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Can a claim be made for becoming sensitised to an industrial chemical despite being asymptomatic? - Simon Anderson, Park Square Barristers, Leeds

20/04/18. Can a claimant found a claim for personal injury for having been sensitised to an industrial chemical through exposure to it, despite being asymptomatic? Yes, according the unanimous decision of the Supreme Court (Lady Black giving the sole judgment) in Dryden and others v Johnson Matthey Plc [2018] UKSC 18.

Simon Anderson (Park Square Barristers, Leeds) summarises the Supreme Court’s decision.

Background

The claimants worked in the manufacture of catalytic converters. As such they were routinely exposed to platinum salts used in the production process and developed sensitisation. There was no dispute that this was in breach of the employer’s regulatory and common law obligations.

It is trite law that 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. Platinum slat sensitisation is in itself an asymptomatic condition. However, further exposure results in an allergic reaction. The question for the Supreme Court, therefore, was whether absent further exposure the claimants had a cause of action?

At first instance Mr Justice Jay concluded that their loss was purely economical in terms of their inability to continue in their employment, and as such was irrecoverable. The claim in contract failed also because the employer’s duty was to protect employees from personal injury, not economic loss. The Court of Appeal (Sales LJ) dismissed the appeals, finding that platinum salt sensitisation was “not harmful in itself in any relevant sense.”...

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