Which law: which country?
October 1, 2018
This article was originally published in The MASS Insight Magazine, Issue 17: Summer 2018.
By Alex Williams
There are two key issues to determine when dealing with a claim for personal injury arising following a road traffic accident abroad; (1) the choice of law and (2) the jurisdiction.
Choice of Law
Since 11 January 2009, questions regarding the choice of law in personal injury matters within the European Community have been governed by Rome II. Recital 6 of Rome II asserts that the main purpose is to give a uniform approach to the law applicable to any claim in tort irrespective of the country where the claim is brought. Rome II replaced the previous choice of law rules contained in the Private International Law (Miscellaneous Provisions) Act 1995 (“PIL 1995”)
In the United Kingdom, PIL 1995 applies to torts committed on or after 1 May 1996, but it does not generally apply to torts committed after 11 January 2009, which will be caught by Rome II. The general rule in PIL 1995 provides that the applicable law is the law of the country in which the events constituting the tort or delict in question occur (section 11). This general rule can be displaced under section 12 if it is substantially more appropriate for the law of another country to apply.
Where an accident occurred prior to 1 May 1996, for example in asbestos related personal injury claims or other injuries which may take many years to become manifest, the common law rules apply.
General Rule under Rome II
Article 4 is entitled the “General Rule” and comprises three elements: a general principle, and two exceptions.
The General Rule: Article 4(1)
‘(1) Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
The damage to consider is direct damage, as is clear from Recital 16 of Rome II.
‘(16) Uniform rules should enhance the foreseeability of court decisions and ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage. A connection with the country where the direct damage occurred (“lex loci damni”) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.
In a fatal road traffic accident matter where a cause of action arises in favour of members of the deceased’s family, the country in which the damage occurred is taken to be the country in which the road traffic accident affecting the primary victim took place, and not the location of the person making the claim.
Exceptions under Rome II
The general rule that the applicable law is that of the country in which the damage occurred can be displaced by virtue of:
- Article 4(2), where the Claimant and Defendant habitually reside in the same country, in which case the applicable law will be that of common residence; and
- Article 4(3) where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with some other country, in which case the law of that country will apply.
Article 4(2) is relatively self-explanatory. “Habitual Residence” is defined in Article 23 and carries its natural meaning for an individual; for a company the habitual residence is the place of central administration and for an individual acting in the course of his or her business, it is his or her principal place of business.
The connection referred to in Article 4(3) may be based upon a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort in question. The question to be determined under Article 4(3) is not whether the right to compensation is manifestly more closely connected with a country, but whether the underlying tort or delict has such a connection. This exception may be likened to the “substantially more appropriate” exception in section 12 of PIL 1995.
The applicable law governs the substantive law but not the procedural law.
| Substantive Law (Applicable Law) | Procedural Law (Law of the Court seised with jurisdiction) |
| Primary Liability | Evidence and Procedure |
| Vicarious Liability | Quantification of Damage |
| Contributory Negligence | Limits on Damages |
| Bringing Claims after Death | Availability of periodical payments |
| Availability of heads of loss | Availability of provisions damages awards |
| Limitation | Interest |
Jurisdiction
In relation to proceedings commenced on or after 10 January 2015, the relevant jurisdiction rules are found in Regulation (EU) 1215/2012, sometimes referred to as Brussels I (Recast), which permits Claimants injured abroad to sue the Defendant either in their home jurisdiction or in the country where the accident occurred. Where proceedings were commenced before 10 January 2015, the rules governing jurisdiction are determined by reference to the previous regulations, Brussels I.
General Rule under Brussels I (Recast): Article 4
- Subject to this regulation, persons domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state.
‘Domicile’ is determined in accordance with the domestic law of the EU country where the matter is brought before a court.
The Judgments Order provides the criteria for the domicile of individuals.
Paragraph 9(2), Schedule 1: An individual is domiciled in the United Kingdom if and only if-
(a) he is resident in the United Kingdom; and
(b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom.
Paragraph 9(6), Schedule 1 In the case of an individual who-
(a) is resident in the United Kingdom …, and
(b) has been so resident for the last three months or more,
the requirements of sub-paragraph 2(b) … shall be presumed to be fulfilled unless the contrary is proved.”
Where the Defendant is not domiciled in the United Kingdom, and therefore the Claimant cannot satisfy the general rule in Article 4, there are circumstances in which a court in England and Wales might nevertheless have jurisdiction, in relation to a claim against an EU domiciled Defendant. For example, where the claim is against an insurer which is domiciled in another member state, the insurer may be sued in the Courts of the place where the accident occurred; where the Defendant submits to the jurisdiction or where there are multiple Defendants, provided at least one Defendant is domiciled in the Country in which proceedings are commenced.
| Claims brought in England and Wales applying domestic law | Claims brought in England and Wales applying lex loci |
| C injured in EU in accident caused by Brit driving under green card issued by UK insurer | C injured in EU in accident caused by EU, non-British, driver. Claim can be brought in Court of England and Wales against driver’s insurers under the Fourth Motor Insurance Directive. |
| C injured in EU in accident caused by Brit driving under non-British insurance. Address the claim to UK representative of foreign insurer. | C injured in EU by EU, non-British, driver suffers ongoing losses (e.g. loss of earnings, care, medical treatment) in England and Wales. Permission to serve outside jurisdiction is required. |
| C injured in EU in accident caused by employee of British company. |
Brexit
Unless some transitional or other agreement is reached between the United Kingdom and the other EU member states, Rome II will cease to have direct effect from the moment of exit on 29 March 2019. The government’s preferred option appears to be to transpose Rome II into domestic UK law or, alternatively, to revert to the pre-Rome II position, namely PIL 1995. It is most unlikely that the United Kingdom will be permitted accession to the Brussels I Recast regime, or to transpose it into domestic UK law, because the primary purpose of that regime was to ensure the free movement of judgments between member states. Articles 62 and 63 of the latest Draft Withdrawal Agreement, published on 19 March 2018, provide that Rome II and Brussels I Recast will be preserved for the duration of the transition period, which expires on 31 December 2020.
