Pursuer: Marshall, Solicitor; Thompsons

First Defenders: R A Smith, QC, Comiskey, Dunlop; Simpson & Marwick WS

23 October 2007

[159] I refer to paras 156 and 157 of my opinion dated 2 August 2007. In para 156 I identified the following three separate aspects to the question of damages for pleural plaques. First, do pleural plaques sound in damages at all? Secondly, if they do, in what circumstances? Thirdly, if an award for pleural plaques is competent in this case, what is the appropriate award of damages? In para 157 I stated that, in view of the fact that the appeal to the House of Lords from the decision of the Court of Appeal in Rothwell v Chemical & Insulating Co Ltd [2006] 4 All ER 1161 had been heard in June 2007 and that the decision of the House of Lords was expected to be issued in October 2007, I was reserving my opinion on the question of damages for pleural plaques and proposed to issue a supplementary opinion dealing with it once the decision of their Lordships' House had been issued. As the decision of the House of Lords was given on 17 October 2007 ([2007] UKHL 39) I now issue this supplementary opinion.

[160] Although all five of their Lordships delivered separate speeches, and Lord Hope of Craighead appeared to take a slightly different approach from the others, the decision was a unanimous one and I think that the full decision is well summarised by Lord Hoffman, who gave the leading speech, at para 2 as follows:

"Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric injury such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of future disease is not actionable and neither is a psychiatric injury caused by contemplation of that risk."

[161] It follows from the decision of the House of Lords that the answer to the first question which I posed at para 156 above (Do pleural plaques sound in damages at all?) is in the negative and that the second and third questions therefore do not fall to be answered. Lord Hoffman in the passage cited above held that "the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury". He put the matter thus because, as Lord Rodger of Earlsferry noted at para 80, counsel for the claimants "put the claim in two ways: as a claim for pleural plaques simpliciter, and as a claim for the pleural plaques with associated risks and anxiety". (The concession made on behalf of the claimants at first instance and in the Court of Appeal that pleural plaques in themselves do not constitute damage which could found a cause of action was withdrawn in the House of Lords: see Lord Hoffman at para 11.) I would add that, even if the House of Lords had held that it was competent to award damages for pleural plaques with the associated risks and anxiety I would not, on the evidence in this case, have made such an award. The fact that the deceased had pleural plaques was not discovered until it was revealed by radiographic evidence following upon his admission to the Victoria Infirmary on 22 October 1998. There was no evidence that the deceased was ever told that he had pleural plaques, but, even if there had been, he was by that time suffering from a fatal lung disease, CFA, although he was wrongly told it was asbestosis. Accordingly, had he been told that he had pleural plaques, this would have been around the same time he was told that he had asbestosis and there could not therefore have been any interval before the onset of his serious lung symptoms during which he could have suffered anxiety about the risk of asbestosis due to the presence of pleural plaques alone.

[161] I should record that it was submitted on behalf of the pursuer that there was not a single reported case in Scotland where it had been held that "an injury was de minimis". (That may be because, as Lord Hoffman remarked at para 8, "people do not often go to the trouble of bringing actions to recover damages for trivial injuries".) Reference was made to Walker on Delict (2^nd Ed) at pages 462-7, Cruickshanks v Forsyth (1747) Mor 4034, Anderson v Marshall (1835) 13S 1130 and McGill v Caledonian Railway Co (1904) 7F 4 (all cases of awards of damages for assault). This submission was obviously made because of the view taken by Holland J and the Court of Appeal in Rothwell but it is now clear that the House of Lords took the view, not that pleural plaques constituted de minimis injury, but that they simply did not amount to damage for which the law gave compensation. Lord Hoffman stated at para 11:

"It was not merely that the plaques caused no immediate symptoms. ... The important point was that, save in the most exceptional case, the plaques would never cause any symptoms, did not increase the susceptibility of the claimants to other diseases or shorten their expectation of life. They had no effect upon their health at all."

At para 19 he stated:

"One is not concerned with whether the plaque is in some sense 'injury' or ... a 'disease'. The question is whether the claimant has suffered damage. That means: is he appreciably worse off on account of having plaques? The rare victim whose plaques are causing symptoms is worse off on that account. Likewise, the man with the disfiguring lesion is worse off because he is disfigured. In the usual case, however, ... the plaques have no effect. They have not caused damage."

Dealing with the de minimis principle at para 47, Lord Hope of Craighead said:

"The policy does not provide clear guidance as to where the line is to be drawn between effects which are and are not negligible. But it can at least be said that an injury which is without any symptoms at all because it cannot be seen or felt and which will not lead to some other event that is harmful has no consequences which will attract an award of damages. Damages are given for injuries that cause harm, not for injuries that are harmless."

In my opinion these passages provide a complete answer to the submission for the pursuer to the effect that pleural plaques are a sufficiently serious injury in themselves to warrant an award of damages. It is not that pleural plaques cause harm which is de minimis: it is that they cause no harm at all.