Not sure how their right to a safe place of work has been infringed if they have suffered no actionable damage. I appreciate that breaches of contract are actionable per se, but you first have to establish breach. If I cannot claim in tort for an increased risk of damage in the future how does my employer increasing the risk of damage in the future constitute a breach of his contract with me? If he increases my workload and thereby increases the risk that I may suffer a psychiatric breakdown at some point in the future, even though I remain psychiatrically healthy, do I (and millions of others, presumably, since this is hardly a rare occurrence) have a claim for breach of my contract of employment?
The contract cases giving rise to claims for "distress" are limited to particular categories of contract, even after Farley v Skinner. There is no general right to damages for distress following breach of contract.
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From: Robert Stevens
Sent: Fri 19/10/2007 12:33
To: KA Oliphant
Cc: 'Obligations Discussion Group'
Subject: Re: Johnston v NEI
Quoting KA Oliphant:
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."
No it does not. Are you denying that the claimants had a cause of action for breach of contract? Their right to have their contract performed (the right to a safe place of work) had been infringed. They couldn't point to any other right infringement (e.g. no personal injury, no property damage etc). We don't have a general right not to suffer distress, but distress where consequential on the violation of a right (e.g. personal injury, breach of contract, even sometimes property damage) can be compensated for. There was no other cause of action in Johnston v NEI. Breach of contract is actionable without necessity of proof of consequential loss.
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?
It is not about drawing a difference between contract and tort. It is about drawing a distinction between those who have had their rights violated and those who have not. In Johnston the only plausible right to base a claim upon was that embodied in the contract. We don't have general rights good against everyone not to be made miserable, or not to suffer the increased risk of suffering an injury at some point in the future.
I assume in the example that D is the occupier of the relevant premises? If so there are perfectly rational reasons for differentiating between these parties, and between these claimants and mere bystanders.
C1 and C2 both have a contract with D. However the terms of these contracts are not necessarily the same. It may be supposed that both have a contractual right to a safe place of work as against D. Both therefore have a perfectly good claim for breach of contract. However, the question is whether the loss suffered is too remote. This is a difficult hurdle for both to overcome, but more difficult for C2 as the duty assumed to independent contractors is not the same one as that assumed to employees. It is difficult to argue that it is within the scope of the duty D assumes to C2 that C2 will not suffer distress.
C3 and C4 have no contract with D. However, as invitees they have a relationship akin to contract with D (i.e. by inviting someone on to my land I assume responsibility for them). The breach of this duty of the occupier, unlike that of an employer owed to an employee, is not actionable per se. It is necessary to prove consequential loss. Again, I think this is perfectly explicable. Parties who have been promised something and have provided consideration for that promise are more deserving than those who have merely a gratuitous undertaking to stand upon. Here there is loss, but again the difficult hurdle is whether it is too remote. If it is, there is no cause of action at all.
As for the recognised depressive illness, I think we do have a general freestanding right that others do not inflict psychiatric injury upon us, as confirmed by the House of Lords in McLoughlin v O'Brian [1983] 1 AC 410. That right has been subject to "more or less arbitrary" restrictions (White v Chief Constable of S Yorks [1999] AC 455, 502 per Lord Hoffmann). I think the artificial control devices which have been employed "bring the law into disrepute" (Tame v NSW (2002) 191 ALR 449, 494 per Gummow and Kirby JJ) but there is no doubt that they exist in England.
