Employers' Liability: Workplace Disease

The five Claimants were sensitised to platinum after using platinum salts during the course of their employment at the Defendant employer's chemical factory. As a consequence they were removed from work involving contact with platinum and claimed substantial damages for loss of earnings.

Platinum sensitisation was symptomless and did not adversely affect day to day life. The Defendant admitted breach of duty due to failings in its system of workplace cleaning.

The Court of Appeal followed the Supreme Court in Grieves v FT Everard and Sons Limited which had concluded that asbestos-induced pleural plaques which were not harmful did not constitute physical change and were not an actionable injury. Accordingly The Court of Appeal agreed (as the lower court had also held) that the physiological changes fell short of being classified as a physical injury. Could economic loss consequent on those changes, here in the form of loss of earnings, be recovered, either as a breach of the employment contract or in tort?

The Court found that the employers duty to ensure employees safety at work, whether in contract or in tort, was focused on protecting employees from physical injury not economic harm. There was no standard implied term in a contract of employment requiring protection of the employee from economic loss. The Court refused to extend the duty in tort owed to employees to protect against pure economic loss. The employer/employee relationship was essentially founded in contract and the law of tort should not impose more extensive obligations.

The Claimants were only entitled to nominal damages for breach of contract and could not recover their loss of earnings.

Comment

This is an interesting case as there are many workers who run the risk of becoming sensitised to chemicals which they work with on a regular basis if proper health and safety procedures are not followed. Cleaners and domestic assistants who become sensitised to, and have to avoid working with, certain cleaning products may find they have no valid claim for any consequent loss of earnings. The exception would be if they can show any physiological change was significant enough to be an actionable injury. In this case the sensitisation was only revealed by skin prick testing. A worker with respiratory symptoms or dermatitis from chemical exposure, would still be able to bring a claim for personal injuries and associated losses, as long as the physiological changes were over the threshold and constituted actionable injury.