Important English decisions on the Rome II Regulation regarding the law applicable to traffic accidents

Categories: Consumer Law
Typology: Articles

Regulation no 864/2007 of the European Parliament and the Council on the law applicable to non-contractual obligations (Rome II) came into force in 2009 in the European Union (minus Denmark). It applies only to events giving rise to damage occurring after 11 January 2009. There are several particular rules for specific torts and delicts. However, there is none for traffic accidents. Therefore, the general rule enshrined in Article 4 applies. It consists of three paragraphs. Article 4.1 refers to the place of direct damage. However, Article 4.1 only applies if Article 4.2 does not. Article 4.2 provides that where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country applies.

Some important precisions have recently been provided in this respect by the High Court of England and Wales (Gaynor Winrow v. Mrs J Hemphill and Ageas Insurance Ltd ([2014] EWHC 3164 (QB), 6th October 2014). The facts of the case are quite simple. A British lady was living in Germany with her husband, who was in the Army and had been posted there. She was a rear seat passenger in a motor vehicle driven by the first defendant, another British national. Unfortunately, the motor car was involved in a head-on collision with another vehicle driven by a German national. The lady sued the first defendant in the English courts. The question was whether German or English law applies to the assessment of damages for personal injury arising from the road traffic accident. The Court considered that “the fact that the claimant and her family were living in Germany because the army had posted her husband there and that it was not his first choice does not render her presence there involuntary” (paragraph 41). The Court added that the family’s intention to return to live in England after the claimant’s husband’s posting in Germany came to an end did not affect her status at the time of the accident and that the effective return to England should thus be disregarded for the purposes of Article 4.2. Her habitual residence was in Germany at the time when the damage occurred.

Both Articles 4.1 and 4.2 may be displaced by Article 4.3, the so-called ‘escape clause‘. Article 4.3 favours the law of a country which is manifestly more closely connected. However, the application of paragraph 3 should be restricted to exceptional circumstances. To decide otherwise would encourage forum-shopping and thus undermine the whole regulation. The High Court of England and Wales recently illustrated the point again in Gaynor Winrow v. Mrs J Hemphill and Ageas Insurance Ltd. The judgment is a very good illustration of the high ‘hurdle‘ in the path of a party seeking to displace the law indicated by Article 4(1) or 4(2). According to Article 4.1 German applied as it is law of the country in which the direct damage occurs. The claimant sought to displace Article 4.1 by invoking notably Article 4.3.

However, taking into account all the circumstances, the judge correctly considered that the connecting factors did not indicate a manifestly closer connection of the tort with England than with Germany: the road traffic accident caused by the negligence of the first defendant took place in Germany; the claimant sustained her injury in Germany; at the time of the accident both the claimant and the first defendant were habitually resident there; the claimant had lived in Germany for about eight and a half years and remained living there for eighteen months after the accident (paragraph 62). In other words, the fact that both parties were British nationals and that the claimant returned to England were not sufficient to conclude that the tort had a manifestly closer connection with England than Germany. The law applicable to the claim in tort was therefore German law.

What would be the scope of this law? According to Article 15 (c) Rome II, the applicable law to the substance covers notably the existence, the nature and the assessment of damage or the remedy claimed. From an English law point of view, Article 15 (c) means a departure from the lex fori, which used to be applied to the assessment of damages under the English domestic rules of private international law (House of Lords, Harding v Wealands [2006] UKHL 32). However, Rome II expressly provides that it does not apply to evidence and procedure (art 1.3). Therefore, it remained unclear as to precisely how the assessment should be conducted. The Court of Appeal of England and Wales considered the question in 2014 in Steven Wall v Mutuelle de Poitiers Assurances (Court of Appeal of England and Wales, Steven Wall v Mutuelle de Poitiers Assurances, [2014] EWCA Civ 138, 20th February 2014).

This case opposed an English motorcyclist who had a very serious accident in France to the insurance company of the French wrongdoer. The law applicable to the accident was French Law. The insurer admitted liability but contended that the expert evidence needed in establishing the quantum of damages should be produced according to French law. The Court of appeal rejected the contention. It confirmed the High Court decision, that is the issue of which expert evidence the court should order falls to be determined by reference to the law of the forum (English law), on the basis that this is an issue of "evidence and procedure" within Article 1.3 of Rome II, and not by reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II. In other words, Article 15 (c) does not extend to adduction of evidence.

(Altalex, 9 March 2015. Article by Emmanuel Guinchard)

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