Date: Fri, 19 Oct 2007 14:53

From: Adam Kramer

Subject: Johnston v NEI

I’ll stand off the substantive points as I’m about to go to Cumbria for a caravan holiday. However I will mention that if an employer faced a claim likely to lead to nominal damages, he could make a nominal offer to settle which, if refused, would protect his position on costs and indeed guarantee that even if the employee won he or she would still have to pay the employer’s costs. Less specifically, the post-Woolf Reform world of civil procedure means that unless there is a good reason for obtaining a declaration and nominal damages (e.g. it is useful for other purposes) then a Claimant would be unlikely to recover costs and would possibly even be seen to be abusing process. Add to that the fact that a litigant never recovers all of his or her costs (as some are always lost on taxation) from the other side, even if he or she wins and is awarded costs, and I think this floodgates argument not to be too worrying in practice.

Adam

-----Original Message-----
From: Jones, Michael
Sent: 19 October 2007 14:46
To: John Murphy 
Subject: RE: Johnston v NEI

Dear John,

It may be "logical" in theory - whether the House of Lords would be happy to have several hundred thousand (or more) contract claims clogging the legal system for all the health and safety breaches by employers that give rise to a risk of future harm to employees is another matter. In theory, all employers' liability claims should be framed in contract (at least those based on negligence, as opposed to breach of statutory duty) - do you think that if the claim failed on causation (i.e. the breach produced no actionable damage as we understand that term in tort) the claimant should still be entitled to his costs in the action on the basis that there was a breach of contract, albeit producing no personal injury, since the breach created a risk of future personal injury. You would not even need to prove the risk of future harm, since if the breach of contract is actionable per se the employee does not have to prove any damage at all. If the claimant is entitled to his costs, on the basis that his contract claim has succeeded (though with, presumably, nominal damages only), counsel had better start pleading the claims in both tort and contract (or risk the subsequent professional negligence claim).

The one advantage that I can see (for you and me, at least) of moving employers' liability claims from tort to contract is that the Contract textbook writers would have to deal with them rather than the Tort textbook writers ...

<<<< Previous Message  ~  Index  ~  Next Message >>>>>