No “pick and mix” between English and foreign law in fatal accident claims - Dan Clarke, 3 Hare Court

24/11/11. In Cox v Ergo Versicherung AG [2011] EWHC 2806 (QB) the High Court (Sir Christopher Holland) has handed down an important decision on the scope of application of the Fatal Accidents Act 1976 in claims involving accidents overseas.

Background

The Claimant was married to a Major in the British Army, stationed in Germany, who was unfortunately involved in a fatal road traffic accident while riding his bicycle there in May 2004. The Claimant was left as his sole dependant. The accident was wholly the fault of the German car driver. Liability was admitted. 

The Claimant subsequently issued proceedings in England, directly against the German driver's motor insurer (i.e. an Odenbreit claim). The Claimant pleaded that the applicable law was German law, pursuant to the Private International Law (Miscellaneous Provisions) Act 1995 (no argument to the contrary being plausible). 

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November 2011 - PI Practitioner

Psychiatric injury in the workplace - claims in contract

Where psychiatric injury was caused by the manner of the Claimant's dismissal

• In the case of Johnson v Unisys [2001] UKHL 13, [2003] 1 AC 518 the House of Lords found that there was no action in common law available to an employee seeking to recover for damage caused by the way in which he was dismissed. The claimant in Johnson's case was attempting to circumvent the statutory cap on damages for unfair dismissal.

• The boundaries of the decision in Johnson were set out by the House of Lords in the case of Eastwood & Anor. V Magnox Electric Plc [2004] IRLR 733. It was held at [27] that:

'The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee's remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal.'
Successful claims where psychiatric injury is caused by a breach of the implied term of trust and confidence

• In McCabe v Cornwall CC, which was decided as a conjoined appeal with Eastwood in the House of Lords, the claimant was employed by the respondent as a teacher. He was accused by students of inappropriate sexual conduct. He brought an action for psychiatric harm arising from his suspension and the failure of his employers over the course of four months to investigate properly or inform him of the allegations against him. The Court of Appeal ([2003] IRLR 87), whose decision was upheld by the House of Lords, found that the judge in the High Court had been wrong to strike the claim out. The decision in Johnson could not be interpreted as excluding a common law claim for damages for psychiatric injury arising out of an alleged breach of the implied term of trust and confidence whenever a dismissal eventuates.

• In Gogay v Hertfordshire County Council [2000] IRLR 703 (CA) the claimant was suspended by her employer pending an investigation into an allegation of sexual abuse made by a child in her care. This suspension was found to be unjustified and to be a breach of the implied term of trust and confidence. The Claimant suffered psychiatric injury as a consequence. It was held that since the claimant had suffered psychiatric illness rather than hurt feelings, the matter was distinct from the case of Addis v Gramophone Co Ltd [1909] AC 488 HL. Also that the restriction in Johnson v Unisys did not apply since the action of the employer in question was a suspension rather than a dismissal.

The Increasing Rights of Policy Holders Under BTE Legal Expense Insurance Contracts - Anna Macey, 12 King's Bench Walk

14/11/11. There have been more developments to the law concerning the rights of policyholders to appoint their representatives under BTE legal expense insurance contracts. In Webster Dixon & ors v Equity Syndicate & ors [2011] EWHC 2661 Burton J held that 1) it was contrary to European and domestic law for an insurer to refuse a clients’ request for a non-panel solicitor on the basis that the solicitor charged more than the insurers rates for non-panel solicitors, and 2) that in appropriate cases the policy holder also had the right to change lawyers.

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