Spencer v Secretary of State for Work and Pensions

A claimant seeking damages for a Member State’s failure to implement a European directive need not first exhaust domestic remedies against another potential tortfeasor. The conditions for a Francovich claim are those governing the existence of State liability. The requirement that an injured person take reasonable steps to limit loss concerns mitigation and the assessment of compensation, rather than a condition precedent to liability. A limitation period therefore runs from accrual of the relevant cause of action, not necessarily from the conclusion of separate domestic proceedings. An appeal against summary judgment will succeed only if the lower court’s decision was wrong.

The claimant alleged that the Secretary of State had failed properly to implement Article 6(2) of Framework Health and Safety Directive 89/391 by making regulations excluding civil liability for breach of the Management of Health and Safety at Work Regulations 1992. His earlier personal injury claim against Boots had been dismissed at first instance and on appeal. The Secretary of State obtained summary judgment on limitation, the Master holding that the claimant’s Francovich cause of action accrued when he suffered injury. The claimant appealed, arguing that time did not begin until his domestic remedies against Boots had been exhausted.

1. Appeal dismissed. The Master was plainly right to reject the submission that exhaustion of domestic remedies was an additional condition precedent to Francovich liability.
2. The conditions for establishing Francovich liability were fairly summarised in Redgrave’s Health and Safety: the directive must confer individual rights; its content must be identifiable; the State’s breach must cause loss; and the breach must be sufficiently serious. The court found no further requirement that a claimant first pursue and exhaust a claim against an individual or corporate tortfeasor.
3. The claimant relied on Brasserie du Pecheur S.A. v Federal Republic of Germany [1996] QB 404, particularly the observation that an injured person may need to show reasonable diligence in limiting loss and use available legal remedies. Read in context, that passage concerned mitigation and the quantification of loss. It did not impose a condition precedent to State liability.
4. The court therefore upheld the Master’s conclusion that the cause of action accrued at or about the time of the claimant’s injury. The six-year limitation period under Limitation Act 1980, section 2, was consequently fatal to the claim.
5. The court was not required to determine causation. It nevertheless expressed difficulty with the proposed causation case, given the unchallengeable findings in the earlier Boots litigation and the absence of expert support for the claimant’s proposed wider risk-assessment case.

The judgment states that Master Miller entered summary judgment for the Secretary of State on 17 November 2006. Jack J granted permission to appeal on 18 April 2007. The High Court dismissed the appeal.