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Previously, we have discussed motor accidents whilst on holiday, and the sad case of Vann & Others v Ocidental – Companhia De Seguros S.A., where the pedestrians that were struck by the motorist were held to have contributed to the accident by their failure to look properly before crossing the road.
This time, we look at another recent case involving another British holidaymaker and her action against the Motor Insurers’ Bureau.
Tiffany Moreno was injured after being struck by a car on the island of Zakynthos in Greece. As reported, “she was standing on the verge of a road … when a car left the road and struck her”. The driver that hit her was uninsured. Unfortunately, she had to have both her legs amputated.
The main argument of the preliminary trial put to Mr Justice Gilbart on the Queen’s Bench was whether the defender, the Motor Insurers’ Bureau (who admitted liability) was liable to Tiffany Moreno under Greek law or English law. As mentioned in paragraph 5 of the judgment, “[t]his is a case where the level of damages available to a claimant for personal injuries would be higher if assessed according to the laws applying in England and Wales than in Greece”.
The Legal Argument in Response
The Motor Insurers’ Bureau argued that since the EU regulation Rome II (which was revised by a particular EU regulation in relation to motor vehicles) came into force, the law of the country where the accident occurred should apply, rather than the law of where the claimant lives, and that previous case law, such as Bloy and Ireson v MIB and Jacobs v MIB (if Rome II had been in force at the date of the accident) had incorrectly interpreted Rome II. There were various articles within the regulations that were considered. Article 25 states:
“If it is impossible to identify the vehicle … or insurance undertaking, the injured party may apply for compensation from the compensation body in the Member State where he resides … The compensation body shall then have a claim …
where the insurance undertaking cannot be identified; against the guarantee fund in the Member State where the vehicle is normally based;
in the case of an unidentified vehicle: against the guarantee fund in the Member State in which the accident took place.”
How the Court Judged the Case
Ultimately, the court found in favour of the claimant and decided to award damages based on the law of England and Wales. As Justice Gilbart stated:
“The Recitals and the travaux préparatoires for Rome II can leave one in little doubt that the policy of Rome II was to achieve more uniformity, and to avoid the anomalies generated by the different sets of rules on choice of law, including in particular those arising in motor accident claims”
where the services of a no win no fee solicitor is needed..
This case shows the importance of choice of law both for the claimant and the defendant in a no win no fee or personal injury case. It would have perhaps been a different outcome had the driver been traceable and insured (as in the Occidental case cited above). Make sure if you have an accident abroad that you document everything that happens and instruct a no win no fee solicitor as soon as possible. They will try and get the best possible outcome for you regardless of the jurisdiction.