Federal Republic of Nigeria v Ogbonna

The statutory exception to state immunity for proceedings concerning personal injury is separate from the employment-contract exception. Section 16 of the State Immunity Act 1978 removes the employment exception for members of a diplomatic mission, but does not restrict the personal-injury exception.

Personal injury includes physical and psychiatric injury. A claim for psychiatric illness caused by unlawful discrimination may therefore fall within section 5, even though the injury arises from a discrimination claim and may be accompanied by injury to feelings or financial loss. The phrase should be given its ordinary domestic meaning; the international materials and Schreiber v Canada do not require a narrower construction.

The claimant, an employee of the Federal Republic of Nigeria at the Nigerian High Commission, claimed unfair dismissal and disability discrimination. She alleged that the discrimination caused a recurrence of sciatica and depressive illness.

At a pre-hearing review, Employment Judge Walker held that state immunity defeated the unfair-dismissal claim but did not apply to the discrimination claim insofar as compensation was sought for physical and psychiatric injury. The Republic appealed, arguing that section 16(1)(a) excluded the section 4 employment exception and that section 5 did not apply to injury ancillary to discrimination or to psychiatric injury without physical injury.

The central issues were the relationship between sections 4, 5 and 16 of the State Immunity Act 1978, and the meaning of personal injury.

1. Appeal dismissed. The Employment Judge was entitled to hold that the disability-discrimination claim fell within section 5 of the State Immunity Act 1978 to the extent that compensation was claimed for sciatica and depressive illness.
2. The Tribunal followed Military Affairs Office of the Embassy of the State of Kuwait v Caramba-Coker (EAT/1054/02), which had decided, as a matter of ratio, that a claim for compensation for personal injury falls within section 5 even where the injury is consequent on a discrimination claim, and that psychiatric harm constitutes personal injury. The remittal in that case reflected uncertainty whether the claimant had proved injury to health or only injury to feelings; it did not deprive the legal reasoning of authority.
3. Sections 4 and 5 are separate and freestanding exceptions to the general immunity in section 1. Section 16(1)(a) expressly qualifies section 4 for members of a diplomatic mission, but has no effect on section 5. A personal-injury claim is not merely ancillary to the underlying discrimination claim. Personal injury describes the form of harm caused by an unlawful act and is not itself a separate cause of action.
4. The Act should, so far as possible, conform to recognised international norms. Article 11 of the European Convention on State Immunity and article 12 of the United Nations Convention on Jurisdictional Immunities of States and their Property did not establish a narrower international meaning of personal injury. Their references to physical injury concerned the distinction between injury to the person and economic or reputational harm, not the distinction between bodily and psychiatric injury.
5. Schreiber v Canada was distinguishable because the pleaded mental distress was not psychiatric injury. Even if it excluded psychiatric injury unaccompanied by physical injury, it was not persuasive authority for the construction advanced. Permission to amend the grounds to rely on it was refused.

• Employment Appeal Tribunal: Employment Judge Walker held that state immunity applied to the unfair-dismissal claim but not, under section 5 of the State Immunity Act 1978, to the disability-discrimination claim insofar as compensation was claimed for physical and psychiatric injury. The Republic’s appeal was dismissed.