Syred: The Consequences of Rome II’s Application to an English Claimant’s RTA in Poland - Charles Cory-Wright QC, 39 Essex Chambers

04/04/16. The Claimant, Robert Syred, was a successful English building surveyor. In 2010, while he and his girlfriend were visiting her family in Poland, they were involved in a very serious road accident. They were both back seat passengers in a car being driven by her brother. He turned left (across oncoming traffic), as result of which there was a very heavy side-on impact with a car travelling at excessive speed in the opposite carriageway. Mr Syred was not wearing a seat belt, and was thrown from the car as it span after impact, through (the experts agreed) the right hand rear window. He suffered a whole series of injuries, orthopaedic, neurological and psychological, including severe brain damage and a life threatening torn aorta.

There was no issue as to primary liability – both drivers were to blame. There were however significant issues as to seat-belt contributory negligence and quantification. As to that, in terms of analysis of injuries and need etc., this was in many ways a typical (if that word is ever appropriate in these circumstances) catastrophic injury case.

What however made it additionally complicated, unpredictable, and difficult to resolve was the foreign element. Rome II applied. This meant that while the English Court had jurisdiction (the Claimant being domiciled here and the Defendants being motor insurers), the applicable law for all relevant purposes – resolution of liability matters, contributory negligence and quantum - was the law of Poland. (NB: the old principle that quantification of loss is a procedural matter and therefore decided by the law of the forum no longer applies under Rome II.)

The parties were agreed that the main consequences of this related to the following issues.

(i) Contributory Negligence: Polish law, like English law, applies a percentage deduction for contributory negligence. However it has no ”standard” deduction for seat belt contributory negligence (i.e. no equivalent to Froom v Butcher), and therefore there was a wide range of possible deductions, based on the Polish equivalent of culpability and causation arguments. The Defendant was arguing for a 50% deduction; the Claimant was arguing for 5%; (ii) PSLA: the Claimant argued for figures based on English PSLA awards (in the absence of any sufficient evidence of a coherent alternative). The Defendant argued for the application of figures derived from a system of social insurance awards, which were significantly lower than the English awards; and (iii) Deduction of Benefits: the Defendant argued that all future benefits throughout the Claimant’s lifetime should be deducted from his damages, because that is what would be required under Polish law - there being no equivalent to the English statutory 5 year cut-off point. (NB there were arguments here as to the applicability of the relevant Polish law; the issue was ultimately compromised during the course of the hearing, and the judge therefore did not have to rule upon it.)

Otherwise the issues on liability and quantum were litigated precisely as they would have been had the accident occurred in England; the parties agreed that the Court should apply English principles in the absence of evidence of any contrary applicable approach. (This was not simply a convenient artifice; it was a function of the fact that English law requires the party seeking to rely on foreign law to prove not only its applicability but also its different effect, failing which English law is assumed to apply on the basis of a presumption of similarity.)

After a two week trial Soole J ultimately found as follows

• Contributory Negligence: that the most serious injuries (the brain injury and the torn aorta) had not been caused or contributed to by the Claimant’s failure to wear a seat belt; but that his other orthopaedic injuries had; and that applying the relevant Polish law there should therefore be a deduction of 5% for contributory negligence;

• “PSLA”: that it was appropriate to look to the Polish law social insurance scheme as the starting point for assessment of PSLA; and that he should receive £50,000 (a figure significantly lower than if he had been applying English PSLA principles in accordance with the Judicial College Guidelines);

• Injuries and their Effect: that the Claimant was severely handicapped cognitively as a result of his brain damage, both in terms of function and in terms of disinhibition, as well as being physically disabled by his injuries;

• Care: that the Claimant had significant long term care needs, which had been seriously underestimated by the Defendant’s care expert (essentially because she had ignored his cognitive damage), and which would in the future reasonably be satisfied by a combination of gratuitous care from his (devoted) wife and a professional care regime;

• Loss of Earnings: that notwithstanding his determined attempts to return to work as a building surveyor, sustained over 4 years or so, he had no real prospect of doing so, albeit that he did have some very limited residual earning capacity.

All in all the Claimant recovered a total of c£1.15m, including significant amounts for future loss of earnings and care, together with his costs. This was nearly double the Defendant’s Part 36 Offer of £600,000, and only just short of the Claimant’s part 36 Offer of £1.25m. The Claimant got his costs on the standard basis, having agreed to forego arguments for enhanced costs orders in return for the Defendant agreeing not to pursue any appeal.

The case is instructive both as an example of the sorts of issues that arise, under Rome II, in cases concerned with foreign accidents within the EU, and more generally as a good example of the proper approach at trial to assessment of medical and in particular care evidence where there are significant differences between the experts.

Charles Cory-Wright QC
39 Essex Chambers

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Update From North of the Border: Court Reforms - Sarah Donaldson, Brodies LLP

22/03/16. The pace of court reform continues north of the border. As you may be aware, as of 22 September 2015, there have been wholesale changes to the world of personal injury litigation in Scotland. On that date, the minimum level of damages that can be sought in the Court of Session, Scotland’s highest civil court, increased from £5000 to £100,000. The result has of course been a comprehensive shift in the forum for new personal injury actions, from the Court of Session to the Sheriff Court (County Court equivalent), where all cases worth less than £100,000 must be dealt with.

In addition, to complement the increase in the level of privative jurisdiction of the Sheriff Court, a specialist all-Scotland Sheriff Personal Injury Court was established. That court has jurisdiction to hear any personal injury claim worth over £5000, or any workplace-related personal injury claim with a value of over...

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Turning the Tables in Fatal Accident Claims: Knauer v Ministry of Justice [2016] UKSC 9 - Stephen Cottrell, Devereux Chambers

21/03/16. In a major victory for claimants, multipliers in fatal accident claims have been brought in line with personal injury and clinical negligence cases after The Supreme Court reversed a 37-year-old decision of the House of Lords. Lord Neuberger and Lady Hale gave the judgment of the court and stated that their Lordships ‘had no hesitation’ in deciding that the law had to be changed. The decision will mean that bereaved relatives' damages are no longer assessed on a less generous basis than those for injured claimants, thus removing a significant anomaly in the law of negligence. Damages are likely to increase significantly in cases where the deceased had a well-paid job or good pension, or where the surviving dependants have a substantial need for care and assistance (as in the case of Mr Knauer following the death of his wife after exposure to asbestos).

The previous decision of the House of Lords in Cookson v Knowles (1979) AC 556 had required damages for future dependency to be calculated from the date of death, not the date of trial.

Their Lordships noted that this decision was made ‘in another era’ when the...

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