Date: Fri, 19 Oct 2007 13:31

From: John Murphy

Subject: Johnston v NEI

Dear Michael:

Surely Robert has a point. There's a well-established difference in contract between primary contractual duties (e.g., to supply a safe place of work) and a secondary contractual duty (to pay damages for a right to compensation for consequential loss arising out of the breach of the first right).

This just follows, if memory serves, from the Diplockian approach contractual duties in Photo Productions v Securicor, doesn't it. Remember all that stuff about general and anticipatory secondary obligations (which would cover the breach and the consequential loss (if any)?

So looking at the case, we can hardly say there has been no breach of the primary duty. That leaves the question of quantum. But that there has been a breach that is in principle actionable is beyond doubt as I read it.

John M

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