Winrow v Hemphill & Anor

Under Rome II, German law normally governs a road-traffic tort where the accident and injury occurred in Germany. Habitual residence is a question of factual stability, assessed by the person’s actual circumstances and state of mind; an intention to return elsewhere is not decisive. For the escape clause in Article 4(3), the court considers the connection of the entire tort, not merely the issue of damages. All relevant circumstances may be considered, including the place of the accident, habitual residence, nationality, subsequent consequences and the location of loss. The assessment is made on the facts as they stand when the court decides the issue. Article 4(3) sets a high threshold: the alternative country must have a manifestly closer connection. The claimant failed to establish that England had such a connection, so German law applied to the whole tort.

The claimant, a UK national, was injured as a rear-seat passenger in a road accident in Germany caused by the first defendant’s admitted negligence. She had lived and worked in Germany for about eight and a half years, but later returned to England. The second defendant, the first defendant’s English insurer, accepted liability.

Following an order for a preliminary issue hearing, the court had to decide whether German or English law governed the assessment of damages. The central questions were whether the parties were habitually resident in England under Article 4(2) of Rome II, and whether the tort was manifestly more closely connected with England under Article 4(3).

1. Applicable law. German law applied to the whole tort. Article 4(1) was not displaced by either Article 4(2) or Article 4(3).
2. Habitual residence. Habitual residence is a question of fact. The relevant residence must have acquired the necessary degree of stability. Intention alone does not establish habitual residence. The claimant’s lengthy residence, employment, family life and children’s schooling in Germany made Germany her habitual residence when the accident occurred. The first defendant was the relevant person claimed to be liable under Article 4(2), not the insurer.
3. Article 4(3). The escape clause concerns the connection of the tort, rather than a particular issue such as quantum. The court may consider all relevant circumstances, including the place of accident and injury, habitual residence, nationality, the consequences of the tort and where loss is suffered. There is no temporal limitation on those factors; the assessment is made on the facts existing at the date of decision.
4. The court adopted a balancing exercise subject to a high threshold. The accident, injury and established German residence strongly connected the tort with Germany. English nationality, later residence, continuing treatment and loss in England, English registration and insurance, and proceedings in England did not establish a manifestly closer connection. The choice of forum did not determine the applicable law.
5. Article 15(c) applies the governing law to assessment of damage, while recital (33) cannot override Article 4. The preliminary issue was therefore determined in favour of German law.

The judgment records an earlier order by District Judge Jenkins directing a preliminary issue hearing. No appellate history is stated in the judgment.