Michael Wink v Croatio Osiguranje DD  EWHC 1118 (QB) (Haddon-Cave J)
This case arose out of a road traffic accident in Croatia on 5 September 2009. The Claimant, a UK national domiciled in England, was on holiday with his wife when the accident happened. He was cycling along a street when he was struck by a Honda driven by a Croatian national. The Claimant was thrown in the air and sustained serious injury. After a period of intensive care in a Croatian Hospital (when the Claimant underwent surgery), the Claimant was repatriated to a UK Hospital (around 15 days post-accident). He remained in Hospital for more than 6 weeks. The Claimant’s capacity for employment was compromised by the injuries that he sustained in the accident.
The Claimant brought proceedings in the English Courts against the tortfeasor driver’s motor insurer: a company incorporated in Croatia. Liability for the accident was admitted. Subsequent to the accident (and for reasons unconnected with it), the tortfeasor driver died.
The issue in this case was jurisdiction. Croatia will join the European Union on 1 July 2013 and, from the date of its accession, English Claimants will be able to sue Croatian motor insurers using the now well-worn procedure provided by Section 3 (Articles 9 and 11) of the Brussels I Regulation (Council Regulation 44/2001), as interpreted by the Court of Justice of the European Union in FBTO Schadeverzekeringen NV v Jack Odenbreit 13 December 2007  CJEU C-463/06 (when this facility becomes available forum non conveniens will be irrelevant to jurisdiction: Owusu v Jackson Case C-281/02 (CJEU)). However, this straightforward facility was not available to Mr Wink. Having obtained permission from the English Court to serve outside the jurisdiction (CPR 6.36 and 6.37), Mr Wink was met with a Part 11 challenge to jurisdiction from the Croatian Defendant insurer (an application to set aside the grant of permission to serve outside the jurisdiction and to challenge the same). The issue for the Court was the extent to which – if at all – Mr Wink could establish that he had sustained “damage ... within the jurisdiction [of the English Court]” (gateway condition 9(a) of paragraph 3.1(9) of CPR PD 6B) so as to vest the English Court with jurisdiction for a claim in tort.
In the light of Maher & Maher v Groupama  1 WLR 1564, it was common ground that the claim – although brought direct against a motor insurer (rather than against the tortfeasor driver) – ought to be regarded as a tort claim.
The Court summarised the criteria as follows (at paragraphs 17 and 18 of the Judgment):
“There are three requirements for permission to serve out under CPR 6.36 and 6.37. The burden is on the Claimant to satisfy the Court that:
(1) the claim passes through one of the ‘gateways’ to jurisdiction (set out in CPR PD 6B, para. 3.1);
(2) there is ‘a serious issue to be tried';
(3) the English court is the ‘forum conveniens’ in which to bring the claim.
To succeed in obtaining permission to serve out, the Claimant must have the “much better argument on the material available” (per Waller LJ in Canada Trust v. Stolzenberg (No. 2)  1 WLR 547).”
Mr Wink made his case by reference to these criteria by arguing, first, that the case law established that he had only to prove that he had sustained physical or economic harm within the jurisdiction and it did not matter, in this regard, that the initial road traffic accident and injury were sustained abroad. Second, liability was admitted and there was clearly and plainly a serious issue to be tried. Third, the Claimant and the majority of witnesses relevant to the quantum issues were located in England. The Defendant based its application on the (perhaps bold) submission that Booth v Phillips  1 WLR 3292 and Cooley v Ramsey  EWHC 129  2 Ll Rep 206 were wrongly decided and that, in any event, Croatia was the convenient forum.
Notwithstanding the application of Croatian law to the tort, the Defendant’s submissions were comprehensively rejected (paragraphs 32ff of the Judgment):
“[The Defendant’s] narrow construction, which limits the meaning of “damage” to direct damage only, suffers from a number of obvious problems. The first is that it there are no limiting words in sub-paragraph (a) which would justify such a narrow meaning and exclude indirect damage. The word “damage” is not modified or trammelled in any way. The ordinary and natural meaning of the word “damage”, in my judgment, is any damage flowing from the tort. In the words of Teare J at paragraph  in Booth, “damage” in this context means any “physical or economic” harm, i.e. direct or indirect. Second, [the Defendant’s] … construction is tantamount to saying that “damage” is sustained only where the injury occurs. This is the way the Defendant’s argument was originally put in paragraph 22 of the Defendant’s Skeleton (viz. ‘the proper meaning of Ground 9(a) is that in a personal injury accident, damage is sustained where the injury is sustained’). However, this is plainly not the case in many instances. The present case is a paradigm example: the sequelae flowing from the original accident or injury in Croatia, continued to be suffered long afterwards in England in the form of substantial pain and suffering and economic loss. Third, I reject [the Defendant’s] … submission that the simple meaning found by Teare J in Booth (supra) that “damage” in sub-paragraph (a) means ‘some damage’, direct or indirect, requires re-writing or additional words to be inserted. It clearly does not. Indeed, it is [the Defendant’s] … construction which arguably requires a re-writing of sub-paragraph (a) so as to substitute the words “the injury” for the word “damage”, i.e. so as to read “the injury was sustained within the jurisdiction” (viz. including the definite article). Such a re-writing would be unwarranted.”
Predictably, the remainder of the gateway issues (serious issue to be tried/convenience of forum) were also resolved in the Claimant’s favour. Jurisdiction was firmly established.
This case is the latest in a line of personal injury/tort claims in which English Judges have been only too happy to accept jurisdiction (see, for example, Anthony Harty v Sabre International Security Ltd  EWHC 852 (QB)). It is interesting to note that there has been a view held by a number of distinguished practitioners that Cooley v Ramsey, in particular, was wrongly decided (TATLA members attending a recent travel law seminar will recall this view being expressed persuasively by one of the speakers). However, the Judge in Michael Wink decisively squashed this submission (paragraph 43 of Judgment):
“Many of [the Defendant’s] … criticisms of Teare J’s decision in Booth amounted to a re-heat of similar arguments run by the defendant in Cooley (supra). These were all carefully considered and dismissed by Tuegndhat J. I respectfully adopt the analysis of Tugendhat J in Cooley. In my respectful judgment, the decision of Teare J in Booth was correct and his reasoning impeccable.”
It is understood, however, that the Defendant insurer will seek to “re-heat” these arguments again before the Court of Appeal (there is an application for permission to appeal).
Conflicts lawyers will note that – so far as English law is concerned – there is now something of a divergence in the meaning of “damage sustained within the jurisdiction” when this question is approached through the prism of jurisdiction when compared with applicable law in tort (in respect of the latter, see Article 4(1) of and Recital (17) to the Rome II Regulation (No 864/2007) and Henderson v Jaouen  1 WLR 2971).