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Rothwell v Chemical Insulating (the pleural plaques litigation)

[2007] UKHL 39:

Case summary last updated at 19/01/2020 11:19 by the Oxbridge Notes in-house law team.

Judgement for the case Rothwell v Chemical Insulating (the pleural plaques litigation)

D (employer) exposed Ps to asbestos, which Ps argued made them (1) more likely to suffer illness in the future and (2) they suffered nervousness regarding that possibility. HL dismissed the claim, saying that neither the “possibility of harmnor the “fearof harm alone could constitute a cause of action, nor could they be aggregated. One P actually contracted a psychiatric disease due to fear of increased possibility of catching asbestos-related diseases. HL said it was not reasonably foreseeable that exposure to asbestos would cause a psychiatric disease to an ordinary man. 
Lord Hoffman: England has always had a “single action” rule i.e. no aggregation. Distinguishes it from Page v Smith on the grounds that in this case the foreseeable event was that P might catch an “asbestos related disease” from which physical or psychiatric harm might arise. In this case the event itself has not actually happened and therefore D cannot be made liable for what has not happened (i.e. an asbestos related disease) and it would be extending Page v Smith too far to include psychiatric illness caused by fear of what hadn’t happened. This is illogical: Hoffman is confusing the event with the harm (i.e. he defines the “event” as asbestos related injury, when really this is the PRODUCT of the event). Page v Smith was saying that where an event foreseeably caused harm, one doesn’t need to foresee the type of harm caused. In this case the event DID occur (exposure to asbestos) and psychiatric damage was the result. It is also no argument to say that P’s fear was a new supervening cause of the illness since reasonableness is not required for primary victims (Per Lord Lloyd in Page v Smith). Lord Hope argues that D didn’t develop the psychiatric illness until he found out that he was more susceptible to asbestos-related diseases from an X-ray and therefore the inhalation of asbestos particles cannot have “caused” his illness. This would be to treat the revelation of the truth as a NAI, n which case his doctors could be said to be liable. Clearly ridiculous. 
The question is about reasonable foreseeability: given that the event has not happened, Page v Smith rule is irrelevant. The real question is “was it reasonably foreseeable that somebody (a “generic somebody” i.e. a person of customary phlegm) would suffer psychiatric injury as a result of asbestos exposure. No.

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