Product Risk Insights

22 July 2008

Who's afraid of the plaque? Did "fear for the future" claims in Australia just get harder?

By Gary Berson.

Key Points:
The developing area of "fear for the future" claims will remain a difficult, though not impossible, one for claimants.

A recent House of Lords decision (Rothwell v Chemical & Insulating Co Ltd [2007] 4 All ER 1047) raised two interesting questions:

(a) do pleural plaques represent actionable damage; and

(b) is psychiatric illness arising from discovery of pleural plaques foreseeable?

In rejecting both propositions, the House of Lords confirmed that the developing area of "fear for the future" claims will remain a difficult, though not impossible, one for claimants.

The approach taken was broadly consistent with Australian law, but is unlikely to substantially affect the current prospects of such claims in Australia, including for asbestos exposure.

"Fear for the future" claim characteristics

"Fear for the future" claims may arise when a psychiatric disorder is caused by knowledge of possible future harmful consequences of some event or toxic exposure, in the absence of actual physical damage.

Liability for pure psychiatric damage was initially confined to circumstances of direct perception of a sudden "shock". The law in Australia has since matured, as summarised in Tame and Annetts ((2002) 211 CLR 317), to focus less on the trigger for the psychiatric damage and more on the nature of that damage and its foreseeability.

A fundamental requirement for all pure psychiatric damages claims in Australia, including "fear for the future" claims, is that the psychological injury must cross the threshold of a "recognisable psychiatric disorder". Mere mental or emotional distress, such as grief or anxiety, will not found a claim.

To date, relatively few "fear for the future" claims have been litigated in Australian courts and these relate only to a small number of quite exceptional circumstances.

Common to all such claims has been that the "fear" was founded on a well characterised "life threatening risk". In addition to fear of asbestos-related disease, claims have included fear of developing Creutzfeldt-Jakob Disease (CJD) from drug treatment and fear of cancer from radiation exposure (see for example: Napolitano v CSR Ltd (Unreported, WASC, No 1450 of 1994, 30 August 1994); CSR Ltd v Thompson (2003) 59 NSWLR 77; CSR Ltd v Maddalena [2006] HCA 1; APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 618; Dingwall v Commonwealth (Unreported, Fed Ct, No NG575 of 1991, 18 May 1994)).

General principles: actionable damage and foreseeability

A fundamental requirement in negligence is that actionable damage has occurred, which must be more than negligible (ie. exceed the maxim de minimis non curat lex). However, uncertainty remains about what constitutes minimum compensable damage in particular circumstances and the issue is rarely canvassed (see Cartledge v E Jopling & Sons Pty Ltd [1963] AC 758 at 777).

Psychiatric injury claims also require that the injury be reasonably foreseeable (Tame and Annetts). If some mental disorder is foreseeable, liability will follow for whatever disorder eventuates even though the precise form may not be foreseeable (Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383).

"Normal fortitude" has been accepted as a relevant consideration in determining foreseeability of psychiatric harm. Actual or constructive knowledge of susceptibility may render certain consequences foreseeable that would not be in a person of ordinary fortitude (Tame and Annetts; O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7). Australian courts have also confirmed that "sudden shock" and "direction perception" are not prerequisites to a successful pure psychiatric injury claim; though they too continue to be relevant factors for consideration (Tame and Annetts).

Rothwell: are pleural plaques actionable damage?

In keeping with the application of the principles common to Australia, Rothwell found that pleural plaques are not actionable damage. This was not solely because they were asymptomatic but because, save in the most exceptional case, they would never cause any symptoms and did not increase susceptibility to other asbestos-related diseases. In short, pleural plaques are a form of injury, but are not harmful and have no effect upon health at all.

On this point, Rothwell represents a significant point of clarification in English law. Previously, the widely held view, based on a trilogy of cases in the 1980s, was that asymptomatic minor physiological damage may be sufficient to give rise to a cause of action, including pleural plaques (Church v Ministry of Defence (1984) 134 NLJ 623; Sykes v Ministry of Defence, The Times, March 23, 1984; Patterson v Ministry of Defence [1987] CLY 1194).

Its significance is further illustrated by the British Government response, which was to publish a consultation paper on 9 July 2008 calling for input from all relevant stakeholders into whether, amongst other things, the effect of the decision ought to be overturned by legislation. In Scotland, a draft bill has already been introduced to that effect, which also provides that asymptomatic pleural thickening and asymptomatic asbestosis are compensable.

Rothwell: can knowledge of pleural plaques support a psychiatric injury claim?

One of the claimants suffered clinical depression from fear caused by discovery of pleural plaques, which reflected previous asbestos exposure and an increased risk of developing a life-threatening asbestos-related disease. This was accepted to represent actionable damage.

A threshold question that was applied was whether this kind of harm to this particular claimant was reasonably foreseeable. The claim was dismissed on the basis that the facts revealed there was nothing to alert the defendant to the possibility that the claimant would react as he did (ie. particular vulnerability), in circumstances where a person of ordinary fortitude could be expected to cope with discovery of pleural plaques without developing a psychiatric illness.

Relevance for Australian "fear for the future" claims

It has been suggested that Rothwell "firmly shuts the door on the possibility of 'worried well' claims appearing in English Courts." ((2007) 18(7) & (8) Australian Product Liability Reporter) Whether or not that is the case, and it may be overstating things, it will not greatly influence the developing law in Australia.

With respect to pleural plaques being a potential trigger for fear of future harm, it is important to note that the claimant in Rothwell had known, and worried, for years about having been exposed to asbestos. Because pleural plaques are basically gross markers of some level of prior asbestos exposure, their discovery served merely to confirm that knowledge.

However, discovery of plaques may conceivably be the first that someone learns of past asbestos exposure. In WA particularly, largely due to the Wittenoom experience, there is real public sensitivity to even low level asbestos exposure and an attendant fear of harmful effects, particularly for mesothelioma. Although likely to be rare, and reliant on other factors , it is not necessarily a far-fetched proposition that such a discovery might evoke a severe psychological reaction.

Similarly, Rothwell does not necessarily preclude other "fear for the future" claims arising from knowledge of asymptomatic physiological changes. Again, a particular medical or scientific test may be the first opportunity to apprehend that exposure capable of causing severe harmful effects has occurred at some time in the past, for example, tests revealing DNA damage or elevated lead levels in the blood (acute exposure) or bone (long-term exposure) of a parent's children.

Finally, non-actionable asymptomatic physiological effects may represent more than a mere marker of exposure. For example, it is conceivable that tests could reveal particular chromosomal damage that, while devoid of present symptomatology or effect on health, is a necessary, but not in itself sufficient, step in some disease process, such as malignancy or neurological disorder. The somewhat dubious "use" of this type of test to establish the DNA-damaging credentials of various "toxins" is already encountered in some claims.

In each of these scenarios there has been no actionable physical damage, but it may be reasonable to predict that, depending upon the particular circumstances, either a person of normal fortitude or someone of known vulnerability might develop a recognisable psychiatric disease. Certainly such an outcome is not precluded in principle. Clearly such a proposition would be more readily made out for exposure to substances of well known toxicity, in circumstances acknowledged to lead to a substantially increased risk of extremely disabling or fatal physical injury or disease.

That is not to say that such claims would require anything other than exceptional circumstances to have reasonable prospects of success, but this is not necessarily the same thing as what might be sufficient to support a speculative test case.

For further information, please contact Gary Berson.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states or territories.