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Date: Fri, 19 Oct 2007 21:29
From: Michael Jones
Subject: Johnston v NEI
Dear Robert,
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 (e.g. 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.
I would suggest that this obligation, i.e. to "protect their staff from attacks by third parties" derives from the relationship between the parties and not the contract per se. If, for example, a volunteer worked at a charity shop gratis (i.e. there is no contractual relationship because the "worker" is literally a "volunteer") and as a result of the "employer's" negligence is subject to an assault, I have no doubt that there would be a duty of care owed in negligence. I would be amazed if any court in any jurisdiction considered that a different result should apply because in one case there was a contract of employment and in my example there was none. This duty may well be said to derive from the employer's "voluntary assumption of responsibility" but it can hardly derive from the non-existent contract. Thus, the contract of employment may well provide the context for the substance of the obligation, but it is not, per se, the source of the obligation.
Nor do I attribute to you the argument that "the only rights that employees have against employers are those found in their contract, as Michael seems to think I am". Since I assume that the employer-employee relationship involves obligations in contract, tort and equity (for example, obligations of confidentiality - which, no doubt, someone will now tell me is an implied obligation in the contract, and not an equitable obligation at all) I would not attribute to someone else a much narrower view of that complex relationship.
Bottom line, is that I agree with Ken's statement that: "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". At the end of the day, litigation has to be about practical remedies (you can theorise about this "until the cows come home"). If the claimants have no substantive remedy in tort in Johnston the claim that they have a right to nominal damages for breach of contract is about as useful as the proverbial chocolate fireguard (see Adam's comment re: abuse of process and costs).
It might be interesting to see what the House of Lord’s reaction would be to a Johnston claim based in contract. I recollect some suggestion in the House of Lords in the case of McFarlane v Tayside Health Board that a suitably worded contract might have produced a different result in that case (which was that parents who had given birth to a healthy child could not recover in the tort of negligence for the economic cost of raising a healthy child where a doctor had performed a sterilisation operation negligently or given negligent advice about sterilisation). This was soon followed by obiter comments at first instance (in Richardson v LRC Products Ltd) that there could be no claim against the manufacturer of an allegedly defective condom for the cost of raising a healthy child, even though there was a clear contract, and one of the obvious consequences of a defective condom is the conception and birth of healthy child. I mention this simply as an example of how the courts tend to make implied contractual terms march to the beat of the tort drum.
All the best,
Michael
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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: Robert Stevens
Sent: Fri 19/10/2007 18:17
To: KA Oliphant
Cc: 'Obligations Discussion Group'
Subject: Re: ODG: Re: 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.
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