17 NOV 2014
Gaynor Winrow v J Hemphill (1) and Ageas Insurance Limited (2)  EWHC 3164 (QB)
Applicable law – jurisdiction – habitual residency – Rome II
High Court, Queen’s Bench Divisions
6 October 2014
The claimant, a UK national, was injured in a road traffic accident in Germany. As a preliminary issue before trial, the court was asked to determine whether German or English law applied to the assessment of damages. Article 4(1) of regulation 864/2007 (Rome II) said that German law applied.
The claimant was a rear seat passenger injured in a road traffic accident in Germany. Both the claimant and the driver (first defendant) were UK nationals and living in Germany while their respective partners were stationed there as part of HM Armed Forces. The driver’s insurers (second defendant) admitted liability.
Article 4(1) of Regulation 864/2007 (Rome II) says that any claim for damages ought to be determined by reference to the law of the country in which the damage occurs. However, this rule is displaced if both parties are habitually resident in another country (Article 4(2), Rome II) or the tort is more connected with some other country (Article 4(3), Rome II).
The second defendant argued that German law applied because the accident occurred in Germany, the injuries were sustained in Germany and both parties were habitually resident in Germany at the time.
The claimant argued that the tort was more connected with England because the parties were UK nationals and were only living in Germany temporarily. Further, the claimant was employed by a UK government agency while in Germany and most of her financial losses would be incurred in England.
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The court held that both parties were habitually resident in Germany having lived there for some time before and after the accident. Deciding whether a case is more connected to one over another country, the court said, depends on the facts in any given case. Displacing the general rule requires a high standard of proof. As the accident occurred in Germany and both parties were habitually resident there, it could not be said the general rule was displaced and German law applied.
This application concerned a very technical legal question. As the question of which law applies following accidents abroad is fact sensitive and the parties could not agree, the claimant was right to ask the court to determine the matter, even though she lost. What is clear is that to displace the general rule requires a great deal of evidence in support. In this case that evidence was lacking.