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Home or Away? Should you be entitled to English levels of compensation or those of the country where your accident happened?
Mon 26th Sep 2011 Claims abroad
We have been at the forefront of a very important argument for individuals who are involved in an accident abroad. Should you be entitled to, the generally higher, English levels of damages following an accident abroad? Or should your compensation be awarded in accordance with the rules and levels recognised in the country where the accident happened? This important question has been referred to the European Court of Justice and the Advocate General has just given a preliminary opinion which, while not binding, is likely to be persuasive to the decision the Court reaches.
The amount of damages payable can vary
substantially following an accident – the same claim if assessed in England
could be worth £4 million, and in Spain €750,000. A relatively new piece
of European law, known as Rome II sought to clarify the position on what damages apply following an
accident. Due to the wording of Rome II, it has caused more confusion
than it seems to have solved.
For individuals from England this is important as if you are injured in Spain, for example, should you be compensated the higher English or lower Spanish damages? The answer, according to Rome II, is that an English person injured in Spain would be able to recover English damages before the application of Rome II and Spanish damages after. This is all straight forward, until the question arises as to when Rome II applies from.
The case before the European Court, Homawoo, follows an accident in France on 29 August 2007. Simply - if damages are assessed in accordance with French law the insurers pay out less to the injured person than if the claim was decided in accordance with English law.
The opposing arguments are that Rome II only applies to accidents after 20 August 2007, or alternatively only to accidents that happen after 11 January 2009. The arguments come about due to the wording within Rome II. Should it be 20 days from the date of publication of Rome II i.e. 20 August 2007? Alternatively should it be 11 January 2009 in accordance with Article 31 of RomeII? The difference in opinion comes from a lack of clarity within Rome II as different wording is used. At Article 31 it is 'entry into force' and at Article 32 it is 'date of application'.
The Advocate General has now given a very clear and conclusive decision that Rome II only applies to accidents on or after 11 January 2009. If the European Court of Justice follows this decision, the claimant in Homawoo was correct in their interpretation. There are exceptions where Rome II does not apply and an expert should always be consulted wherever an accident happens abroad.
If the Court follows the Advocate General's opinion it will be good news for English individuals where the accident has occurred before 11 January 2009. This is because they will be entitled to the higher English levels of damages, although the types of loss an individual can claim will still be governed by the law of the place where the accident occurred.
The point is of such importance that the Greek Government, the UK Government and the Commission all expressed their views on the proceedings. The Greek Government submitted its view that Rome II applies for all accidents after 20 August 2007. This was favored by the insurers in the claim. The alternative view of the claimant, the UK Government and the Commission, was that Rome II only applied to accidents that happened on or after 11 January 2009.
This is a simplification of the law and, should you be faced with an issue following an accident out of your home jurisdiction, always make sure you have good advice from someone experienced in this area of law.For further information please contact Chris Deacon, a Solicitor in Blake Lapthorn's Claims Abroad team on 023 8090 8090 or at firstname.lastname@example.org
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