DHV (A Protected Party through his Litigation Friend WTX) v Motor Insurers' Bureau

In a cross-border road-traffic claim, the English court applies English evidence and procedure but determines substantive liability and compensation by the law of the state where the accident occurred. Foreign law is a question of fact. The court must determine, on the evidence, what the highest relevant court in the foreign legal system would decide.

A recital in Rome II may inform interpretation and carry persuasive or interpretive weight, but it cannot alter substantive foreign compensation law. Under the Spanish Baremo, the principle of full reparation operates within the scheme’s rules and limits. It does not authorise compensation for actual foreign losses exceeding those limits without supporting Spanish authority.

The claimant sustained severe injuries in Mallorca when struck and dragged by an uninsured Spanish vehicle. He brought proceedings in England against the Motor Insurers’ Bureau under regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003. Primary liability was admitted.

The disputed issues included contributory negligence, the claimant’s positioning and intoxication, the date of consolidation, the applicable Baremo tables, recoverability of care and rehabilitation costs, private actuarial evidence, and the effect of recital 33 of Rome II and article 33 of the Spanish Baremo.

1. Applicable law and procedure. English evidence and procedure governed the trial. Spanish substantive law governed liability and quantification. The English court had to determine Spanish law as a question of fact, using expert evidence, Spanish judgments and other relevant sources, and had to decide what the highest relevant Spanish court would do.
2. Rome II and the Baremo. Rome II applied to identify the law of the state of the accident. The observation in Moreno concerning Rome II was obiter but highly persuasive. Recital 33 was relevant as an interpretive aid, but was not a legal rule and could not change substantive Spanish law. Article 33(2) had to be read with article 33(5). The Spanish court would not award actual losses exceeding the Baremo’s rules and limits merely because the losses were incurred in England.
3. Contributory negligence. The defendant proved that the claimant was flush to the road when struck, had consumed sufficient alcohol materially to impair judgement, bodily control and reactions, and had crossed outside the nearby zebra crossing where traffic had priority. His conduct materially contributed to the accident. The driver was also significantly at fault for failing to keep a proper lookout. Liability was apportioned 65 per cent to the claimant and 35 per cent to the driver.
4. Compensation. The consolidation date was 25 January 2018 and the 2018 Baremo tables applied. Hearing loss and vestibular damage were not recoverable without the required objective testing. Pre-consolidation care, future rehabilitation and post-consolidation care were not recoverable. Private actuarial evidence was permitted only within the express Baremo exceptions. The claimant’s future work disability was absolute for compensation purposes.
5. The court determined the substantive awards and adjourned final settlement of the order, including Spanish penalty interest, to a separate judgment.

First-instance judgment. The judgment records no prior appellate decision in this litigation.