Colin McCaul QC peers beneath the surface of Rothwell
The House of Lords gave its decision in Rothwell v Chemical & Insulating Co Ltd and another and other appeals; Re Pleural Plaques Litigation [2007] UKHL 39, [2007] All ER (D) 224 (Oct) on 17 October 2007. Their lordships unanimously upheld the majority judgment of the Court of Appeal to the effect that pleural plaques—and, arguably, pleural thickening—do not constitute actionable damage. And that is that, you might think, after reading the reports in the media.
But news of the death of pleural plaques actions has been greatly exaggerated. Just as in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2002] 3 All ER 305, where Lord Hutton’s deliberate throwaway line opened the door for defendants to argue that mesothelioma damages were apportionable, so too one must look to the subtext in Rothwell.
Lord Scott, in common with all of their lordships, found that the law of tort provides no remedy for those who have contracted pleural plaques as a result of exposure to asbestos dust. More than minimal damage is an essential
