In the US, contingency fees, high base damages and punitive damages, both levels of award bearing only a tenuous relationship to the actual damage sustained, coupled with class actions, have created an entrepreneurial claimant bar. The high percentage contingency fee levy on substantial damages and the ability of claimant lawyers to pursue actions on behalf of huge classes of claimants by means of a token claimant mean that claimant lawyers have every incentive to seek new and imaginative causes of action and remedies.

The absence of actual injury and loss in cases where there could be future injury and loss arising from a defective or potentially defective product has produced the medical monitoring costs remedy in those jurisdictions in the US which allow for such a remedy.

In the UK and mainland Europe claimants faced with the deterrent of the loser pays costs rule, the erosion or elimination of state funding for litigation and the absence of contingency fees, have found the US an attractive jurisdiction in which to launch proceedings even though the principal connections with the claim reside in their own domestic jurisdictions.

The House of Lords in the UK, soon to become the UK’s Supreme Court in name as well as fact, delivered a decision in October 2007 in four asbestos cases which provides yet further inducement for European claimants to seek redress in the US by confirming that medical monitoring, in the absence of injury, is not a legitimate remedy.

The House of Lords has ruled in Johnston v NEI & Others (2007) UKHL 39, that symptomless pleural plaques following negligent exposure to asbestos dust do not create a cause of action in tort even if the presence of the plaques causes anxiety or psychiatric illness despite the fact that the plaques are evidence of the risk of a future asbestos-related disease, including terminal mesothelioma. Historically in the UK pleural plaques have been considered actionable and thousands of cases have settled by negotiation or following judgment in contested cases. The new ruling follows the determination of insurers to challenge the validity of such claims on first principles.

The Factual Background

All four claimants were exposed negligently to asbestos dust by a number of defendants. X-rays showed that for each of the claimants inhaled asbestos fibres made their way to the pleural membrane which surrounds the lungs and formed plaques. The plaques are in themselves symtompless, causing neither impairment of lung function nor disablement. Equally on the evidence, in themselves they will not cause more serious asbestos-related conditions but they are proof of the presence in the lungs of asbestos fibres and are therefore an indication that each individual is at risk of developing asbestosis, terminal mesothelioma or some other asbestos disease in the future. The diagnosis of the pleural plaques may therefore contribute to or heighten the anxiety of the individual who knows that he may develop a life-threatening asbestos related disease.

In summary, each claimant had symptomless pleural plaques which did not pre-dispose to a more serious condition but each was anxious about the future and one, Mr Grieves, had developed a psychiatric condition because of his concerns for his future.

First Principles

The five Law Lords made unanimous findings of fact and law on the fundamental features of the case.

They held that:

            (i)   A cause of action in tort for recovery of damages for negligence is not complete unless and until damage has been suffered by the claimant. Some damage, some harm, some injury must have been caused by the negligent exposure to complete the claimant’s cause of action;

            (ii)   Personal injuries includes a disease and any impairment of a person’s physical or mental condition;

            (iii)   Symptomless pleural plaques do not amount to damage or injury or impairment of physical function;

            (iv)   The risk of future disease in itself is not actionable.

            (v)   A psychiatric illness caused by contemplation of the risk of further disease is not actionable.

Are Pleural Plaques Actionable Damage?

None of the Law Lords had any difficulty in finding that since, save in the most exceptional case, the plaques would never cause any symptoms, did not increase the susceptibility of the claimants to other diseases nor shorten their expectation of life and therefore had no effect upon their health, the identification of the pleural plaques was of evidential rather than substantive significance. In isolation, the plaques could not constitute actionable harm or damage.

The claimants conceded at first instance, and before the Court of Appeal, although they withdrew the concession in the House of Lords, that pleural plaques in themselves were not actionable. The claimants advanced an aggregation theory: the pleural plaques become actionable when aggravated with the risk of future disease which they evidence and the anxiety that that future risk causes. Established authorities supported the principle that neither the risk of future injury itself nor anxiety at the prospect of future injury is actionable. Could therefore three facts in isolation incapable of constituting a cause of action, create such a cause by aggregation? As Lord Scott succinctly put it:

            “Nought plus nought plus nought equals nought”

The court found that in essence they were dealing with the “worried well,” although none of the Law Lords categorised the claimants as such. The court’s rejection of a cause of action in tort for pleural plaques has fatal consequences for any argument that medical monitoring is a valid remedy in the UK for those who, for example, have been negligently exposed to an injurious substance or have been implanted with a medical device which has been shown to have a higher than normal propensity of failure. The term “medical monitoring” is not to be found anywhere in the court’s judgment, but the rejection of medical monitoring as a stand alone remedy in the absence of injury is the inexorable logic of the decision and Lord Hope alluded obliquely to the issue:

         “(Pleural plaques) are not harmful. They do not give rise to any symptoms, nor do they lead to anything else which constitutes damage. Furthermore it is not possible to bring the risks of developing a harmful disease into account by applying the ordinary rules of causation. The risks are no doubt due to the exposure to asbestos, but they are not created by, or in anyway contributed to, by the pleural plaques. That can also be said of the anxiety. It is the risk of developing a harmful disease in the future that gives rise to it. Also where the claimant is required to attend for periodic medical examination and is worried about the results. Pleural plaques themselves do not require periodical medical attention. The need for this is due to what the pleural plaques indicate by the extent of the exposure to the asbestos.”

An Alternative Cause of Action?

Three of the Law Lords raised the possibility that, whilst the claimants have no cause of action in tort, they might have a cause of action in contract even though the pleural plaques were symptomless. The recovery of damages in these circumstances under breach of contract was conceivable because in contract it is not necessary to show damage to establish the cause of action. All that is necessary is to prove the breach and, as Lord Scott put it, since it was accepted that the tortious duty was broken by the exposure to asbestos dust, it would follow that the employers were in breach also of their contractual duty in that respect. Arguments based on breach of contract must await further litigation since no case in contract was advanced. Claims based on breach of contract are no doubt being contemplated by numerous claimant advisors.

Paul Llewellyn

Reed Smith Richards Butler LLP

Birmingham, England