Who's Afraid Of The Plaque? Did 'Fear For The Future' Claims In Australia Just Get Harder?

Key Point

The developing area of "fear for the future"

claims will remain a difficult, though not impossible, one

for claimants.

A recent House of Lords decision (Rothwell v Chemical

& Insulating Co Ltd [2007] 4 All ER 1047) raised two

interesting questions:

(a) do pleural plaques represent actionable damage; and

(b) is psychiatric illness arising from discovery of pleural

plaques foreseeable?

In rejecting both propositions, the House of Lords confirmed

that the developing area of "fear for the future"

claims will remain a difficult, though not impossible, one for

claimants.

The approach taken was broadly consistent with Australian

law, but is unlikely to substantially affect the current

prospects of such claims in Australia, including for asbestos

exposure.

"Fear for the future" claim

characteristics

"Fear for the future" claims may arise when a

psychiatric disorder is caused by knowledge of possible future

harmful consequences of some event or toxic exposure, in the

absence of actual physical damage.

Liability for pure psychiatric damage was initially confined

to circumstances of direct perception of a sudden

"shock". The law in Australia has since matured, as

summarised in Tame and Annetts ((2002) 211 CLR 317),

to focus less on the trigger for the psychiatric damage and

more on the nature of that damage and its foreseeability.

A fundamental requirement for all pure psychiatric damages

claims in Australia, including "fear for the future"

claims, is that the psychological injury must cross the

threshold of a "recognisable psychiatric disorder".

Mere mental or emotional distress, such as grief or anxiety,

will not found a claim.

To date, relatively few "fear for the future"

claims have been litigated in Australian courts and these

relate only to a small number of quite exceptional

circumstances.

Common to all such claims has been that the "fear"

was founded on a well characterised "life threatening

risk". In addition to fear of asbestos-related disease,

claims have included fear of developing Creutzfeldt-Jakob

Disease (CJD) from drug treatment and fear of cancer from

radiation exposure (see for example: Napolitano v CSR

Ltd (Unreported, WASC, No 1450 of 1994, 30 August 1994);

CSR Ltd v Thompson (2003) 59 NSWLR 77; CSR Ltd v

Maddalena [2006] HCA 1; APQ v Commonwealth Serum

Laboratories Ltd [1999] 3 VR 618; Dingwall v

Commonwealth (Unreported, Fed Ct, No NG575 of 1991, 18 May

1994)).

General principles: actionable damage and

foreseeability

A fundamental requirement in negligence is that actionable

damage has occurred, which must be more than negligible (ie.

exceed the maxim de minimis non curat lex). However,

uncertainty remains about what constitutes minimum compensable

damage in particular...