Susan Sedgwick v Mapfre Espana
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lambert DBE |
| Judgment Date | 26 October 2022 |
| Neutral Citation | [2022] EWHC 2704 (KB) |
| Docket Number | Case No: QB-2020-000408 |
| Court | King's Bench Division |
[2022] EWHC 2704 (KB)
Mrs Justice Lambert
Case No: QB-2020-000408
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Chapman KC (instructed by Leigh Day) for the Claimant
Philip Mead (instructed by Hextalls) for the Defendant
Hearing date: 27–29 April 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 26/10/2022 by circulation to the parties or their representatives by e-mail.
This is an action for damages for personal injury and financial losses arising from an accident which occurred on the Spanish island of Tenerife on 23 January 2016.
The claimant lives in Wales. At the time of the accident she was aged 55. She was on her honeymoon, staying at the Hotel Blue Sea Callao Garden in Santa Cruz which was owned and operated by a company registered and incorporated in Spain. During the early evening of 23 January 2016 she was descending an inadequately lit concrete staircase when she fell and sustained severe fracture injuries to her left knee and to her right heel. She was taken to the local hospital in Tenerife where she underwent an open reduction and internal plate fixation of the left tibial fracture and stabilisation of the right os calcis fracture in a plaster cast. She was repatriated on 31 January via air ambulance and admitted to hospital in the UK where she underwent an internal fixation of the right os calcis on 5 February. On 7 February she was discharged home non weight bearing for out-patient review and physiotherapy.
A letter before action pursuant to the Pre-action Protocol for Personal Injury Claims was sent to the hotel on 11 September 2017. The letter required the hotel to confirm the identity of its insurers by return of correspondence and to forward the letter to the insurers without delay. Proceedings were commenced against the defendant, the Spanish public liability company providing insurance cover to the hotel, in the Queen's Bench Division on 31 January 2020. The defence, served in September 2020, was non-committal in respect of the circumstances of, and liability for, the accident but, by the date of trial, liability had been admitted. The issues for me therefore concern quantum only.
The claimant was represented by Mr Chapman KC and the defendant by Mr Mead. I am grateful to them both for their submissions.
The Issues:
It is common ground between the parties that Spanish law is the governing law of the insurance contract/policy which provides the tortfeasor with the right of indemnity within the terms of the policy and that the claimant has, under Spanish law, a direct right of action against the insurer.
The parties agree that the law of Spain applies to the claim in tort. Article 4.1 of the Rome II Regulation on law applicable to non-contractual obligations ( Regulation No 864/2007) (“ Rome II”) sets out: “ 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.”
The scope of the law applicable is set out in Article 15 of Rome II: “… the law applicable to non-contractual obligations under this Regulation shall govern in particular: (a) the basis and extent of liability including the determination of persons who may be held liable for acts performed by them; (b) the grounds for exemption from liability, any limitation of liability and any division of liability; (c) the existence, the nature and the assessment of damage or the remedy claimed;…”
Article 1(3) of Rome II reserves all matters of procedure and evidence to the law of the forum court: “ This Regulation shall not apply to evidence and procedure ….”
In summary, in the context of this case therefore, Spanish law applies to matters of substance (including the existence, nature and assessment of damages and remedy) but English law, as the law of the forum court with jurisdiction, governs matters of procedure and evidence.
Against this uncontroversial background, the issues for my determination can be grouped into three topics:
i) the resolution of a series of questions relevant to the award of general damages (for non-pecuniary loss) under Spanish law;
ii) whether the claimant is able to pursue a claim for subrogated losses on behalf of her travel insurer;
iii) the appropriate rate of interest to apply to the damages award, whether the Spanish (penalty) rate of interest under Article 20 of the Spanish 50/1980 Insurance Contract Act of 8 October 1980, or a rate applied under s 35A Senior Courts Act 1981.
Spanish Law Framework:
English law holds that the content of foreign law is a question of fact, and if foreign law is to be relied on it must be pleaded and proved as a fact, as a rule by expert evidence: see Dicey Morris and Collins on the Conflict of Laws 15 th edn Rule 25(1). Dicey's Rule 25(2) is that: “In the absence of satisfactory evidence of foreign law the Court will apply English law to such a case.” This rule, commonly known as the “presumption” that foreign law is the same as English law, has been re-examined and endorsed by the Court of Appeal in OPO v MLA [2014] EWCA Civ 1277, [2014] EMLR 4: see [108]–[111] (Arden LJ).
Both parties have instructed Spanish law experts: Mr David Sanchez Almagro for the claimant and Professor Luis Carreras del Rincon for the defendant. Mr Sanchez was admitted to the Madrid Bar in 1995. He joined the law firm Estudio Juridico Almagro in 1997 and became the litigation partner in that firm in 2001 specialising in civil claims involving English tourists in Spain. Professor Carreras is a lawyer with the firm of Bufete Carreras Llansana Abogados in Barcelona. He qualified in 1984. In addition to his work as a practising lawyer he is currently Professor at the Law Faculty of the Universidad Ramon Llull of Barcelona. The experts provided detailed reports and a joint note setting out areas of agreement and disagreement and both gave evidence before me at trial via remote link.
The experts agree the broad legal framework for the assessment of damages in actions for personal injury before the Spanish courts. I set out the elements relevant to this claim below.
In Spanish law, the rule is that a victim of an accident should, as far as money can do so, be restored to the position he/she would have been in but for the accident. In the field of motor liability the Spanish legislator has passed Royal Decree 8/2004, the Baremo, setting out the rules for the assessment of damages in personal injury claims arising from road traffic accidents. The principle of full reparation is set out in Article 33 of the Baremo which provides that:
“ 1. Full reparation and the structured reparation of the damage are the two fundamental principles of the system of valuation.
2. The principle of full reparation is intended to ensure full compensation for the damages suffered. Compensation under this system takes into account any personal, family, social and economic circumstances of the victim, including those affecting loss of income and loss or diminution of earning capacity.
3. The principle of full reparation governs not only the pecuniary consequences of bodily damage but also the moral or non-pecuniary consequences and implies, in this case, compensating by means of socially sufficient and reasonable amounts that respect the dignity of the victims, all relevant damage in accordance with its extent”.
The Baremo provides a structured set of rules for the assessment of various heads of loss. The experts inform me that the rules are only binding upon the courts in the quantification of damages following a road traffic accident. In the absence of any alternative scheme for the assessment of damages for injuries other than those arising from road traffic accidents however the court typically will use the Baremo as an indicative guideline to inform the assessment of damages in other personal injury claims. There always remains a discretion to depart from the Baremo rules but in this claim both experts adopt the Baremo rules as the appropriate mechanism for quantification of damages for non-pecuniary loss. So far as relevant I set them out below
Article 138 of the Baremo entitles the victim to a daily rate/tariff during the period of “ lesiones temporales” or temporary injuries until the victim's condition has stabilised or “consolidated.” There are four tariffs which may be applied depending upon the severity of the victim's loss of quality of life: very severe, severe, moderate and basic. The Baremo (Article 138(6)) provides that “ The degrees of damage are mutually exclusive and applicable successively. In any event, only one degree shall be assigned to each day (where damage exists).”
Article 138 (2) sets out that: “ very serious damage is that in which the injured person temporarily loses personal autonomy to carry out almost all essential activities of ordinary life. Admission to an intensive care unit constitutes damage of this degree.” It is common ground that the claimant's injuries did not, at any stage, fall into this category.
The daily rate for severe temporary loss of quality of life is 75 euros. Severe temporary loss of quality of life refers to either:
i) an inability to perform “ a significant part” of the essential day to day activities of ordinary life. These are defined by Article 51 of the Baremo and comprise: “ eating, drinking, toileting, getting dressed, sitting, getting into and out of bed, bowel control, moving...
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Jane Nicholls v Mapfre Espana Compania De Seguros Y Reaseguros SA
...as the lex fori; and that he was entitled to award interest at English and not Spanish rates accordingly” 28 In Sedgwick v Mapfre [2022] EWHC 2704 (KB), the claimant sought damages for personal injury arising from an accident sustained on the Spanish island of Tenerife when she fell, desce......
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The Dekagram 9th May 2023
...may award Spanish penalty interest, and it was appropriate in that case to do so). Lambert J handed down judgment in Sedgwick v Mapfre [2022] 4 WLR 108 on 26th October 2022, twelve days after the judgment in Woodward. She had heard argument prior to the outcome in Woodward and therefore her......