Syred v Powszecnny Zaklad Ubezpieczen (PZU) SA & Ors

Where foreign law governs a tort claim, the party relying on that law must prove its content. Uncertainty about applying an established foreign rule does not justify substituting English law. Under Polish law, the party asserting contributory negligence bore the burden of proving causation. The court had a broad discretion to reduce damages according to the circumstances and the causal contribution of the injured party. Polish damages for non-pecuniary loss were assessed by a broad judicial discretion, with the relevant administrative scale serving only as a lawful starting point. A domestic provision operates as an overriding mandatory rule under Rome II only where its observance is crucial to protecting the forum’s public interests. The claim succeeded, subject to a 5% deduction for contributory negligence.

The claimant suffered serious injuries, principally a traumatic brain injury, in a road accident in Poland. Primary liability had already been entered by consent. The trial concerned contributory negligence and quantum. Under Rome II, Polish law governed those issues, while English law governed matters of evidence and procedure. The defendants alleged that the claimant’s failure to wear a seat belt caused or worsened his injuries and disputed the assessment of both non-pecuniary and pecuniary loss.

The central issues were the burden of proof under Polish law, the causal effect of the absence of a seat belt, the assessment of damages under Polish law, and whether section 17 of the Social Security (Recovery of Benefits) Act 1997 was an overriding mandatory provision under Rome II.

1. Contributory negligence. The defendants bore the burden under article 6 of the Polish Civil Code of proving that the claimant’s failure to wear a seat belt caused injuries which would have been avoided or reduced. Article 361 did not reverse that burden. Article 362 gave the court a broad discretion to reduce damages according to the circumstances, particularly the parties’ causal and blameworthy contribution.
2. The engineering evidence established that wearing a belt would probably have avoided the claimant’s ejection and many orthopaedic and urological injuries. It did not establish that the principal brain injury, or the aortic tear, would have been avoided or lessened. The claimant was not negligent merely because he used the centre seat’s lap belt.
3. Non-pecuniary loss. Polish law required a reasonable assessment of the particular injuries and all the circumstances. The 2002 Ordinance could lawfully be considered as part of the assessment, but using it mechanically as the sole basis was not lawful. English awards and guidelines were not a proper comparator. The appropriate award was 300,000 zlotys, equivalent to £50,000.
4. Benefits and Rome II. The 1997 Act did not apply because no listed benefits had been paid or were likely to be paid within the statutory five-year period. In any event, section 17 was not an overriding mandatory provision within article 16 of Rome II. It was not sufficiently crucial to the protection of the United Kingdom’s political, social or economic organisation to displace Polish law. The claimant therefore had to give credit for ESA and PIP.
5. The overall deduction for contributory negligence was 5%, reflecting the predominance of the brain injury and the fact that the defendants had not proved that it was caused or worsened by the absence of a seat belt. The parties were directed to calculate and agree the total award.

First-instance trial. The judgment states that primary liability had previously been entered against the defendants by consent, but gives no appellate history for the issues decided in this judgment.