exist special circumstances where the claimant needs absolutely perfect hearing. In other words, the judge must assess whether their daily life is affected to a sufficient extent to justify recovery. If A had a job which required perfect hearing, then the personal injury would be actionable under this test. Would the answer change if, for example, B enjoyed a hobby that required perfect hearing? In this context, is it relevant if the hobby results in a financial benefit? Requiring judges to embark on this kind of analysis would likely increase the time and cost of litigation and create undesirable complexity.

The conceptual basis of tort law is a matter of controversy. While the rights-based view enjoys support, it has also been criticised on a number of grounds[4]. If, however, one accepts this view of tort law, the consequences of the subjective test outlined above are particularly problematic, as where ‘a plaintiff has suffered loss at a defendant’s hands, but the defendant has not violated the plaintiff’s rights in causing the plaintiff loss, then….the plaintiff has no case, and cannot have a case, for suing the defendant in tort’[5].

A rights-based view of tort law holds that a claim lies where the defendant violated a right held by the claimant. The right protected in personal injury cases is arguably bodily integrity, as a claimant can successfully bring a claim for personal injuries even where he suffered no consequential damages. Yet if the rights-based conception is applied to the hypothetical scenario suggested above, the argument becomes a circular one. B enjoys the same rights to bodily integrity as A. How can this be used as the very basis to distinguish them on? The effect on their physical well-being is the same in both cases. What distinguishes the claimants is the impact on their economic situation. Lady Black’s analysis is thus incompatible with a rights-based view of tort law, unless one is willing to accept a determination of the claimants’ rights by reference to their lifestyles, which as previously explored, may be undesirable.

6. Remedying the injustice

Despite the flaws identified with Lady Black’s reasoning above, it is understandable that she desired to remedy the injustice experienced by the claimants in Dryden. However, the Supreme Court could have resolved this without undermining the distinction between physical injury and economic loss. It is submitted that the court ought to have instead accepted a narrow exception to the principle of ‘no recovery for pure economic loss’. This would apply where an employer breaches the non-delegable duty that he owes his employees to provide a safe working environment[6]. In those cases, foreseeable economic loss ought to be recoverable on the basis of the special relationship between employer and employee. The courts have accepted departures from the rule against economic loss in other cases in order to avoid unjust outcomes (e.g. Hedley Byrne[7], White v Jones[8]). Such a solution would be conceptually coherent, unlikely to cause unwanted knock-on effects via the relaxation of the ‘damages’ requirement, and properly encapsulate the essence of the injustice complained of: namely, the fact that the employer’s core duty consisted in preventing excessive exposure to platinum salts and that the company knew that breach of that duty would have a seriously detrimental effect on the employees’ financial situation. Consistency is an important virtue of a legal system, as it requires judges to develop a clear line of authority that allows parties to foresee the outcome of litigation. Without it parties are at the mercy of the judge in question, making the system arbitrary and unjust. Consistency ought therefore not to be readily compromised where an alternative, principled solution is available, as was the case in Dryden.

Conclusion

Overall, Lady Black’s reasoning in Dryden is unsatisfactory, particularly because the same, undoubtedly desirable outcome could have been achieved by recognising a limited exception to the rule against recovery of pure economic loss. This would not have involved a fundamental change in our understanding of ‘physical injury’ and would be less likely to lead to unwelcome and unforeseen consequences. If the Supreme Court intended to take such a step away from the orthodoxy, it ought to have justified its decision more clearly.

 


[1] [1963] AC 758

[2] This was accepted by Lady Black at [39].

[3] Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [1|, [2], [49]

[4] For a recent analysis of the question of the conceptual basis of tort law see: John Murphy, The Heterogeneity of Tort Law (2019) 39 Oxford Journal of Legal Studies 455

[5] Nicholas McBride, Rights and the Basis of Tort Law (August 20, 2014) p. 4 in Nolan and Robertson (eds), Rights and Private Law (Hart Publishing, 2011).

[6] This duty was recognised, inter alia, by Lord Reed at [32] in Armes v Nottinghamshire County Council [2017] UKSC 60

[7] [1964] AC 465

[8] [1995] 2 AC 207