Cross Border Traffic AccidentsProf. Costanza Honorati

Universita’ di Milano-Bicocca

Tort Law SeminarScandicci, 23-24 September

Overview

I. Introduction

II. A complex legal frame with multilevel rules: Regulation, Convention and Directive(s)

III. Applying Rome II Regulation to traffic accidents

IV. Specific issues:

- personal damages suffered by relatives

- difficulties in assessing damages in practice

Prof. Costanza Honorati

II) A complex and multilevel legal frame:

Regulation No 864/2007 (Rome II)

1971 Hague Convention on the law applicable to traffic accidents

Directive No 2009/103/CE of 16 settembre 2009

(VI Motor Insurance Directive)

Prof. Costanza Honorati

II) A complex legal frame:

VI Motor Insurance Directive (2009) codification of previous directives

• Compulsory insurance of vehicles (art. 3)• Minimum amounts for damages (art. 9)• Direct action against insurer (art. 18)• compensation bodies in all States (also in relation to

unidentified cars) (art. 24)• claim representatives of insurance companies in all

States (art. 21)• Timing and procedures for compensation (art. 22)• …

Prof. Costanza Honorati

II) A complex legal frame:

however…a. obligation to provide insurance cover

(grounded on Directive)

a clear distinctionbetween :

b. extent of compensation regime(governed by national law)

NO harmonization of civil liability regimes

a need for choice-of-law rules

Prof. Costanza Honorati

II) A complex legal frame:

1971 Hague Conventiontakes precedence over Rome Reg. (Article 28.1)

• same general rule (lex loci delicti)• … but very different exceptions

achieving very different results in practice!

Prof. Costanza Honorati

Map of PIL rules on traffic accidents

Rome II : Germany, Italy, UK, Ireland, Sweden, Finland, Portugal, Greece, Bulgaria, Estonia, Hungary, Romania, Cyprus, Malta,

1971 Hague Conv. : Austria, Belgium, Netherland, Luxembourg, France, Latvia, Lithuania, Poland, Slovakia, Slovenia, Spain (+ Switzerland)

II) A complex legal frame:

Brussels I (& I a) Regulation

place of accident (forum delicti: art. 5.3; art. 10) domicile of the tort feasor (art. 2) seat of insurance company (art. 9.1 a) domicile of claimant (art. 9.1 b + art. 11, FBTO)

EXCELLENT FORUM SHOPPING

Prof. Costanza Honorati

III) Applying Rome II Regulation to traffic accidents:

Rome II Regulation(choice of law rules are erga omnes)

Article 4.1 lex eventusplace of event = place of damage car accidentstrong connecting factor high predictabilityneutral balances opposing interestsunivocal ?

Article 4.2 lex communisratio : Babcock v. Johnsons; Boys v. Chaplin; less predictabilitytoo stiff?

Prof. Costanza Honorati

III) Applying Rome II Regulation to traffic accidents:

…

Article 4.3 escape clauseexceptional use… a tool for better coordination with HC?

Article 14 choice of lawtacit choice? (Varese Tribunal, 2012)… again for coordination with HC.

Prof. Costanza Honorati

III) Applying Rome II Regulation to traffic accidents:

Article 15 scope of applicable law

basis and extent of liability grounds for exemption from liability

nature and assessment of damage

measures to prevent or terminate injury or damage right to transfer mortis causa a claim for damage persons entitled to claim personal damages liability for the acts of another person rules of prescription and limitation

Prof. Costanza Honorati

III) Assessing damages

Heads of damages: economic damage

- medical expenses

- loss of earnings- nursing care

non-economic damage- moral damage (pain and sufference)

- ‘biological’ damage (inability to run everyday’s activities)

- damage for sexual inability- non-economic damage resulting out of death of a

relative- …

Prof. Costanza Honorati

Assessing compensation for fatal injuries

41-year-old male

17-year-old young man

Grave injuries 41-year-old male

IV) Specific issues - 1

non-economic damage resulting out of death of a relative

parents claim for:damages iure successionis+ damages iure proprio

… suffered directly by parents(not an indirect damage)

what is the relevant damage? where does it occur?

Prof. Costanza Honorati

IV) Specific issues - 1

previous Italian case law:

It. Supreme Court n. 2060/2003 relevance of ‘initial’ damage (car crash in France)

(moral damages are ‘further’ damages)

It. Supreme Court n. 2128/2006parents suffer an autonomous and independent damage caused by death (in Italy) and not by air crash (in Cuba)

nowReferral to ECJ

C-350/14 – Lazar vs Allianz

Prof. Costanza Honorati

IV) Specific issues - 1

ECJ relevant case law:

• Dumez (1990)• Marinari (1995)• Kronhofer (2004)

< .… the damage alleged is no more than the indirect consequence of the harm initially suffered by other legal persons who were the directvictims of damage which occurred at a place different from that wherethe indirect victim subsequently suffered harm >

<the place where the damage occurred …[is] the place where the eventgiving rise to the damage… directly produced its harmful effects uponthe person who is the immediate victim of that event>

(Dumez, par. 14-20)

Prof. Costanza Honorati

IV) Specific issues - 1

Com damage to parents is indirect; (where it occurs is irrelevant)

Austria it is a personal obligation between parents and tort feasor

(occurs at the residence of parents)

***tortious event /damage/

direct damage/indirect damage…

?

Prof. Costanza Honorati

IV) Specific issues - 1

a) single tort (car accident) all issues are to be determined according to the applicable law

b) multiple torts (car accident + violation of parent’s family life?) different events and different applicable laws

Prof. Costanza Honorati

IV) Specific issues 2

assessing damages:

under which criteria?

should the court solve the case ‘as if sittingabroad’?make use of foreigntables/guidelines/formulae?

Prof. Costanza Honorati

IV) Specific issues 2

assessing damages:

under which criteria? is there a room for lex fori?

should the court solve the case ‘as if sittingabroad’?

make use of foreigntables/guidelines/formulae...

…. or apply judicial discretion?

Prof. Costanza Honorati

IV) Specific issues 2

assessing damages:

a question of evidence…see

UK High Court (2013), Wall v. Mutuelle de Poitiers

nature and number of expert evidence(expert’s report assessing damages)

is a matter of procedure

Prof. Costanza Honorati

thank you

costanza.honorati@unimib.it