“Everybody Hurts Sometimes” – What is Damage in Personal Injury and Disease Cases?

Philip Turton considers the question: What amounts to damage in personal injury cases?

Any cause of action in negligence requires three components to be present before it is perfected: a duty of care, breach and proof of damage. In a personal injury case, the damage is the injury. Without proof of that, the cause of action is incomplete and the claim cannot proceed. This raises the question, accordingly, what amounts to injury sufficient to give rise to a perfected cause of action?

This can be of relevance in a number of ways. Firstly, without damage there is no claim. Without a completed cause of action, time does not begin to run under section 11 of the Limitation Act 1980. Furthermore, in cases of aggravation or exacerbation of a pre‑existing injury or a non-tortious one, the question may arise whether what the claimant is claiming for amounts to damage at all, an issue which may particularly concern insurers in “aggravation” cases.

Take this scenario. The Claimant suffers from a constitutional respiratory disease such as asthma or chronic obstructive pulmonary disease. In the course of his employment he is exposed to irritant fumes. The fumes do not affect his pre‑existing disease, but when working the claimant will be prone to cough or suffer symptoms attributable to the irritant nature of the fumes. Does this transient and temporary effect amount to an injury which sounds in damages?

In Cartledge v E. Jopling & Sons Limited [1963] AC 758 the House of Lords had to consider when a cause of action accrued in relation to work-related pneumoconiosis. The injured workmen, who had inhaled noxious dust over a period of years, causing physical change to their lungs, had not been aware of their injury until after the limitation period for their claims had expired. The 1939 Limitation Act contained no provision by which time could be extended so that the workmen were denied their right to bring a claim for their injury, despite never knowing of it, an injustice which led Parliament to pass the Limitation Act 1963.

Notwithstanding the obvious injustice, the House of Lords felt itself constrained to conclude that the Claimants’ causes of action had accrued at the date when there was wrongdoing by the Defendant from which loss or damage, which was more than minimal, had been suffered, irrespective of a Claimant’s knowledge of such loss or damage.

There are five speeches in the report but all of their Lordships agreed with the speech of Lord Pearce. Lord Pearce noted that there was no case which sought to define the borders of actionable personal injury at page 778. As he then directed himself, observations in earlier cases “… naturally proceed on the normal basis that personal injury involves some pain or patent loss of amenity, but the unusual question before your Lordships is whether a hidden, painless injury or latent loss of amenity sounds in damages. And in no case is it laid down that hidden physical injury of which a man is ignorant cannot, by reason of his ignorance, constitute damage.”

Accepting the injustice of the situation which was before the House, he directed himself:

“It is for a judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree.”

Going on then to say:

“It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the other hand, evidence that in unusual exertion or at the onslaught of disease he may suffer from his hidden impairment tells in favour of the damage being substantial.”

Cartledge was a limitation case concerned with the question of whether a cause of action was perfected by the injury or by knowledge of it, concluding it was the former. To that extent, it does not directly address the question of what necessarily amounts to an injury. Lord Pearce’s speech, however, suggests the question is whether material damage has been suffered by physical change to the body which is more than de minimis.

The House of Lords returned to Cartledge in Rothwell v Chemical and Insulating Company Limited [2008] 1 AC 281, often referred to as Grieves v FT Everard & Sons Limited, and well known as the pleural plaques test cases. In that case, the question was whether pleural plaques, a physical change to the lung which caused no symptoms but did give rise to anxiety as to possible future disease, amounted to an injury which sounded in damages.

There was no question in Rothwell but that the plaques constituted physical change to the body. The question was whether, in the absence of any symptoms, they constituted an injury which was more than de minimis (thus the second aspect of Lord Pearce’s formulation). The House of Lords concluded that they did not and that the injury was not rendered more than minimal by the presence of anxiety about the future. Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote and Lord Rodger of Earlsferry all gave speeches with which Lord Mance agreed.

That pleural plaques did not amount to an injury which was more than de minimis had been the judge’s conclusion and that of the Court of Appeal. In summarising it, Lord Scott of Foscote observed [68]:

“The judge’s conclusion, concurred in by all the members of the Court of Appeal, that pleural plaques could not be characterised as a disease or as an impairment of physical condition was in part a finding of fact but also a conclusion of law. The question whether the formation of pleural plaques suffices to complete a tortious cause of action in negligence depends on what the law recognises as damage, not on how medical experts may classify the condition in question. The facts, however, lead inevitably in my opinion to the conclusion reached by the judge. Pleural plaques are not visible or disfiguring. None of the Appellants suffered from any disability or impairment of physical condition caused by the pleural plaques. The plaques were asymptomatic and were not the first stage of any asbestos related disease. The inhalation of the fibres and the formation of the plaques involved no pain or physical discomfort. Those being the facts the conclusion that the presence of pleural plaques could not per se suffice to complete a tortious cause of action in negligence is, in my opinion, unassailable.”

In addressing the question, Lord Hope of Craighead observed [49]: “Pleural plaques are a form of injury. But they are not harmful.” Thus, as he noted [47]:

“In strict legal theory a wrong has been done whenever a breach of the duty of care results in a demonstrable physical injury, however slight. But the policy of the law is not to entertain a claim for damages where the physical effects of the injury are no more than negligible. Otherwise the smallest cut, or the lightest bruise, might give rise to litigation the costs of which were out of all proportion to what was in issue. The policy does not provide clear guidance as to where the line is to be drawn between effects which are and are not negligible. But it can at least be said that an injury which is without any symptoms at all because it cannot be seen or felt and which will not lead to some other event that is harmful has no consequences that will attract an award of damages. Damages are given for injuries that cause harm, not for injuries that are harmless.”

Lord Hoffmann cited the passage from Lord Pearce’s speech in Cartledge set out above. In addressing the question before the House, he began by observing [7 – 8]:

“Some causes of action arise without proof of damage. Trespass and breach of contract are examples. Proof of the trespass or breach of contract is enough to found a cause of action. If no actual damage is proved, the claimant is entitled to nominal damages. But a claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one’s health or capability.”

“How much worse off must one be? An action for compensation should not be set in motion on account of a trivial injury. De minimis non curat lex. But whether an injury is sufficiently serious to found a claim for compensation or too trivial to justify a remedy is a question of degree.”

Lord Hoffmann thus contemplated two stages. Firstly, was there physical injury, in the form of physical change which, in the second stage, rendered the victim worse off, physically or economically, so that compensation was justified? Lord Hope similarly considered the need for the presence of a demonstrable physical injury, even if slight, but accepted the policy of the law would not provide compensation if those effects were negligible.

To recover damages, a Claimant must demonstrate, firstly, a physical change to his body which can properly be identified and attributed to the tortious act of the Defendant. The symptoms alone ought not to be enough unless, in their own right, they leave the Claimant identifiably worse off. Worse off in this sense means physically or economically. Secondly, the effect must go beyond the minimal.

In the case of transient symptoms, it is the first hurdle, the presence of physical injury, which poses the test to a Claimant. If the underlying condition is non‑tortious or pre‑existing, a temporary or transient effect on the symptoms of that injury does not create a separate cause of action. Of course, if symptoms are extreme or, in their own right, serve to render a claimant worse off, the threshold may be overcome – it is ultimately a jury question whether that threshold is passed. But if the position is simply that an exposure causes symptoms which are otherwise transient, cause no additional pathological change and, of themselves, are attributable to an underlying condition for which damages would not be awarded, no cause of action will arise.