During this holiday period, you might wonder what action, if any, could be taken following an accident abroad. My earlier blog considers claims following an accident within the EU but what happens if the accident occurs elsewhere in the world?
English law will apply in claims for breach of contract if the contract was made within the jurisdiction, is subject to English law or has a jurisdiction clause in favour of English law. For injury claims (in tort), the damage or harmful act must have occurred within the jurisdiction for English law to apply. This can cause difficulties if the accident occurs abroad.
The Court of Appeal considered the position recently in the case of Brownlie v Four Seasons Holding Inc.
The deceased and his married daughter lost their lives in a road traffic accident in Egypt on 3 January 2010. The claimant was the widow and dependant of the deceased. The appeal arose out of the challenge to the jurisdiction of the English court that was brought by the defendant, a company incorporated in Canada.
The claimant and her late husband booked a 14-night holiday together in which accommodation and transport were included as part of the overall cost. The holiday commenced on 22 December 2009 with a flight from London to Delhi. As part of their return journey, the couple took a flight from Delhi to Cairo where they were scheduled to stay for 5 nights before returning to London on 5 January 2010. The accommodation arranged for them in Cairo comprised 5 nights at the Four Seasons Cairo hotel.
The tour operator for the holiday was a limited company registered in England and Wales. However, the claimant and her late husband did not book any excursions in Egypt through the tour operator and it was common ground that the road traffic accident had occurred in the course of an excursion that did not form part of any regulated “package” holiday. While still at home in England, the claimant had telephoned the hotel in Cairo and booked an excursion. The hotel duly obliged.
The claimant and her husband attended the excursion as planned. On the way back, the vehicle they were in was travelling at considerable speed and there was a sudden loss of control. Sadly, the claimant’s husband and daughter travelling with them did not survive. The claimant was seriously injured, as was the tour guide and the driver. The latter was later convicted of driving offences with respect to the accident.
The claimant brought legal proceedings in tort and for breach of contract against the defendant in respect of the accident and its consequences. Service was effected in Canada. The defendant applied, successfully, to contest whether the English courts had jurisdiction. The claimant appealed.
Tugendhat J found that the brochure used to book the excursion would have led a reasonable person to understand (as the claimant did) that they were contracting with “Four Seasons”. Further, the contract was made within the jurisdiction, albeit by telephone. As the claimant had passed through the gateway conditions for jurisdiction, permission for service outside the jurisdiction was restored. Having made his decision, the judge would not be drawn on issues of applicable law which he said was a matter for the trial judge. The defendant appealed.
Overturning the earlier decision, the Court of Appeal held that the claimant’s claims for her own injuries and the claim for loss and damage suffered by her late husband ought to have been brought in Egypt where that ‘damage’ was suffered. However, the court distinguished the claimant’s dependency claim, allowing it on the basis that the damage of the lost dependency had been suffered in England.
This is a disappointing decision for the claimant and reminds us of the difficulties in bringing claims at home, where the accident occurs abroad and outside the EU in particular. Claimants should carefully consider the jurisdictional gateways through which to bring such claims before contemplating formal proceedings for accidents outside the EU. Unless there is a good arguable case that one or more gateway applies, there is every chance that the court will be unable to consider the case.