Date: Thu, 18 Oct 2007 01:07

From: Neil Foster

Subject: Johnston v NEI

Dear Colleagues

Thanks for noting this Rob; I agree with you about the possible claim in contract (and of course that is just what Lord Scott says at para [74] ff, for those who haven't read the case yet). I agree with Jason that their Lordships (esp Lords Hope and Mance) seem to be dropping some pretty broad hints that Page v Smith should be revisited (as suggested by Michael in his paper in the Emerging Issues book).

I have a different comment. As I was reading I couldn't help thinking - this feels very much like a claim that should have succeeded in trespass to the person (battery). I guess the reason that wasn't run was the lack of "directness". But suppose we alter the facts - an employee who has been cut directly by an employer, creating a situation where there is now a heightened risk of some disease. I notice that Lord Scott at [71] discusses cuts (not in the context of battery), and assumes that a cut would normally constitute sufficient "damage" for a claim even if only on the basis that it hurts a bit and takes time to heal.

Once the action in battery has been established (and I will assume that there could even be a negligently-committed battery; at least in Australia this would, I think, be possible) then presumably one may well be able to recover damages for anxiety etc.

(I guess the reason this is a bit unlikely is that to make it "direct" you have to assume an individual employer as opposed to a company - interesting question whether a company can be liable for battery. On the other hand, if Meridian stands for the possibility that a company officer might be deemed to be "the company" for the purposes of tort law, including the tort of battery, then it is not impossible.)

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 18/10/07 3:47 >>>

It should also be noted that the case has some interesting discussion of Page v Smith. It appears that the case is becoming "very distinguished" as they used to say (another Junior Books?).

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