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PI and Civil Litigation

Law - practice - procedure

01 NOV 2013

When is lung damage an injury?

The question of when lung damage amounts to an injury at law has for decades been a contentious issue. As an issue it is relevant to arguments on when time begins to run for limitation purposes and also arguments concerning when the injury is at a level where damages can be claimed. The two issues are opposite sides of the same coin.

To claim for an "injury" the claimant must suffer injury beyond what is said to  "de minimis". The case law starts with Cartledge v Jopling [1963] AC 758 - a House of Lords case concerning the Limitation Act 1939. This earlier limitation act contained no equivalent of s 11 or s 14 in the Limitation Act 1980, when time runs from the date of knowledge of an injury if that is later than the injury itself. From 1939, time ran only from the date of injury and there was no equivalent of s 33 discretion.

The workers in Cartledge sustained pneumoconiosis - lung fibrosis caused by exposure to steel dust - between 1937 and 1950. The House of Lords found that they were "injured" for the purposes of the Limitation Act 1939 despite the fact that they suffered no symptoms at all, had not been diagnosed with any injury and had no knowledge of their injury. They were injured simply because the material damage to their lungs had occurred.

Pearson LJ in the Court of Appeal in Cartledge [1962] 1 QB 189 (approved by the House of Lords and cited with approval in Rothwell stated:

"A reasonable application of the de minimis rule postpones the first damage for legal purposes to the point at which the accumulated scarring is sufficient to diminish appreciably the elasticity of the lungs and deprive them of much of their reserve capacity ... but when it is reached there is the damage completing the cause of action"

At page 207, Pearson LJ added that:

"In a case where there is a continuing breach of duty by the defendant continually causing damage  to the plaintiff there is a fresh cause of action arising every day, and, if the breach and resulting damage have continued for more than the period of limitation, the Limitation Act, if relied upon by the Defendant, will bar the plaintiff's action for the damage occurring before the critical date but not for the damage occurring after it."

Accordingly, a person may have a respiratory injury for legal purposes before he or she suffers any actual respiratory disability or any symptoms but as soon as the reserve lung capacity starts to diminish appreciably.

The case of Rothwell v CICL [2007] 3 WLR 876 ruled that pleural plaques caused by asbestos exposure was not a compensatable injury. This was upon the basis that the height of the injury was some scarring to the lining of the lung which caused no symptoms, caused no damage to the lung surface at all and which would, save in the most exceptional cases, never cause any reduction in lung function.

Two County Court decisions address the issue of minor asbestosis/pleural thickening and whether that is compensatable.

Owen v Esso (9 November 2006 - HHJ Stewart QC) found that asbestosis which was asymptomatic and for which there was no evidence of any other damage such as lung disability, loss in reserve capacity and which had no other discernible sign or symptom of injury, was not an injury.

Hirst v William Proctor (27 April 2007 - Recorder Baker QC) - found that asbestosis which caused a 1% respiratory disability and some loss of respiratory reserve, was an injury. This was said to amount to significant and material physical damage.

It was accepted by the Judge in Owen (following Pearson LJ in Cartledge) that a claimant does not need a percentage respiratory disability to claim actionable damage and nor does he require x-ray evidence of damage. He may have an injury without any actual symptoms but must satisfy the burden that he has some material damage - which was not satisfied in Owen. The Court of Appeal in Cartledge held that even before lung fibrosis was visible on x-ray, injury had occurred. (See Pearson LJ page 208.)

The case law therefore tells us that:

1.      A claimant who suffers pleural plaques has suffered no injury and time cannot run for such a claimant under limitation rules.

2.      A claimant with minor lung disease such as lung fibrosis (caused eg by asbestos or silica) or pleural thickening or mild asthma, may however suffer an injury despite having no knowledge of any symptoms. Such a person has a claim worthy of compensation and may have a much more valuable provisional damage claim for the risk of future deterioration. By reason of the amendments made to Limitation Act in 1980, time will not run for such a claimant until there is knowledge of the injury.

3.      Also following Cartledge, a continuing injury can provide a fresh cause of action each day there is exposure, which can create a claim which is partly in and partly out of time.

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