Date: Fri, 19 Oct 2007 18:17

From: Robert Stevens

Subject: Johnston v NEI

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?

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.

We don't specifically enforce an employee's duty to work because we don't allow slavery. No such considerations apply when we are considering the employer's duty to provide a safe system of work.

If in Johnston the claimants had incurred medical expenses having themselves diagnosed following the exposure, that consequential loss should be recoverable too. But to get it you'll have to rely upon the breach of contract as there is no general right not to suffer economic loss.

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.

If I collapse ill at work I do not have a right against you or anyone else on this list, that you take positive steps to help me. If you see me collapse you can walk away.

My employer, by contrast, may be under duties to provide medical care. There are also cases where employers are obliged to protect their staff from attacks by third parties (eg Rahman v Arearose Ltd [2001] QB 351). You are not under any duty to protect me from being punched by someone else on this list.

Why is my employer in a different position from a bystander? Where do these positive obligations come from? Because I have an additional right against my employer arising from the contractual relation between us. This right is contractual because I provide consideration for the employer's undertaking of these duties.

So my additional rights against my employer are observably different from the rights I have against everyone else, which are essentially negative.

Now, you might say that these positive duties are still part of the 'general law' because these duties arise by operation of law. But that trivial objection is true of all contractual obligations: they would not exist without the legal system. Another trivial objection is that these duties are not expressly spelled out. But that is true of a seller's duty that his goods are of satisfactory quality. Without the contract the right would not exist and the law has default rules for determining what the essential obligations undertaken are. I don't need any novel theory of implied terms to explain this, anymore than I need a novel theory to explain why if I buy defective goods I have a claim for breach of contract.

Robert

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