The House of Lords has recently issued its judgment in a case involving a claim for compensation from employers by employees who had been diagnosed as having ‘pleural plaques’. It has confirmed the earlier decision of the Court of Appeal that damages are not payable.
Pleural plaques are fibrous scar tissue in the lungs and are the result of exposure to asbestos. They are benign, but indicate that the risk of developing mesothelioma and other lung cancers is heightened. It was admitted that the exposure to asbestos was due to negligence on the part of the employers.
The claimants argued that notwithstanding the fact that they had not as yet developed an asbestos-related disease, the increased risk of so doing caused them distress. Most of the claimants sought ‘provisional damages’ – an award based on the probability that they would develop lung disease. The action of one of the claimants was also based on the fact that he had developed clinical depression as a result of the fear he had of developing lung cancer following his becoming aware that he had pleural plaques.
The Lords did not accept that the employer was liable in either case. Development of the plaques was insufficient basis for a claim. They were not of themselves harmful and the mere fear of a future illness was not a factor which could of itself give rise to a claim for damages. In the case of the claimant with the psychiatric injury, the Lords concluded that the injury, though real, was not a ‘reasonably foreseeable’ result of the exposure to asbestos and could therefore not give rise to a claim. In the words of Lord Hoffman, “Applied to the broader question of psychiatric illness, that means that in the absence of contrary information, the employer is entitled to assume that his employees are persons of ordinary fortitude.”
It is understood that the Scottish Parliament intends to introduce legislation to reverse this decision in Scotland.