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Supreme Court Eases Pain of Holiday Injuries for UK Insurers

Friday, 5 September 2014

As the summer of 2014 draws to a close there are those who will be suffering from more than just feeling seasonally SAD. In addition to the direct pain injuries sustained on holiday can bring, there are also a number of legal complexities that can follow.

The conflict of laws governing torts including personal injuries occurring whilst on holiday was in question in the case of Katerina Cox v Ergo Versicherung AG [2014] at the beginning of the year.

The question as to which law is applicable, that of the state hosting the accident or that of the state to which the claimant is resident remains an important one. It is generally accepted that English law provides for more generous payouts of damages than, for example, French law.

Key Issues for Making Claims Related to Holiday Accidents

In terms of issuance, for claimants domiciled in the UK, the key issue of which country in which to bring a claim is straightforward: the claimant will sue the tortfeasor (or his/her insurer) in the English Court system. This is following s3 of the Brussel’s I Regulation in conjunction with the European Court of Justice’s (ECJ) decision in Odenbreit [2007].

However, the question of the determination of damages is now decided by the provisions of Regulation 864/2007 (Rome II), where the conflict of laws is resolved by the relevant law being the law of the country in which the damage occurs (Article 4).In pursuance of Rome II, the application of the relevant foreign law, although taking place in English courts, extends not only to an assessment of liability but to an assessment of the quantum of damages recoverable.

Before Rome II

Rome II only applies to accidents occurring on or after 11 January 2009, following the ECJ’s decision in Homawoo [2011]. If the accident occurred before 11 January 2009 then the applicable law, for English claimants, is that “of the country in which the events constituting the tort…in question occur” (Private International Law Act 1995). Although this would seem again to point to the country hosting the accident, the claimant in Katerina Cox v Ergo Versicherung AG [2014] had argued otherwise.

Basing her argument on the correct statutory interpretation of the Fatal Accidents Act 1976, the claimant argued that its provisions were universal and therefore of extra-territorial application. The argument’s hypothetical success, and the Act’s hypothetical universal application, would exclude the application of foreign law in the governance of claims arising from deaths abroad.

Rome II Confirmed by Supreme Court

The Supreme Court was unanimous in its rejection of the claimant’s argument in Katerina Cox v Ergo Versicherung AG [2014] and its judgement on 2 April 2014 provides continued comfort for travel insurers. The Fatal Accidents Act 1976 will not apply where foreign law is applicable, therefore preventing, in almost all cases, the much sought after windfall for English claimants when suffering tortious injury abroad.

For specialist advice regarding insurance litigation contact Peter Gourri today by email or telephone 0207 611 4848.

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