England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		Date : 01/08/2012

Mr Justice Griffith Williams :

1. On 6 February 2002, the claimant who was born on 28 September 1999, was injured in an accident at the home of her grandmother, near Bergerac in France when Patricia Parsons, a family friend who was visiting, reversed her Renault Espace into her, knocking her to the ground and then drove over her head. The claimant sustained a very significant brain injury together with serious injuries for which she received extensive medical treatment in France. While she has made a sufficient recovery for her to attend school, she has been left with very significant care, medical, physiotherapy, accommodation and equipment needs. Her case is that she will not be capable of work or of living an independent life.

The proceedings

2. Pursuant to a direct right of action under French law, a Part 7 Claim Form was issued on 21^st February 2011 against Allianz IARD SA, an insurance company incorporated in France, the insurers of Ms Parsons. It was pleaded that French law would apply to the liability issues in the claim pursuant to section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 ["the Act"] and by virtue of the Loi Badinter the liability of Ms Parsons is strict, requiring no proof of fault.
3. Service was effected on the Defendant and a defence dated 7 October 2011 was filed. In the defence, no admissions are made as to the precise facts and circumstances of the accident and it is averred, pursuant to section 12 of the Act, that it is substantially more appropriate for English law to be the applicable law for determining the issues arising in the case "including, for the avoidance of doubt, liability".
4. On 7 October 2011, the Defendant also issued a Part 20 (additional) claim against the Claimant's mother, the Third Party, alleging that she failed to supervise the Claimant at or about the time of the accident. – a claim which by reason of the strict liability provisions of the Loi Badinet may not be actionable under French law but there was no evidence on the point.
5. On 1 May 2012, Deputy Master Rose, gave various directions which included a direction that "the question of the law applicable to the claim be tried as a preliminary issue". By agreement, the preliminary issue is to be determined without oral evidence and on the basis of the witness statements of the Claimant's litigation friend and the Third Party and of submissions of counsel. As will become apparent, there is a substantial measure of agreement as to the relevant facts.

The Law

6. The relevant provisions of the Act are as follows:-

PART III

CHOICE OF LAW IN TORT …

9. Purpose of part III

(1) The rules in this Part apply for choosing the law (in this part referred to as "the applicable law") to be used for determining issues relating to tort …

(4) The applicable law should be used for determining the issues arising in a claim, including, in particular, the question whether an actionable tort… has occurred…

11. Choice of applicable law: the general rule

(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort… in question occur.

(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being –

a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury; …

12. Choice of applicable law: displacement of general rule.

(1) If it appears, in all the circumstances, from a comparison of –

(a) the significance of the factors which connect a tort… with the country whose law would be the applicable law under the general rule; and

(b) the significance of any factors connecting the tort… with another country

that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or for any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.

(2) The factors that may be taken into account as connecting a tort… with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort… in question or to any of the circumstances or consequences of those events…

14.Transitional provisions and savings

…

(2) Nothing in this Part affects any rules of law (including rules of private international law) except those abolished by section 10 above.

(3) without prejudice to the generality of sub-section (2) above, nothing in this part –

…

(b) affects any rules of evidence, pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum …"

7. It is common ground:

i) that the claimant has a right to bring proceedings in the courts of England and Wales against the defendant insurer: see Articles 9 and 11 in section 3 of the EU Council Regulation 44/2001 and FBTO Schadeverzekeringen NV v. Jack Odenbreit, a decision of the European Court Second Chamber of 13 December 2007;

ii) that the general rule is that the law to be applied in this jurisdiction is "the law of the country in which the events constituting the tort occur" (the "lex causae");

iii) that the statutory assumption is that French law will apply in the determination of substantive issues rather than evidential or procedural issues which are matters for the law of the forum: Harding v. Wealands [2006] UKHL 32;

iv) that the quantification or assessment of damages, provided the damages are a recoverable head of loss in French law, are matters for the law of England and Wales;

v) that the presumption that French law applies can be displaced under section 12 of the Act if, by comparison of the factors connecting the tort with France and the factors connecting the tort with England, it appears it would be "substantially more appropriate" to apply the law of England and Wales;

vi) that the comparison should be carried out with regard to the parties' connection with France and with England, the events which constituted the tort in question or to any of the circumstances or consequences of those events;

vii) that in considering whether the presumption that French law applies should be displaced under section 12 of the Act, the Court should conduct a three-stage exercise: see Roerig v. Valiant Trawlers Ltd [2002] EWCA Civ 21 per Waller LJ at paragraph 12 -

Identifying the issue to which it is suggested the general rule is not to be applied;

Identifying the factors which connect the tort to France and the factors which connect the tort to England;

Considering the significance of the factors connecting the tort to each jurisdiction in determining whether it is substantially more appropriate for the law of England and Wales to be the applicable law for determining the substantive issues.

Background

8. The Claimant, the Third Party and Ms Parsons are and were at all material times British nationals.
9. On 25 September 1999, 3 days before the Claimant was born, the Third Party moved to live in France where she lived until 10 February 2005, when she moved back to this country with both the Claimant and her half-sister who was born in France in July 2002. It follows that at the date of the accident, the Claimant and the Third Party had been resident in France for over 2 years and were to remain so resident for a further 3 years. The evidence of the Third Party was that at the date of the accident and for some time afterwards, she intended to make her home in France where her mother and her two brothers lived (apart from a short period of time when they moved to Ireland) and still live. She closed her bank account in this country, opened a French bank account, acquired a carte de sejour and obtained part-time casual employment. The Claimant who had attended a crèche commenced her schooling in Bergerac in 2003 but her needs, consequent upon the accident, were such that they would be better addressed in this country and so it was that she abandoned her plans to live in France and returned to this country in February 2005. The Third Party and the Claimant are now settled and domiciled in this country.
10. At the date of the accident, Ms Parsons lived with her family in France; she continues to do so. The Renault Espace was her vehicle registered in France and insured with the defendant company.
11. The Defendant has made a number of interim payments by way of provisional damages. Each of those payments was made in accordance with the Loi Badinter and amounted to an acknowledgement of the Defendant's strict liability to pay 100% of the damages. A total of 3 payments were made in January and November 2003 before the Third Party brought the Claimant to this country. Further payments were made subsequently, the last payment being made in March 2008.

The case for the Defendant

12. On behalf of the Defendant, which seeks to displace the statutory assumption that French law applies to the determination of the substantive issue of liability, Ms Kinsler submitted that the factors connecting the tort to England are outweigh the factors connecting the tort to France to such an extent that it is substantially more appropriate for the law of English and Wales to be the applicable law for the determination of that issue. She submitted that the Claimant and the Third Party are both British nationals and whatever their domicile at the date of the accident, they were domiciled in England and Wales when proceedings were issued and remain so; she submitted that the Claimant, the Third Party and the tortfeasor are all English. She submitted that while the tort was committed in France, its consequences have been and will continue to be predominately in England; she submitted that as the claim has been brought in this jurisdiction, so the Claimant's damages will be assessed according to English and Welsh law; she submitted it is more appropriate for the basis of liability and the quantum of damages to be decided according to the same law.

The cases for the Claimant and the Third Party

13. While the preliminary issue relates to the main claim between the Claimant and the Defendant, the Third Party is an interested party both as the Claimant's mother and as the Defendant to the Part 20 (additional) claim. On behalf of the Third Party, Ms Deal endorsed and adopted the submissions of Mr Chapman that French law should be the applicable law because the tort was committed in France where the Claimant and the Third Party were then resident; they submitted the Claimant and the Third Party had been resident in France for 2 years, intended to remain so and were so resident for a further 3 years after the accident, returning to this jurisdiction only because of the Claimant's needs.
14. They submitted that the defendant company is registered in France and so there is a connection between its place of registration and the place where the accident occurred. They submitted that French law governs the contract of insurance and there is some relevance in the facts that the vehicle driven by Ms Parsons was registered in France, and that the investigation into the accident was carried out by the Gendarmerie. They questioned whether it would be right, the Claimant having elected to bring proceedings in this jurisdiction in the knowledge that French law will apply, to deprive her of the obvious benefits of the strict liability provisions of the Loi Badinter by a displacement of the general rule at the behest of the defendant insurance company seeking to limit its liability in damages by a contribution or indemnity from the Third Party.
15. Counsel for the parties relied variously on a number of authorities in support of their respective submissions; on analysis they provide little assistance because for the most part they were decisions not on the substantive law to be applied but the lex forae for the assessment of damages; see Harding v. Wealands (above); Maher & Anor v. Groupama Grand Est [2009] EWHC 38 (QB) and [2009] EWCA Civ 1191; Cox v. Ergo Versicherung AG [2009] EWCA Civ 854; Dawson & Dawson v. Broughton, Manchester County Court 31 July 2007; and VTB Plc v. Nutritek International Corporation & Ors [2011] EWCA Civ 808 – Ms Kinsler submitted that the latter case provides a recent statement of the proper approach to section 12 of the Act but it is no more than an instance of the application of the relevant principles to a highly complex action in contract and so another example of just how fact specific these cases are. I have concluded that their selective citations from one or more of the above decisions of observations, for the most part obiter to the issue of the applicable law on issues of causation, cannot assist.
16. In Edmunds v. Simmonds [2001] 1 WLR 1003 (Garland J), the facts were that the defendant driver was carrying the claimant passenger in a car which they had rented while on holiday together in Spain. The car collided with a Spanish lorry as a result of which the claimant sustained serious injuries. She brought an action in negligence in England where both parties were normally resident. Garland J held that the general rule under section 11 of the Act that the applicable law for determining issues relating to a tort was that of the country where the events constituting the tort occurred (Spain), was displaced by section 12 of the Act since, in all the circumstances, in particular that both the claimant and the defendant were English and the claimant's damages as consequences of the tort arose in England, the factors connecting the tort to England were overwhelming and it was substantially more appropriate for the applicable law to be the law of England. Garland J agreed with the submission (page 1010C) that although the insurer of the hire car was Spanish, that was not of overwhelming weight because insurers of hire cars in tourist areas must contemplate that as the majority of hirers will be foreign, so when accidents occur, it is likely that damages will be quantified according to "some other system of law". Ms Kinsler, unsurprisingly, placed particular reliance upon this decision but I observe that there was no consideration in that case of issues of strict liability and there is nothing in the judgment that would suggest that the issue of liability would have been determined differently under Spanish law.

Discussion

17. I remind myself that the preliminary issue relates to whether French law or the law of England and Wales should apply to the substantive issues in the claim by the Claimant against the Defendant. I heard no argument about the applicable law in the Part 20 (additional) claim..
18. For there to be a displacement of the general rule it must be substantially more appropriate for French law (which it is agreed is the applicable law) to be displaced. I have considered the submissions on behalf of the defendant insurance company carefully but I am not persuaded it is substantially more appropriate that the law of England and Wales should be the applicable law.
19. That the Claimant, the Third Party and the tortfeasor are British nationals and English and the present domicile of the Claimant and the Third Party is in this jurisdiction are of no real relevance and certainly not factors of such weight as to make it substantially more appropriate for French law to be displaced. The defendant insurance company must have appreciated that the applicable law for the determination of issues of liability for accidents in France is French law and that in a country as cosmopolitan as France, foreign nationals, who are likely to be injured in accidents caused by their insured will both benefit from the strict liability provisions of the Loi Badinter. and may seek to have their damages quantified according to some other system of law.
20. In support of the conclusion that French law should not be displaced is the fact that the accident occurred in France where, by virtue of the Loi Badinter there is strict liability. That, in my judgment is the determining factor, together with the fact that the Defendant has made interim payments. The fact that the Claimant's damages will fall to be assessed in the courts of this jurisdiction is not a determinative factor – that will be the case whether the applicable law on the substantive issue is French law or the law of England and Wales.

Decision

21. I am satisfied that no case been made out to make it substantially more appropriate for French law to be displaced and so the applicable law for the determination of the substantive issues including that of liability in the claim against the defendant insurance company must be French law.