Winrow v Hemphill & Anor
2014
QUEEN’S BENCH DIVISION
UK
CORAM
- THE HONOURABLE MRS JUSTICE SLADE DBE
Areas of Law
- Conflict of Laws
- Tort Law
2014
QUEEN’S BENCH DIVISION
UK
CORAM
AI Generated Summary
The case centers around determining whether English or German law governs the assessment of damages for a UK national injured in a road traffic accident in Germany. Liability for the accident was admitted, and the claim was pursued in English courts. The court held that German law applies, citing that both the claimant and defendant were habitually resident in Germany at the time of the accident and that the tort was closely connected to Germany. The decision is underpinned by Article 4 of the Rome II Regulation.
Judgment
MRS JUSTICE SLADE:
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.
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.
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.
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.”
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.”
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’ ).
The relevant recitals to Rome II provide:
“(14) The requirement of legal certain