Date: Fri, 13 Oct 2006 10:27:20 +0100

From: Ken Oliphant

Subject: Employer's claim for injury to employee

I just thought it looked odd! As I've explained in another attempted post - currently lost in the ether, though hopefully Jason will post it for me if it doesn't appear of its own accord - this was a bit of a cheap shot.

But there's a stronger point behind: why should a "primary" duty to A prevent a (secondary) duty to B? (Which is your point too.) Plus: who's to say where the primary duty points? (Consider El-Safty: WBA exercising its contractual right to make A see its nominated doctor.)

K

-- On 13 October 2006 09:14 +0100 "Hedley, Steve" wrote:

I'm not sure why Ken says '????'. The doctor's job in case 1 is primarily to benefit the patient, whereas the job in case 2 is primarily to benefit the employer. There are certainly ambiguities in who, precisely, the client is - I share Neil's doubts whether the court should have denied a contract between doctor and employer in El-Safty - but the allocation of the main duty isn't very surprising. This leaves the White v. Jones dilemma, of whether allowing another party to sue can be said to interfere with the main duty. Obviously there is a potential for conflict - in some cases, what is in the player's interests isn't in the employer's - but with the majority in White I'm not sure that should be used to deny liability in a case where, on the facts, there is no conflict.

Kapfunde v Abbey National plc is at [1999] ICR 1: headnote follows. It would be curious to make duty turn on whether they had met face-to-face, especially as one issue on breach of duty may well be whether the doctor should have insisted on such a meeting.

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

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