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A few days ago (6th October), the High Court of England and Wales delivered an interesting judgment on Rome II (Gaynor Winrow v. Mrs J Hemphill and Ageas Insurance Ltd, [2014] EWHC 3164 (QB)).

The issue: “whether German or English law applies to the assessment of damages for personal injury arising from a road traffic accident which occurred [in 2009] in Germany”.

Some key facts: “At the time of the accident the Claimant had been living in Germany for about eight and a half years, having moved there with her husband who was in the Army and had been posted there. She is a UK national as is the First Defendant. The Claimant was a rear seat passenger in a motor vehicle driven by the First Defendant. The motor car was involved in a head-on collision with another vehicle driven by a German national”.

The decision by Mrs Justice Slade: Article 4.1 applies and it is displaced neither by Article 4.2 nor Article 4.3 :

__Regarding Article 4.1 and 4.2:

“41. The Claimant had been living and working in Germany for eight and a half years by the time of the accident. She was living there with her husband. Three of their children were at school in Germany. The family remained living in Germany for a further eighteen months after the accident. There was no evidence that during this time the family had a house in England. The residence of the Claimant in Germany was established for a considerable period of time. The fact that the Claimant and her family were living in Germany because the Army had posted her husband there and that it was not his first choice does not render her presence there involuntary. He and his family were living in Germany because of his job. The situation of the Claimant in Germany was similar to that of the spouses of other workers posted abroad. This is not an unusual situation. Having regard to the length of stay in the country, its purpose and the establishing of a life there – three children were in an army run school in Germany and the Claimant worked at an army base school – in my judgment the habitual residence of the Claimant at the time of her accident was Germany. When the Claimant came to live in England in 2011 her status changed and she became habitually resident here. However, the family’s intention to return to live in England after the Claimant’s husband’s posting in Germany came to an end did not affect her status in November 2009. The Claimant has not established that the law of the tort indicated by Article 4(1), German law, has been displaced by Article 4(2)”.

__Regarding Article 4.1 and 4.3:

“62. Factors weighing against displacement of German law as the applicable law of the tort by reason of Article 4(1) are that the road traffic accident caused by the negligence of the First Defendant took place in Germany. The Claimant sustained her injury in Germany. At the time of the accident both the Claimant and the First Defendant were habitually resident there. The Claimant had lived in Germany for about eight and a half years and remained living there for eighteen months after the accident.

63. Under Article 4(3) the court must be satisfied that the tort is manifestly more closely connected with English law than German law. Article 4(3) places a high hurdle in the path of a party seeking to displace the law indicated by Article 4(1) or 4(2). Taking into account all the circumstances, the relevant factors do not indicate a manifestly closer connection of the tort with England than with Germany. The law indicated by Article 4(1) is not displaced by Article 4(3). The law applicable to the claim in tort is therefore German law”.