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Date: Fri, 19 Oct 2007 17:53 From: Ken Oliphant Subject: Johnston v NEI
If they have a cause of action which gives them no effective remedy, then - no - they don't have a "perfectly good" claim. And you haven't yet convinced me that they have any effective remedy. Quite apart from the difficulties that would attend the award of damages, there's the general reluctance to award specific performance of a contract of employment, and of course the question whether literal enforcement of an obligation of due care is ever appropriate. Anyway, my starting point is wholly different from Robert's, John's, Michael's and others'. "Employers' liability" is primarily tortious, not contractual. Tort is the general law and contract is the special case. One does not, by entering into a contract of employment, lose one's rights under the general law (i.e. tort), unless that is part of the agreement. One may, of course, acquire additional rights (e.g. the right to a wage or salary) which are not enforceable in tort. What we are debating here is what those additional rights are. A difficulty we all face is that many of the "candidate rights" we've been discussing (e.g. the right not to be subjected unreasonably to unreasonable levels of asbestos) are never expressly spelled out in the contract. Further, the contractual duty is said to be "commensurate" with that in tort (Lord Scott, at [74]). So: what we're being asked to do is to imply into the contract obligations on the employer which are identical to those the employer already owes, for no other practical reason than to allow the employee to bring a claim when s/he has suffered no injury. Even if we ignore the practical difficulties and anomalies that would result, I have to ask: what theory of implied terms justifies such a conclusion?
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