Briefing Notes: Travel for NGOs
Speakers: Christin Tallon, partner, Leigh Day and Marie-Louise Kinsler, barrister, 2 Temple Gardens
The overriding lesson from this briefing was that UK based employers have a duty to take all reasonable steps to ensure the safety of their staff at all times. This is an onerous duty and the courts expect an employer to check all the arrangements that are in place when employees undertake foreign travel. If a helicopter is being hired the employer will be expected to check the safety record of the company, verify its insurance cover, check the pilot’s licence etc.
The employer’s duty is much less onerous with freelance staff. For freelancers, an employer must be deemed to have taken ‘reasonable care‘. Selecting a competent person to discharge this responsibility is deemed to be adequate. But the courts may take the view that a freelance on a long term contract has the same rights as an employee.
Marie-Louise explained the complexity of pursuing a legal claim as a result of an accident abroad. If it is possible, it is preferable to hear the case in the UK, under UK law; alternatively a case can be heard in the UK under foreign law; the third option would be for the case to be heard abroad. Claimants, when pursuing claims against UK-based NGOs, are much more likely to want to have the case heard in an English court.
Lawyers will advise on jurisdiction (where the claim can be heard) and applicable law (whether English or foreign law applies). It is easier to bring a claim in the UK for many reasons, including the fact that disclosure always applies here but not in all other countries; here costs are paid which again is not always the case abroad; here the court’s decision is enforceable which is also not always the case outside the UK.
If the court case follows an accident which has taken place in an EU country then it has to be heard in that country under its law. If the accident occurred outside the EU the case can only be heard in the UK if the papers can be served physically here. If a UK resident is injured abroad but the injury continues on his/her return to the UK then the case is more likely to be heard here.
Liability varies according to country. In most EU countries, for example, liability for an accident lies with the driver of the vehicle. This is not always the case in other countries – in Costa Rica, for example, liability rests with the owner of the vehicle.
Christine spoke about the importance of doing a detailed risk assessment before a foreign trip. She will help draw up a protocol for us to distribute to IBT members. She advised not to cut back on insurance – for example, make sure that your policy includes repatriation as this can be very expensive. Make sure it applies to the country you are travelling to. This is a surprisingly common mistake. When you hire a driver and vehicle make sure that the company and the driver are insured and that he/she has a valid licence. Make it clear that when they drive there is a no alcohol/no speaking on the phone rule, regardless of local customs.
If you are involved in an accident collect as much information as possible whilst you are still in the country – for example, the name of the police officer, the case reference number, a copy of the police report, names of eyewitnesses, driver’s name and licence details. Take photographs of everything – the scene of the incident, damaged vehicle, licence plate, your injuries etc. It is almost impossible to obtain any relevant information once back in the UK. Keep copies of your medical records. Keep receipts for all expenses you incur. Phone your travel insurer as they can be very helpful. Ask for help – it is hard to deal with these incidents on your own. Contact the British Embassy or Consulate -staff will be very helpful. Don’t hire a local lawyer – wait until you are back in the UK. Don’t accept offers of compensation – wait until you have sought legal advice.
Mark Galloway
April 2015
