MAHER & MAHER VS GROUPAMA GRAND EST. (QUEENS BENCH DIVISION 23 JANUARY 2009)
In 2005, a French driver lost control of his van while driving in France and collided with the English claimants vehicle. The claimants suffered injuries and brought a claim for damages in the English Courts. The jurisdiction of the English Court was not disputed, but there was an argument about whether damages and interest should be calculated under English or French Law.
Had the French driver been sued direct, English Law would have applied to the assessment of damages because the liability are those out of tort. However, because the French drivers Insurance Company had been sued instead, the liability was arguably contractual and French Law should apply.
The Court held that for the purposes of the assessment of damages, the Insurers liability should be seen as a liability arising in tort and quantification of damages should be in accordance with English Law.
In this case, the claimant was successful in arguing that English Law should apply to the assessment of damages, however, the position changed as of 11January2009 in relation to events that occurred after 20 August 2007. This follows Council Regulation (EC) 864/2007 on the Law application to non-contractual obligations (colloquially called Rome II). Under Article 4, the general rule is that the Law applicable to a non-contractual obligation arising out of tort shall be the Law of the country in which the damage occurs So, if the damage occurred in France, as it did here, French Law would govern the assessment of damages.
As the case in question arose from an accident in 2005, the new provisions had no application.