ANDREW EVANS v R&V ALLGEMEINE VERISCHERUNG AG

Where a road accident occurs abroad, the applicable tort law governs liability and contributory negligence, while procedural matters remain governed by the law of the forum. Foreign law is determined as a question of fact on the balance of probabilities. Under the agreed German law principles, a driver who creates a subjectively reasonable need for another road user to take emergency evasive action bears responsibility for the resulting accident. Expert reconstruction evidence may assist with scientific deductions from physical evidence, but conclusions on primary facts, negligence and appropriate evasive action remain matters for the court.

The claimant was injured in a collision while riding a motorcycle in Germany. He alleged that the defendant’s insured approached a hairpin bend on the wrong side of the road, causing him to brake and take evasive action. The defendant contended that its insured was blameless and that the claimant had approached the bend too quickly and lost control.

The trial concerned liability only. The parties agreed that German law governed the tort claim, while English procedural law governed matters of evidence and procedure. The central issue was whether, on the balance of probabilities, the insured’s driving caused the claimant’s emergency reaction.

1. Applicable law. Under Rome II, German law governed the claim in tort, including contributory negligence. Foreign law had to be determined as a question of fact on the evidence. Procedural matters, including the standard of proof, were governed by the law of England and Wales.
2. German liability principles. The agreed German law required the court to apportion responsibility between the vehicles by reference to their causal contributions and operational risks. Where a driver gives another road user subjective reason to fear that a collision will occur without evasive action, responsibility for damage caused by the reactive manoeuvre is attributable to the vehicle which triggered it. If the claimant established that the insured was on the wrong side of the road and thereby caused the emergency action, the parties accepted that liability should be 100 per cent against the defendant.
3. Findings of fact. The claimant was an honest and careful witness. The physical evidence showed that he began braking while upright and on his own side of the road, before crossing the centre line and falling. The court accepted that he saw the insured’s vehicle cutting the corner and approaching in his lane. It rejected the theory that excessive speed or misjudgment of the bend caused the accident.
4. Expert evidence. Accident reconstruction evidence could assist with scientific interpretation of marks, vehicle damage and relative positions. It could not determine disputed primary facts or express conclusions on negligence or the appropriate response to danger. The court found the claimant’s reconstruction evidence more reliable and of greater assistance.
5. Disposition. The insured’s conduct caused the accident. Judgment was entered for the claimant for 100 per cent of the value of the claim.