The claimant, Robert Syred, was a successful English building surveyor. In 2010, while he and his then girlfriend were visiting her family in Poland, they were involved in a very serious road accident. They were both back seat passengers in a car being driven by her brother. He turned left (across oncoming traffic), as result of which there was a very heavy side-on impact with a car travelling at excessive speed in the opposite carriageway. Mr Syred was not wearing a seat belt, and was thrown from the car as it span after impact, through (the experts agreed) the right hand rear window. He suffered a whole series of injuries, orthopaedic, neurological and psychological, including severe brain damage and a life-threatening torn aorta.

There was no issue as to primary liability – both drivers were to blame. There were however significant issues as to seat-belt contributory negligence and quantification and so, in many ways, this was a typical (if that word is ever appropriate in these circumstances) catastrophic injury case. What made it additionally complicated, unpredictable and difficult to resolve was the foreign element. Rome II applied: this meant that while the English Court had jurisdiction (the claimant 4  [2016] EWHC 254 (QB) being domiciled here and the defendants being motor insurers), the applicable law for all relevant purposes – resolution of liability matters, contributory negligence and quantum – was the law of Poland. (NB: the old principle that quantification of loss is a procedural matter and therefore decided by the law of the forum no longer applies under Rome II.)

The parties were agreed that the main consequences of this related to the following issues.

  1. Contributory negligence: Polish law, like English law, applies a percentage deduction for contributory negligence. However, it has no “standard” deduction for seat belt contributory negligence (i.e. no equivalent to Froom v Butcher), and therefore there was a wide range of possible deductions, based on the Polish equivalent of culpability and causation arguments. The defendant was arguing for a 50% deduction; the claimant was arguing for 5%;
  2. PSLA: the claimant argued for figures based on English PSLA awards (in the absence of any sufficient evidence of a coherent alternative in Poland). The defendant argued for the application of figures derived from a system of Polish social insurance awards, which were significantly lower than the English awards; and
  3. deduction of benefits: the defendant argued that all future benefits throughout the claimant’s lifetime should be deducted from his damages, because that is what would be required under Polish law – there being no equivalent to the English statutory 5 year cut-off point. (NB: there were arguments here as to the applicability of the relevant Polish law; the issue was ultimately compromised during the course of the hearing, and the judge therefore did not have to rule upon it.)

Otherwise the issues on liability and quantum were litigated precisely as they would have been had the accident occurred in England; the parties agreed that the Court should apply English principles in the absence of evidence of any contrary applicable approach. (This was not simply a convenient artifice; it was a function of the fact that English law requires the party seeking to rely on foreign law to prove not only its applicability but also its different effect, failing which English law is assumed to apply on the basis of a presumption of similarity.)

After a two week trial Soole J found as follows:

  • Contributory negligence: that the most serious injuries (the brain injury and the torn aorta) had not been caused or contributed to by the claimant’s failure to wear a seat belt; but that his other orthopaedic injuries had; and that applying the relevant Polish law there should therefore be a deduction of 5% for contributory negligence;
  • “PSLA”: that it was appropriate to look to the Polish law social insurance scheme  as  the  starting  point for assessment of PSLA; and that he should receive £50,000 (a figure significantly lower than if he had been applying English PSLA principles in accordance with the Judicial College Guidelines);
  • Injuries and their effect: that the claimant was severely handicapped cognitively as a result of his brain damage, both in terms of function and in terms of disinhibition, as well as being physically disabled by his injuries;
  • Care: that the claimant had significant long term care needs, which had been seriously underestimated by the defendant’s care expert (essentially because she had ignored his cognitive damage), and which would in the future reasonably be satisfied by a combination of gratuitous care from his (devoted) wife and a professional care regime;
  • Loss of earnings: that, notwithstanding his determined and sustained attempts to return to work as a building surveyor, he had no real prospect of doing so, albeit that he did have some very limited residual earning capacity.

All in all the claimant recovered a total of c£1.15m, including significant amounts for future loss of earnings and care, together with his costs. This was nearly double the defendant’s Part 36 Offer of £600,000, and only just short of the claimant’s part 36 Offer of £1.25m. The claimant got his costs on the standard basis, having agreed to forgo arguments for enhanced costs orders in return for the defendant agreeing not to pursue any appeal.

The case is instructive both as an example of the sorts of issues that arise, under Rome II, in cases concerned with foreign accidents within the EU, and more generally as a good example of the proper approach at trial to assessment of medical and, in particular, care evidence where there are significant differences between the experts.

Charlie Cory-Wright QC and Bernard Doherty appeared for the claimant in Syred.