Court of Appeal considers whether damage was sustained in England following an accident in Egypt

The claimant was injured whilst taking part on an excursion in Egypt which had been organised by the (Canadian) defendant. Her husband was killed in the same accident. She claimed in both tort and contract. Her tort claims were for (1) her own injuries; (2) her loss as a dependant of her husband (the Fatal Accidents Act claim); and (3) the loss suffered by her husband in her capacity as the executrix of his estate. She obtained permission to serve out of the jurisdiction (in part based on PD6B para 3.1(9)(a): "damage was sustained within the jurisdiction") and the defendant applied to set aside that permission. It was successful before Master Cook but unsuccessful before Tugendhat J.

One of the issues in this case concerned where the damage was sustained for the purpose of the tort claims. Tugendhat J had held that the claimant had an arguable case that damage was suffered in England, relying on earlier caselaw that where a party is injured in an accident abroad, but continues to suffer the effects here, damage can be said to have been sustained here (and hence permission to be serve out can be given).

The Court of Appeal has now unanimously held as follows:

The claimant's claim for her own injuries and for the loss suffered by her husband should have been brought in Egypt because damage was not sustained here. The Rome II Regulation applies to the tort claims and that provides that "the law applicable to a non-contractual obligation arising out of a tort… 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". CJEU caselaw has confirmed that for damage to occur in a jurisdiction, it is insufficient that consequential loss occurs in that jurisdiction.

However, that conclusion did not apply to the Fatal Accidents claim. That claim would have arisen even if the claimant had not been involved in the accident. Furthermore, it was not a claim for consequential loss – rather, it was an independent loss which required her to establish not only that the defendant was liable but also that she was dependent on her husband.

A further question was whether the court could, under Rome II, in the absence of proof as to Egyptian law, apply the presumption that Egyptian law is the same as English law. In OPO v MLA [2014], the Court of Appeal held that Rome II did not exclude that presumption. In this case, the Court of Appeal held that OPO had been correctly decided and that the presumption did apply here.