Date: Tue, 23 Oct 2007 10:45

From: Ken Oliphant

Subject: Johnston v NEI

Thanks Robert for your response, which helped me understand your argument. (Apologies if I was being obtuse in failing to do so previously.) As John has gently suggested we wind down, here are my final thoughts:

1. I am a legal positivist. I think the law "runs out" and we sometimes (not often) have to make a choice as to the appropriate legal rule in circumstances where no particular answer is indicated by the law. The area we are talking about is one of those rare areas.

2. Exposing an employee to an unreasonable risk of personal injury is clearly capable of being a breach of contract. I don't think anyone could sensibly contend otherwise. The most obvious legal manifestation of this - which I don't think anyone has yet mentioned (I may be wrong) - is the doctrine of constructive dismissal. An employee exposed to an unreasonable (and continuing?) risk of personal injury may be entitled to accept the employer's repudiatory breach, terminating the employment, and seek damages/compensation for wrongful/unlawful dismissal.

3. What we are debating are the other (alternative or additional) remedies open to the aggrieved employee. I have expressed doubts about the availability of literal enforcement (which I won't pursue in this post) and certain heads of damages. I don't think anyone here is free from doubt. These are matters worth debating.

4. Where my thinking may differ from others is in the relevance to the contract remedies of the pattern of rights and liabilities in tort. The considerations which demand a limited conception of "damage" in tort may (but need not) justify a similarly limited conception of recoverable loss in contract. Distributional equity between different claimant groups - employees vs supplied labour, etc. - should be taken into account, at least where the law is uncertain (as here), but I don't pretend that they dictate any particular answer. I recognise that the employee has different rights from others because of the contract of employment, but I don't think that that observation without more answers the questions we are debating.

5. I am very doubtful about the availability of contract damages for risk. The loss of a lottery ticket scenario is (in my opinion) different and exceptional. The point of the transaction is to give the purchaser the chance of a financial gain. As those who know more about contract law than I do have not come up with any more convincing analogy for the award of contract damages for risk, I assume that none exists.

6. The fact that one can assign a financial value to a risk is not, to me, conclusive. One can assign a financial value to almost anything. I would be willing to pay good money for guaranteed peace of mind, but does not mean that distress is a loss which contract law will generally compensate.

7. In the Johnson scenario, I would argue that the right to contract damages in respect of the risk accrues only when (and if) the risk materialises. Cf. the position in tort after Barker (in the view of at least some members of the House of Lords): the claimant suffers "damage" when exposed to the risk, but can only sue when, and if, the risk materialises. I realise that this leaves open, to some extent, what one means by the "materialisation" of the risk. (Does it include the development of a recognised psychiatric condition because of the uncertainty?)

8. The question of preventative/diagnostic medical expenses is very interesting. I previously threw out the perhaps provocative suggestion that English law should reconsider the recoverability of such expenses in tort. I know that at least some other jurisdictions allow such claims in some circumstances, but I don't have any fully-formed views on this.

9. Thanks to all who have contributed to a (to me) stimulating debate. Apologies to anyone who has been bored by it.

Ken

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