Date: Wed, 17 Oct 2007 17:25

From: Robert Stevens

Subject: Johnston v NEI

Either

(i) the increased risk of avoiding disease in the future; or

(ii) the anxiety/distress suffered as a result of the exposure.

Of course neither head of loss is free from difficulty. Although Hoffmann (at [2]) assumes that the increased risk of suffering an illness in the future can be compensatable loss, I know of no case which authoritatively decides that. There are, of course, breach of contract cases awarding damages for a lost chance of avoiding a harm/loss which has occurred but that is not the same thing.

Anxiety/distress seems more arguable after, say, Farley v Skinner, but it is not easy either.

Arguing that such harms/losses are compensatable if a wrong has been suffered, seems to me to be an easier argument that trying to argue that the claimants had suffered an actionable injury/violation of a right, other than the breach of contract.

It is all part of a wider problem of seeing everything in terms of a general negligence principle.

Robert Stevens

Quoting KA Oliphant:

Robert

For what losses (assuming they're not remote) would the claimants have been entitled to compensation in their contract claim?

Robert Stevens
Professor of Commercial Law
University College London

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