Lloyd's Maritime and Commercial Law Quarterly
HOLIDAY TORTS AND DAMAGE WITHIN THE JURISDICTION
Adrian Briggs*
Four Seasons v Brownlie
Suppose I am on holiday in the United States when I am knocked down by a car driven by a local resident and injured so badly that I have to spend a month in hospital before I return to England; and that I am unable to resume my duties in Oxford for six months. If asked what loss or damage I had sustained, I might particularise it as pain, suffering and loss of amenity; as the expenses of medical treatment; and as the loss of wage, salary or fee income. If asked where I had sustained these three losses, I would probably say the first in the US and the third in Oxford. As to the second, my immediate answer might be the US, though on reflecting that payment is made by instructing my bank in Oxford to debit my account and then cause a bank account in the US to be credited, the answer might appear less clear than it did at first sight.
Why might this unhappy geography matter? One answer might be because I wish to sue the driver in England. To be given permission to serve him out of the jurisdiction in respect of a claim in tort, I need to satisfy the court, among other things, that “damage was sustained within the jurisdiction”.1 Another answer might be that, if tried in England, my claim will be governed by “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”.2 This short note will focus on the jurisdictional question, which involves a question of English, not European, law. In doing so it can do no more than give an impressionistic view of the tip of the iceberg.
Until 1987, a claimant who wished to serve out a writ alleging the commission of a tort was called upon to satisfy the court that the tort3 set out in the writ had been committed
*QC; Professor of Private International Law, University of Oxford
1. CPR 6, PD 6B, para.3.1(9).
2. Regulation (EU) 864/2007 on the law applicable to non-contractual obligations (Rome II), Art.4(3) ([2007] OJ L199/40) (“Rome II Regulation”).
3. Ie, an actual, real, tort: Metall & Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] QB 391.
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