Article 6 Brussels I Regulation and the work injury of a British citizen in Belgium

Categories: Employment Law
Typology: Case Law
Tags: Worker

The High Court of Justice of England and Wales delivered on 7th May 2015 its judgment in Shannon v Global Tunneling Experts UK Ltd and alii ([2015] EWHC 1267 (QB), (Judgment 7 may 2015).

The facts were the following. The claimant is a British citizen who had been working on a railway construction project in Antwerp (Belgium) since May 2010. He suffered personal injuries following an accident which occurred in Belgium in March 2011. The claimant contends that his employer was a company domiciled in England and Wales. However, the main contractors responsible for the project are domiciled in Belgium ("the Belgian Defendants”). The question is therefore: Does the English Court have jurisdiction over the Belgian Defendants?

The judge (Justice Jay) believes that it is not possible to articulate a composite set of principles which unify, or harmonise, the decisions of the ECJ in this area, because they are not altogether consistent with one another. The decision which he finds to be the most problematic is Roche Nederland (C-539/03), because on one reading of that case a claimant seeking to rely on Article 6(1) Brussels I (Regulation 44/2001) in order to remove his claim from the general rule of Article 2 would fail if the "legal situation" is different, in other words if the causes of action are governed by different national laws. However, he considers that the ECJ has resiled from this strict line in Freeport (C-98/06), in particular in paragraph 47. In situations where the outcome is capable of turning on a point of law (e.g. England and Wales Court of Appeal, Gard Marine, 6 October 2010, [2010] EWCA Civ 1052), the application of different legal regimes will mean that no risk of "irreconcilable judgments" arises. However, in cases which are heavily fact-dependant, and which may also turn on questions of law, the ambit of inquiry for Article 6(1) purposes must be much broader: it must embrace "all the necessary factors in the case file" (per paragraph 41 of Freeport), accepting the element of circularity inherent in the use of the epithet "necessary". As in many legal situations, this is a domain where context is all. The judge is guided by the broad common sense approach, eschewing over-sophisticated analysis, enjoined by Thomas LJ in Gard Marine (see paragraph 24 of Gard Marine). The judge then states that the context here is the relatively familiar one of a multi-party claim for personal injuries where the claimant's principal target is his employer, by whom a non-delegable duty is owed, and his secondary target is the entity responsible for the machine which allegedly caused his accident. The employer is not of course vicariously liable for the employees of the Belgian Defendants and Global Tunnelling Experts BV, but it is directly liable in respect of matters relating to the system of work which it is incapable of delegating. In these circumstances, it seem clear that any court trying this case, whether against the first defendant or the Belgian Defendants, would have to resolve the following issues of fact, namely: i) exactly how the accident happened; ii) the state of the machine, and who knew or ought to have known about it; iii) the condition of the ramp and surrounding area, and who knew or ought to have known about it; iv) the system for maintaining the machine and the workplace in general; v) the overall system of supervision, who gave instructions to whom etc; vi) the possible contributory negligence of the claimant. Although witnesses would doubtless have to be called for the first defendant, the Belgian Defendants and the Dutch subcontractor, the resolution of these issues of fact is, or should be, common to the causes of action advanced against both sets of defendants. Therefore, the judge decides at 45 that there is a risk of irreconcilable judgments arising from separate proceedings, and Article 6(1) of the Brussels Regulation applies to the instant case. He later adds that insofar as Article 19 applies to the present case, it enables the claimant to sue the first defendant in the courts of its domicile. Articles 18-20 have no application to the claim against the Belgian Defendants, because no relevant contract of employment exists (para. 57). The general conclusion is that “The Belgian Defendants' application must be dismissed” (para. 60).

(Altalex, 11 January 2016. Article by Emmanuel Guinchard)

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