Pleural Plaques
Five law lords including two eminent Scottish Judges, Lord Hope and Lord Rodger have unanimously decided that pleural plaques do not amount to actionable damage, ending over twenty years of compensation payments in these cases. Simpson & Marwick were heavily involved in advising insurers on the Scots law issues that arose and in particular on the likely approach of the Scottish law lords. We are pleased that all five law lords based much of their decision on these principles.
Lord Hoffman, who gave the main judgement succinctly summarised the issues. He held that a negligence claim is incomplete without proof of damage which must be beyond the minimum (di minimis non curat lex). He said "In all but the most exceptional cases plaques would never cause any symptoms, did not increase the susceptibility of the claimant to other asbestos diseases or shorten their expectation of life".
Lords Hoffman, Scott and Rodger had no difficulty in finding that plaques could not be categorised as a disease or any impairment of physical condition. Lord Hope expressed the view that plaques is a form of injury but stated they were not harmful and did not give rise to any symptoms. He said "No action lies for a wrong which has not resulted in some element of loss, injury or damage of a kind that was reasonably foreseeable and for which the claimants can sue." and "damages are for injuries that cause harm not for injuries that are harmless".
The House of Lords rejected the theory put forward by the claimants in the High Court and the Court of Appeal that although pleural plaques themselves could not be regarded as an injury, they did amount to actionable damage if aggregated with the claimant's anxiety and risk of developing future conditions. The aggregation theory was rejected by the law lords on the basis that the action is not complete until damage had been suffered by the claimant. Lord Rodger provided an illustration as to why the aggregation theory was illogical. He gave the example of two individuals with similar exposure to asbestos. Both are anxious in relation to the risk of developing an asbestos related disease in the future. If one of those individuals has pleural plaques, then based on the aggregation theory he is entitled to damages. If the second individual does not have plaques, he would not be so entitled. Such a result was in his view illogical.