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Landmark decision allows claimants to seek compensation for 'symptomless' injuries

View profile for Clare Gammond
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No-fault divorce suffers another setback as Supreme Court rejects latest appeal

The Supreme Court yesterday [21st March 2018] handed down its unanimous decision in favour of the claimants in the case of Dryden & Others v Johnson Matthey Plc.

The appeal was brought by Waynsworth Dryden, Tony Cipullo and Simon York, three previous employees of the defendant company.  Johnson Matthey manufactures catalytic converters and the claimants worked for the company as skilled chemical process operators.

Platinum metal is widely used as a catalyst in the automotive industry and during the refinery process, platinum salts are released into the air. It was alleged their employer breached its duty to ensure the factories were adequately cleaned, and as a result the claimants were regularly exposed to platinum salts at work despite personal protective equipment being worn. The company admitted breach of statutory duty but denied that any injury had occurred.

If a person comes into contact with platinum salts, their immune system can produce antibodies leading to sensitisation. That person can go on to suffer allergic reactions such as asthma, rhinitis or skin rashes. The claimants underwent occupational health tests and were each found to have developed a sensitisation. The company removed them from their normal duties and they were dismissed, suffering loss of earnings as a result. The claimants pursued a claim for damages.

At the High Court in 2014, their claims failed because the production of antibodies was not seen as harmful in itself. It ruled no actionable personal injury had arisen and the Court of Appeal later upheld this conclusion in 2016. The claimants appealed to the Supreme Court and their case was heard on the 27th and 28th of November 2017. A crowdfunding page was launched to help fund their appeal and they instructed different solicitors and counsel.

The claimants submitted they are clearly worse off as a result of their sensitisation, because they are unable to work in environments where platinum salts are present. They therefore maintained they could prove damage had been caused as a result of the breach. The Supreme Court confirmed this case had to be viewed differently from that of Rothwell v Chemical & Insulating Co Ltd (2007), when the House of Lords ruled asbestos-related pleural plaques were not a compensatable injury. Pleural plaques are also a symptomless injury, however, they are not thought to lead to more serious conditions involving noticeable symptoms. This would also be the position even if further asbestos dust were inhaled.

By contrast, the claimants will always run the risk of an allergic reaction if they come into further contact with platinum salts, and they lost well paid careers as a consequence. In ruling that an impaired bodily capacity for work is indeed an actionable injury, the separate and complex question of whether the claimants should be compensated for economic loss alone did not have to be addressed.

This decision is a very welcome development and will allow the three men to claim the major financial losses they have incurred - through no fault of their own - as a result of their exposure in the workplace. Many UK workers in a similar position now have valid grounds to make a claim as sensitisation may be viewed by the courts as an ‘industrial disease’. Please get in touch with our personal injury team if this could apply to you on 0175 321 6399.

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