Trouble abroad

The extent of employers' responsibilities when sending staff abroad on business trips has come under scrutiny with two recent cases, Cassley v GMP Securities Europe LLP and Sundance Resources Limited [2015] EWHC 722 (QB) and Dusek v Stormharbour Securities LLP [2015] EWHC 37 (QB).

With business trips now common, especially in the fields of energy, natural resources, international development, and security, all employers would be well advised to review their current arrangements and processes.

Both judgments raise the stakes in employer liability for both death and injury suffered by employees when engaged in overseas travel. The claims concerned air crashes in remote areas of the world, the Republic of Congo and Peru respectively.

the flight involved some risk and had asked the deceased’s employer, GMP, to waiver any liability for death or injury. The employer signed the waiver but the charterer omitted to sign it; therefore, the waiver was deemed to have no legal effect. The primary cause of the crash was pilot error.

Dismissing the claim, Mr Justice Coulson acknowledged that the employer had owed the deceased a common law duty to provide a safe place to work and also had a non-delegable duty to take reasonable care to see he was reasonably safe during his travels.

The court found that the employer had taken no appropriate steps but concluded the claim failed on causation, as GMP had no reasonable way of knowing that the carrier had been changed at the last minute. Further enquiries at the time would have revealed the replacement charterer was recommended by other pilots and had all the necessary licences and insurance. Interestingly, the court also confirmed that the waiver would have offended the Unfair Contract Terms Act 1977.

In Dusek, the defendant, Stormharbour, argued it was not required to do anything to ensure the safety of the deceased employee. Based on what it knew, the company concluded the risk of an accident was slight and not sufficiently likely to have warranted any action.

The court’s view was that many of the factors relied upon by the employer were more relevant to what would have been learned had some safety inquiries been made, therefore highlighting the need for some investigation to have been undertaken. Had it made safety checks, Stormharbour would have instructed its employee not to take the flight because of safety concerns, and he would have listened. The employer’s breach caused the employee’s death.

The message is clear – all employers should satisfy themselves that trips are safe and make relevant inquiries. They should review the latest Foreign and Commonwealth Office advice and beware of the situation where other parties are organising or are responsible for activities. The duty of care is not delegable.

Conflict of laws

The insurance status of an at-fault driver who injures an English person abroad can have a critical impact on the level of damages that may be awarded.

If the defendant is insured, the damages claim must be made in the EU member state where the accident happens. But if the defendant is an uninsured or untraced driver, a damages claim can be pursued in England, where it is likely the payout will be higher.

This position was challenged recently in Moreno v the Motor Insurers' Bureau (MIB) [2015] EWHC 1002 (QB), which examined an incident where an English woman holidaying in Greece in 2011 had been struck by a vehicle and suffered serious leg injuries. The vehicle's driver was uninsured and so the claimant brought a claim in the English court against the MIB under the Motor Vehicles (Compulsory Insurance) (Information Centre(Information Centre and Compensation Body) Regulations 2003. 

All agreed that had the driver been insured, the assessment of the claimant’s damages would have been made under Greek law because of the application of article 4 of Regulation (EC) No 864/2007 (Rome II), as in the Court of Appeal's judgment in Wall v Mutuelle de Poitiers SA [2014] EWCA Civ 138.

However, regulation 13(2) of the 2003 regulations states: ‘(2) Where this regulation applies: (a) the injured party may make a claim for compensation from the compensation body, and (b) the compensation body shall compensate the injured party… as if… the accident had happened in Great Britain.’

As a result, the preliminary issue to be decided was the conflict between the wording of the 2003 regulations and the effect of Rome II. In the High Court, Mr Justice Gilbart found for the claimant. In a regulation 13 claim, the law by which the assessment of compensation is made should be the law of England and Wales. The effect of regulation 13 (and 16) remained the creation of a cause of action, enforceable as a civil debt, in which the compensation would be  assessed on the basis of English law.

However, the basis of the judgment was that the High Court was bound by the Court of Appeal’s decisions in Jacobs v MIB [2010] EWCA Civ 1208 and Bloy and Ireson v MIB [2013] EWCA 1543.

While Gilbart J felt there was limited merit in the MIB’s argument that the 2003 regulations were misinterpreted by the court, he suggested there was ‘very considerable force’ to the MIB’s contention that Jacobs was nonetheless wrongly decided because it did not interpret the 2003 regulations in a way which brought them into conformity with article 4 of Rome II. 

In light of the Moreno judgment, the MIB is to seek a Supreme Court precedent stating that since the coming into force of Rome II, regulation 13 should not be applied to permit an assessment of damages that is beyond the scope and/or limits imposed by the national law of the EU member state where the relevant accident took place.

Claims against the MIB which turn on this question are likely to be stayed, pending the outcome of the MIB’s appeal.

Sufficient investigation

In Shafi v Her Majesty's Senior Coroner for East London [2015] EWHC 2106 (Admin), the claimant made an application under the Coroner's Act 1988 to quash the inquest into the death of her son and seek a fresh investigation and inquest on the basis of insufficiency of inquiry.

Her son was a British national who travelled to Dubai as a tourist, where he was arrested for assault and placed by the police in solitary confinement. He died five days later.

Despite rumours about his rough handling while in jail, medical evidence (both local and English) showed otherwise, but experts disagreed about the actual cause of death. The Dubai examiner gave the cause as ‘asphyxiation due to vomit’; the English examiner found no significant traumatic injuries and an unascertained cause of death. 

The original inquest sought input from the Foreign and Commonwealth Office and the local Dubai authorities, and evidence was received (save for CCTV footage). The court noted that a coroner had no powers either to compel disclosure of documents or secure the attendance of witnesses from abroad to assist with inquiries.

It also accepted that there has to come a time when a coroner presses ahead with an inquest and exercises their discretion in light of the available information together with any submissions from interested parties. The court highlighted that attendance at court should include consideration of evidence being given via video conferencing; this had not been considered at the original inquest.

The application also raised the issue of whether the matter should have been held before a jury. Section 7 of the Coroners and Justice Act 2009 gives coroners discretion to hold jury inquests in such cases. The coroner determined a jury was not required on this occasion.

Having reviewed the legislative policy and common law, the court agreed, but gave no definitive ruling on the point as, by then, it had already determined that a fresh inquest should be conducted.

Significantly, the court considered that coroners should be extremely vigilant about any death in custody abroad, especially if it was a suspected violent or unnatural death.

Finally, the court indicated that a pre-inquest review hearing should have been held. As general guidance, it was observed that deaths overseas are very likely to require such a hearing, especially where there are issues regarding obtaining evidence from witnesses abroad, disclosure, scope and timing, and whether a jury should be summoned.

On a practical level, practitioners can conclude that all inquests involving individuals who have died abroad should be thoroughly investigated; this matter is due to be reheard in the future. SJ

Dr Julian Morris is a partner and member of the travel law team at Parabis Law @ParabisGroup