Cross Border Traffic Accidents - EJTN Border Traffic Accidents_Scandicci_sett2015.pdf• Marinari...
Transcript of Cross Border Traffic Accidents - EJTN Border Traffic Accidents_Scandicci_sett2015.pdf• Marinari...
Cross Border Traffic AccidentsProf. Costanza Honorati
Universita’ di Milano-Bicocca
Tort Law SeminarScandicci, 23-24 September
Overview
I. Introduction
II. A complex legal frame with multilevel rules: Regulation, Convention and Directive(s)
III. Applying Rome II Regulation to traffic accidents
IV. Specific issues:
- personal damages suffered by relatives
- difficulties in assessing damages in practice
Prof. Costanza Honorati
II) A complex and multilevel legal frame:
Regulation No 864/2007 (Rome II)
1971 Hague Convention on the law applicable to traffic accidents
Directive No 2009/103/CE of 16 settembre 2009
(VI Motor Insurance Directive)
Prof. Costanza Honorati
II) A complex legal frame:
VI Motor Insurance Directive (2009) codification of previous directives
• Compulsory insurance of vehicles (art. 3)• Minimum amounts for damages (art. 9)• Direct action against insurer (art. 18)• compensation bodies in all States (also in relation to
unidentified cars) (art. 24)• claim representatives of insurance companies in all
States (art. 21)• Timing and procedures for compensation (art. 22)• …
Prof. Costanza Honorati
II) A complex legal frame:
however…a. obligation to provide insurance cover
(grounded on Directive)
a clear distinctionbetween :
b. extent of compensation regime(governed by national law)
NO harmonization of civil liability regimes
a need for choice-of-law rules
Prof. Costanza Honorati
II) A complex legal frame:
1971 Hague Conventiontakes precedence over Rome Reg. (Article 28.1)
• same general rule (lex loci delicti)• … but very different exceptions
achieving very different results in practice!
Prof. Costanza Honorati
Map of PIL rules on traffic accidents
Rome II : Germany, Italy, UK, Ireland, Sweden, Finland, Portugal, Greece, Bulgaria, Estonia, Hungary, Romania, Cyprus, Malta,
1971 Hague Conv. : Austria, Belgium, Netherland, Luxembourg, France, Latvia, Lithuania, Poland, Slovakia, Slovenia, Spain (+ Switzerland)
II) A complex legal frame:
Brussels I (& I a) Regulation
place of accident (forum delicti: art. 5.3; art. 10) domicile of the tort feasor (art. 2) seat of insurance company (art. 9.1 a) domicile of claimant (art. 9.1 b + art. 11, FBTO)
EXCELLENT FORUM SHOPPING
Prof. Costanza Honorati
III) Applying Rome II Regulation to traffic accidents:
Rome II Regulation(choice of law rules are erga omnes)
Article 4.1 lex eventusplace of event = place of damage car accidentstrong connecting factor high predictabilityneutral balances opposing interestsunivocal ?
Article 4.2 lex communisratio : Babcock v. Johnsons; Boys v. Chaplin; less predictabilitytoo stiff?
Prof. Costanza Honorati
III) Applying Rome II Regulation to traffic accidents:
…
Article 4.3 escape clauseexceptional use… a tool for better coordination with HC?
Article 14 choice of lawtacit choice? (Varese Tribunal, 2012)… again for coordination with HC.
Prof. Costanza Honorati
III) Applying Rome II Regulation to traffic accidents:
Article 15 scope of applicable law
basis and extent of liability grounds for exemption from liability
nature and assessment of damage
measures to prevent or terminate injury or damage right to transfer mortis causa a claim for damage persons entitled to claim personal damages liability for the acts of another person rules of prescription and limitation
Prof. Costanza Honorati
III) Assessing damages
Heads of damages: economic damage
- medical expenses
- loss of earnings- nursing care
non-economic damage- moral damage (pain and sufference)
- ‘biological’ damage (inability to run everyday’s activities)
- damage for sexual inability- non-economic damage resulting out of death of a
relative- …
Prof. Costanza Honorati
Assessing compensation for fatal injuries
41-year-old male
17-year-old young man
Grave injuries 41-year-old male
IV) Specific issues - 1
non-economic damage resulting out of death of a relative
parents claim for:damages iure successionis+ damages iure proprio
… suffered directly by parents(not an indirect damage)
what is the relevant damage? where does it occur?
Prof. Costanza Honorati
IV) Specific issues - 1
previous Italian case law:
It. Supreme Court n. 2060/2003 relevance of ‘initial’ damage (car crash in France)
(moral damages are ‘further’ damages)
It. Supreme Court n. 2128/2006parents suffer an autonomous and independent damage caused by death (in Italy) and not by air crash (in Cuba)
nowReferral to ECJ
C-350/14 – Lazar vs Allianz
Prof. Costanza Honorati
IV) Specific issues - 1
ECJ relevant case law:
• Dumez (1990)• Marinari (1995)• Kronhofer (2004)
< .… the damage alleged is no more than the indirect consequence of the harm initially suffered by other legal persons who were the directvictims of damage which occurred at a place different from that wherethe indirect victim subsequently suffered harm >
<the place where the damage occurred …[is] the place where the eventgiving rise to the damage… directly produced its harmful effects uponthe person who is the immediate victim of that event>
(Dumez, par. 14-20)
Prof. Costanza Honorati
IV) Specific issues - 1
Com damage to parents is indirect; (where it occurs is irrelevant)
Austria it is a personal obligation between parents and tort feasor
(occurs at the residence of parents)
***tortious event /damage/
direct damage/indirect damage…
?
Prof. Costanza Honorati
IV) Specific issues - 1
a) single tort (car accident) all issues are to be determined according to the applicable law
b) multiple torts (car accident + violation of parent’s family life?) different events and different applicable laws
Prof. Costanza Honorati
IV) Specific issues 2
assessing damages:
under which criteria?
should the court solve the case ‘as if sittingabroad’?make use of foreigntables/guidelines/formulae?
Prof. Costanza Honorati
IV) Specific issues 2
assessing damages:
under which criteria? is there a room for lex fori?
should the court solve the case ‘as if sittingabroad’?
make use of foreigntables/guidelines/formulae...
…. or apply judicial discretion?
Prof. Costanza Honorati
IV) Specific issues 2
assessing damages:
a question of evidence…see
UK High Court (2013), Wall v. Mutuelle de Poitiers
nature and number of expert evidence(expert’s report assessing damages)
is a matter of procedure
Prof. Costanza Honorati
thank you