Date: Fri, 19 Oct 2007 19:17

From: Ken Oliphant

Subject: Johnston v NEI

--On 19 October 2007 18:17 +0100 Robert Stevens wrote:

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.

Another reason for the refusal of literal enforcement is the difficulty of supervision or enforcement. That does apply to the duty we're considering here.

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.

Which just shows the extent of the judicial error in overruling Anns ... ;-)

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.

In your claim for damages against the employer, do we assess the remoteness of your loss by reference to what was foreseeable at the time of contracting, or at the time your employer negligently fails to provide care? (Any different in a case of non-contractual undertaking?)

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, any more than I need a novel theory to explain why if I buy defective goods I have a claim for breach of contract.

It's not trivial at all. If you're asserting that the implied contract obligation is more onerous than the tort obligation, then it's reasonable to ask why you think so. Note that I didn't ask for a "novel" theory. Any theory will do. But I am interested in why you think what you say is something more than bare, unsupported assertion.

This last comment also applies - with appropriate amendment - to your assertions as to what rights people actually enjoy.

Best
Ken

----------------------
Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS8 1RJ.

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