Gaynor Winrow v Mrs J Hemphill and Another

JurisdictionEngland & Wales
JudgeThe Honourable Mrs Justice Slade DBE,Mrs Justice Slade
Judgment Date06 October 2014
Neutral Citation[2014] EWHC 3164 (QB)
Docket NumberCase No: TLQ/14/0349
CourtQueen's Bench Division
Date06 October 2014

[2014] EWHC 3164 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mrs Justice Slade DBE

Case No: TLQ/14/0349

Between:
Gaynor Winrow
Claimant
and
(1) Mrs J Hemphill
(2) Ageas Insurance Limited
Defendants

Matthew Chapman (instructed by Slater & Gordon (UK) LLP) for the Claimant

Marie Louise Kinsler (instructed by Weightmans LLP) for the Defendants

Hearing date: 9 July 2014

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Honourable Mrs Justice Slade DBE Mrs Justice Slade
1

The issue for determination in this application is whether German or English law applies to the assessment of damages for personal injury arising from a road traffic accident which occurred on 16 November 2009 in Germany. Liability was conceded by the First Defendant's insurer, the Second Defendant. The Second Defendant is domiciled in England. Proceedings were issued in England. Council Regulation on Jurisdiction No. 44 of 2001 and the Fourth and Fifth Motor Insurance Directives No. 2000/26/EC and No. 2005/14/EC apply. The only remaining issues to be determined in the proceedings are the causation and quantum of the damages to which the Claimant is entitled.

2

At the time of the accident the Claimant had been living in Germany for about eight and a half years, having moved there with her husband who was in the Army and had been posted there. She is a UK national as is the First Defendant. The Claimant was a rear seat passenger in a motor vehicle driven by the First Defendant. The motor car was involved in a head-on collision with another vehicle driven by a German national.

3

By her Particulars of Injury the Claimant claims in respect of a prolapsed disc, continuing pain in the right leg, nerve related pain and depression. Her Schedule of Special Damages includes loss of earnings, the cost of care and assistance and medical expenses.

4

By their Defence, the Second Defendant avers that:

"…pursuant to Article 4(1) of Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations ('Rome II'), German law is the law applicable to all issues arising out of the accident, including but not limited to the availability of a cause of action giving rise to actionable damage, identification of recoverable heads of loss or damage and mitigation."

5

On 6 December 2013 District Judge Jenkins entered judgment for the Claimant with causation and quantum to be assessed. He ordered that:

"There be a preliminary issue hearing by the Court in order to determine the appropriate law for the assessment of damages in the claim, namely whether German law or English law applies."

6

The determination of the Preliminary Issue, that of whether German or English law applies to the assessment of damages, turns on the interpretation and application of Article 4 of Council Regulation No. 864/2007 on the law applicable to non-contractual obligations (' Rome II').

7

The relevant recitals to Rome II provide:

"(14) The requirement of legal certainty and the need to do justice in individual cases are essential elements of an area of justice. This Regulation provides for the connecting factors which are the most appropriate to achieve these objectives. Therefore this Regulation provides for a general rule but also for specific rules and, in certain provisions, for an 'escape clause' which allows a departure from these rules where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country. This set of rules thus creates a flexible framework of conflict-of-law rules. Equally it enables the court seised to treat individual cases in an appropriate manner.

(16) Uniform rules should enhance the foreseeability of court decisions and ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage. A connection with the country where the direct damage occurred ( lex loci damni) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.

(17) The law applicable should be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. Accordingly, in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively.

(18) The general rule in this Regulation should be the lex loci damni provided for in Article 4(1). Article 4(2) should be seen as an exception to this general principle, creating a special connection where the parties have their habitual residence in the same country. Article 4(3) should be understood as an 'escape clause' from Article 4(1) and (2), where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country.

(33) According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention."

Rome II Article 4 provides:

"1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict 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.

2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question."

The facts relied upon by the parties

8

Save for whether the Claimant and the First Defendant were both habitually resident in England or Germany at the time of the accident and the causation and nature of the alleged loss and damage, the facts which are set out in the witness statements of the Claimant dated 11 September and 29 December 2013 and that of her husband dated 4 April 2014 are not in dispute. These are that:

i) The Claimant is a UK national.

ii) At the time of the accident, 16 November 2009, the Claimant was living in Germany, having moved there in January 2001 with her husband who was a member of HM Armed Services. Germany was not the preferred posting of the Claimant's husband. It was his second choice. He had four separate three year postings in Germany.

iii) Since the Claimant's husband was due to leave the army in February 2014 after twenty-two years' service he would have returned to England one and a half to two years before that date to undertake re-settlement training. It was always their intention to return to live in England.

iv) Whilst in Germany, the Claimant and her family lived on a British Army base where schools provided an English education. The Claimant's eldest son remained in England at boarding school when the Claimant's husband was posted to Germany. Their three other children were at school in Germany.

v) The Claimant was employed while in Germany on a full-time basis as an Early Years Practitioner by Service Children's Education. This is a UK Government Agency.

vi) On 16 November 2009 the Claimant was a rear seat passenger in a motor vehicle driven by the First Defendant. The car was involved in a head-on collision with a vehicle driven by a German national. The accident is admitted to have been caused by the negligent driving of the First Defendant.

vii) The Claimant suffered injury for which she received some treatment in Germany.

viii) The Claimant and her husband returned to live in England in June 2011, earlier than planned. Her husband left the Army in August 2013.

ix) The Claimant claims continuing loss and damage including care and assistance and loss of earnings. She asserts that the majority of her loss has been and will be incurred in England. The Claimant alleges continuing pain, suffering and loss of amenity.

x) The First Defendant is a UK national. She was also an army wife. Her husband served with the Army in Germany. She had been in Germany for between eighteen months and two years before the accident. She returned to England soon afterwards.

xi) The Second Defendant was the motor insurer of the First Defendant. It is a limited company registered in England and Wales.

xii) Proceedings were started and are continuing in the English courts.

The submissions of the parties

9

Mr Chapman for the Claimant accepted that if Article 4(1) was not displaced, German law would apply to the assessment of damages in this case. However he contended that the rule in Article 4(1) is displaced by Articles 4( 2) or 4(3), the latter being principally relied upon.

10

As for Article 4(2), Mr Chapman contended that the Claimant and the...

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