The court decided that in order to determine whether an actionable injury had arisen, for the purposes of a claim in tort, the correct approach was to analyse the sensitisation in terms of the physical (or physiological) harm it may be causing, and not any financial loss which may be consequent upon that harm. The court determined that the sensitisation did not amount to harm.
It was concluded that the purpose of any tortious obligation owed to the claimants was to safeguard them from the risk of personal injury, not from financial harm and similarly any contractual obligation was meant to offer the same protection from personal injury and not from economic or financial loss suffered without personal injury.
This case is a useful reminder that where there has been exposure to a potentially harmful substance, there needs to exist 'a disease process which is real and present' in order for the court to determine that an actionable injury has arisen. If not, it may be determined that no ‘harm’ was suffered and any claim for damages will likely fail.
Adam Dyl and Hannah Swarbrick, Anthony Gold