piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Foreign Law in the English Courts

A number of the English lawyers who conduct PI litigation in cross-border cases have warned that the full implications of the Rome II Regulation (864/2007) – and the impact that it has on the assessment of damages awarded to English Claimants by English Judges – have yet to be felt. By way of recap, Rome II provides (in Article 15(c)) that once the applicable law of the tort has been identified it will apply (among other things) to the existence, the nature and the assessment of the damages to which the Claimant is entitled. In other words, (and by contrast to the previous position under the Private International Law (Miscellaneous Provisions) Act 1995) Rome II extends the reach of the foreign applicable law beyond the identification of heads of recoverable loss and into the assessment of damages process itself. This means a much greater role for foreign legal experts in the English Courts and it also means that English Judges may find themselves confronting (on a regular basis, given the volume of EU RTA claims in the English jurisdiction) vexed foreign law issues which have not been clearly resolved in the foreign jurisdiction from which they derive. In this sense, an English Judge may be called to determine (if you like “to make”) German/French/Lithuanian (delete as appropriate) law. Soole J confronted a dilemma of just this kind in the very recent case of Syred v PZU SA [2015] EWHC 254 (QB) (12.2.16): a PI claim by an English Claimant against a Polish insurer Defendant in respect of an RTA in Poland (to which the English Court applied the law of Poland). One of the issues confronting the Court was the assessment of (what we would call) general damages for pain, suffering and loss of amenity. Polish law provided no fixed scales or guidelines for such damages, but there was evidence that Polish Judges tended to use the non-pecuniary elements of a table or tariff published in an Ordinance by the Polish Labour Ministry. So far, so good, but the additional expert evidence was that the Polish Supreme Court had criticised the use of the Ordinance in this way. Despite this, the Polish lower Courts had continued to use the Ordinance and the Supreme Court had failed to provide an alternative method of calculation of such damages. What was the English Judge to do? The use of the Ordinance was (per Polish Supreme Court) unlawful where it was the sole method of assessment of general damages, however, it was a continuing convention of the Polish Courts to have regard to the Ordinance (in the "overall" assessment process) and it was, therefore, permissible for the English Judge to have similar regard in assessing damages (see, Wall v Mutuelle de Poitiers Assurance [2014] 1 WLR 4263 (CA)). Soole J went ahead and assessed damages accordingly. This looks like a pragmatic solution: after all, the Judge has to find some means by which to make the appropriate award. However, it also looks like an English Judge has resolved an issue of Polish law that the Polish Courts have yet wholly to resolve for themselves. One wonders whether Soole J’s decision will have any precedent value in Poland?

Personal Injury and the Party Manifestos

Is there anything in the parties' manifestos which might affect the field of personal injury? Reforms since 2010 include a new fixed costs regime, costs management/budgeting and greatly increased court fees. Civil liability has been removed for breaches of health and safety regulations. But what is being promised for the future? The Conservative Manifesto includes a pledge to reform human rights law. It would scrap the Human Rights Act and introduce a British Bill of Rights. The intention is that this will break the formal link between British Courts and the European Court of Human Rights making the Supreme Court the ultimate arbiter of human rights matters in the UK.  More is said in the section on the European Union: the Bill will remain faithful to the basic principles of human rights but “will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.” The manifesto also pledges to continue “the £375 million modernisation of our courts system, reducing delay and frustration for the public.” A commitment is also made for an ongoing review of legal aid. The Labour Manifesto takes the opposite view on the Human Rights Act. It states that Labour would protect it and reform rather than walk away from the European Court of Human Rights. The manifesto is silent on what that reform would be. The manifesto also includes a pledge that access to legal representation would not be determined by personal wealth but would remain available to those who need it. The Liberal Democrat Manifesto states that the Liberal Democrats would protect the Human Rights Act and enshrine the UN Convention on the Rights of the Child in UK Law. It specifically states that the Liberal Democrats would take “appropriate action to comply with decisions of the UK courts and the European Court of Human Rights.” The Liberal Democrats have a commitment to introduce a Freedoms Act which would “cut back on the petty over-regulation of everyday life… permitting swimming in open bodies of water.” (Tomlinson v Congleton springs to mind…). They would “carry out an immediate review of civil Legal Aid… and court fees, in consultation with the judiciary…” They would “reverse any recent rises in up-front court fees that make justice unaffordable for many, and instead” spread the fee burden more fairly. They would also retain access to recoverable success fees and insurance premiums in asbestosis claims and where an individual is suing the police. There is also a pledge to support innovation like the provision of “civil justice online” and expansion of ADR. The UKIP Manifesto states that the burden of complying with EU laws on health and safety can be overwhelming for small firms. The manifesto has a commitment to repeal EU Regulations which stifle business growth. As to human rights, UKIP would remove the UK from the jurisdiction of the European Court of Human Rights and make the UK’s Supreme Court the final authority on matters of human rights. It would repeal the Human Rights Act and introduce a UK Bill of Rights which would complement the UN Declaration of Human Rights and “encapsulate all the human and civil rights that UK citizens have acquired under UK law since Magna Carta.” The Green Manifesto states it will “move towards a written constitution with a Bill of Rights” it also has a commitment to keeping the Human Rights Act and retaining the UK’s membership of the ECHR. There is a pledge to “restore the cuts to Legal Aid, costing around £700 million a year” although it is not clear whether this has anything to do with personal injury. It is interesting that none of the political parties have a commitment to reinstate civil liability for breach of health and safety regulations made under the Health and Safety at Work Act 1974.   Trivia Comparative lengths of the manifestos: Conservatives:                 84 pages Labour:                            86 pages Liberal Democrats:          158 pages UKIP:                              76 pages Green:                              84 pages   Commitment requiring more explanation: “Ban high-frequency Mosquito devices which discriminate against young people.” (Liberal Democrats)

Rome II and the Law of the Tort

Those with an interest in the Rome II Regulation (there must be someone else out there) may already be familiar with the recent decision of Slade J in Winrow v Hemphill & Anor. [2014] EWHC 3164 (QB). This short piece focuses on one aspect of the judgment. First, however, a quick recap. The claim arose out of a road traffic accident in Germany in November 2009. The Claimant was a UK national, domiciled in England, who was living in Germany at the time of the accident (having moved there with her British Forces husband several years before the accident). The Claimant returned to England around 18 months after the accident and continued to live in England at the time of trial. The First Defendant was also a UK national. She was also an Army wife and her husband served with the Army in Germany. The First Defendant, like the Claimant, later moved back to England. The Second Defendant insurer was registered in England/Wales. It was the insurer of the First Defendant at the time of the accident. The Claimant was a rear seat passenger in a vehicle driven by the First Defendant. The vehicle was involved in a head-on collision with a vehicle driven by a German national. It was not in issue that the accident was caused by the negligent driving of the First Defendant. Accordingly, liability was not in issue and judgment was entered. The parties continued (and continue) to fight the causation and quantum issues. The preliminary issue trial before Slade J concerned the applicable law of the tort and, more particularly, under Art. 15(c) of Rome II, the law to apply to the assessment of the damages to which the Claimant would be entitled: should damages be assessed, as the Claimant argued, according to English law (on application of Art. 4(3) of Rome II) or should they be assessed, as the Defendants argued, according to German law (by reason of Art. 4(1) of Rome II)? Slade J determined the preliminary issue decisively in the Defendant insurer’s favour: German law was to be applied. However, in the course of her judgment she stated (para 45 if you’re really interested), “I do not accept the contention ... that the circumstances to be taken into account in considering Article 4(3) will vary depending upon the issues to be determined and ... the stage reached in the proceedings. Nor do I accept the submission that ‘the centre of gravity’ of the tort when liability was conceded and only damages were to be considered depended upon circumstances relevant to or more weighted towards that issue.” The question I leave you with is why this is so. In Winrow liability was conceded and only causation and quantum remained to be dealt with. Most dispassionate observers would accept that causation and quantum were more closely connected to England (where the Claimant lived at the time of trial and was experiencing ongoing loss and where medico-legal experts were based) than Germany. If – as Art. 4(3) – directs” all the circumstances of the case” are to be considered in determining whether the tort/delict is more closely connected with one country (England) than another (Germany), it would seem artificial (at best) and, more ambitiously, wrong (in law) to put out of mind the fact that liability was no longer in issue and, therefore, was no longer a relevant consideration. Some of the textbook writers – particularly those wedded to a more certain/less discretionary approach to the identification of the applicable law of the tort – might (like Slade J) baulk at the approach advocated on behalf of the Claimant. However, there may – in this limited way – still be room for English common law inroads into (even) the Rome II regime so that some weight is given to the issues actually in dispute before deciding which law ought to be applied to them.

Applicable Law in Tort and the Instruction of Expert Witnesses

Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138; LTL This appeal arose out of a preliminary issue trial on the proper meaning of Articles 1.3 and 15 of the Rome II Regulation in the context of permission to rely on expert (medico-legal) evidence which was to be adduced on behalf of an Englishman who suffered spinal cord injury during the course of a visit to France. Liability was conceded and it was common ground that the English Court had jurisdiction. However, the applicable law was that of France. The Defendant sought to restrict the Claimant's medico-legal expert evidence to the kind of French or "French-style" expert evidence that might be permitted by a French Court. The Defendant's arguments were rejected at first instance ([2013] EWHC 53 (QB)) and subsequently on appeal. The Court of Appeal gave important and timely guidance on the proper approach to expert evidence in claims of this kind (and on the meaning of Articles 1.3, 15 of and recital (33) to the Rome II Regulation).

English RTA Victim Sues MIB for Injuries in Accident Abroad: Applicable Law for Assessment of Damages?

    Bloy & Ireson v MIB [2013] LTL (QB, Manchester DR). This case arose out of a road traffic accident in Lithuania in which the Claimants (the First Claimant, a child, in particular) suffered very serious injuries. The Claimants were UK nationals domiciled in England. The tortfeasor, a Lithuanian national domiciled in Lithuania, was drunk at the time of the accident and was uninsured. The Claimants brought proceedings in the English Court against the MIB in reliance on regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003. Under Lithuanian law, the liability of the Lithuanian MIB was limited to €500,000 (an award capped in this way would have left the Claimants very substantially undercompensated). Both the MIB and its Lithuanian counterpart were parties to an agreement signed by the compensation bodies in a number of European countries which aimed to define the obligations of those bodies and ensured that, where a compensation body provided compensation, it could obtain reimbursement from the compensation body local to the accident (the reimbursement available under the agreement was based on the local assessment). The issue was whether the MIB was liable to pay the Claimants compensation under the 2003 Regulations assessed in accordance with Lithuanian or English law. The court was asked to determine a preliminary issue in relation to the defendant MIB's liability to pay compensation to the claimants. It was submitted on the Claimants’ behalf that regulation13(2)(b) of the 2003 Regulations should be given its ordinary and natural meaning with the result that compensation should be assessed as if the accident had occurred in Great Britain and, therefore, with no cap on damages. By contrast, the MIB argued that, on a proper interpretation of regulation13(2)(b) and when considered alongside the European Directives it implemented, the Lithuanian cap on damages should apply. It was held that English law should apply to the assessment of damages and that there was no reason for regulation 13 to be given anything other than its ordinary and natural meaning. While regulation 13 was inconsistent with the agreement that the MIB had with equivalent bodies in Europe, there was nothing in the relevant European legislation that required any different interpretation of the 2003 Regulations. The Court applied the same reasoning as the Court of Appeal in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208, [2011] 1 WLR 2609 (a case in which the MIB had obtained permission to appeal to the Supreme Court, but had then abandoned the same before the appeal hearing took place).

Delayed flight claims: Clear for takeoff (2/2)

The ECJ dealt a hammer blow to European airlines this morning in the long-awaited joined cases of TUI and Nelson (Cases C-581/10 and C-629/10). The full text will be available shortly but judging by the press summary, the Court has adopted almost verbatim the Opinion of Advocate General Bot.  This case confirms the decision in Sturgeon (Case C-402/07) that where an air carrier operates or intends to operate a flight either departing from or landing in a EU member state, and that flight is subject to a ‘long delay’ (meaning a delay of three hours or more), each passenger will be entitled to compensation on the following basis: EUR 250 for all flights of 1,500km or less; EUR 400 for all intra-Community flights of more than 1,500km and for all other flights between 1,500km and 3,500km; and EUR 600 for all flights not falling under (1) or (2) The Court confirmed that the temporal scope of its ruling is not limited to those passengers who issued proceedings before today’s judgment, and extends to any potential claim not already statute barred. This case clears the way for many thousands of claims that are currently stayed by court order or consent, to continue on to trial. It is anticipated that many fresh claims will also come forward. Airlines now face a potential liability running into the tens of thousands of pounds for each flight delayed by three hours or more. The ECJ did not however, regard this as a disproportional means of achieving the legitimate aims of the legislation, as long delays are rare (estimated at 1 in every200 scheduled flights) and in any event, airlines can rely on the defence that the delay or cancellation was caused by ‘extraordinary circumstances’.   Attention now turns to the ‘extraordinary circumstances’ defence; the new battleground in denied boarding litigation. Another consideration is how this new liability is to be paid for. Holidaymakers may find themselves paying more for their week in the sun as a result of the ECJ’s latest piece of teleological reasoning.

JURISDICTION, CONSUMER PROTECTION, CRUISING BY FREIGHTER AND A MOONLIGHT FLIT (FROM AN AUSTRIAN HOTEL)

     Peter Pammer sounds like the name of a character from a (badly written) sitcom, but is in fact the name of an Austrian with an eye for a bargain. While searching online for a cheap holiday, Mr Pammer alighted on the website of a German Company: Internationale Frachtschiffreisen Pfeiffer GmbH. This entity acted as an intermediary for the sale of an unlikely sounding voyage (a holiday of sorts) from Trieste to the Far East. The vessel which was to operate the voyage was an industrial freight ship. Sailing on such a ship might not obviously have conjured thoughts of reclining on a sun deck sipping gin and tonic, but the website did promise Mr Pammer (and anyone else who read it) an onboard fitness room, an outdoor swimming pool and a saloon, together with onboard video and television access. There was also a promise of double cabin accommodation with shower and toilet and a separate living room. The website further indicated that the freighter would make ports of call from which excursions ashore could be taken. Mr Pammer was sufficiently attracted by the website offer to enter into a contract for the voyage, but this was not with the intermediary company, but, instead, with another German corporate entity: Reederei Karl Schluter.             Mr Pammer apparently refused to embark on the freighter; perhaps predictably, it was his view that the conditions on board did not meet the description provided on the website. He had paid EUR 8,500 for the voyage and sought a refund. The German company – Reederei Karl Schluter – reimbursed only EUR 3,500 and Mr Pammer brought proceedings in the Austrian Court (viz. the Court of his nationality and domicile) for the balance: EUR 5,000. Reederei Karl Schluter contested jurisdiction on the ground that it did not pursue any professional or commercial activity in Austria and, accordingly, the Austrian Court lacked jurisdiction. At first instance, the Austrian Court declared that it had jurisdiction on the ground that the voyage contract was a consumer contract (for regulated “package” travel) and the intermediary company had, by internet advertisement, engaged in advertising activity in Austria. On appeal, Reederei Karl Schluter was successful on the ground that the index contract was a contract of carriage, rather than a consumer contract (the fact that the voyage afforded – or ought to have afforded – a degree of comfort to the passenger did not convert a contract of carriage into a consumer contract). Undaunted, Mr Pammer appealed to the Austrian Supreme Court which stayed proceedings and referred the following questions to the European Court of Justice Pammer v Reederei Karl Schluter GmbH & Co KG [2010] (European Court of Justice: C-585/08) “1. Does a voyage by freighter constitute package travel for the purposes of article 15(3) of Regulation No 44/2001? 2. If the answer to Question 1 is in the affirmative: is the fact that an intermediary’s website can be consulted on the internet sufficient to justify a finding that activities are being ‘directed’ to the Member State of the consumer’s domicile within the meaning of Article 15(1)(c) of Regulation No 44/2001?” Mr Pammer’s case highlights, perhaps, a phenomenon that is increasingly experienced by English consumers who are injured while enjoying – if that’s the right word – holidays overseas. They book a holiday by means of a website. The holiday is a not a regulated package (within the meaning of the Package Travel etc. Regulations 1992). The consumer is injured while using the services provided by his or her holiday accommodation and would like to bring proceedings in this respect in the English courts. The Hotel is owned/operated by a foreign company which provides an obvious impediment to English jurisdiction. If the website operator is also foreign owned/operated then that might seem to rule out any English proceedings unless it can be said that the contract is a consumer contract and that the website activity is directed to the Member State where the consumer is domiciled (England) within the meaning of article 15(1)(c) of the Judgments Regulation. The outcome of the reference to the ECJ in Pammer (joined with another case Hotel Alpenhof GesembH v Oliver Heller [2010] (C-144/09) which involved a consumer leaving a Hotel without payment), together with a more recent ECJ decision (Muhlleitner v Yusufi & anor. [2012] (European Court of Justice: C-190/11), now suggests that where the internet trader has manifested an intention to direct activity to a Member State other than that of its own domicile/registration then article 15(1)(c) will be satisfied and the English consumer injured overseas can nevertheless pursue a claim against the foreign internet trader in England. Such intention may be evidenced by the nature of the relevant trading activity (as found, for example, in tourism services), mention on the website of an international clientele or an itinerary comprising visits to Member States other than that in which the trader is resident or even simply the use of telephone numbers with an international code. The jurisdictional hurdle for the English consumer to jump is not a very high one. Internet holiday sales – whether or not the resultant contracts are “packages” – are now very common. Often, overseas bed-booking intermediaries will assert that a consumer’s contract is with the local (overseas) Hotelier or service supplier. In such cases, the Odenbreit decision and section 3 of the Judgments Regulation provides a potential jurisdictional route to a claim against the local supplier’s (foreign) insurer in the English Courts, but Pammer/Hotel Alpenhof/Muhlleitner now provide a potential basis for suing the tortfeasor service supplier itself in England – another useful weapon in the English consumer’s jurisdictional arsenal.

The English Claimant in Spain

  Gallagher v Wright (Manchester CC, Recorder Gregory, 25 November 2011 and 2 February 2012)   The Claimant (G) was a rear seat passenger   in a car travelling to Alicante airport, Spain when the Defendant driver (W) entered a slip road on the wrong side of the road and collided head on with a vehicle approaching in the opposite direction. The Claimant sustained multiple injuries and sued W who promptly admitted liability.   Both G and W were British nationals, domiciled in England. The car had been hired in Spain and was insured under a Spanish insurance policy. The question for the court – at preliminary issue trial – was whether the nature, extent and assessment of the damages to which the Claimant was entitled would be dealt with in accordance with English or Spanish law.   Previous entries on this blog have discussed the temporal scope of the Rome II Regulation. The recent decision of Homawoo v GMF Assurances SA – (ECJ, Case C-412-10) conclusively determines that Rome II does not apply to accidents giving rise to damage which occurred before 11 January 2009. Accordingly, the Private International Law (Miscellaneous Provisions) Act 1995 was the correct instrument for determining applicable law in G’s case.   Section 11 of the 1995 Act establishes the general rule that a claim in tort will be determined according to the law of the country in which the tort occurred (in this case, Spain). Section 12 provides that the party seeking to displace the general rule must demonstrate that it is “substantially more appropriate” to apply the law of a different country. According to Waller LJ in Roerig v Valiant Trawlers [2002] 1 WLR 2304 (CA) “the word ‘substantially’ is the key word. The general rule is not to be dislodged easily”.   In Roerig, Waller LJ went on to provide guidance as to the correct approach to determining the applicable law, using a three stage exercise:   Stage Application to the facts (1) Identify the issue to which the general rule may not be applicable The assessment and quantification of damages (2) Identify the factors connecting the tort with the other country (England) - The nationality and domicile of G - The nationality and domicile of W - W had admitted 100% liability - G and W had been in a relationship in England and had come to Spain for the purposes of a short holiday - The location of G’s treatment and losses, including most of her pain, suffering and loss of amenity (3) Identify the factors connecting the tort with the country (Spain)* - The nationality and domicile of W’s insurer     In the light of the numerous factors connecting the accident with England, it was argued by counsel for W that the nationality of W’s insurer was a “crucial consideration”. The insurer stood behind W and would manage the litigation and satisfy the judgment and so was, in effect, the “real Defendant”. Furthermore, it was entirely fortuitous that G had elected not to proceed against the insurer directly in accordance with the jurisdictional route provided by section 3 of the Judgments Regulation (EU (Council) Regulation 44/2001, as interpreted by the ECJ in Odenbreit (2007)).   HELD:   The mere fact that G could have pursued W’s insurer directly did not require the Court to treat the insurer’s nationality with the same weight as if it was in fact a party to proceedings. Following Garland J in Edmunds v Simmonds [2000] [2001] 1 WLR 1003 (QB), the domicile of the Defendant’s insurer was not a factor of overwhelming weight or importance.   Further, insurers of hire cars in tourist areas had to contemplate that the majority of hirers would be foreign and that accidents involving them might result in damages being quantified according to different systems of law. The weight to be given to the factors connecting the accident with England were sufficient to displace the general rule; it was substantially more appropriate for the applicable law to be the law of England and Wales.   This case raises an interesting strategic dilemma in overseas RTA litigation: pursuing foreign insurers directly, rather than the tortfeasor, has the advantage of simplicity and certainty of recovery, but in doing so the domicile of the insurer may carry greater weight for the purpose of determining applicable law (although HHJ Armitage QC – also sitting in the Manchester County Court – thought otherwise in Kershaw v Carey & Anor. 6 September 2011).   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]

Uninsured Drivers & Accidents Abroad : Damages & Applicable Law

Jacobs v MIB [2010] EWCA Civ 1208   The appellant, (J) was a resident of the United Kingdom; he was injured when he was struck by a car driven by an uninsured driver in Spain. J appealed against a decision that the respondent Motor Insurers' Bureau (M) was obliged to pay him compensation in accordance with Spanish law.   J sought to recover compensation from M under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003, but M argued that the amount of compensation payable was to be assessed in accordance with Spanish law.   In proceedings brought to determine whether M was obliged to compensate J, the judge concluded that reg.13(2)(b) required the claim to be determined in accordance with English law. However, he held that the Regulation was inconsistent with the provisions of Regulation 864/2007 art.4(1), and that compensation was therefore to be assessed in accordance with Spanish law, being the law of the place where the accident occurred.   The court was required to determine whether M was obliged to pay compensation to J assessed in accordance with Spanish law or English law. HELD: Directive 2000/26, which established the compensation scheme, did not state whether questions of liability and compensation were to be determined by reference to the law of the country in which the accident occurred (see §21 of judgment). The 2003 Regulations were also silent on that point (§22). Regulation 12(4)(a) obliged M to indemnify an injured person who lived in England if he could satisfy it that the insured driver was liable to him. Since the accident had to have taken place abroad, the need to demonstrate liability on the part of the driver required the court to consider what law governed the issue. In most cases art.4(1) of the 2007 Regulation would apply and the issue would be determined by reference to the law of the country in which the accident had occurred.   However, it was less easy to identify the law governing the assessment of damages because of the reference in reg.12(4)(b) to the laws applying in England. References in legislation to the law of a particular country usually referred to its general rules of law rather than its rules relating to the conflicts of law, and the inclusion of the reference in reg.12(4)(b) obliged M to pay compensation assessed in accordance with English law (§24-25, 27, 29). Regulation 13 said nothing about how compensation was to be assessed; the answer lay in the words "shall compensate the injured party in accordance with the provisions of Article 1 of the [Second Directive]".   Directive 84/5 art.1(4) obliged Member States to set up a body to provide compensation for personal injuries caused by uninsured drivers: it was implicit in the scheme that the victim had to establish that the driver was liable, but whether that required proof of fault depended on the law of the country in which the accident occurred. It followed that the obligation imposed on M by reg.13(2)(b) carried with it the implicit proviso that the injured party had to show that the driver was liable as determined by reference to the applicable law identified in accordance with the appropriate conflict of laws rules, usually leading to the application of the law of the country in which the accident occurred (§31-32).   However, different systems of law could govern different questions raised by the same claim, and under English conflict of laws rules the assessment of damages gave rise to a separate issue (§33), Macmillan Inc v Bishopsgate Investment Trust Plc (No3) (1996) 1 WLR 387 CA (Civ Div) applied. The mechanism by which M's obligation to compensate under reg.13 was established was to treat the accident as having occurred in Great Britain. In the absence of any provision limiting its scope, it was difficult to see why it should not also affect the principles governing the assessment of damages, particularly in the absence at the time of complete harmonisation throughout the EEA of the conflicts of laws rules governing that issue (§35). Having regard to the language of reg.13(2)(b), compensation was to be assessed on the basis that the accident occurred in Great Britain. That conclusion had the incidental merit of ensuring that the measure of compensation recoverable under reg.13 was likely to be broadly the same as that recoverable under reg.12 (§37).