Supreme Court considers where damage is sustained in a personal injury claim for an accident abroad

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").

The Court of Appeal held that damage was not sustained here because the Rome II Regulation applied, so that the applicable law is the law of the country in which the damage occurs. The defendant appealed on the basis that it was not the correct defendant.

The Supreme Court has now unanimously agreed that the defendant was not the correct defendant because there was no contract between it and the claimant. (In reaching that decision, Lord Sumption suggested that the Rules Committee should look again at a long-standing rule that, for instantaneous exchanges eg by telephone, the contract is made where the counterparty was physically located when he or she heard the words spoken by the other party which concluded the contract). That disposed of the appeal, but the Supreme Court went on to consider, obiter, where damage was sustained for the purpose of the personal injury claim brought by the claimant on her own behalf and as executrix for her late husband for eg funeral and medical expenses (it having found that claim under the Fatal Accidents Act could not succeed because the law governing the driver's negligence was Egyptian law).

By a majority of 3:2 (although all the judges agreed that Rome II had no application to this question) it was held that a claim in tort can be brought in England if damage is suffered here as a result of personal injuries inflicted abroad. Lady Hale said that "it is quite clear that damage can be suffered by the same person in more than one place, just as the wrongful acts can be committed in more than one place".

(Lord Sumption and Lord Hughes disagreed on that finding, and held that, just as damage is sustained in the country where property is damaged (no matter where eg the loss of earnings are felt), so damage is sustained as soon as bodily injury occurs in that country, because "damage" for a personal injury claim means direct damage ie physical injury or death).

More generally, the Supreme Court also considered whether a claimant must prove that it has a "good arguable case" that the claim falls within one of the jurisdictional gateways listed in PD6B. The Supreme Court said that glosses such as "a much better argument" should be avoided and agreed with Lord Sumption's explanation that "a good arguable case" means "(i)that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the Court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it".