What amounts to an actionable injury?

The Supreme Court issued a significant decision recently on the question of whether negligent exposure to platinum salts that resulted in sensitisation amounted to an actionable injury.

The claimants/appellants in Dryden v Johnson Matthey plc [2018] UKSC 18 (21 March 2018) sought damages after they were negligently exposed to the salts while employed by the defendants/respondents in factories making catalytic converters. The exposure resulted in the appellants developing a sensitivity to platinum salts, which involved the production of a particular type of antibody. This meant that they were likely to experience an allergic reaction, involving physical symptoms like asthma, rhinitis, and skin and eye irritations, if exposure to platinum salts continued.

Although this would have no effect on the appellants' ordinary lives, it prevented them taking up employment that involved working with the salts. The appellants claimed that they had suffered a loss of earnings or earning capacity because they were no longer able to work anywhere where they might be exposed to platinum salts. To be successful, the appellants had to establish that they had suffered an actionable personal injury. At first instance and in the Court of Appeal, it was held that there was no actionable injury as the appellants had suffered no harm in any relevant sense.

Allowing the appeal, the Supreme Court held that two House of Lords decisions were in point: Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 (a pleural plaques case), and Cartledge v E Jopling & Sons Ltd [1963] AC 758 (steel dressers who had contracted pneumoconiosis). The court noted that personal injury, as a concept, had not been defined in the authorities, but could be seen as including a physical change that made the claimant appreciably worse off in respect of his health or capability; an injury to the physical capacity to enjoy life; and an impairment, but also that personal injury could be hidden and symptomless. The sensitisation was held to constitute an actionable injury in its own right.