Lawyers for three men who have become sensitised to compounds of the precious metal platinum are attempting to crowdfund a supreme court challenge that could redefine employers’ duty of care to their workers.
This year Johnson Matthey, the bullion and chemicals company, won a unanimous judgment at the court of appeal in London dismissing an earlier claim on behalf of five workers. The judgment stated that “the law does not furnish a remedy for every harm suffered”.
The current case involves three individuals – Waynsworth Dryden, Tony Cipullo and Simon York – who worked in Johnson Matthey’s chemical plants in Royston, Hertfordshire, and Enfield, London, refining metals to make catalytic converters. Platinum salts can be released into the air during the process.
The men, who held skilled positions, became sensitised to platinum salts. In the initial stage, no symptoms are visible and there are otherwise no adverse effects. Sensitisation is detectable by reaction to a skin-prick test.
Continued exposure to platinum salts can trigger a full–blown allergy involving running eyes or nose, skin irritation or bronchial problems. Those who became sensitised at Johnson Matthey were redeployed or dismissed, with compensation usually amounting to only three months’ pay.
The judgment said Johnson Matthey’s factories were not properly cleaned and the firm conceded it had breached workplace health and safety regulations as well as those controlling hazardous substances. The company stressed that workers in the platinum operations were paid at a higher rate than the workforce in other sections of their plants.
The men claimed they had nonetheless been removed from high-paid jobs and began legal action for loss of future earnings and reduced employment prospects, with claims amounting to sums of between £400,000 and £800,000.
For the men to take the case to the UK’s highest court, it first of all has to be accepted by the supreme court as raising a significant legal question. The claimants also need to raise money through online crowdfunding to cover their costs and legal liabilities, an increasingly common procedure in an era when legal aid is severely restricted.
In the appeal court judgment, Lord Sales said: “On the medical evidence, platinum sensitisation is not harmful in itself in any relevant sense. It is a physiological change analogous to the development of pleural plaques [an early but non-cancerous sign of exposure to asbestos] in the lungs … and hence does not constitute actionable damage or injury.
“The removal of the appellants from their jobs was detrimental for them in financial terms. But as the judge observed, this was a form of pure economic loss. The presence of such economic loss does not convert a physiological change which does not in itself qualify as an actionable injury into such an injury.
“The law does not furnish a remedy for every harm suffered by an individual, and in particular does not do so where the infliction of the harm in question does not constitute a ‘wrong’ in the contemplation of the law.”
The former employees are determined the pursue the company. Dryden, 59, said: “I had a wonderful job as a chemical process operator at Johnson Matthey that fulfilled my financial, social and educational needs and development … [but] I had become sensitised to materials that I had to work with. I had followed the health and safety rules and always used my personal protective devices and yet still I became sensitised.”
Cipullo, 42, said: “The loss of not only a good wage but a really fantastic job I loved has had a devastating effect on me.”
York, 46, who started work at Johnson Matthey in 2008, said: “I was diagnosed with platinum allergy and my world fell apart … This was an extremely stressful time in all of our lives and, with the whole country in recession, finding a job was impossible, let alone a well-paid one.”
Harminder Bains, a solicitor at the London law firm Leigh Day who is representing the men on a no-win-no-fee basis, said: “Johnson Matthey have for years paid small exit packages to our clients’ fellow employees who have been similarly been affected by these chemicals for many years.
“This case is highly significant because Johnson Matthey accept that they negligently exposed them to dangerous levels of platinum salts. However, they have refused to pay fair and adequate compensation. If we do not win this case in the supreme court, other employers may use this case to sidestep their responsibilities with regards to health and safety, and negligently expose others to hazardous work conditions.”
A spokesperson for Johnson Matthey said: “We can confirm that certain individuals, who were found to be sensitised to platinum salts during routine testing by Johnson Matthey in the course of their employment brought a personal injury claim against Johnson Matthey which was dismissed by the high court and the court of appeal.
“We understand that certain of these claimants are seeking permission to appeal to the supreme court. We are unable to comment further as this is an ongoing legal matter. Health and safety at Johnson Matthey is our priority and we have rigorous processes and measures in place to safeguard the wellbeing of our employees.”
