In 2007 the Lords ruled that sufferers of pleural plaques could not seek compensation through the courts. But claimants could still succeed if they base their case on a breach of contract
On 20 February 2008, Jack Straw, the justice secretary, told a group of campaigners that the government was looking carefully at the issue of compensation for sufferers from pleural plaques (14 March, page 36). And in March the prime minister assured the House of Commons that “we will publish a consultation document soon. We are determined to take some action”.
The meaning of the phrase, “some action” may become clear during or in the wake of the consultation process. But for the moment, there are numerous claims that were adjourned pending the House of Lords decision in Johnston vs NEI International Combustion Ltd (2007). In the light of their Lordships’ ruling in October 2007 to the effect that pleural plaques do not give rise to an action in tort because they represent no more than minimal damage, insurers for defendant companies have been applying to the courts to have the adjourned claims struck out.
Those claims would have been brought on the basis that the employer had been negligent and/or in breach of statutory duty in exposing his employee to asbestos dust. However, there was no reason why these actions should not have been founded in contract.
Such was the thought that struck Lord Scott in Johnston. An employer must owe a parallel contractual duty to take reasonable precautions not to expose his employee to asbestos. That duty had been breached and a contract action does not require damage. Absence of damage simply means that a claimant recovers nominal damages. Needless to say, there is rarely any point in bringing an action in order to recover nominal damages.
But former employees with pleural plaques have suffered damage at the very least in the form of the risk of contracting mesothelioma in the future, plus accompanying anxiety.
Arguably, the Lords finding is restricted to tort actions and, unlike tort, the law of contract accepts a minimal personal injury as actionable.
Damages in contract will not normally be awarded for mental distress or anguish. One way to circumvent this is to argue that the employer breached its implied duty of trust and confidence. As Lord Steyn explained in Mahmud vs BCCI , such a term covers the great diversity of situations where a balance has to be struck between an employer’s interest in managing its business as it sees fit and the employee’s interest in not being unfairly exploited. What better example of an employee being exploited than his health being put at risk for the sake of greater profit?
Whether the contract argument would succeed at trial remains to be decided. There is a counter-argument that such actions would be time-barred. The normal limitation period for contract claims is six years from date of breach. That does not avail a pleural plaques victim since many more years elapse between exposure and discovery of the disease. Such a claimant will need to bring himself within the special time limits allowed by section 11(1) of the Limitation Act 1980 for personal injury actions.
But the House of Lords has found that pleural plaques do not constitute actionable personal injuries. Arguably, that finding is restricted to tort actions and, unlike tort, the law of contract accepts a minimal personal injury as actionable. A secondary argument is that “personal injury” is not to be construed narrowly for the purposes of section 11. In Phelps vs Hillingdon LBC , Lord Slynn said that it would be wrong to adopt an over-legalistic view of what are “personal injuries to a person”.
Despite the limitation difficulty, the contract case must at least have real prospects of success, which is all that a claimant must show to survive an application to strike out his pleural plaques claim. A number of such claimants in Newcastle have amended their pleural plaques claim to include an action based on breach of contract and have been given permission to continue their case to trial. Such a step at the very least keeps their claims alive while the government decides whether to introduce legislation to give a statutory remedy to pleural plaques sufferers.
Colin McCaul QC specialises in asbestos-related disputes at 39 Essex Street. A part of this article has previously been published in New Law Journal