Tort 3: Negligence: duty of care and breach of duty

Terms in this set (102)

two judges opted for an argument based on the " . fair, just and reasonable" . criterion. The others, however, chose the road of distributive justice. In doing so they continued a line of argument that had been used by Lord Steyn in Frost v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509 to prevent police officers involved in the Hillsborough disaster from recovering for psychiatric damage when the victims' families had not. Lord Steyn stated in McFarlane, " . It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parent's claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice.

pecifically declined to consider whether the decision would be different for a handicapped child. However, given Lord Steyn's argument about ensuring that the law should be coherent with that regarding wrongful life there must be some doubt about whether the parents of a handicapped child can recover for the cost of raising their child. This is especially so since their Lordships considered the benefits/detriments balance as an all-or-none process. Could any court find that a handicapped child could never offer any joy to the family?

Concurrent with McFarlane, an English court awarded £1.3 million to the parents of a severely disabled child born after a failed sterilisation. Francis states: " . It is at least arguable that there is no difference in principle between the two cases. However the moral case in favour of providing the parent of an unwanted...
Abstract: The NHS Trust, which had negligently performed a sterilisation operation on P, as a result of which she had given birth to a disabled child, appealed against a decision that P was entitled to compensation for the costs of providing for the child's special needs and care attributable to its disability. P cross appealed against a finding that she could not, in addition, recover damages for the basic costs of the child's maintenance.

Held, dismissing the appeals, that (1) as there was a direct causative link between the surgeon's negligence and the congenial abnormalities suffered by the child, the tests of foreseeability and proximity enunciated in Caparo Industries Plc v Dickman [1990] 2 A.C. 605 were satisfied. The special upbringing costs associated with rearing a disabled child would be fair, just and reasonable, Caparo applied and Fassoulas v Ramey 450 So.2d 822 (Fla 1984)(Supreme Court of Florida) considered, and (2) it would not be fair, just and reasonable to extend the scope of the dictum in McFarlane v Tayside Health Board [2000] 2 A.C. 59 by allowing recovery for basic child rearing expenses, McFarlane followed.

problem with McFarlane was that the five members of the HL had spoken with five different voices. Brooke LJ considered the distinction between "failed sterilisation" cases and "wrongful birth" cases, where the opportunity to terminate a pregnancy was lost.

no valid policy argument against parents being recompensed for the costs of extraordinary care in raising a deformed child to majority. Brooke LJ found this argument persuasive. He would apply the following principles:-

The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon's careless failure.
ii) There was a very limited group of people who might be affected by this negligence.
iii) The surgeon should be deemed to accept the proposition that the surgeon should be deemed to have assumed responsibility for the foreseeable consequences.
iv) The purpose of the operation was to prevent the Claimant from conceiving any more children.
v) Parents in the Claimant's position were entitled to recover damages in these circumstances for 15 years between the decisions in Emeh and McFarlane. This was not a radical step into the unknown.
vi) For the reasons set out in (i) and (ii) above, the tests of foreseeability and proximity were satisfied, and an award of compensation which was limited to the special upbringing costs associated with rearing a child with a serious disability would be fair, just and reasonable.
vii) In terms of "distributive justice" ordinary people would consider that it would be fair for the law to make an award in such a case, provided that it was limited to the extra expenses associated with the child's disability.

Note Hale: Lady Justice Hale in dealing with issue of parental responsibility. She stresses that mother has automatic parental responsibility for child as she gives birth to child =>legal duty.parental responsibility goes beyond $ benefits of healthy child cancel out costs involved in rearing child. cases in which parents have actively sought sterilisation as a means of preventing pregnancy in first instance a claim for compensation will not succeed.
Abstract: A disabled mother who gives birth to a healthy child after a negligently performed sterilisation operation can not recover as damages the costs of bringing up the child which are attributable to her disability. The trust appealed against a decision ([2002] EWCA Civ 88, [2003] Q.B. 20) allowing R to recover the extra costs of raising a healthy child attributable to R's disability. R suffered from a severe, progressive visual disability and had undergone a sterilisation operation as she considered that she would be unable to fulfil the ordinary duties of a mother. The sterilisation had been negligently performed and R gave birth to a healthy son. The trust argued that the decision was inconsistent with McFarlane v Tayside Health Board [2000] 2 A.C. 59, whereas R invited reconsideration of McFarlane . R sought to uphold the decision and cross appealed, claiming the whole cost of raising the child.

Held, allowing the appeal (Lord Steyn, Lord Hutton and Lord Hope dissenting), that the policy considerations which prevented recovery of the costs of a child's upbringing in McFarlane still held good. R was therefore not entitled to recover the extra costs of raising her child which were attributable to R's disability. However, in cases such as the instant case it was just, fair and reasonable to make a conventional award of GBP 15,000, reflecting the parents' loss of opportunity to limit their family and live life the way it had been planned, irrespective of the individual circumstances of the parents. Such an award would not be compensatory but would afford some measure of recognition of the wrong done and would be over and above any compensatory award related to the pregnancy and birth, McFarlane followed and Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530 considered.

By a majority, the House of Lords held that Mrs Rees was not entitled to recover any of the child rearing costs including those associated with her own disability. Instead, a conventional award of £15,000 would be ordered to reflect the fact Mrs Rees had been the victim of a legal wrong, in addition to general damages for the pregnancy and birth.
COMMENT: This decision will come as welcome news for defendants and their insurers who may now consider reducing their reserves for wrongful birth claims. By overturning the Court of Appeal, the House of Lords has reinforced the decision in McFarlane largely on policy grounds. The decision in Rees also casts a shadow over the correctness of the Court of Appeal decision in the wrongful birth case of Parkinson v St James and Seacroft University Hospital NHS Trust (2000)
Lord Hope agreed with the CA in Parkinson that the question of whether the extra costs of raising a seriously disabled child were recoverable raised a separate issue. In principle, these costs constituted an extra and distinct burden on the parent who had suffered damage as a result of the Tfeasor's N. His view was that the fact that the child's parent is a seriously disabled person did provide a ground for distinguishing McFarlane and that it would be fair, just and reasonable to hold that such extra costs were within the scope of the T feasor's duty of care and were recoverable.

Lord Scott said that in his opinion the mother's visual disability did not take the case out of the exception to normal principle established by McFarlane, which was correctly decided. The question of how the McFarlane principle should be applied to a case in which the mother was health but the child was born with a disability was not one that needed to be resolved on this appeal. However Lord Scott felt that where the parents had no particular reason to fear that if a child was born to them it would suffer from a disability, he did not think that there was any sufficient basis for treating the expenses occasioned by the disability as falling outside the principles underlying McFarlane. Lord Scott doubted that the birth of a child with disabilities was reasonably foreseeable, and that the CA's conclusion in Parkinson was consistent with McFarlane. He would allow this appeal, but would agree with Lord Bingham that the C should be awarded £15,000.
Held, allowing the appeal, that (1) where the Secretary of State had not acted to reintroduce the immunity contained in the Crown Proceedings Act 1947 s.10 the court had to consider whether a duty of care existed at common law and (2) although the instant case did contain the elements of proximity and foreseeability of damage, it was necessary to ask whether it was fair, just or reasonable to impose a duty of care in tort by one soldier for another engaging an enemy in battle conditions. The court's opinion was that no basis existed to extend the scope of the duty of care to such situations and therefore no duty of care existed between soldiers on active service. Nor was the MoD obliged to maintain a safe system of work in battle situations, Shaw Savill & Albion Co Ltd v Australia 66 C.L.R. 344 and Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] A.C. 75 followed, Hughes v National Union of Mineworkers [1991] 4 All E.R. 278 considered.

CA held, in striking out the C's claim, that Mulcahy had been in a war zone taking part in warlike operations, and that as a soldier in these circumstances did not owe a fellow soldier a duty of care when engaging the enemy in battle conditions in the course of hostilities, the C did not have a cause of action against the Ministry of Defence. This was therefore a case where the Court felt that there was a sufficient link between the act of N and the military context within which the accident occurred (Mulcahy's unit were actively attacking the enemy when the accident occurred).
The Court of Appeals (the highest court in New York) reversed and dismissed Palsgraf's complaint, deciding that the relationship of the guard's action to Palsgraf's injury was too indirect to make him liable. Mrs. Palsgraf was also ordered, as a matter of routine practice at the time, to pay the railroad's legal expenses, estimated at $350[2] (about a year's pay for an average worker at the time, but about three times her annual income); however, the railroad never attempted to collect the payment.
Cardozo, writing for three other judges, wrote that there was no way that the guard could have known that the package wrapped in newspaper was dangerous, and that pushing the passenger would thereby cause an explosion. The court wrote that "there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances could warn him." Without any perception that one's actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability (duty is a matter of law to be decided by a judge; therefore, a finding that there was no duty was sufficient to overturn the jury's verdict that the defendant was liable; however the case can be, and often is, read to establish that the guard did not breach a duty established by the heightened duty of care owed by a common carrier).
The court also stated that whether the guard had acted negligently to the passenger he pushed was irrelevant for her claim, because the only negligence that a person can sue for is a wrongful act that violates their own rights. Palsgraf could not sue the guard for pushing the other passenger because that act did not violate a duty to her, as is required for liability under a negligence theory. It is not enough for a plaintiff to merely claim an injury. "If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended."
This concept of foreseeability in tort law tends to limit liability to the consequences of an act that could reasonably be foreseen rather than every single consequence that follows. Otherwise, liability could be unlimited in scope, as causes never truly cease having effects far removed in time and space (ex. the Butterfly Effect).
Because of the vague nature of Palsgraf's sole injury, some legal scholars have suggested that Cardozo reversed the jury's verdict to erase a fraudulent claim.
Shakoor v Situ [2000]
S, who was suffering from a skin condition, consulted a practitioner of traditional Chinese herbal medicine, SI, and was prescribed a course of herbal remedy which had been prepared in accordance with a traditional recipe or classic formula. Subsequent to taking nine doses S became ill and later died of acute liver failure which was attributable to a rare and unpredictable reaction to the remedy. S's widow brought proceedings against SI alleging that he had been negligent in prescribing the remedy, or in the alternative, had been negligent in prescribing such a remedy without providing a warning to S of the potential risks posed. A number of articles published in orthodox medical journals indicating the identified risks of liver damage from similar herbal remedies were submitted as evidence.

Held, giving judgment for the defendant, that it was necessary to consider the standard of care of a practitioner of alternative medicine with regard to that practitioner's knowledge that he was practising his art alongside orthodox medicine. Where a practitioner prescribed a chemical or herbal remedy that would be ingested, such as in the instant case, it was implied that (1) he was presenting himself as competent to practice in accordance with the system of law and medicine under which his standard of care would be judged; (2) he knew, rather than believed, that the remedy was not harmful, and (3) if the recipient reacted adversely to the remedy and as a consequence sought aid through orthodox medicine the incident was likely to be discussed in an orthodox medical journal. Accordingly, a practitioner was required to take sufficient steps so as to be confident that a remedy had not been reported adversely. Such steps included the subscription to a service which provided details of any reports published. In the instant case, the actions of SI had been consistent with the standard of care appropriate to traditional Chinese herbal medicine in accordance with established requirements. It followed that there had been no breach of duty.
Shakoor v Situ [2000] 4 All ER 181. Was he to be compared to a reasonable orthodox doctor, a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England? So long as the herbalist takes steps to keep abreast of pertinent information in the "orthodox" medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do practising in England.

Consider the argument that a herbalist should be held to the same standard as a normal NHS doctor, but disagreed.

"The Chinese herbalist, for example, does not hold himself out as a practitioner of orthodox medicine. More particularly, the patient has usually had the choice of going to an orthodox practitioner but has rejected him in favour of the alternative practitioner for reasons personal and best known to himself and almost certainly at some personal financial cost. Those reasons may include a passionate belief in the superiority of the alternative therapy or a fear of surgery or of reliance (perhaps dependence) on orthodox chemical medications which may have known undesirable side effects either short- or long-term or both.[3]

So long, said Livesey QC, as the herbalist complies with the UK's laws, does not prescribe prohibited or regulated substances under the Pharmacy and Poisons Act 1933, the Medicines Act 1968 or the Abortion Act 1967, so long as the herbalist takes steps to keep abreast of pertinent information in the "orthodox" medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do. In this case the prescription had not been inappropriate for a reasonable herbalist, and accordingly Mr Situ of the Eternal Health Co. was not liable for the death of Mr Shakoor.
A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular form of treatment; nor is he negligent merely because there is a body of opinion which would adopt a different technique. In deciding whether a doctor is negligent in failing to warn a patient of the risks involved in a particular treatment, it is appropriate to consider firstly whether good medical practice required that a warning should have been given to the patient before he submitted to the treatment, and, secondly, if a warning had been given, what difference it would have made.

The plaintiff sustained fractures of the acetabula during the course of electro-conclusive therapy treatment given him while he was a voluntary patient at the defendants' mental hospital. He claimed damages against the hospital alleging that the defendants were negligent (1) in failing to administer any relaxant drug prior to the passing of the current through his brain; (2) since they had not administered such drug, in failing to provide at least some form of manual restraint or control beyond that given; and (3) in failing to warn him of the risks involved in the treatment. Expert witnesses all agreed that there was a firm body of medical opinion opposed to the use of relaxant drugs, and also that a number of competent practitioners considered that the less manual restraint there was, the less was the risk of fracture. It was the practice of the defendants' doctors not to warn their patients of the risks of the treatment (which they believed to be small) unless asked. The jury returned a verdict for the defendants.
The HL held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession. However, Lord Browne-Wilkinson held that the court would hold a practice that was in conformity with a sound body of expert opinion to be negligent only in "a rare case".

Held, dismissing the appeal, that the Bolam test was of central importance in determining whether the doctor would have been negligent in failing to intubate. However, the court was not obliged to hold that a doctor was not liable for negligent treatment or diagnosis simply because evidence had been called from medical experts who genuinely believed that the doctor's actions conformed with accepted medical practice. The reference in Bolam to a "responsible body of medical men" meant that the court had to satisfy itself that the medical experts could point to a logical basis for the opinion they were supporting. Where cases concerned the balancing of risks against benefits, the court had to be sure that, in forming their opinion, the medical experts had considered the issue of comparative risks and benefits and had reached a view which could be defended. However, it would only be in rare cases that the court would reject the medical experts' view as unreasonable and the evidence did not support such a conclusion in the instant case.

In applying the Bolam test where evidence is given that other practitioners would have adopted the method employed by the D, it must be demonstrated that the method was based on logic and was defensible.
I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.

Held, dismissing the appeal, that in the medical profession, as in others, there was room for differences of opinion and practice, and a court's preference of one body of opinion to another was no basis for a conclusion of negligence; that when it was alleged that a fully considered decision by two consultants in their own special field had been negligent, it was not sufficient to establish negligence for the plaintiff to show that there was a body of competent professional opinion that considered that the decision had been wrong if there was also a body of professional opinion, equally competent, that supported the decision as having been reasonable in the circumstances (Whitehouse v Jordan [1981] 1 W.L.R. 246 applied and Joyce v Yeomans [1981] 1 W.L.R. 549 applied).
S underwent surgery for persistent pain which carried an inherent risk of damage to the spinal cord, even if performed properly and skilfully, put at between one and two per cent. In the event the operation was performed with all proper skill and care, but S nevertheless suffered very severe injuries. She claimed that she had not been warned of the intrinsic risk of the operation, and that had she been so warned she would not have consented to the surgery. The judge found that by the accepted standards of 1974 (when the operation had been carried out) the surgeon had followed a practice accepted as proper by a responsible body of medical opinion in not warning S in detail of the risk of damage to the spinal cord. Accordingly he acquitted the surgeon of negligence and his decision was upheld by the Court of Appeal.

Held, dismissing the appeal, that the judge had been correct in applying the Bolam test and had been entitled to find that the surgeon had acted in accordance with a standard accepted as proper by a responsible body of medical opinion, and that he had not thereby departed from the standard of an ordinary skilled man professing to have those skills as a surgeon. Whilst ordinarily it would be impossible to hold a doctor negligent who had conformed to a view held by a respected body of medical opinion, the case could arise, where the degree of risk was substantial or the consequences particularly grave, that the patient's right to make the decision himself outweighed even the respected body of medical opinion. On the facts of the present case S had failed to prove the surgeon in breach of any duty of care and the appeal had to be dismissed.
Held, dismissing the appeal (Lords Bingham and Hoffmann dissenting), that a judgment in C's favour could not be based on conventional causation principles. The "but for" test was satisfied since C would not have had the operation when she did if the warning had been given. But the risk of which she should have been warned was not created by the failure to warn. It was already there, as an inevitable risk of the operative procedure itself, however skillfully and carefully it was carried out. The risk was not increased, nor were the chances of avoiding it lessened, by what X had failed to say about it. However, the duty of a surgeon to warn of the dangers inherent in an operation was intended to help minimise the risk to the patient and was also intended to enable the patient to make an informed choice whether to undergo the treatment recommended and, if so, at whose hands and when. X had violated C's right to choose for herself, even if he had not increased the risk to her. The function of the law was to enable rights to be vindicated and to provide remedies when duties had been breached. Unless that was done, the duty to warn would be a hollow one. On policy grounds the test of causation was satisfied in the instant case. The risk was within the scope of the duty to warn so that the injury could be regarded as having been caused, in the legal sense, by the breach of that duty, Chappel v Hart [1999] Lloyd's Rep. Med. 223 and Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) [2002] UKHL 22, [2003] 1 A.C. 32 considered.
Held, allowing the appeal, (1) that the participants in horseplay owed each other a duty to take reasonable care not to cause injury; that a participant breached that duty of care only where his conduct amounted to recklessness or a very high degree of carelessness; that the defendant's conduct constituted at worst an error of judgment or lapse of skill; and that, in the circumstances, there was no breach of the duty to take reasonable care. (2) That in a sport which inevitably involved the risk of physical contact, the participants were taken impliedly to consent to those contacts which could reasonably be expected to occur in the course of the game and to assume the risk of injury from such contacts; that although the horseplay in which the parties were engaged was not a regulated sport or game it was conducted in accordance with objectively ascertainable, tacitly agreed understandings or conventions; that by participating in the game the claimant impliedly consented to the risk of a blow on any part of his body, provided that the missile was thrown more or less in accordance with those understandings and conventions, without negligence and without intent to cause injury; and that, in the circumstances, the object was thrown in a manner to which the claimant had consented

The D had consented to the risk of injury occurring within the conventions and understanding of the game. Lord Justice Dyson: ". If the D in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the C, or deliberately aimed the piece of bark at the C's head, then there might have been a breach of the duty of care. But what happened here was, at its highest, "an error of judgment or lapse of skill" (to quote from Diplock LJ), and that is not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged. In my view, the D's conduct came nowhere near recklessness or a very high degree of carelessness."
On appeal by the appellant against the judgment based on nuisance, and by the respondents, by cross-appeal, on the issue of negligence:- Held: (1) that creating a danger to persons or property in navigable waters (equivalent to a highway) fell in the class of nuisance in which foreseeability was an essential element in determining liability and that it was not sufficient that the injury suffered by the respondents' vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable. (2) That, on the facts, a reasonable man having the knowledge and experience to be expected of the appellant's chief engineer would have known that there was a real risk of the oil on the water catching fire and the fact that the risk was small did not in the circumstances justify no steps being taken to eliminate it. Accordingly both the appeal on the claim based on nuisance and the cross-appeal upon the claim based on negligence would be allowed.

Defendants were in breach of duty. Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it. Although risk exceptional, it does not mean that a reasonable man would dismiss such a risk from his mind and do nothing when it was so easy to prevent. If it is clear that the reasonable man would have realised or foreseen and prevented the risk then it must follow that the appellants are liable in damages.

Does not establish a principle that small risks can be ignored, but rather that the risk must be balanced against the defendant's purpose in carrying on its activities and the practicability and cost of taking precautions.
Moy v Pettman Smith
(C) appealed against a decision that although her assessment of the prospects of success of the application was not negligent, she had been negligent in failing to give the respondent (M) sufficiently detailed advice in deciding whether to accept a payment into court or to proceed with his claim. C had given advice to C on his prospects of beating a payment in during the course of medical negligence litigation in which a firm of solicitors (P) had acted for C. The advice was complicated by the fact that C was applying for the introduction of necessary evidence on C's behalf and the outcome of C's claim depended to an extent on whether or not that evidence was admitted. C had framed her advice to C on the basis that she was hopeful the evidence would be admitted and C decided to proceed. In the event the application to adduce further evidence failed and C consequently accepted a reduced offer. M brought a claim for negligence against P, and C was joined as a Part 20 defendant and codefendant. The trial judge held that C was not negligent and made an award solely against P. P appealed to the Court of Appeal which allowed their appeal and held C to have been negligent and liable for a proportion of the agreed damages payable to C. C submitted that (1) the approach of the Court of Appeal was incorrect and that if C's assessment of the risk was not negligent, it was difficult to see how the advice based on it could be negligent; (2) the judgment given by the trial judge in C's favour was, by the provision in the Civil Liability (Contribution) Act 1978 s.1(5), made conclusive so that it could not be challenged by P either in subsequent proceedings for contribution or by appeal in the action in which the judgment was given.
Held, allowing the appeal, that (1) public interest did not require advocates to be held immune from suit for the consequences of their negligence but that interest did require that the application of the principle should not stifle advocates' independence of mind and action in the manner in which they conducted litigation and advised their clients, Arthur JS Hall & Co v Simons [2002] 1 A.C. 615 applied. The Court of Appeal had judged C's actions too harshly when account was taken of all the circumstances. The instant court agreed with the trial judge that C's advice fell within the range of that to be expected of reasonably competent counsel of C's seniority and purported experience. It was possible that in hindsight C's advice to C to proceed was a wrong decision, but the court was not convinced that it was as mistaken a decision in all the circumstances as had been represented. C had had much to gain if the application to adduce evidence had succeeded and the action would then have been fairly straightforward. Above all there was a strong case to be made that it would have been artificial and unjust, despite all the errors of omission, to deprive C of the opportunity to adduce evidence that would have made such a profound difference to the value of his claim. It was not incumbent on C to spell out all her reasoning, so she was not in breach of her duty of care to C in the advice she gave. (2) Section 1(5) of the 1978 Act should be construed so as not to bar an appeal in a case such as the instant one and P's right of appeal was not barred by its operation.

Taking account of all the circumstances, advice given by the appellant barrister to the claimant fell within the range of that to be expected of reasonably competent counsel of the appellant's seniority and purported experience, and the Court of Appeal had therefore judged her actions too harshly.
Ct considered a number of test cases in which Cs had been exposed to asbestos dust. This had resulted in (i) pleural plaques which were symptomless and invisible, (ii) possibility of developing an asbestos-related disease in future and (iii) anxiety that they would suffer such a disease. It was held that head (i) did not amount to damage and that it was not possible to establish a claim by aggregating three heads, none of which on its own amounted to damage.

(c) Psychiatric illness Rejected

The Lords considered separately the appeal of Mr Grieves, who claimed that he had suffered a recognisable psychiatric illness (a depressive illness) as a result of knowledge of his pleural plaques and the risk of future illness. Lord Hope explained that the evidence given showed that Mr Grieves had a long-standing fear of developing an asbestos-related disease and one of the medical experts, Dr Menon, described his case as "relatively unique". The House upheld the decision of the Court of Appeal, concluding that the Appellant did not have a cause of action for his psychiatric illness because it was not reasonably foreseeable that pleural plaques would cause psychiatric injury.

The case of Page v Smith [1996] AC 155 was distinguished by the House. The principle established in this case was that as long as a defendant can reasonably foresee that his conduct will expose a claimant to a risk of personal injury, the claimant will be entitled to recover for such injury, without establishing a further duty in relation to psychiatric harm. However, in Rothwell the Lords have held that this principle is of limited scope. The Lords confirmed that Page v Smith should be confined to situations where the psychiatric injury arises as an immediate foreseeable consequence of an accident exposing the claimant to the risk of immediate physical injury. Mr Grieves' psychiatric injury was held to be too remote, as his psychiatric illness was caused by his anxiety at the risk of future illness only.
;