A solicitor with a Shrewsbury law firm came very close to becoming the first lawyer in the country (and possibly in Europe) to test out a piece of European legislation before an English judge.

Gayle Kinsey a personal injury solicitor with Lanyon Bowdler was representing a couple who were injured in a road traffic accident in Spain. The couple, were driving along the motorway when a recovery truck struck them from behind, causing their vehicle to veer off the motorway, over the crash barrier and roll several times before coming to rest upside-down in a ditch. The female passenger was able to crawl out of the vehicle but her partner was trapped for nearly an hour. 

Gayle says: “I first saw the couple in 2009 following their return from Spain, and was subsequently instructed to pursue a claim for damages for personal injury and consequential losses. I realised the claim would be caught by a new EC Regulation known as ‘Rome II’, which applies to accidents occurring after 11 January 2009.

“If someone is injured in a road traffic accident in a European Member State, it is possible to bring a claim in the courts of their home country. The law of the country where the accident occurred would govern limitation (the time during which the claim must be lodged with the court) and liability (deciding who is to blame).  

“Probably the biggest change introduced by Rome II is that the assessment of damages (deciding how much a claim is worth) would be decided according to the law of the country where the accident occurred, (and not the law of the court where the claim is pursued as it had been prior to Rome II).

"In the case of my clients this meant, that although they were able to pursue their claims through the English court, Spanish law would now determine the level of damages.”

The enactment of Rome II provoked discussion between academics and Europe’s leading lawyers as to how exactly this new legislation would apply.

For instance, how could an English judge be expected to award damages according to the law of a foreign country? Surely, an English court could not be asked to turn itself into a Spanish court? That would be impossible, what with differing rules of practice, evidence, procedure and not to mention completely different legal cultures. 

Gayle sought the assistance of highly acclaimed barrister Mr Bernard Doherty. Mr Doherty, author of the leading textbook ‘Accidents Abroad – International Personal Injury Claims’, was able to offer advice and guidance in relation to obtaining medical reports and the claims for various financial losses.  Spanish lawyers, De Cotta McKenna Y Santafe were also instructed to advise upon Spanish law and the value of the damages.  

In Spain, damages are calculated in a different way to how they are calculated in this country.  A daily rate is applied to each day the claimants are in hospital; each day they are unable to work and each day they are able to resume normal day to day duties, but are still suffering symptoms which have not yet reached an end point.  The end point might be complete recovery or alternatively a time at which the injuries become stable and permanent with no further recovery possible.  Residual symptoms are then valued on a points system. 

Gayle says: “In this case, a dispute arose as to whether my clients were entitled to damages for days they were able to work but still suffering from the injuries. There were significant damages riding upon this. 

"As the case progressed, conflicts between the Spanish and English way of doing things cropped up time and time again. It quickly became apparent that it would be very difficult to apply English law to some aspects of the case and Spanish law to others.  Without a similar case previously coming before the courts, it was hard to say how a Judge would approach the evidence. However, Gayle and her team were able to reach a settlement for her clients, before the start of the trial.

“The fact I did not get to ‘make law’ which is, after all, what all good lawyers aspire to achieve, was disappointing.  But the end result for my clients was a good one and the experience I have gained will be invaluable to me and future clients of mine in other ‘Rome II’ cases.  As to how a Judge will interpret Rome II?  We will have to wait and see….”

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