LTL 01.10.08

English law should apply to accident in Spain; factors connecting the tort to England made this more appropriate.

The Claimants were the wife and children of the Defendant. They were a British family in Spain on a holiday. Shortly after leaving the airport in a hire car they had a head-on collision when the husband drove on the wrong side of the road. The car was supplied by a Spanish rental company under a hire contract governed by Spanish law with Spanish motor insurers. Liability was admitted in the Defence. The Defendant required the Court to determine as a preliminary issue whether English or Spanish law applied to the action for damages for personal injuries. The general rule under The Private International Law (Miscellaneous Provisions) Act 1995 s.11(1) is that the applicable law is that of the country in which the events constituting the tort occur – in this case Spain.

Held

Important factors in favour of maintaining the general rule that Spanish law applied were that the accident occurred in Spain, immediate losses were suffered there (injuries and vehicle damage) and the Claimants received initial treatment there. The Judge rejected the Defendant’s case that it was extremely important that the insurers were Spanish. Factors in favour of English law were that the parties were all English nationals, resident in England and only temporarily in Spain for a one week holiday. The consequences of the tort were visited upon English nationals and would be felt for a significantly longer period in England than in Spain – for the Second Claimant (a minor with severe neurological deficits) for the remainder of his life. The Judge also considered it was relevant that the car was hired through an English broker and paid for in sterling and as such it was inevitable that the Spanish rental company and their insurers would have “been aware of the possibility, if not the likelihood” that an English family would have been using the Spanish car for their holiday in Spain.

Comment

The issue of the applicable law can have a significant impact on quantum. Damages would have been much lower in this case if Spanish law had applied. The Judge was mindful of the risk of forum shopping and noted that the burden was on the Claimant to show that the general rule should be displaced.

From 11 January 2009 the new EU Regulation Rome II will change the rules that determine the law applicable to a range of non-contractual obligations. The new rules introduce a choice of laws and will apply to events giving rise to damage which occur after 20 August 2007, provided the claim is brought on or after 11 January 2009. Under Rome II the general rule in relation to torts will be that the applicable law will (where no choice has been made and subject to some exceptions) be determined on the basis of where the damage occurs, rather than where the events constituting the tort took place. The individual circumstances of a case will, therefore, still remain relevant.