Quantification for Overseas Injury

Edmunds v Simmonds (TLR 21 November QBD)

The defendant, while carrying the claimant as a passenger, was driving a hire car that they had both rented while on holiday together in Spain, caused the car to collide with a Spanish lorry. The claimant suffered a head injury of extreme severity which required constant care for the rest of her life. She sued in the English courts and the question arose as to whether English or Spanish law applied. There was no difference between Spanish and English law regarding the determination of liability but the method of assessing quantum was wholly different in the two countries. Section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 provides that the applicable law is that of the country where the events constituting the tort occurred subject to that general rule being displaced under s12(1). Section 12(1) provides that if it appears from a comparison of (a) the significance of the factors which connect the tort with the country whose law would be the applicable law under the general rule and (b) the significance of any factors connecting the tort with another country, that it was substantially more appropriate for the applicable law in determining the issues arising in the case, or any of those issues to apply, the law of another country, the law of that other country could apply. The obvious connecting factors in this case were that both the claimant and the defendant were English, and the claimant’s damages, particularly the major heads of cost of care and loss of future earnings arose in England. Heads of damages are matters of substantive law. How damages are quantified under those heads are matters of procedure and the Act had not abrogated the distinction between them. Section 14(3) expressly reserved questions of procedure for determination in accordance with the law of the forum. In those circumstances both issues of liability and the law applicable to heads of damages and quantification of damages would be determined by English law.