This article was first published in the February 2015 Personal Injury Newsletter.
In Allen v Depuy International Limited  EWHC 753 (QB) Mr Justice Stewart had to determine when the events giving rise to a claim within the meaning of Rome II occurred. The claimants, who at any material times had been resident outside England and indeed outside the EU, brought a claim against the defendant, a company registered in England which manufactured prosthetic hip implants in England, for damages for injuries arising from the implants (in particular adverse reaction to metal debris). Mr Justice Stewart agreed with the claimants that the events giving rise to the damage occurred when the implants were manufactured/circulated, or failing that the date that they were implanted into the claimants. As both of these dates were prior to 11 January 2009 Rome II did not apply to the claims. He was influenced in coming to this view by the importance of the principle of legal certainty. He held that had the defendant been right that the relevant date was the date when the adverse reaction to the implant occurred this date would not be determinable until further evidence had been obtained to establish when this was.
The court went on to determine what the applicable law was pursuant to the Private International Law (Miscellaneous Provisions Act) 1995 (‘the 1995 Act’). The court considered first the general rule under section 11(2)(a) i.e. that the applicable law is the law of the country where the individual sustained the injury (variously South Africa and New Zealand), before going on to consider whether the general rule should be displaced pursuant to section 12. The court held there was insufficient reason to displace the general rule and so held that English law was not the applicable law.
Lastly the court went on to consider whether, if the applicable law had been English law, the Consumer Protection Act 1987 would have extended to these claims. The court held that it would not. The Consumer Protection Act had no territorial effect beyond the United Kingdom, European Union or European Economic Area. Consumers who suffered damage outside the EEA and who had no connection with it, and whose claims concerned defective products whose marketing and supply were outside the EEA, did not come within its scope.
A further case came before the Courts concerned with choosing the applicable law pursuant to the 1995 Act – Donkers v Storm Aviation Ltd  EWHC 241 (QB),  1 All E.R. (Comm) 282. In this case an accident had occurred in England and so it was agreed that the general rule under section 11(1) applied. The third party (the claimant’s employer) submitted that the general rule should be displaced by section 12 on the basis that it was substantially more appropriate for German law to determine the issues. This was because (i) the claimant was German, (ii) he was employed by a German company and engaged in work at the time the accident occurred, (iii) the claimant was therefore only temporarily in England, (iv) the loss and damage is and will still be suffered in Germany. The court held that the tort was strongly connected with England and refused to displace the general rule.
The court went on to hold that the defendant’s claim against the third party for an indemnity in respect of the claim was also governed by English law. The contract provided no choice of law clause and so pursuant to the Contracts (Applicable Law) Act 1990, the applicable law is governed by article 4 of the Rome Convention. The court held that as the defendant is registered in England, the contract was to be performed in England and the indemnity clause was not severable from the agreement between the defendant and the third party, the applicable law was English.
The Supreme Court in the case of Cox v Ergo Versicherung AG  UKSC 22,  A.C. 1379 had cause to consider whether the Fatal Accidents Act 1976 had extra-territorial effect and would apply to a claim brought in England against a driver’s German insurers in respect of a road traffic accident in Germany in which the claimant’s English husband was killed. The applicable law was determined pursuant to the 1995 Act. Pursuant to section 11 of the 1995
Act the general rule was that the applicable law was German. Section 14(3)(b) of the 1995 Act however provides that matters of procedure (including the assessment of damages where this is procedural and not substantive) are to be determined pursuant to the law of the forum. The question for the court was whether the damages fell to be assessed pursuant to the German rules or pursuant to the Fatal Accidents Act 1976. The Court held that the relevant German damages rules are substantive because they determine the scope of the liability. The Court further found that the Fatal Accidents Act only applies to an action brought under it. An action to enforce a liability whose applicable substantive law is German law is not an action under the Fatal Accidents Act. The Supreme Court went on to hold that the procedural rules of assessment that must be applied by the English court were its own rules of the assessment of damages so as to put the claimant in the same financial position as she would have been if her husband had not been killed.
In Winrow v Hemphill  EWHC (QB) the claimant was injured when a rear seat passenger in a car driven by an English national (the first defendant) which collided with a vehicle driven by a German national. The second defendant was the first defendant’s insurer, a company incorporated in England and Wales, and conceded liability. The claimant was living in Germany at the time of the accident and had been for 8 years but intended to return to the UK at the end of her husband’s posting. By the time her claim was issued she had returned. She submitted that German law was displaced under Article 4(2) or 4(3) of Rome II and that English law applied. The court disagreed. The fact that the claimant intended to return to England did not affect the fact that at the time of the accident she was habitually resident in Germany, for the purposes of Article 4(2). In looking at Article 4(3) the court could look at the fact that she had been habitually resident in Germany but was habitually resident in the UK at the time of the claim, and the court also proceeded on the basis that the link of the consequences of the tort to a particular country was a relevant factor for the purposes of Article 4(3) but the law indicated by Article 4(1) had not been displaced and German law applied.
In Lougheed v On The Beach Limited  EWCA Civ 1538 the Court of Appeal considered again the question of local standards in a case under the Package Travel, Package Holidays and Package Tours Regulations 1992. The claimant booked a holiday in Spain through the defendant company. She slipped and fell on a patch of water on polished granite steps. At trial there was no expert evidence as to cleaning standards. The claimant won. On appeal it was re-affirmed that the standards by which the hotel was to be judged in its performance of unregulated tasks had to be informed by local standards of care as applied by similar establishments. There had been no enquiry as to the general practice in establishments of the same sort in Spain concerning the monitoring and cleaning of spillages, and it was not possible to draw an inference of want of care without sufficient evidence of Spanish standards. Further, the judge had not been justified in concluding that the accident would not have happened if the hotel management had used proper care. An evidential burden should not be imposed upon a party such as the defendant unless it was at least shown that the party for whose performance it was liable, namely the hotel, knew of the likelihood of the presence of a hazard such as a spillage, and of the danger to consumers posed by that hazard if not dealt with promptly.