#5106 - Johnson V. Coventry Churchill - Conflict of Laws BCL

Johnson v. Coventry Churchill

Facts

The defendants were an English employment agency which recruited English personnel to work abroad worldwide. The plaintiff, who was an experienced joiner/carpenter, responded to an advertisement placed in a newspaper by the defendants seeking concrete shutterers for work in West Germany. He completed an application form and was hired under a contract which referred to him as a 'sub-contractor' and provided that he was at all times to work as and where directed by the defendants and their clients and that the defendants would pay the plaintiff his remuneration, which was referred to as a 'fee', less deductions for tax and national insurance contributions. The defendants arranged for the plaintiff and other hired workers to travel to Stuttgart, where they would be met by the defendants' area representative, who was responsible for the men's working arrangements and general welfare. The plaintiff travelled to Stuttgart and was directed to work on a site being developed by a client of the defendants'. About two weeks later the plaintiff suffered serious personal injuries while walking across two wooden planks positioned over an 8-ft deep trench on the site, one of the planks being so rotten that it gave way under his weight. West German law did not provide for an employer to be liable for personal injuries suffered by an employee as the result of the employer's negligence and the plaintiff therefore brought an action in England against the defendants claiming damages for negligence on the ground that the defendants, as his employers, had failed to comply with their duty to provide a safe system of work, including the provision of a safe means of access to and from his immediate place of work.

Holding

Court cited with approval this formulation of the Philip v. Eyre rule from Dicey:

(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both (a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and (b) actionable according to the law of the foreign country where it was done.

Court found that the defendant, if the act had been committed in England would have been liable in tort as the plaintiff’s employer. Court also found that under the law applicable in West Germany, the defendant would not be liable.

The court therefore concluded: It follows that the action does not satisfy the dual-actionability test and must therefore fail unless it can be brought within the exception envisaged in Chaplin v Boys [1969] 2 All ER 1085, [1971] AC 356.

Does this case fall within the exception in Boys v. Chaplin?

It is clearly possible to identify an issue that is differently decided according to English law and West German law, namely whether an employer should be liable to compensate an employee for injury suffered in the course of his employment through the negligence of the employer.

Policy of the Foreign rule: The purpose of the foreign rule excluding such liability was explained by Dr Reischauer. It was introduced as part of social security legislation to improve benefits payable to injured workmen whilst avoiding the need to inquire into questions of fault in such circumstances. Doubtless the contributions made by German employers towards state benefits reflect such a policy and the fact that they are freed of the responsibility to compensate employees for injury arising from fault on their part. It would seem therefore that there is nothing in the policy underlying the foreign rule that was ever intended to have any application to the case of an English citizen working for an English employer.

In so far as the plaintiff made national insurance contributions and the defendants made contributions in respect of him, these were made in England to the English scheme. Regulations made by the Council of the European Communities make provision for reciprocal arrangements for nationals of one member state whilst resident in another member state and whilst these had a bearing on the situation of the plaintiff, they did not...