| Johnstone v Bloomsbury HA | |
|---|---|
 UCL Hospital | |
| Court | Court of Appeal |
| Citation | [1992] QB 333, [1991] 2 WLR 1362, [1991] 2 All ER 293 |
| Court membership | |
| Judges sitting | Stuart-Smith LJ, Leggatt LJ, Browne-Wilkinson VC |
| Keywords | |
| Unfair terms, implied terms | |
Johnstone v Bloomsbury Health Authority [1992] QB 333 is an English contract law case, concerning implied terms and unfair terms under the Unfair Contract Terms Act 1977. [1]
Dr Chris Johnstone was a junior doctor in the Obstetric Department at the University College Hospital. According to para 4(b) of his contract, he was expected to be available on call for 48 hours a week on average, on top of his 40-hour contract. His first claim was that it was a breach of the duty of care to have a contract which could cause foreseeable injury. His alternative claim was that the clause allowing him to be so long on call was contrary to the Unfair Contract Terms Act 1977 section 2(1).
Stephen Sedley QC represented Dr Johnstone.
The Court of Appeal held that Bloomsbury Health Authority had to pay damages for the harm to Dr Johnstone's health, and by a majority based this decision on the common law, but for different reasons.
Stuart-Smith LJ held that an implied term in law can prevail over an express term. He set out that there was a Duty A to be available for 48 hours, on top of 40 hours and a Duty B on the authority to not injure the employee's health. The Authority had the power to make the employee work 88 hours a week on average. "But that power had to be exercised in the light of the other contractual terms and in particular their duty to take care for his safety". As Lord Thankerton said in Wilsons and Clyde Coal Ltd v English [1938] AC 57, 67, "when a workman contracts to do work, he is not to be held as having agreed to hold the master immune from the latter’s liability for want of due care in the provision of a reasonably safe system of working". He also held that the Unfair Contract Terms Act 1977 (UCTA) s 2(1) would invalidate an 88-hour working week. He concluded saying that Bloomsbury Health Authority could only succeed if it showed the clause was an express assumption, or volenti,[ clarification needed ] but then it would still fall under UCTA 1977 through s 1(1). He finished by saying that it was a matter of "grave public concern" and Parliament should do something.
Leggatt LJ, dissenting on the common law point of implied terms, would have held, that tort cannot trump contract, as counsel Mr Beloff put it. However he did say that para 4(b) could be void under UCTA 1977.
Before he accepted that obligation he knew what it would entail. It may indeed be scandalous that junior doctors should not now be offered more civilised terms of service in our hospitals; ... But these are matters for negotiation by their association, or in default for amelioration by the legislature ... On the result, if the plaintiff fell sick during the performance of his employment by the defendants because it was too arduous for him, he did not do so by reason of any relevant breach of duty on the defendants' part.
Browne-Wilkinson VC said the implied term would circumscribe the scope of the express term, so that both coexist without conflict. When exercising its discretion about how long Dr Johnstone should work for, it would have to do so subject to its duty to not injure him. He stated the following. [2]
In my judgment there must be some restriction on the defendants' rights. In any sphere of employment other than that of junior hospital doctors, an obligation to work up to 88 hours in any one week would be rightly regarded as oppressive and intolerable. But even that is not the limit of what the defendants claim. Since the plaintiff's obligation is to be available "on average" for 48 hours per week, the defendants claim to be entitled to require him to work more than 88 hours in some weeks regardless of possible injury to his health. Thus the plaintiff alleges that he was required to work for 100 hours during one week in February 1989 and 105 hours during another week in March 1989. How far can this go? Could the defendants demand of the plaintiff that he worked 130 hours (out of the total of 168 hours available) in any one week even if this would manifestly involve injury to his health? In my judgment the defendants' right to call for overtime under clause 4(b) is not an absolute right but must be limited in some way. There is no technical legal reason why the defendants' discretion to call for overtime should not be exercised in conformity with the normal implied duty to take reasonable care not to injure their employee's health.
United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK have a minimum set of employment rights, from Acts of Parliament, Regulations, common law and equity. This includes the right to a minimum wage of £11.44 for over-23-year-olds from April 2023 under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995. Workers must be able to vote for trustees of their occupational pensions under the Pensions Act 2004. In some enterprises, such as universities or NHS foundation trusts, staff can vote for the directors of the organisation. In enterprises with over 50 staff, workers must be negotiated with, with a view to agreement on any contract or workplace organisation changes, major economic developments or difficulties. The UK Corporate Governance Code recommends worker involvement in voting for a listed company's board of directors but does not yet follow international standards in protecting the right to vote in law. Collective bargaining, between democratically organised trade unions and the enterprise's management, has been seen as a "single channel" for individual workers to counteract the employer's abuse of power when it dismisses staff or fix the terms of work. Collective agreements are ultimately backed up by a trade union's right to strike: a fundamental requirement of democratic society in international law. Under the Trade Union and Labour Relations (Consolidation) Act 1992 strike action is protected when it is "in contemplation or furtherance of a trade dispute".
L'Estrange v F Graucob Ltd [1934] 2 KB 394 is a leading English contract law case on the incorporation of terms into a contract by signature. There are exceptions to the rule that a person is bound by his or her signature, including fraud, misrepresentation and non est factum.
The Unfair Contract Terms Act 1977 is an act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of disclaimers of liability. The terms extend to both actual contract terms and notices that are seen to constitute a contractual obligation.
A contractual term is "any provision forming part of a contract". Each term gives rise to a contractual obligation, the breach of which may give rise to litigation. Not all terms are stated expressly and some terms carry less legal gravity as they are peripheral to the objectives of the contract.
English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the Industrial Revolution, it shares a heritage with countries across the Commonwealth, from membership in the European Union, continuing membership in Unidroit, and to a lesser extent the United States. Any agreement that is enforceable in court is a contract. A contract is a voluntary obligation, contrasting to the duty to not violate others rights in tort or unjust enrichment. English law places a high value on ensuring people have truly consented to the deals that bind them in court, so long as they comply with statutory and human rights.
The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the decision was unclear. The matter was then referred to the Law Commission for a report, and as a result the Occupiers' Liability Bill was introduced to Parliament by Lord Hailsham on 23 June 1983. The act was given royal assent on 13 March 1984 as the Occupiers' Liability Act 1984 and came into force on 13 May.
Smith v Eric S Bush [1990] UKHL 1 is an English tort law and contract law case, heard by the House of Lords. First, it concerned the existence of a duty of care in tort for negligent misstatements, not made directly to someone relying on the statement. Second, it concerned the reasonableness of a term excluding liability under the Unfair Contract Terms Act 1977, s 2(2) and s 11.
Contractual terms in English law is a topic which deals with four main issues.
Baltic Shipping Company v Dillon, the Mikhail Lermontov case, is a leading Australian contract law case, on the incorporation of exclusion clauses and damages for breach of contract or restitution for unjust enrichment.
Wilson v Racher [1974] ICR 428 is a UK labour law case concerning constructive dismissal. It serves as an example of an employer being found to have wrongfully dismissed an employee, because of the employer's own bad behaviour. Edmund-Davies LJ also made an important statement about the modern employment relationship,
What would today be regarded as almost an attitude of Czar-serf, which is to be found in some of the older cases where a dismissed employee failed to recover damages, would, I venture to think, be decided differently today. We have by now come to realise that a contract of service imposes upon the parties a duty of mutual respect.
Interpreting contracts in English law is an area of English contract law, which concerns how the courts decide what an agreement means. It is settled law that the process is based on the objective view of a reasonable person, given the context in which the contracting parties made their agreement. This approach marks a break with previous a more rigid modes of interpretation before the 1970s, where courts paid closer attention to the formal expression of the parties' intentions and took more of a literal view of what they had said.
Liverpool City Council v Irwin [1976] UKHL 1 is a leading English contract law case concerning the basis on which courts may imply terms into contracts; in particular in relation to all types of tenancies, a term may be implied if required for a particular relationship, such as for the landlord to keep the stairwells clear in a tower block. The tenants also had a duty of reasonable care which some among them had been repeatedly breached and led to a continuing breach in matters of damage about which they complained so they were not entitled to withhold rent on the facts.
In English law, implied terms are default rules for contracts on points where the terms which contracting parties expressly choose are silent, or mandatory rules which operate to override terms that the parties may have themselves chosen. The purpose of implied terms is often to supplement a contractual agreement in the interest of making the deal effective for the purpose of business, to achieve fairness between the parties or to relieve hardship.
Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23 is a leading English contract law and UK labour law case, which confirmed the existence of the implied term of mutual trust and confidence in all contracts of employment.
Johnson v Unisys Limited [2001] UKHL 13 is a leading UK labour law case on the measure of damages for unfair dismissal and the nature of the contract of employment.
R&B Customs Brokers Co. Ltd. v. United Dominions Trust Ltd. [1987] EWCA Civ 3 is an English contract law case, concerning unfair terms under the Unfair Contract Terms Act 1977.
Phillips Products Ltd v Hyland and Hamstead Plant Hire Co Ltd [1984] EWCA Civ 5 is an English contract law case concerning the Unfair Contract Terms Act 1977.
Stewart Gill Ltd v Horatio Myer & Co Ltd.[1992] EWCA 6 is an English contract law case relating to the Unfair Contract Terms Act 1977 (UCTA).
Unfair terms in English contract law are regulated under three major pieces of legislation, compliance with which is enforced by the Competition & Markets Authority (CMA). The Unfair Contract Terms Act 1977 is the first main Act, which covers some contracts that have exclusion and limitation clauses. For example, it will not extend to cover contracts which are mentioned in Schedule I, consumer contracts, and international supply contracts. The Consumer Rights Act 2015 replaced the Unfair Terms in Consumer Contracts Regulations 1999 and bolstered further requirements for consumer contracts. The Consumer Protection from Unfair Trading Regulations 2008 concerns certain sales practices.
South African contract law is "essentially a modernized version of the Roman-Dutch law of contract", and is rooted in canon and Roman laws. In the broadest definition, a contract is an agreement two or more parties enter into with the serious intention of creating a legal obligation. Contract law provides a legal framework within which persons can transact business and exchange resources, secure in the knowledge that the law will uphold their agreements and, if necessary, enforce them. The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing.