Scales v Motor Insurers' Bureau

Where an English court assesses damages under foreign law, it must apply the foreign law, including relevant practices and conventions, as a court in that foreign state would apply it. It must not default to English law merely because the foreign law is uncertain or produces under-compensation.

Under the pre-2016 Spanish Baremo, compensation could not be awarded for heads of loss not specifically provided for, even where the result was harsh. However, the court could exercise a broad discretion to increase the award within the appropriate permanent-incapacity category to reflect otherwise uncompensated losses. It could not alter the category for that purpose.

The claimant suffered catastrophic injuries in Spain when struck by an uninsured vehicle. Liability had previously been determined in his favour. The defendant, the Motor Insurers’ Bureau, was liable under the statutory scheme implementing the relevant motor-insurance directives.

At this quantum hearing, the central issues were the application of the pre-2016 Spanish Baremo, the date of injury consolidation, recoverability of past and future losses, whether the claimant was a gran invalido, the appropriate permanent-incapacity award, and penalty interest under Spanish law.

1. Applicable law. The damages had to be assessed under Spanish law, by adopting the approach a Spanish court would have taken. That included relevant Spanish practices and conventions. Uncertainty in the foreign law did not justify reverting to English law.
2. Limits of the Baremo. Article 1.2 imposed an unequivocal requirement that damage be quantified within the criteria and limits in the annex. The pre-2016 regime therefore excluded losses not specifically provided for, including post-consolidation medical, pharmaceutical and hospital costs and other unrelated expenses. The result could be under-compensatory.
3. Corrective factor. The permanent-injuries corrective factor could include a broad allowance for otherwise uncompensated financial losses. The judge had to select the correct incapacity category by applying its definition. The category could not be changed to create additional headroom, and the maximum within the selected category could not be exceeded.
4. Consolidation and incapacity. Consolidation occurred when the injuries had plateaued or stabilised and further treatment was no longer significantly curative. On the evidence, the date was 23 October 2017. All days between hospital discharge and consolidation were impeded days. The claimant was not a gran invalido: that status required assistance with the most essential activities of daily life, such as dressing, moving, eating and drinking.
5. Interest and order. The restrictive exception for justified delay under Article 20(8) of the Spanish Insurance Contract Act did not apply. The MIB had to pay penalty interest under Article 20 from 25 August 2016. The total judgment sum was £539,096.83, comprising the converted euro award, sterling losses and calculated interest.

First-instance quantum judgment following an earlier liability trial before HHJ David Cooke, sitting as a High Court judge, on 24–25 April 2018. Liability was found in favour of the claimant on a 100% basis.