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Accident abroad: expert evidence and assessment of damages

Wall v Mutuelle de Poitiers
20.2.14
Court of Appeal

Facts

The Claimant, who was English, was injured in a road traffic accident on his motorcycle while on holiday in France, as a result of the negligent driving of a Mr Clement.  Mr Clement failed to give way to the Claimant and hit his motorcycle.   The Claimant sustained very serious injuries, including a severe spinal cord lesion resulting in partial paraplegia.

The Claimant brought the claim against Mr Clement’s French insurers in the English jurisdiction under EC Regulation 44/2001 and the Fourth and Fifth Motor Insurance Directives.

Liability was not in issue and judgment was given for damages to be assessed. It was not disputed between the parties that French law was applicable to the substantive issues in the case, because the accident occurred after 11 January 2009 and therefore Council Regulation 864/2007 (“Rome II”) applied. Quantum remained in dispute.

There was a dispute between the parties as to the way in which expert evidence was to be adduced.  The Claimant sought the court’s permission to obtain eight (and later ten) expert reports from experts in various disciplines, in the usual English way.  

The Defendant submitted that French law should apply to the question of which expert evidence should be allowed.    Under French law, the norm would be to have one or two court appointed experts, not the multiplicity of experts which would normally be instructed in English cases.  In the French jurisdiction, the experts appointed are expected to deal with a wider range of issues.   For instance, care experts may be asked to deal with accommodation and transport issues as well as care and assistance.  

The Master ordered a trial of whether the issue of expert evidence fell to be determined by the law of the forum (English law) on the basis that it was an issue of ‘evidence and procedure’ within Regulation 864/2007 Art 1.3 (Rome II), or by reference to the ‘applicable law’ (French law), because it was an issue falling within Article 15 of Rome II.  Article 15 provides that the applicable law should cover, amongst other things, “the nature and the assessment of damages or the remedy claimed”.

The Claimant argued that the question of how expert evidence is to be presented to the court is a question of “evidence and procedure” and should therefore be determined by the law of the forum.

The Defendant argued that French style expert evidence should be ordered, as the English court must seek to arrive, as closely as possible, at the amount of damages which the French court would have awarded, if the action had been tried in France.

At first instance, the court found that the issue of expert evidence should be determined by reference to English law.   The Defendant appealed this decision.

Appeal findings

Longmore LJ, Jackson LJ and Christopher Clarke LJ dismissing the Defendant’s appeal, held:

  • English law should apply to the issue of which medical evidence the court should order, being the law of the forum.

  • The issue of which experts the court should order was an issue of “evidence and procedure’.  This therefore fell to be determined with reference to the law of the forum under Article 1.3 of Rome II.

  • The court should follow English evidential practices in relation to expert evidence with regard to the extent of the Claimant’s injuries and his financial loss.

Comment

  • Rome II applies to accidents occurring on or after 11 January 2009 and provides that, with some exceptions (such as if both the Claimant and the Defendant are habitually resident in the same country), the law applicable to the substantive issues is the law of the country where the damage occurred.   However, under Rome II, the applicable law is not intended to apply to procedural issues. These are governed by the law of the forum, i.e. where the claim is brought.

  • Since Rome II came into force, there has been some uncertainty as to how the English courts would approach the issue of expert evidence and whether this would be considered to be a substantive issue or a procedural issue.

  • This decision provides some long awaited clarity as to how the court is now going to approach this issue.

  • However, this leaves us with a situation where English judges will be applying French law (by way of example on the facts of this case) and trying to reach a level of damages that would be awarded in a French court, whilst having the huge and complex amount of medical and other expert evidence allowed in English proceedings.  Damages awards are usually lower in many other countries as their expert evidence is far less sophisticated in terms of the number of expert disciplines involved and therefore the size of claims submitted under each head of loss. 

  • English Judges and barristers are likely to feel more comfortable in court dealing with expert evidence in a format and from disciplines that they are used to.  However it remains to be seen if this can be done whilst getting to the position of properly assessing damages in accordance with the foreign applicable law, or whether the number of experts and disciplines involved in English proceedings will inevitably mean that the overall damages will end up higher than a foreign court would have awarded.

Contact

For further information please contact Claire Bowler, Partner on 0207 645
9512 Xanthe Andrews, Senior Solicitor on 0207 645 9649.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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