On appeal from: [2016] EWCA Civ 408.

This appeal considered whether the appellants have suffered actionable damage in the form of losses flowing from the physiological changes to their bodies called by the respondent’s negligence, and if not, whether the respondent is liable for the losses by reason of a breach of an implied term in the employment contract to keep the appellants safe at work, and/or whether the respondents owed a duty of care to hold the appellants harmless from the purely economic losses sustained.

The Supreme Court unanimously allows the appeal. Lady Black gives the sole judgment with which the other justices agree.

Negligence and breach of statutory duty are not actionable in and of themselves. It is necessary for claimants to establish that there has been damage in the form of actionable personal injury.

The physiological changes to the appellants’ bodies are undoubtedly harmful. Respondent’s counsel acknowledged that if the appellants had developed a sensitivity to something encountered in everyday life, such as sunlight, they would have sustained actionable damage because they would not be able to carry on with their ordinary life. The appellants’ ordinary lives involved doing jobs of a type which, by virtue of their sensitisation, they can no longer do. This cannot be distinguished from the person who developed a sensitivity to sunlight.

What has happened to the claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. Once the sensitisation is identified as an actionable injury in its own right, the respondent’s argument that the appellants are claiming only for their lost earnings and therefore for pure economic loss also falls away. In this case, the appellants’ sensitisation carries the risk of an allergic reaction in the event of further exposure to platinum salts and they must change their lives to avoid such exposure. In these circumstances, it is unnecessary to consider the appellants’ alternative argument that they should be able to recover for pure financial loss.

For judgment, please download: [2018] UKSC 18
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (27 Nov 2017 morning session) (27 Nov 2017 afternoon session) (28 Nov 2017 morning session)