Johnstone v Bloomsbury Health Authority

Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293 is an English contract law

English contract law

English contract law is a body of law regulating contracts 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 , and the United States...

case, concerning implied terms and unfair terms under the Unfair Contract Terms Act 1977

Unfair Contract Terms Act 1977

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...

Facts

Dr Chris Johnstone was a junior doctor in the Obstetric Department at the University College Hospital

University College Hospital

University College Hospital is a teaching hospital located in London, United Kingdom. It is part of the University College London Hospitals NHS Foundation Trust and is closely associated with University College London ....

. 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

Unfair Contract Terms Act 1977

section 2(1).

Stephen Sedley QC represented Dr Johnstone.

Judgment

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 UCTA 1977 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, 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

Tort

A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

cannot trump contract, as counsel Mr Beloff put it. However he did say that para 4(b) could be void under UCTA 1977.
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.

Facts

Judgment

See also