Severely injured man celebrates European Court of Justice ruling
THOUSANDS of people who have suffered serious accidents while visiting other countries within the EU have breathed a sigh of relief following today’s decision of the European Court of Justice, but many thousands more may lose out in future if they have an accident aboard.
Today [November 17], judges at the European Court of Justice [ECJ] ruled that Deo Homawoo, a British man who was run over by a car in France, should receive full compensation calculated under English law, rather the far lower damages he would receive if French Laws were used.
The ruling will mean that thousands of accident victims whose accidents took place between 19 August 2007 and 11 January 2009 are in a stronger position to fight for vital funding, but lawyers have raised concerns that those injured after this date will not receive the care packages or financial support that they desperately need.
Deo Antoine Homawoo was travelling on foot when he was struck by a car on 29 August 2007 while visiting Les Ayguades, near Narbonne in the Languedoc-Roussillon area of south west France.
London-based Mr Homawoo, now aged 36, was left with multiple injuries including fractures to both of his legs, a broken wrist and damaged lungs. He also suffered a serious brain injury which has prevented him from returning to work.
Fearing for his future and determined to bring the driver of the vehicle to justice, he approached international law experts at Irwin Mitchell for help. These solicitors were well aware that laws applying to his case where poorly drafted and unclear.
Traditionally, when a British national had an accident in France, a court would use French laws to decide on ‘liability’, or whether the driver was to blame, and English law to assess the amount of money the victim should receive in compensation.
This arrangement was good for accident victims, because it meant that they were compensated for their injuries and all of their financial losses and expenses under English Law, which often provides a higher level of compensation than laws in other EU countries.
However, a new law, known as Rome II, had been brought in across the European Union, with the aim of providing clear rules to help judges determine the applicable law in cross border cases, no matter where the case was brought to court. If this law had applied to Mr Homawoo’s case, his compensation would have been assessed under French law, and the amount he will receive would have been much lower.
Irwin Mitchell's Michael Zurbrugg, representing Mr Homawoo, said: “Considerable differences exist across Europe in the approach to compensation for personal injury, with many jurisdictions allowing meagre awards, often because the cost of living is much lower than in the UK.
“In other cases, awards to victims are more modest because there is a more generous social security provision in that country than there is here.”
Michael said that although Rome II was designed to clarify and simplify the question of which law applies to accidents abroad, the drafting of the EU Regulation has lead to confusion.
The Regulation states that it applies to events which occur after its ‘entry into force’. Usually, this is 20 days after publication in the Official Journal, which in this case would be 19 August 2007. However, later on in the document, Rome II is described as applying from 11 January 2009.
Because Mr Homawoo’s accident occurred between these two dates, it was unclear which law applied.
Today, judges at the ECJ ruled that Rome II only applies to accident cases that happened on or after 11 January 2009. The matter was referred to the ECJ by an English High Court judge after a contested hearing in Deo Homawoo’s case in July.
Mr Zurbrugg said: “We are delighted with this ruling, which means that Mr Homawoo and thousands of others injured abroad through no fault of their own will receive damages calculated under English law.
“This means that the court in this country will be asked to apply a traditional careful approach to the individual circumstances of Mr Homawoo's case, and he should receive full and fair compensation, including funding for a care package
“Our priority is now to make sure Mr Homawoo has everything he needs to support his full rehabilitation.”
Mr Homawoo said: “I did not expect to find myself in the middle of a legal dispute, but I am thrilled and extremely relieved that my lawyers have been able to achieve such a good result. The accident has had a terrible impact on my life and required years of rehabilitation.
“My mental and physical injuries will be with me for the rest of my life. At least now the financial burden should be lifted from my shoulders.”
Although the lawyers are pleased at the verdict for Mr Homawoo, they remain concerned that in future, holidaymakers and business travellers who have accidents abroad will receive insufficient levels of damages as a result of Rome II.
Clive Garner, head of Travel Law at Irwin Mitchell, said: “While this is great news for Mr Homawoo and the many innocent people like him who were injured abroad before 11 January 2009, we remain extremely concerned about the unfairness of this particular European law.
“The regulation is poorly drafted and although the Courts have yet to interpret many of its provisions, on the face of it the majority of those injured in accidents abroad after 11 January 2009 will be deprived of having their damages assessed under English law. Instead they will have their compensation calculated in accordance with the laws of Portugal, or Greece or Spain, or wherever they were injured.
“In many serious injury cases this will mean victims recover only a fraction of the compensation that they would be entitled to under English law - compensation which is essential to help fund their day to day living expenses, the cost of rehabilitation, medical treatment, adaptations to their home, and the care and assistance they need to give them a reasonable quality of life.
“Before this law was introduced we urged the European Parliament and the European Commission to allow accident victims to be compensated according to the laws of where they live.
“This would have made the system much fairer for victims, giving them back the financial security that they once had and which they deserve. It would also make those at fault for causing injury and their insurers pay a fair and reasonable sum to their victims and would prevent victims from having to fall back on the State for social security benefits. We call upon the European Commission to see sense and reverse this aspect of the Rome II Regulation as soon as possible. “
Mr Garner's concerns were echoed by Alison Grant, a former Army Major who suffered a severe spinal cord injury rendering her a tetraplegic when she was hit by a drunk driver while on holiday in France.
She said: “Fortunately it was possible to bring my claim in this country and for English levels of damages to be applied. If my claim had been dealt with under the new regime with damages being calculated along French lines I understand that my claim would have resulted in a substantially lower award, which would have been totally inadequate to maintain the level of treatment and assistance I require, and would have deprived me of the financial independence to live my life as I believe I deserve.”