An English claimant injured in a crash in Germany has failed in a bid to have her compensation case heard in England and Wales.
Gaynor Winrow, who had lived in Germany for eight years after her husband was posted there by the army, suffered depression, and injuries to her back and leg following the crash in 2009.
She issued proceedings in England against an insurer domiciled in England, Ageas Insurance.
The issue of whether German or English law applied to the assessment of damages turned on the interpretation of European law known as Rome II.
This states that the jurisdiction should be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. The claimant relied on an ‘escape clause’ to allow a departure from the rule.
At a one-day hearing in July at the High Court, Winrow, represented by Slater & Gordon, argued her case had close enough links to England to invoke the escape clause. The family planned to return to England in 2012 and they lived on a British Army base during the posting in Germany.
She was also employed by Service Children’s Education – a UK government agency.
But the defendants, represented by Weightmans, argued that Rome II focuses on ‘habitual residence rather than nationality’.
The fact that the claimant now lives in England and is suffering continuing loss here was not, they said, sufficient evidence to show that the tort is more closely connected with England than Germany.
In her judgment, The Honourable Mrs Justice Slade said there were a number of factors weighing against the displacement of German law, namely the location of the accident and the fact the claimant had lived there for eight years and continued to live there for 18 months after the accident.
She said Rome II required a ‘high hurdle’ to be cleared.
‘The court must be satisfied that the tort is manifestly more closely connected with English law than German law,’ she said.
‘Taking into account all the circumstances, the relevant factors do not indicate a manifestly closer connection of the tort with England than with Germany.’