Date: Wed, 17 Oct 2007 12:02

From: Robert Stevens

Subject: Johnston v NEI

Johnston v NEI (formerly Rothwell v Chemical Insulating) is now out.

It is wholly unsurprising. On a quick read through it decides that there is no cause of action because

(i) Causing symptom less pleural plaques is not actionable injury.

(ii) Risk of future disease and anxiety about future disease are not actionable injuries either, and you cannot just add together a number of non-actionable harms to produce an actionable injury.

(iii) Whilst psychiatric illness, which one of the claimants suffered, is actionable injury, here it was not reasonably foreseeable that a person of reasonable fortitude would suffer it.

The most depressing aspect of the case is that the claimants would have had a perfectly good claim for breach of contract. The hurdle that they would have had to overcome for this claim was the less daunting one of whether the loss suffered was too remote. Counsel never argued the claim on this basis at any stage. A bad, if typical, failure to differentiate the different sorts of claim which an employee may assert against an employer.

Robert Stevens

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