Bacon v Nacional Suiza Cia Seguros Y Reseguros SA

For claims arising from non-contractual events occurring on or after 20 August 2007, Rome II applies where the applicable law is determined on or after 11 January 2009. The Regulation’s date of entry into force is distinct from its date of application. Article 32 does not limit the Regulation to accidents occurring after 11 January 2009, nor to proceedings commenced after that date. The absence of transitional provisions does not justify implying such a restriction. In a road traffic claim governed by Spanish law, liability is effectively strict, subject to proof that the accident was solely caused by the injured person or by an external force majeure. Where driver and pedestrian are both at fault, liability is adjusted fairly by reference to their respective wrongdoing.

The claimant, a British-domiciled pedestrian, was rendered paraplegic after being struck by a motor car in Spain. The defendant was the Spanish insurer of the driver, and the claimant relied on his direct right of action against the insurer. The parties agreed that Spanish law governed liability, but disputed whether that result followed from Rome II or section 11 of the Private International Law (Miscellaneous Provisions) Act 1995.

Master Eyre ordered preliminary trials of the applicable-law issue and liability. The claimant’s claim was issued on 27 August 2008. The central issues were whether Rome II applied temporally and, under Spanish law, whether the driver bore any responsibility for the collision.

1. Liability. The court found that the claimant stepped back or lurched into the path of the Toyota after reaching the far side of the road. The driver was travelling within the speed limit and there was no sound basis for finding that he failed to keep a proper lookout or drove too fast. The claimant was therefore entirely to blame under the Spanish rules.
2. Spanish law imposed liability on the driver for harm caused by the risk created by driving. In personal injury cases, exoneration was possible where the injury was solely caused by the injured person’s conduct or negligence, or by external force majeure. Where both parties were negligent, liability and damages were to be fairly adjusted according to the magnitude of their respective wrongdoing.
3. Rome II. Articles 31 and 32 deliberately distinguished entry into force from application. In the absence of a specified entry date, the Regulation entered into force on 20 August 2007, the twentieth day after publication. Article 32 deferred application until 11 January 2009, apart from Article 29.
4. The Regulation therefore applied to events giving rise to damage occurring on or after 20 August 2007 where the applicable law was determined on or after 11 January 2009. Article 32 did not restrict application to proceedings commenced after that date. The absence of an express transitional provision was significant, especially compared with the express transitional rule in the Brussels I Regulation.
5. The issue was academic because liability had already been determined, but the court held that, if the driver had been partly responsible, Rome II would have governed the existence, nature and assessment of damage and the remedy under Article 15(c). The claimant had no accrued substantive right to assessment under English law.