Date: Tue, 23 Oct 2007 07:14

From: John Murphy

Subject: Johnston v NEI: final thought

Dear All,

I have changed my position. I don't just think that there is in principle an action in contract that should produce little more than nominal damages: I accept Rob's point about the cost of diagnosis being recoverable, too.

But just because the tort action for damages is hopeless doesn't mean that there is no wrong done to the claimant. As such, I think that a mandatory injunction might be available against an employer who continues to expose workers to a threat to what Zipursky and Goldberg called (in their "Unrealized Torts" article in the Virginia Law Review) "the plaintiff's interest in being able to function society free from the pall of a significant threat to his well-being". The only problem is that exposure to such risks are treated along the lines of damnum sine injuria. [Note, however, that does not mean that a interesting case cannot be made in favour of liability for such risks: see David McCarthy's risk liability theory in "Liability and Risk" (1996) Philosophy and Public Affairs 238 and T. Handfield and T. Pisciotta, "Is the Risk-Liability Thesis Compatible with Negligence Law" [2005] Legal Theory 387.]

So one interesting question is this: if the time for obtaining an injunction has passed, what is the limit of what contract law can provide for us? And here's where I want to push the boat out a bit!

Picking up on Rob's point about the nature of the expectations generated by non-commercial contracts being very different from those generated by commercial contracts, I would now suggest that one could plausibly argue - depending on what one thinks such damages are for - that an employer who flagrantly (or something close to flagrantly) exposes employees to distress and anxiety by virtue of certain exposures at work (to asbestos, excessive cigarette smoke or whatever) could be made liable for aggravated damages in contract. Now I know that it is generally thought that such damages have no role in contract law, but I see no reason in principle why not if the contract is of a kind the breach of which will naturally induce anxiety and distress, especially if the breach can be traced to the kinds of morally tainted conduct on the part of the employer that justify the award of such damages in tort.

So, to sum up, I believe (i) that basic contract rules allow at the bare minimum a claim for damages that reflect the value any of us would place on not being exposed to potentially fatal substances, (ii) that even the court would be minded to award no more than nominal damages for the breach, the costs of diagnosis would be recoverable and (iii) in certain circumstances I would even countenance and award of aggravated damages.

If you disagree, please say so off-list so long as you suspect, like me that four or five of us are in serious danger of boring the rest to tears.

John M

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