Those with an interest in the Rome II Regulation (there must be someone else out there) may already be familiar with the recent decision of Slade J in Winrow v Hemphill & Anor.  EWHC 3164 (QB). This short piece focuses on one aspect of the judgment. First, however, a quick recap. The claim arose out of a road traffic accident in Germany in November 2009. The Claimant was a UK national, domiciled in England, who was living in Germany at the time of the accident (having moved there with her British Forces husband several years before the accident). The Claimant returned to England around 18 months after the accident and continued to live in England at the time of trial. The First Defendant was also a UK national. She was also an Army wife and her husband served with the Army in Germany. The First Defendant, like the Claimant, later moved back to England. The Second Defendant insurer was registered in England/Wales. It was the insurer of the First Defendant at the time of the accident. The Claimant was a rear seat passenger in a vehicle driven by the First Defendant. The vehicle was involved in a head-on collision with a vehicle driven by a German national. It was not in issue that the accident was caused by the negligent driving of the First Defendant. Accordingly, liability was not in issue and judgment was entered. The parties continued (and continue) to fight the causation and quantum issues. The preliminary issue trial before Slade J concerned the applicable law of the tort and, more particularly, under Art. 15(c) of Rome II, the law to apply to the assessment of the damages to which the Claimant would be entitled: should damages be assessed, as the Claimant argued, according to English law (on application of Art. 4(3) of Rome II) or should they be assessed, as the Defendants argued, according to German law (by reason of Art. 4(1) of Rome II)? Slade J determined the preliminary issue decisively in the Defendant insurer’s favour: German law was to be applied. However, in the course of her judgment she stated (para 45 if you’re really interested), “I do not accept the contention … that the circumstances to be taken into account in considering Article 4(3) will vary depending upon the issues to be determined and … the stage reached in the proceedings. Nor do I accept the submission that ‘the centre of gravity’ of the tort when liability was conceded and only damages were to be considered depended upon circumstances relevant to or more weighted towards that issue.” The question I leave you with is why this is so. In Winrow liability was conceded and only causation and quantum remained to be dealt with. Most dispassionate observers would accept that causation and quantum were more closely connected to England (where the Claimant lived at the time of trial and was experiencing ongoing loss and where medico-legal experts were based) than Germany. If – as Art. 4(3) – directs” all the circumstances of the case” are to be considered in determining whether the tort/delict is more closely connected with one country (England) than another (Germany), it would seem artificial (at best) and, more ambitiously, wrong (in law) to put out of mind the fact that liability was no longer in issue and, therefore, was no longer a relevant consideration. Some of the textbook writers – particularly those wedded to a more certain/less discretionary approach to the identification of the applicable law of the tort – might (like Slade J) baulk at the approach advocated on behalf of the Claimant. However, there may – in this limited way – still be room for English common law inroads into (even) the Rome II regime so that some weight is given to the issues actually in dispute before deciding which law ought to be applied to them.
Medical Law, Motor Fraud, Other Areas of Law, Professional Liability, Property, Chancery & Commercial, Travel & Cross Border Claims
Rome II and the Law of the Tort
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