Date: Fri, 19 Oct 2007 11:15

From: Ken Oliphant

Subject: Johnston v NEI

This falls rather short of the claim that, ignoring considerations of remoteness, "the claimants would have had a perfectly good claim for breach of contract."

I'm instinctively against any difference here as between contract and tort. I think it would result in unjust distinctions. Say, e.g., C1 is D's employee, C2 is D's independent contractor and works on the premises, C3 is a labour-only sub-sub-contractor also working on the premises (but no contract with D), C4 is a visitor on the premises. They're all exposed to risk and suffer anxiety (or, alternatively, a recognised depressive illness). Do you compensate C1 but not C3 or C4? And where does C2 stand?

Ken

--On 17 October 2007 17:25 +0100 Robert Stevens wrote:

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.

----------------------
Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS8 1RJ.

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