Mr Michael Ashton v Eurolife FFH Societe Anonyme General Insurance
| Jurisdiction | England & Wales |
| Judge | Mr Jonathan Glasson |
| Judgment Date | 16 October 2023 |
| Neutral Citation | [2023] EWHC 2540 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2020-004551 |
[2023] EWHC 2540 (KB)
Mr Jonathan Glasson KC
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: QB-2020-004551
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Matthew Chapman KC (instructed by Irwin Mitchell LLP) for the Claimant
Mr William Audland KC (instructed by Carter Perry Bailey LLP) for the Defendant
Hearing dates: 3 rd, 4 th and 5 th October 2023
Approved Judgment
This judgment was handed down remotely at 10.30 a.m. on 16 th October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Jonathan Glasson KC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT:
The Claimant claims damages for personal injury arising from a road traffic collision which occurred in Greece at around 1130 hours on 16 September 2019 (“the collision”, or “the accident”). The Claimant was on holiday at the Neilson Buca Beach Resort (“the Resort”) with his wife. On the morning of 16 September, he hired a bike from the Resort. As he was cycling along a two-way national road in the Peloponnese region of mainland Greece he collided with a black Opel Vectra motor vehicle (bearing registration mark IZM-6814) which was parked in the shade of a tree on the right-hand side of the road. Although the full extent of his injuries was not immediately apparent, it has transpired that the Claimant had suffered catastrophic spinal injuries and is permanently tetraplegic.
The owner/driver of the Opel Vectra (“the Opel”) was Mr Panayiotis Georgopoulos, a Greek national domiciled in Greece. The Defendant, an insurance company incorporated in Greece, insured Mr Georgopoulos and the Opel Vectra.
On 28 February 2022 Master Gidden ordered that liability should be tried as a preliminary issue. I heard that trial over three days and in that time I heard evidence from a number of factual witnesses as well as the parties' respective experts in Greek law. Two of the factual witnesses, Mr Kaldor and Mr Borrowdale, gave evidence by video link but all other witnesses, including the two experts, gave evidence in person. Each party also relied on reports from accident reconstruction experts. However, because of the significant level of agreement between those experts, it was agreed that neither expert needed to be called to give oral evidence.
At the end of the trial, the parties submitted written notes and they also made oral closing submissions. I am grateful to both counsel for their written and oral submissions.
I was presented with a significant amount of documentary material. The trial bundles ran to 2 volumes with an additional set of 3 volumes of English and Greek authorities. I have considered all of the evidence so far as is relevant and set out in this judgment such of the evidence as is necessary so as to understand my reasons for determining the preliminary issue.
The judgment is divided into the following sections:
a) The applicable law;
b) The parties' pleaded cases;
c) The factual evidence concerning the collision;
d) The accident reconstruction evidence;
e) My findings of fact concerning the collision;
f) The Greek law relevant to the claim; and
g) My findings on liability.
A) Applicable Law
This Court has jurisdiction over this claim pursuant to section 3 of the recast Brussels I Regulation No 1215/2012 as interpreted in the CJEU decision in FBTO v Odenbreit Case C-436/06. Claims of this kind (pursued directly against an insurer) are to be characterised – for choice of law purposes – as non-contractual/tort claims. The laws of Greece apply to the substantive issues in this claim pursuant to Articles 4.1 and 15 of the Rome II Regulation No 864/2007 and English law applies to issues of procedure and evidence pursuant to Article 1.3 of the Rome II Regulation. The issue of the burden of proof is governed by Greek law (pursuant to Article 22 of Rome II), however the standard of proof is governed by English law, pursuant to Article 1.3 of Rome II (see Marshall v MIB [2015] EWHC 3421 (QB) per Dingemans J, as he then was, at paras. 24–25).
Material propositions of foreign law must usually be proved by a duly qualified expert in the law of the foreign country and the burden always lies on the party seeking to establish that proposition of law: A/S Tallinna Laevauhisus v. Estonian State Steamship Line [1947] 80 Lloyd's Rep 99 and FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45, [2022] AC 995, at para 148. The task of such an expert is clearly set out in A/S Tallinna: “ to convey to the English Court the meaning and effect which a Court of the foreign country would attribute to it if it applied correctly the law of that country to the questions under investigation”. Such experts are required to comply with the duties of an expert set out in the Practice Direction CPR Part 35 in just the same way as other experts.
My task is to interpret the relevant Greek legislation in a like manner to that which would be adopted by a Greek court (see Deane v Barker [2022] EWHC 1523 (QB), paras 36 – 53 per Mr Richard Hermer KC). Where there are disputed questions of foreign law, my task is to determine what the highest relevant court in the foreign law system would decide ( Morgan Grenfell & Co Ltd v SACE Istituto per I Servizi Assicurativi del Commercio [2001] EWCA Civ 1932 para 50 and Perry v Lopag Trust Reg [2023] UKPC 16, para 38).
Finally, findings in relation to foreign law are findings of fact, albeit a question of fact of a peculiar kind ( Parkasho v Singh [1968] P 233, p 250, per Cairns J).
B) The parties' pleaded cases
In paragraph 10 of his Particulars of Claim the Claimant sets out his case on breach. Inter alia, he alleges that the driver of the Opel was negligent in that he was in breach of Articles 12 and 34 of the Greek Traffic Code (“the GTC”) and that he failed to exercise the skill and care of a reasonably competent driver in all the circumstances.
In paragraph 8 of its Defence, the Defendant denied that the driver of the Opel was negligent and/or in breach of the GTC. Alternatively, it is averred that any such breach of the GTC was not causative of the accident. Further or alternatively the Defendant alleged that the accident was caused or contributed to by the Claimant's own negligence.
The Defendant averred that the Claimant must prove his claim to the “ conviction of the Court: the burden of proof in Greek law is significantly higher that (sic) the balance of probabilities.”
In his Reply, the Claimant claimed that the Defendant had mistakenly elided the distinction between the “ burden” of proof and the “ standard of proof”. Whilst the former fell within the scope of the substantive applicable law, the latter fell within the procedural law of the forum court. In the event, the Defendant did not pursue this issue at trial, and I have made my findings of fact on the balance of probabilities, the standard of the English court (see Marshall v MIB, cited above).
C) The factual evidence
In his witness statement the Claimant explained that on the morning of 16 September he hired a Boardman bike from the Resort at about 8am. He then went for a ride with two other holidaymakers from the Resort. He said that the ride included a “ small amount of climbing but overall was relaxed, including a coffee stop”. He says that “ being very safety conscious”, he was wearing a helmet he had brought from England and Polaroid sunglasses to reduce the glare of the sun. When his co-riders returned their bikes to the Resort he decided to head off on his own on a “ brief ride”. The Claimant says that he “ went up to the local village, across the main road and onto a country lane. At the end there is a T-junction at which I turned right onto main road called ‘Epar. Od.Messinis-Kiparissias’”. He says that he had cycled along the road several times before. In the statement he said that “ the road, like other roads in the area, could be uneven and have some debris (e.g.) stones on it. As a result I was looking out for things immediately in front of my bike and looking up to assess the road further into the distance”.
The Claimant was called and cross-examined by the Defendant. The Claimant explained that he has no recollection of the events leading up to the collision or of the accident itself. He was asked about the requests submitted by him for a prosecution to be brought against the driver of the Opel. He explained that what he had said in those requests was simply based on what he had been told in respect of what had happened. The Defendant asked him on a number of occasions whether he accepted the reconstruction experts' evidence as well as whether, on the basis of the photographic evidence, he accepted that the Opel was visible from 120m away. On each occasion, the Claimant declined to answer the question, each time repeating that he had no recollection of the collision.
In its closing submissions the Defendant described the Claimant as a “very evasive witness” and invited the Court to draw an adverse contrast between him and the driver of the Opel, Mr Georgopoulos. I accept however that the Claimant genuinely has no recollection of the accident. As such his evidence was inevitably limited.
Mr Kaldor was called on behalf of the Claimant. Mr Kaldor came across the accident scene just after it had happened but did not witness the accident itself. In his statement he said that he spoke to the driver of the Opel and that he had said that he had seen the Claimant “ approaching his parked car but he did not slow down and that he was approaching his car at 20 kph. He said he was expecting [the Claimant] to deviate to the left and then the next thing was a bang when [the Claimant] hit the boot of his...
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