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Pleural Plaques – A Very Trifling Matter?
In Rothwell v Chemical & Insulating Co Ltd [2006] EWCA Civ 27, the Court of Appeal ruled in linked appeals that pleural plaques caused by the inhalation of asbestos fibres do not give rise to a cause of action.
Pleural plaques are areas of thickening or lumps of fibrous tissue that develop as a result asbestos fibres, in quantities normally associated with occupational exposure, being inhaled and thereafter migrating from the lungs to the pleura. Essentially, the plaques are patches of scarring, on the surface of the pleura, produced by the interaction between the body’s defence mechanisms and the invading fibres. Symptoms from pleural plaques are very rare and very minor when they occur. The presence of pleural plaques is only discoverable by X-ray or autopsy. Pleural plaques do not in themselves give rise to any risk of any other asbestos-related disease, which, if it develops, will result from the original exposure, rather than from the pleural plaques.
The Court held by a majority (Smith LJ dissenting) that the trial judge had erred in deciding that pleural plaques should be looked at, not in isolation, but in conjunction with the risks of other diseases and with the anxiety resulting from the physiological damage caused by the asbestos exposure that their presence represents, and that taken together these elements amounted to injury or damage sufficient to give rise to a cause of action.
The starting point for the reasoning behind the majority ruling was a concession made on behalf of the claimants at first instance and in the Court of Appeal to the effect that pleural plaques in themselves were insufficiently serious to amount to actionable physical injury. All 4 of the judges involved in the case appear to have considered[1] that this concession was rightly made.
The foundation for this consensus was the maxim de minimis non curat lex, the meaning of which, according to my Mozley & Whiteley’s Law Dictionary, is, “The law takes no account of very trifling matters.”
Any physical injury, other than one that is so insignificant that it is properly to be regarded as de minimis, is sufficient to complete a cause of action in breach of statutory duty or negligence. From this it follows that, where such breach of duty has caused pleural plaques, unless pleural plaques in themselves are de minimis, a cause of action based on their presence is established, without any need to rely on any associated risks or consequential anxiety.
Is it correct to categorise pleural plaques as de minimis?
The pivotal authority referred to in Rothwell was Cartledge v Jopling [1963] AC 758, where the House of Lords reluctantly[2] held that pneumoconiosis, an insidious, slowly progressive disease, which is caused by scarring to lung tissue from silica dust, amounted to, “substantial injury,”[3] or to, “real damage as distinct from purely minimal damage,”[4] notwithstanding that it had only reached a stage in a victim, “before, and it may be long before, his injury can be discovered by any means yet known to medical science,”[5] and when it would still be entirely symptomless. Lord Pearce, in a dictum upon which the majority in the Court of Appeal in Rothwell focussed, said that evidence that physical changes in a man’s body, “are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex.”[6] But elsewhere Lord Pearce said,
“In my opinion, it is impossible to hold that a man who has no knowledge of the secret onset of pneumoconiosis and suffers no present inconvenience from it cannot have suffered any actionable harm. … And it would be wrong to deny a right of action to a plaintiff who can prove by X-ray photographs that his lungs are damaged but cannot prove any symptom or present physical inconvenience.”[7]
The parallels between this authority and Rothwell are so striking that it is difficult to see how the majority of the Court of Appeal could have arrived at the opposite result.
Lord Phillips LCJ noted that pleural plaques are not, “visible.”[8] But the same was true in Cartledge. And the following reasoning of Smith LJ at paragraph 117 is surely highly compelling,
“In the course of argument, it appeared to be common ground that a tissue change giving rise to a benign lesion on the surface of the body does amount to an injury, and not merely because such a lesion will usually have been caused by a cut or a burn. Even if caused by some non-traumatic mechanism such as radiation, it is accepted that it would be an injury. The appellants argue that such a lesion is different from pleural plaques because the lesion on the skin is noticeable and causes embarrassment. It has a cosmetic effect, which sounds in damages. I accept, of course, that damages for a lesion on the skin will take account of the cosmetic effect but it is the lesion which is the injury and the cosmetic effect merely increases the damages. I cannot accept that a visible tissue change is different in nature from a tissue change which is hidden within the body. If pleural plaques were to form on the skin instead of on the pleura, they would be an injury, not because they had a cosmetic effect but because they were a tissue change.”
An application for permission to appeal in one of the linked appeals on a limited issue relating to the psychiatric element was refused by the Court of Appeal. That case is currently the subject of an application to the House of Lords and it is understood that applications in other linked appeals may be made shortly.
IAN ASHFORD-THOM
[1] But see the qualification by Smith LJ at paragraph 118 regarding “extensive” plaques.
[2] The effect of the ruling was that the limitation period ran before plaintiffs could possibly be aware of their condition. This was before “date of knowledge” was introduced to the legislation.
[3] Lord Reid at 772.
[4] Lord Evershed at 774.
[5] Lord Reid at 772.
[6] 779.
[7] 778.
[8] Paragraph 61
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