JOHNSTON V NEI INTERNATIONAL COMPUSTON LTD; ROTHWELL V CHEMICAL AND INSULATING CO LTD

[2007] UKHL 39 House of Lords, Lord Hoffmann, Lord Hope, Lord Scott, Lord Rodger and Lord Mance, 17 October 2007

Negligence – Employee negligently exposed to asbestos in the course of employment – Pleural plaques developed – Whether pleural plaques constituted injury – Whether onset of anxiety or depression amounted to psychiatric illness – Whether psychiatric illness

Employees were negligently exposed to asbestos in the course of employment, leading them to develop pleural plaques, namely the fibrous thickening of the pleural membrane. This only rarely caused symptoms and led to other diseases, but did signify the presence of asbestos fibres in the lungs which was itself capable of causing other life-threatening diseases. The question was whether exposure which led the diagnosis of pleural plaques, which caused a patient to suffer anxiety or depression was itself actionable. Their Lordships held unanimously that the onset of pleural plaques did not constitute damage (or at best it was negligible damage) so that no cause of action lay on that basis, that the risk of future illness or anxiety was not an actionable psychiatric illness and that the two things taken together in the aggregate did not give rise to a cause of action. The appeal of one employee, who had suffered psychiatric illness as a result of the diagnosis of pleural plaques, was dismissed on the different ground that there was no basis for a finding that it was foreseeable that exposure would cause psychiatric illness: the foreseeable event from exposure was that the employee would contract an asbestos-related disease, not psychiatric illness.