Date: Fri, 19 Oct 2007 14:45

From: Michael Jones

Subject: Johnston v NEI

Dear John,

It may be "logical" in theory - whether the House of Lords would be happy to have several hundred thousand (or more) contract claims clogging the legal system for all the health and safety breaches by employers that give rise to a risk of future harm to employees is another matter. In theory, all employers' liability claims should be framed in contract (at least those based on negligence, as opposed to breach of statutory duty) - do you think that if the claim failed on causation (i.e. the breach produced no actionable damage as we understand that term in tort) the claimant should still be entitled to his costs in the action on the basis that there was a breach of contract, albeit producing no personal injury, since the breach created a risk of future personal injury. You would not even need to prove the risk of future harm, since if the breach of contract is actionable per se the employee does not have to prove any damage at all. If the claimant is entitled to his costs, on the basis that his contract claim has succeeded (though with, presumably, nominal damages only), counsel had better start pleading the claims in both tort and contract (or risk the subsequent professional negligence claim).

The one advantage that I can see (for you and me, at least) of moving employers' liability claims from tort to contract is that the Contract textbook writers would have to deal with them rather than the Tort textbook writers ...

Michael

--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: John Murphy  
Sent: Fri 19/10/2007 13:31
Subject: RE: 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.

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