Significant English Supreme Court decision overturns High Court and Appeal Court ruling on personal injury compensation.

By Paul A. Davies and Michael D. Green

Three former employees of a chemical company appealed against the decisions of the High Court and the Court of Appeal that held they could not claim against their employer for damages for personal injury.

Johnson Matthey, the respondent employer, allegedly failed to properly clean the areas in which three of its employees worked and, as a result, they developed a sensitivity to platinum salts whilst working on the production of catalytic converters. Two of the men were dismissed on medical grounds and the other was given a lesser paid position as a result. The sensitivity was discovered after a routine skin prick test was carried out.

Platinum salt sensitivity does not have any symptoms. However, if the sufferer is exposed to more platinum salt, then this can cause an allergic reaction involving physical symptoms such as running eyes or nose, skin irritation, and bronchial problems.

The Supreme Court recently overturned the previous decisions of the High Court and the Court of Appeal. The Supreme Court held unanimously that the three former employees had an actionable claim in compensation against the chemicals company for their sensitivity to platinum salts.

Lady Black said that in “breach of its duty under the health and safety regulations and at common law, the company failed to ensure that the factories were properly cleaned and, as a result, the claimants were exposed to platinum salts, which led them to develop platinum salt sensitisation.” The key question was if the men had “suffered actionable personal injury on which they could found claims for negligence/breach of statutory duty”, and the answer was yes.

The judges found that the “physiological changes to the claimants’ bodies may not be as obviously harmful as, say, the loss of a limb, or asthma or dermatitis, but harmful they undoubtedly are … What has happened to the claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. They have, in my view, suffered actionable bodily damage, or personal injury, which, given its impact on their lives, is certainly more than negligible.”

The three former employees can now pursue their claim for compensation in the High Court.

The judgment represents a clear shift in the law. A physical change, which is concealed and symptomless, and has the result of making the sufferer appreciably worse off, can now be considered a personal injury.

This post was prepared with the assistance of Olivia Featherstone in the London office of Latham & Watkins.