Date: Fri, 19 Oct 2007 15:14

From: John Murphy

Subject: Johnston v NEI

Dear Michael,

I don't disagree with your point about the pragmatism of it all. And I'd add to it in this way: Suppose X comes forward and says of his employer "You wrongfully exposed me to asbestos dust. I'm gonna sue you". X sues on the basis of not having been provided with a safe place of work and he also expresses his anxiety about just what he has been exposed to. Taking his lead from you, X's lawyer sues in the alternative, suggesting contract and/or tort will ground the action. 20 years later, X suffers the onset of something really nasty, like mesothelioma, that wasn't detectable at the time he sued for the wrongful/worrying exposure. Can he then have a second bite at the cherry? I doubt it: res judicata.

As to tort textbooks' contents: my view is that you win some, you lose some. The contract guys have never complained about covering the Misrepresentation Act 1967 when, so far as I can see, such coverage it is better understood as a job for tort lawyers. By definition, the wrong occurs prior to, and outside the contract.

Best,
JM

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