Physiological changes are not physical injuries, says court.
Updated: Feb 16
A recent case in the Court of Appeal Greenway and others v. Johnson Matthey Plc  has confirmed that in cases where financial loss has been suffered with no physical injury, those losses are not recoverable. It also confirmed that physiological changes do not constitute physical injury.
In 2015, five claimants who worked at Johnson Matthey, a speciality chemical manufacturer, took their case to the High Court, claiming that they had been sensitised to platinum because of the use of platinum salts during the course of their jobs.
Because of the sensitisation, none of the claimants could do any work that brought them into contact with platinum. Johnson Matthey had been unable to find them other work and as a result, they had either resigned or been dismissed. The employer had admitted breach of duty and liability for the exposure; however, they did not agree that the claimants were entitled to recover damages for their economic loss.
The contract that the employees had with Johnson Matthey provided for an ex gratia payment in such circumstances but didn’t rule out a claim being brought by an employee for damages for personal injury.
It was made clear during the High Court hearing that the sensitisation had not progressed to the status of an allergy and, if the claimants were removed from the source of the exposure, would not do so.
As a result of this, Johnson Matthey said that whilst they had lost out financially from being unable to carry on with their jobs, there was no physical injury which would form the basis for a claim in tort. The High Court said that sensitisation, although a physiological change, was not enough to count as a physical injury and dismissed the claims.
An appeal was launched; the claimants said that they had suffered actionable (giving rise to legal action) physical injury or damage because of the physiological changes that had occurred.
However, the Court of Appeal agreed with the High Court and refused to extend the duty in tort owed to employees so that it would protect against pure economic loss. In cases of negligence, there is no provision for recovering financial losses if there is no physical injury.
When it came to what amounted to a physical injury, both the High Court and the Court of Appeal disagreed with the claimants, stating that injury was defined as an actual physical injury and not a physiological change. This would stop future claims of this type from progressing.
In his Court of Appeal judgment, Lord Justice Sales said:
“…it is difficult to see how the law of tort could impose obligations in this area which are more extensive than those given by interpretation of the contract which the parties have made for themselves….freedom of contract is paramount, and if the parties have agreed terms to govern their relationship which do not involve the assumption of responsibility by the employer for some particular risk, the general law of tort will not operate to impose on the employer an obligation which is more extensive than that which they agreed.”