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Are actual symptoms necessary in order to successfully claim for personal injury? Supreme Court concludes that the issue is the extent to which a claimant’s day to day life is affected

Posted: 03/07/2018

Historically the basic (and logical) principle of any personal injury claim is that the claimant must have suffered an actionable injury to recover damages. The case of Dryden & Others v Johnson Matthey Plc [2018] UKSC 18 [2018] ALL ER 133 considered claims brought by employees against their employer relating to sensitisation arising from negligent exposure to chemicals. The issue that came before the Supreme Court was whether sensitisation was an actionable personal injury.

The group of employees in this case worked for the defendant and were involved in the manufacture of catalytic convertors. As part of their work they had been wrongly and routinely exposed to chlorinated platinum salts due to health and safety failures by their employer and as a result, were all found to have suffered sensitisation to platinum salts. The facts of the exposure and the consequent sensitisation were not in dispute, but rather whether the claimants could recover damages to injury when the nature of platinum sensitisation is that it is symptomless; the platinum allergy that would develop with further exposure would be symptomatic. Of relevance was the fact that as soon as the employer had become aware of the possible platinum sensitisation, the employees were tested. For those employees who had been found to be sensitised, the employer took steps to ensure that their work was conducted in areas where there was no risk of exposure to platinum salts. These measures meant that the employees were not at any risk of the platinum sensitisation progressing to a platinum allergy – which does present with symptoms – and in fact none of the employees had developed an allergy because of these measures. A number subsequently left the employment of Johnson Matthey Plc and took other jobs, again avoiding any risk of exposure.

The claimants however instigated a claim on the basis that the negligent exposure resulted in the sensitisation, which affected what work they could do and their ability to use their skills in an employment context. They argued that their earnings (given that they were now in lower paid jobs because they could not carry out their previous work) and the sensitisation were actionable injuries even though the sensitisation was symptomless.

In the lower courts, it was held that the employees had not suffered an actionable injury – they had not developed a platinum allergy and had no symptoms. The courts held that this was a claim for pure economic, ie financial loss, from their restricted work capacity.

The Supreme Court had to consider this issue of actionable injury and decided that the sensitisation did constitute an actionable injury. The court noted that there is no definition of actionable personal injury in the authorities and held that in this case the medical evidence was clear that the sensitisation involved a change to the employees’ bodies – the development of certain antibodies in response to the exposure. The court felt that the effect of this change was that the employees could no longer work in a certain area / certain environments and that whilst there were no symptoms, they could not continue with their normal, everyday life including their usual employment. The impact was more than negligible and resulted in a restriction on the employees’ earning capacity, meaning it was sufficient to constitute actionable personal injury. The court concluded that actionable personal injury includes an asymptomatic physiological change that causes the claimant a real loss of amenity.

Philippa Luscombe, partner in the personal injury team at Penningtons Manches LLP, comments: “Prior to this case there has been some conflict in the case law and a lack of clear definition as to what is an ‘actionable personal injury’. The decision in Dryden & Others v Johnson Matthey Plc is helpful clarification that whilst in most instances an actionable personal injury would be expected to involve the claimant suffering symptoms, if the claimant has suffered an objective physiological effect on their body that has a notable impact on their everyday life, then there is scope for a claim for injury.

“Every case will turn on its facts. The key point to consider in this instance is that the sensitisation completely prevented the claimants from continuing with their normal life and employment, putting them at a real disadvantage in terms of earnings, and this was held to be enough of an impact even though they did not suffer any physical symptoms. It will be interesting to see if this opens the door for more claims arising out of exposure and sensitisation, and whether further definition is needed on the degree of risk of developing symptoms in the future, as well as the impact caused to the claimant, in order to constitute actionable injury.”

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