Permission to appeal given in Supreme Court case of Greenway, Dryden and ors v Johnson Matthey PLC UKSC 2016/0140

The three Claimants, represented by Robert Weir QC and Patrick Kerr, instructed by Harminder Bains, a partner at Leigh Day, were granted permission to appeal to the Supreme Court on 21 December 2016.  The case is listed to be heard on 27 and 28 November 2017.

Background

The Claimants are current or former employees of the Defendant, who, during the course of their employment as chemical process operators, were wrongfully exposed to platinum salts.

Exposure to platinum salts can lead to sensitisation, which in turn can develop into an allergy to platinum salts.   The Defendant’s occupational health department, therefore, undertook regular skin-prick tests of its employees to prevent allergies from developing. The tests indicated the Claimants had developed sensitisation.  They were therefore removed from duties which might involve exposure to platinum, to prevent development of an allergy.

The Claimants brought proceedings in negligence, breach of employment contract and breach of statutory duty on the basis that their wrongful exposure to platinum salts had resulted in personal injury (the sensitisation) and, in any event consequential loss of earnings or loss of earning capacity – as changing jobs had reduced their income dramatically.

The High Court and Court of Appeal

At first instance, in the High Court ([2014] EWHC 3957 (QB)), the issues were firstly whether there was an actionable injury in tort, and secondly whether the Claimants could recover more than nominal damages for breach of contract.  Jay J found for the Defendants on both points. He found that as sensitisation comprised the presence of new antibodies, which were not in themselves harmful, no harm, and thus no injury, had been caused. He also held that the claim for pure economic loss fell outside the scope of the Defendant’s contractual duty.

The Claimants appealed to the Court of Appeal, with an additional argument that the Defendant had a tortious duty of care to prevent each of the Claimants from sustaining pure economic loss. The Court of Appeal ([2016] EWCA Civ 408) dismissed the appeal, agreeing with the Jay J that there was no actionable injury. It further held that in the circumstances of this case, there was no right of action in tort or contract to recover pure economic loss, and that protecting employees from pure economic losses was not within the scope of the employment contract.

Application to the Supreme Court

The Claimants applied for permission to appeal to the Supreme Court, submitting that each of the three findings of the Court of Appeal should be reversed.

The first issue is what could constitute actionable damage to give rise to a cause of action in personal injury. In effect, whether a symptomless physiological change, which could later go on to have damaging effects, would constitute a personal injury.  It was submitted that unlike pleural plaques, the Claimants here were “worse off” (per Lord Hoffmann in Rothwell v Chemical & Insulating Co. Limited [2007] UKHL 39; [2008] 1 AC 281), because the court can and should consider future impacts to the Claimants’ health and other causally linked future changes, (Cartledge v Jopling [1963] AC 758).  The question, in essence, is whether Cartledge or Rothwell is analogous, and whether the Court of Appeal had been wrong to separate the physiological change from its consequences in determining whether there had been an injury.

The second and third issues are whether the scope of the employer’s contractual or tortious duty towards its employees included a duty to prevent each employee from sustaining direct economic loss. The Claimants have submitted that the test in contract is whether it was within the reasonable contemplation of the parties that financial losses would be incurred to employees who sustained platinum sensitisation. This would then lead to consideration of whether one could construe the contract as holding the Defendant liable for such losses, and whether it would be fair, just and reasonable to do so.  It was submitted that the test in tort is whether liability for employees’ direct pecuniary loss fell within the scope of the duty of care owed by the Defendant. The Claimants have drawn comparisons with the case of Spring v Guardian Assurance [1995] 2 AC 296, arguing that if damages are recoverable for providing a negligent reference, it would be fair, just and reasonable to impose a duty of care on an employer to protect its employees from the economic consequences of its breach of duty.

Permission was granted on all three grounds on 21 December 2016.

This blog has been written by Lizzie Boulden, pupil.