Summary
The claimant, Bonsall, sustained personal injuries in a road traffic accident which occurred in Italy. The accident occurred on 6th June 2008. The proceedings were commenced in England.
The defendant was the insurer. The defendant applied to the court to determine as preliminary issue what the applicable law was. It should be noted that there was no question of liability, and both parties agreed that the Italian law was applicable in this context. However, the parties did not agree as to which law would apply to the assessment of damages – Italian law (lex causa) or English law (lex fori). The issue was: Did Rome II apply to the assessment of damages?
The county judge, misapplied/misinterpreted Articles 31 and 32, and held that it did apply. It was held:
“7 It seems to me, in my judgment, Professor Briggs’ interpretation seems to be the correct one. If it was intended that arts 31 and 32 should be exactly the same time, they would have said so. Equally, if they were intended to be the same time then art.31 was otiose in the sense that art.32 sets out the relevant date. There is no reference in art.32 to applying to proceedings issued after January 11, 2009 and one would have expected that if it was intended to apply to proceedings issued after that date. Therefore, I reject the argument that the regulation only applies to proceedings issued after January 11, 2009. It seems to me that although the way the articles are drafted is not ideal in the sense it does give rise to the anomalies which Mr Clarke has referred to in the example of a trial spread over two days of January 10 and 11, 2009, nevertheless, one has to read these regulations in accordance with the way they are drafted and we are now well past the date of January 11, 2009 so the problem of the trial spread over three days does not arise. There have been no decided cases, as I understand it, in relation to this, and so the sort of instance that Mr Clarke has referred to is now well past that particular date.
8 Therefore, it seems perfectly logical to be able to interpret the regulations as saying that it applies to events which occurred on or after August 20, 2007, but that the law in force applies from January 11, 2009. In my judgment, the applicable law in relation to the quantification of damages in this case is Italian law as the quantification will take place after January 11, 2009, and the defendant’s argument succeeds.” [7-8]