piBlawg

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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.]

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