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News added on 26.03.2018

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Employers' liability

Employer liable for allergy injury?

The Supreme Court has ruled on whether sensitisation to an allergen can form the basis of a personal injury claim before the allergy itself has developed. What was the decision in this case, and what do employers need to take from it?

The three claimants worked for Johnson Matthey plc, a company that produced catalytic converters. The production process involves platinum salts, a chemical known to cause allergic reactions, skin irritation and bronchial conditions including occupational asthma. If the correct health and safety procedures are followed, workers should not be exposed to platinum salts. In the claimants’ case, however, the company failed to ensure that its factories were properly cleaned and the claimants were exposed to platinum salts as a result.

Exposure to platinum salts does not lead to an immediate allergic reaction. Initially, it causes the person exposed to develop a particular antibody. If the person is exposed to platinum salts after this antibody has formed, they are very likely to develop allergic symptoms because the antibody causes the body to release histamine when it comes into contact with the allergen.

The risk of exposure to platinum salts was known, and workers underwent regular skin-prick tests to detect it. Once the claimants’ sensitisation had been identified, steps had to be taken to prevent re-exposure. One of them was redeployed in a section of the workplace where he would not be exposed again. The others were dismissed under the terms of a collective agreement that was in place dealing with platinum salts exposure.

The Supreme Court had to decide whether sensitisation to platinum salts could form the basis of a personal injury claim, even though the claimants had not yet developed the actual allergy. The Supreme Court concluded that it could. Their exposure to platinum salts had caused a physiological change that made them appreciably worse off. They were unable to lead their normal lives because they could not carry out the work at which they were skilled due to the company’s negligence or breach of duty. Although they did not directly suffer ill health as a result, their earning capacity had been curtailed and they were likely to experience an allergic reaction if they were exposed to platinum salts again. (Dryden and others v Johnson Matthey Plc [2018] UKSC 18)

The chemical in this case is only used in specific processes, but there are many workplaces that use substances that lead to allergic conditions such as occupational asthma and dermatitis. This case illustrates the importance of following the controls on workers’ exposure to allergens in the first place, as a claim for personal injury can be based on sensitisation.

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