Johnston v. NEI International Combustion Ltd., (2007) 375 N.R. 248 (HL)

• Case Date: October 17, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 375 N.R. 248 (HL)

Johnston v. NEI Intl. Combustion Ltd. (2007), 375 N.R. 248 (HL)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. AP.026

Johnston (original appellant and cross-respondent) v. NEI International Combustion Limited (original respondents and cross-appellants)

Rothwell (original appellant and cross-respondent) v. Chemical and Insulating Company Limited and others (original respondents and cross-appellants)

Topping (original appellant and cross-respondent) v. Benchtown Limited (formerly Jones Bros Preston Limited (original respondents and cross-appellants)

(conjoined appeals)

Grieves (appellant) v. FT Everard & Sons and others (respondents)

([2007] UKHL 39)

Indexed As: Johnston v. NEI International Combustion Ltd.

House of Lords

London, England

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Mance

October 17, 2007.

Summary:

The plaintiffs sued their former employers for damages for negligence because they had developed pleural plaques. The pleural plaques were benign and asymptomatic; however, the plaintiffs alleged that because they signalled the presence in the lungs and pleura of asbestos fibres, which might independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma, the plaintiffs suffered anxiety, or in the case of one plaintiff, clinical depression. While such claims had been allowed in the past, the employers' insurers refused to pay these claims on the basis that they were premature. The trial judge held that the claims were actionable. The employers appealed.

The Court of Appeal, Smith, L.J., dissenting, allowed the appeal. Four of the plaintiffs appealed.

The House of Lords dismissed the appeal, holding that neither the risk of future injury nor anxiety at the prospect of future injury was actionable. Further there was no cause of action for depression caused by apprehension of the possibility of an unfavourable event which had not actually happened.

Actions - Topic 1630.2

Cause of action - Torts - Negligence - Anxiety or depression caused by prospect of future injury - The plaintiffs sued their former employers for damages for negligence because they had developed pleural plaques - The pleural plaques were benign and asymptomatic; however, the plaintiffs alleged that because they signalled the presence in the lungs and pleura of asbestos fibres, which might independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma, the plaintiffs suffered anxiety, or in the case of one plaintiff, clinical depression - While such claims had been allowed in the past, the employers' insurers refused to pay these claims on the basis that they were premature - The House of Lords held that the claims were not actionable - The court held that neither the risk of future injury nor anxiety at the prospect of future injury was actionable - Further there was no cause of action for depression caused by apprehension of the possibility of an unfavourable event which had not actually happened.

Cases Noticed:

Church v. Ministry of Defence (1984), 134 N.L.J. 623, refd to. [paras. 3, 43].

Sykes v. Ministry of Defence, The Times, 23 March 1984, refd to. [paras. 4, 43].

Patterson v. Ministry of Defence, [1987] C.L.Y. 1194, refd to. [paras. 5, 43].

Cartledge v. Jopling (E.) & Sons Ltd., [1962] 1 Q.B. 189 (C.A.), affd. [1963] A.C. 758 (H.L.), refd to. [paras. 8, 37, 65, 83].

Gregg v. Scott, [2005] 2 A.C. 176; 330 N.R. 1 (H.L.), refd to. [paras. 12, 41, 67, 88].

Hicks v. Chief Constable of South Yorkshire Police, [1992] 2 All E.R. 65 (H.L.), refd to. [paras. 12, 23, 89].

Brunsden v. Humphrey (1884), 14 Q.B.D. 141 (C.A.), refd to. [para. 13].

Hatton v. Sutherland, [2002] I.C.R. 613 (C.A.), refd to. [para. 24].

Barber v. Somerset County Council, [2004] 1 W.L.R. 1089; 320 N.R. 13 (H.L.), refd to. [para. 24].

McLoughlin v. O'Brian, [1983] 1 A.C. 410 (H.L.), refd to. [para. 28].

Hughes v. Lord Advocate, [1963] A.C. 837 (H.L.), refd to. [para. 29].

Jolley v. Sutton London Borough Council, [2000] 1 W.L.R. 1082; 258 N.R. 182 (H.L.), refd to. [para. 29].

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon Mound) (No. 2), [1967] 1 A.C. 617 (H.L.), refd to. [para. 29].

Bourhill v. Young, [1943] A.C. 92 (H.L.), refd to. [para. 30].

Page v. Smith, [1996] A.C. 155; 182 N.R. 321 (H.L.), refd to. [paras. 30, 52, 65, 94, 104].

White et al. v. Chief Constable of South Yorkshire et al., [1999] 2 A.C. 455; 234 N.R. 121 (H.L.), refd to. [paras. 32, 54, 95, 104].

Frost v. Chief Constable of South Yorkshire Police - see White et al. v. Chief Constable of South Yorkshire et al.

Creuzfeldt-Jakob Disease Litigation Group B Plaintiffs v. Medical Research Council, [2000] Lloyd's Rep. Med. 161, refd to. [paras. 34, 58, 95].

Meikle v. Sneddon (1862), 24 D. 720, refd to. [para. 45].

Strang v. Steuart (1864), 2 M. 1015, refd to. [para. 45].

Wood v. Carwardine, [1923] 2 K.B. 185, refd to. [para. 46].

Wilkes v. Goodwin, [1923] 2 K.B. 86, refd to. [para. 46].

Overseas Tankships (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound) (No. 1), [1961] A.C. 388 (P.C.), refd to. [para. 52].

Copoc et al. v. Chief Constable of the South Yorkshire Police, [1992] 1 A.C. 310; 131 N.R. 194 (H.L.), refd to. [para. 54].

Alcock v. Chief Constable of South Yorkshire Police - see Copoc et al. v. Chief Constable of the South Yorkshire Police.

Simmons v. British Steel plc, [2004] I.C.R. 585; 323 N.R. 273 (H.L.), refd to. [paras. 56, 97, 104].

Page v. Smith, [1994] 4 All E.R. 522 (C.A.), refd to. [para. 58].

Lynch v. Knight (1861), 9 H.L. Cas. 577, refd to. [para. 66].

Law Society of United Kingdom v. Sephton & Co. et al., [2006] N.R. Uned. 121; [2006] 2 A.C. 543 (H.L.), refd to. [para. 67].

Watson v. Fram Reinforced Concrete Co. (Scotland) Ltd. and Winget Ltd., [1960] S.C.(H.L.) 92, refd to. [para. 83].

Brown v. North British Steel Foundry Ltd., 1968 SC 51, refd to. [para. 86].

Authors and Works Noticed:

Boyle, Matthew, Contractual Remedies of Employees at Common Law: Exploring the Boundaries, [2007] Jur. Rev. 145, generally [para. 59].

Green, Sarah, Risk Exposure and Negligence (2006), 122 L.Q.R. 386, p. 389 [para. 55].

Stapleton, Jane, Cause-in-Fact and the Scope of Liability for Consequences (2003), 119 L.Q.R. 388, p. 424 [para. 41].

Counsel:

David Allan, Q.C., Ivan Bowley, Frank Burton, Q.C., and Harry Steinberg (Instructed by Thompsons), for the appellants;

Michael Beloff, Q.C., Michael Kent, Q.C., Michael Rawlinson and Sophie Allan (Instructed by Halliwells LLP), for the respondents.

Agents:

[Not disclosed.]

This appeal was heard by Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Mance, of the House of Lords. The decision of the House of Lords was delivered on October 17, 2007, when the following opinions were filed:

Lord Hoffmann - see paragraphs 1 to 35;

Lord Hope of Craighead - see paragraphs 36 to 60;

Lord Scott of Foscote - see paragraphs 61 to 77;

Lord Rodger of Earlsferry - see paragraphs 78 to 101;

Lord Mance - see paragraphs 102 to 105.