Date: Thu, 18 Oct 2007 08:06

From: Robert Stevens

Subject: Johnston v NEI

(i) Negligent battery is dead in England: Letang v Cooper [1965] 1 QB 232.

(ii) The overlap between battery and the 'tort' of negligence shows the mess the common law has somehow got itself into. We have one right violated (bodily safety) in one way (negligently) but two torts. That is just incoherent. The English cannot afford to be too smug has we still have such overlap, even if less dramatically than in Australia (see Blake v Galloway [2004] EWCA (Civ) 814).

RS

Quoting Neil Foster:

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.)

Robert Stevens
Professor of Commercial Law
University College London

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