Date: Tue, 23 Oct 2007 08:02

From: Neil Foster

Subject: Johnston v NEI

Dear Hector

I found the article after searching for "asbestos" in the search box. I see that by "overturn" the reporter means "get the Scottish Parliament to change the law"; I had initially thought they meant appeal to the ECHR or ECJ or whoever does this stuff in Europe now. I make no comment on the UK politics but if this happened there would seem be a bit of a theme going on here, given the previous "overturning" of Barker v Corus by amendments to the UK Compensation Act. Still, that's OK - on the traditional view that is just the way it should work - the courts decide what the law is, Parliament can change it if it thinks it operates unfairly.

(And despite my support for Robert's views on a possible contract action, the practical utility of such an action is no doubt blunted by the statute of limitations provisions, as Lord Scott himself noted in Johnston - depending (does anyone know?) on how quickly pleural plaques develop after someone might have stopped working in an asbestos-related area. I guess a breach of an implied contractual promise not to provide a risky workplace is a continuing one, so that the worker could rely on the last possible occasion on which they might have been exposed.)

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Hector MacQueen 23/10/07 4:27 >>>

This story is of some possible interest in this connection.

  

Scottish fight on asbestos ruling
Telegraph.co.uk - United Kingdom
By Yvette Essen

A Scottish law firm is looking to overturn a landmark legal ruling that people with exposure to asbestos who are not suffering from any ...

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