Case Note: Rai v Ministry of Defence; judgment of 9 May 2016; High Court (QB) Middlesbrough District Registry; HHJ Gargan - Philip Mead, Old Square Chambers
17/05/16. Facts: employer’s liability claim. Claimant suffered a head injury during the course of training when kicked by a horse. Accident happened in Alberta, Canada. The training course was conducted by a Canadian third party, under a contract for services governed by Alberta law, such services provided for the benefit of the Defendant.
Dispute: whether Canadian law or English law applied as the proper law. The preliminary issue as to the identity of the proper law addressed issues as to (i) whether the Rome II Regulation 864/2007 applied (namely, whether the dispute concerned a civil and commercial matter (the Claimant’s case) or acta iure imperii (an act involving the exercise of sovereign authority) (the Defendant’s case); (ii) if the claim involved a civil and commercial matter, whether the Defendant could disapply the proper law otherwise applicable between the parties, namely English law, in favour of Alberta law (the Defendant’s argument); if the claim involved the exercise of sovereign authority (acta iure imperii), whether under the Private International Law (Miscellaneous Provisions) Act 1995, section 12 applied to disapply the otherwise applicable law being the law of the place of the accident (the Claimant’s argument in the alternative).
Held: (1) a training ground exercise, even if deliberately constructed to apply to adventurous training involving risk, so as to be applicable and appropriate to members of the armed forces including the Claimant, did not involve the exercise of sovereign power (acta iure imperii). Therefore the regime under the Rome II Regulation 864/2007 applied because the claim involved a civil and commercial matter;
(2) the proper law under the Rome II Regulation, Article 4(2) was English law. The Defendant failed in its argument that there was a manifestly more close connection with Alberta law, in accordance with Article 4(3) so as to disapply the proper law otherwise applicable;
(3) (obiter) had the Rome II Regulation not applied on the basis that the claim involved the exercise of sovereign power (acta iure imperii), then it would have been appropriate to disapply the otherwise applicable law under section 12 of the 1995 Act so that English law would have applied to govern the conduct of the Defendant towards its servant or agent the Claimant when exercising that power.
Comment: this case illustrates two important points: firstly that wherever members of the armed forces are training abroad, employer’s liability claims are likely to be governed by English law, irrespective of the law of the place of the accident; secondly that obscure issues of characterisation can create significant argument needing detailed and extensive rebuttal.
Philip Mead
Old Square Chambers
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