Package travel reform and EHIC

In our Spring newsletter I mentioned a pending announcement from the European Commission regarding its proposals for the revised Package Travel Directive. These proposals were formally announced in July and my article regarding this topic was featured in the Travel Trade Gazette.

We continue to monitor the European Health Insurance Card (EHIC) situation for UK insurers and their policyholders following the European Commission’s decision to initiate infringement procedures against Spain on 30 May of this year. This follows numerous complaints from holidaymakers and leading UK travel insurers resulting from Spanish hospitals’ refusal to recognise the EHIC or to provide public health care for free, despite the obligations imposed by EC law. Although some insurers are still reporting problems, proactive efforts from Gestitursa and other debt recovery agencies to recover associated medical expenses have seemingly reduced, so this is good news - at least for now.

The Commission has requested further information from Spain about the complaints and given them two months to respond. It is anticipated that the decision will therefore be announced in early autumn. This could result in a hefty fine for Spain if the Commission agrees with the UK travel industry’s stance further to its review.

Expert evidence under Rome II

In the recent case of Wall v Mutuelle De Poitiers Assurances ([2013] EWHC 53 (QB)) further consideration was given to applicable law under Rome II (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations).

The case involved an English claimant seriously injured in a road traffic accident in France. Liability was not in dispute and judgment had been entered in favour of the claimant.

The question before the court was whether the instruction of experts was to be governed by the law of the forum (England) or the law of the country where the accident occurred (France).

If the instruction of experts was to be considered as a matter of evidence and/or procedure then, as already established under Article 1(3) of Rome II, the law of the forum should apply. This would result in the application of English procedural rules regarding the instruction and content of any expert reports. However, if the instruction of experts was to be considered as 'the basis and extent of liability' or 'the existence, the nature and the assessment of damage or the remedy claimed', under Article 15, the instruction and use of experts should be governed by the law of the country where the accident occurred - ie by French law.

The defendant also argued that only one expert should be called as this would be the norm under French civil procedure. The claimant sought permission to call a number of experts as is usual under English procedural rules.

The judge held that the issue of expert evidence was a matter of evidence and procedure and the law of the forum applied. The judge did not consider he was required to put himself in the position of a French court and to decide the case as that court would have decided it notwithstanding the fact that, ultimately, the level of damages should be awarded at the same level a French court would have ordered.

This decision will be welcomed by claimants and their lawyers who will find it a lot easier instructing English experts and dealing with the evidence in a familiar way and in accordance with the Civil Procedural Rules.

However, this may not be the end of the matter since we understand the defendant is considering a request for leave to appeal the decision.

European road safety

According to figures released by the European Commission, there has been a 9% decrease in road fatalities in the EU during 2012.

This decrease means that 3,000 lives have been saved. However, there are still 75 deaths on the roads every day and, for every death, there are 10 serious injuries suffered including damage to the brain or spinal cord.

The injuries sustained by vulnerable users such as the elderly, pedestrians and motorcyclists have also seen a decrease.

The European Road Safety Action Programme 2011-2020 sets out plans to reduce the number of road deaths in Europe by 50%. It includes seven initiatives:

  • improved safety measures for vehicles
  • building safer road infrastructure
  • boosting smart technology
  • strengthening education and training for road users
  • better enforcement of the laws on speeding, drink driving and the failure to wear a seatbelt
  • establishing a road injuries target
  • and providing a new focus on motorcyclists.

There have been problems with the misreporting and underreporting of serious injuries and the figures are not reliable across the EU. Amongst the initiatives is the development of an injuries strategy to include a common definition of a serious road traffic injury and to introduce measures to help Member States improve data collection.

The European Commission has been working with Member States to agree on a Maximum Abbreviated Injury Score (MAIS) to give a common definition. The injury score is determined at the hospital with the help of a detailed classification key. The score ranges from 1 to 6, with levels 3 to 6 considered as serious injuries.

Each Member State will start applying the new common definition and data gathering procedures for the year 2014 which will allow for new measures to be adopted. It is hoped this will enable Member States to halve the number of deaths on Europe’s roads.