It is often said that there is ‘no law’ in personal injury work. But in the space of nine months the law Lords have delivered four judgments of profound importance. I have previously dealt with their important limitation decision in A v Hoare [2008] UKHL 6. In this article, I consider three other recent Lords decisions on personal injury law.

In Johnston v NEI International Combustion Ltd [2007] UKHL 39, the Lords held that the presence of symptomless pleural plaques did not give rise to a cause of action because there is in law no ‘injury’. This is so even if the claimant develops a recognised psychiatric injury as a result, because to found such a claim it is necessary for the claimant also to suffer a shock with a foreseeable physical injury, however slight (Page v Smith [1996] 1 AC 155).

If there is a physical injury arising from an alarming accident, a psychiatric injury is a reasonably foreseeable consequence. But if there is no physical injury, as found by the Lords in the plaques cases, then the psychiatric injury alone was not a reasonably foreseeable consequence of the breach of duty. And the claimants’ ‘aggregation’ argument – that symptomless changes to the body combined with anxiety should constitute injury – was dismissed.

The decision was highly controversial. The negligent exposure to asbestos was admitted, the claimants did suffer ‘scarring’, albeit internal rather than external, and all developed at least the anxiety that the knowledge of their exposure to asbestos and development of an asbestos-related condition inevitably induced. Perhaps unsurprisingly, both in Scotland and at Westminster ­ministers are looking to reverse the decision by statute – the government issued a consultation paper on the subject just before the parliamentary summer recess.

Even if reversed by Parliament, the decision still leaves some interesting points on psychiatric injury claims. There was discussion on Page v Smith with mixed views. Lord Hoffman felt that it did not seem to have caused many difficulties, if limited in scope; Lord Hope felt that the argument for overruling Page v Smith and returning to traditional Wagon Mound principles was ‘attractive’, and Lord Mance agreed.

Lord Scott opened an intriguing door to the use of contract rather than tort by pointing out that damage is not an essential ingredient of a claim in contract. The claimants in these appeals had not pursued a claim in contract. However, it must be doubted whether the difference in law would ultimately lead to a materially different outcome – certainly, in stress-at-work claims, breach of contract is regularly pleaded in the alternative to tort with no noticeable difference. Damages in contract may be nominal (and effectively worthless) because ‘distress’ is not normally recoverable in damages in contract. An exception would be for breach of the implied term of mutual trust and confidence (Mahmud v BCCI [1997] UKHL 23), but quantifying the damage here would not be straightforward. There may also be convoluted limitation arguments – a contractual claim would normally have to be brought within six years with no discretion. As the court has found in Johnstonthat there is no injury, could it really still be a claim for ‘personal injuries’ under the Limitation Act 1980?

Psychiatric damage

In Corr v IBC Vehicles Ltd [2008] UKHL 13, the claimant was the widow and executrix of Mr Corr who had been seriously injured in an accident at work. He was hit on the side of his head by an automated robot arm on the car part production line on which he worked. He was nearly decapitated and his right ear was severed. He suffered from post-traumatic stress disorder and depression. Proceedings were commenced three years later, just within the limitation period, but they had not been concluded six years after the accident when he committed suicide. In their earlier decision in Page v Smith, the Lords had held that, in cases where there is a physical injury, then any psychiatric injury which also occurs as a result of the accident is compensatable, even if the psychiatric injury or its extent would not be reasonably foreseeable to the defendant. Several of their Lordships expressed doubts about whether Page v Smith was rightly decided, and it is very likely that the principle will come before them again at some point. However, it had been agreed that the depression caused by the accident had driven him to suicide. Evidence before the court suggested that about 10% of severely depressed people seek to take their own lives. The court therefore held that, whether or not this was a strictly necessary ingredient for a claim, suicide here was foreseeable. Nor was it treated as a novus actus interveniens on the ground that the suicide was not a voluntary act, but inextricably linked with the breach of duty.

However, the Lords were more exercised about whether there should be an apportionment between the parties by way of a finding of contributory fault. Finding suicide to be ‘contributory fault’ might be thought harsh, but under the Law Reform (Contributory Negligence) Act 1945 ‘the damages… shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’. In Corr, the Lords (Lord Scott dissenting) made no reduction, but that was largely on the basis that evidence on the issue had not been fully adduced. Lord Scott would have reduced the damages by 20%, Lord Neuberger felt that any reduction would be between 0% and 50%, depending on the extent to which the claimant’s capacity for independent thought had been impaired by the defendant’s negligence.

The decision is a good outcome for claimants, but future claims are likely to face the possibility of a reduction for contributory fault. The court also gave another clear indication that they would like to revisit Page v Smith in an appropriate claim.

Work equipment

Most recently, in Spencer-Franks v Kellogg Brown [2008] UKHL 46, the House of Lords considered the thorny issue of ‘work equipment’ under the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) (PUWER) and gave definitive guidance. The pursuer (the case was a Scottish claim on appeal to the Lords) had been a mechanic employed on an offshore oil platform in the North Sea. A spring closer on a door on the platform was malfunctioning and the pursuer had been detailed to repair it. He first tested it by turning the screw that held the metal linkage arm between the door and wall. But instead of reducing the tension the screw came out and the metal linkage arm hit the pursuer in the face, knocking out four teeth. The issue was whether the door closer was ‘work equipment’. Under PUWER, the employer has a strict liability to ensure that ‘work equipment’ ‘used’ by an employee is ‘suitable’ (which means ‘suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person’).

Knowledge of the defect and reasonableness of steps taken to try to prevent it, which undoubtedly would cause considerable problems of proof for the pursuer in common law negligence, are irrelevant under PUWER. The pursuer’s argument was that the door closer was installed on the platform and was used for the purposes of their work by the operatives. It should in passing be noted that, because it was arguably part of the fabric of the installation, in normal ­circumstances a door closer might not be deemed ‘work equipment’, but the specific regulations governing offshore oil platforms provided that it does. A different conclusion might be reached about door closers specifically in the case of a land-based workplace.

The defender successfully argued in the Court of Session that the door closer was not ‘work equipment’ within PUWER and, even if it were, it was not being ‘used’ by the employee in the course of employment. In the earlier English Court of Appeal decision of Hammond v Commissioner of Police of the Metropolis [2004] EWCA Civ 830, the claimant had also been a mechanic, working on the wheel of a police van when a bolt had sheered off causing him injury. The Court of Appeal had held that PUWER applied only to the tools of the trade of the employee and not to equipment used by others employed in the same workplace. So, if the defective wheel bolt had caused injury to the driver or other employees using it, the employer would be strictly liable, but was not strictly liable to the claimant who was repairing it. The Lords disagreed. The van was work equipment used by employees in their employment. PUWER did not distinguish between different usage by ­different employees. Similarly, Mr Spencer-Franks was entitled to recover compensation.

The Lords thought, obiter, that the Court of Appeal was chasing shadows in seeking to restrict PUWER because of fears about its possible applicability to an employer being held liable for defects in a third party’s vehicle, or for injury caused to a third party’s employees (for example, employees of an independent garage repairing a defective van). These points did not apply in either the present case or in Hammond, but Lord Manse said ‘the difficult exercise of identifying the outer parameters of the regulations’ application requires further thought and more detailed submissions on another occasion’. Mr Spencer-Franks was ‘using’ the door, as ‘use’ under PUWER includes repairs, which should be construed in a wide and ordinary sense of the word. The Lords pointed out the wide scope of the directive and regulations and that these need to be construed purposively – that is for the protection of the health and safety of workers and the decision is another clear steer to the lower courts to ­construe the six-pack regulations less restrictively.