Accidents abroad
People working outside the UK face less sympathetic laws. An increasing number of people are going abroad to work, but unfortunately more and more of them are having accidents at work.
Tony Lawton, a personal injury partner with Thompsons, warns that it is complicated enough pursuing a claim for compensation against UK-based employers, but almost impossible against foreign employers.
UK-based employers
Employers based in this country are responsible for the health and safety of their employees, even if they are working abroad. That means they have to assess the risks facing their employees, and take reasonable steps to ensure that they have a safe place of work.
For instance, if an employer sent their employee to the tropics and did not advise them to immunise themselves and they contracted malaria, the employee might be able to pursue a claim in those circumstances.
However, even these cases are difficult to prove as the employer does not have an “absolute” responsibility. If, therefore, the employer could show they did what they could and that the injury was caused by someone else, then the claim would not succeed.
Foreign employers
Things are even more difficult for employees working for a business without a registered office or place of business in this country. Their only hope is to try to pursue a claim in the country where the injury happened.
That means finding a lawyer in that country who specialises in personal injury to lodge a claim within the relevant time limit. This country has a limitation period of three years, but it is much shorter in many foreign jurisdictions.
And legal systems elsewhere often cannot recover the legal costs of the claim, so anyone instructing a foreign lawyer will need to pay them upfront, unless they can agree a contingency arrangement (whereby they pay up after the damages have been recovered).
Given all these obstacles, employees should generally try to bring their claim here rather than abroad, with the exception perhaps of the USA where more generous damages can be awarded.
Forum shopping
Because compensation awards in England are generally bigger than most other jurisdictions, some employees have tried to bring their claims in England even though the accident occurred abroad. This is known as forum shopping.
In Harding -v- Wealands, for instance, an English woman was allowed to bring proceedings in the UK, although she was a passenger in a road traffic accident in Australia. Although it was decided that the issue of liability and the types of damages were governed by Australian law, the House of Lords held that the assessment of her damages was governed by English law.
The point can also be argued the other way, however. In Roerig -v- Valiant Trawlers Limited, the Court of Appeal found in favour of a Dutch woman whose Dutch partner was killed on an English registered trawler owned by an English company. It tried to argue that Dutch law should apply as the matter was “substantially” more connected with Holland than England – the deceased and his dependants were Dutch and the trawler had been sailing from a Dutch port. The Court of Appeal said that was not enough to warrant a finding that Dutch law was “substantially” more applicable.
Accidents in the EU
Things are easier if the accident is in the European Union, however. If someone is involved in, say, a motor accident, the law says that they can issue court proceedings against the insurer of the person responsible for the accident.
And if the employer or organisation against whom the employee wants to claim has no registered office or place of business in this country, they can refer to the directory of the Pan European Organisation for Personal Injury Lawyers which lists personal injury lawyers in each jurisdiction.
Beware
So the moral of the story is: beware when travelling abroad to work. You may still have the right to pursue a claim for compensation, but it is likely to be a much more difficult process than if you had stayed at home.