THIS ARTICLE APPEARED IN THE NEW LAW JOURNAL ON 24 FEBRUARY 2017.
The growth of international travel for both work and pleasure has meant the number of injury claims relating to accidents abroad has increased. However, the fact that an accident occurred abroad may create a number of difficulties. One of those is the question of which law will apply to the resulting claims. For all accidents occurring after 11 January 2009, this is governed by Regulation (EC) 864/2007, known as Rome II. Article 4 deals with choice of law and sets out a general principle, an exception and an escape clause.
The general principle : Article 4(1)
The general principle is that the applicable law will be the law of the country in which the damage occurs. This should be clear in most straightforward personal injury cases i.e. it will generally be the country in which the injury was sustained and the accident took place.
The exception : Article 4(2)
The general principle is displaced where the person sustaining damage and the person claimed to be liable share a common habitual residence at the time when the damage occurs. Article 4(2) is intended as a rigid rule and not a flexible exception. If there is in fact shown to be a common habitual residence then that will automatically displace the applicable law under Article 4(1).
The escape clause : Article 4(3)
If the tort or wrongdoing is manifestly more closely connected with a country other than that indicated by Article 4(1) or (2), the law of that country will apply. Factors relevant to this assessment include any pre-existing relationship such as a contract, the event and its consequences and the parties themselves.
Historically, there have been some open questions as to how all this might work in multi party claims and whether Article 4(3) permits displacement of the law determined by Article 4(2) in favour of a return to that determined by Article 4(1). The recent decision in Marshall v MIB (1) Pickard (2) Generali (3) provides a useful insight into how these issues will be dealt with.
An uninsured Peugeot car driver (Mrs B) had hit 2 British nationals (M and P) as they were standing behind a Ford Fiesta car and trailer whilst the trailer was being attended to by a recovery truck on the side of the motorway. P had been driving the Fiesta and M was his passenger. After hitting M and P, the Peugeot collided with the trailer, shunting it into the Fiesta which, in turn, was shunted into the recovery truck. P was thrown forward by the impact with the Peugeot and landed clear of the vehicles. He suffered serious injuries. M was thrown off the front of the Peugeot and the trailer fell on his leg. He died at the scene. The Fiesta was registered in the UK and insured by RSA; the recovery truck was registered in France and insured by Generali.
At first instance Dingemans J decided that the applicable law was to be determined by reference to Article 4 of Rome II. He decided that under Article 4(3) a governing law mandated by Article 4(1) but excluded by Article 4(2), might by required by Article 4(3). In this case, it was clear that the tort was manifestly more closely connected with France rather than England and thus French Law applied to the issue of liability for the claims before the Court. RSA, as insurers for Pickard, applied to the Court of Appeal for permission to challenge this decision. Mr Justice Cranston refused permission in a Judgment dated 19 January 2017. He noted that the judge at 1st instance took into account that M and P were hit by a French vehicle, driven by a French national on a French motorway; that the collision by Mrs B with M and P was as a matter of fact the cause of the accident, the injuries and the subsequent collisions and that any claims that M and P had against Generali were governed by the laws of France. In that regard she said the judge had struck a balance that was an evaluative exercise and the outcome he reached was unassailable.
This matter is thought to be the 1st reported case in which Article 4 (3) has pointed back to the same law as Article 4 (1). As such it is a useful clarification. Perhaps even more important though is the clarification that in looking at Article 4 (3) in a multi tort case (such as a motor vehicle pile up), for the purposes of determining the applicable law, it is relevant to look at all of the claims against the other parties as well as simply the specific claim advanced against the Defendant in question.
Kelvin Farmaner is a member of the Forum of Insurance Lawyers (FOIL) European Issues Sector Focus team and a Partner with Trethowans LLP. He represented Generali in Marshall v MIB (1) Pickard (2) Generali (3) together with Paul Lavelle, Claims Manager of Van Ameyde UK and Charles Dougherty QC of 2TG.