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

This is the judgment of the court.

The claimant has been anonymised as DHV.

To prevent jigsaw identification, his mother has also been anonymised as WTX and his former girlfriend as KLQ. The name of one of his close friends has also been anonymised.

To assist the parties and the public to follow the court’s line of reasoning, the text is divided into 19 sections, as set out in the table below.

This is a personal injury trial.

On 21 July 2017, a young British man called DHV (“the claimant”) attended a wedding in Mallorca with his girlfriend KLQ. The ceremony was held at the Cala D’Or Yacht Club, a picturesque waterside venue on the island. The wedding went well, but in the very early hours of the morning DHV left on his own to find a taxi back to the hotel. When he was close to the centre of a nearby road, a white Hyundai H1 minivan collided with him and dragged him under its axle along the road surface for nearly 200 feet. Skin and flesh were sheared from his shoulder and back. He sustained severe brain injuries. This has impacted almost every aspect of his life. The driver of the Spanish vehicle was uninsured.

DHV’s life is now unrecognisable from that before he entered the Mallorcan road, for not only does he find it difficult to function in the world, but his relationship with his girlfriend of more than a decade, and with whom he was living, ended, his roofing business ceased trading, and, as he poignantly told the court, sometimes he wishes he had not come out from under the van alive. He particularly regrets the burden all this has placed on his mother, who has faithfully provided a lot of the care for him in a selfless way. WTX movingly told the court that she cannot any longer recognise the son she once knew and all that is left is a “broken, scarred, burnt, brain-damaged, lost, frightened” person “clinging on to his life by his fingertips”.

By reason of a complicated series of legal arrangements between Spain and the United Kingdom, DHV brings his claim for compensation not in Spain but in this country, and not against the driver, but against the United Kingdom’s Motor Insurers’ Bureau (“MIB” and “the defendant”). The MIB finds itself in the defendant’s position as it stands in for the Spanish compensation fund, that in turn stands ready to compensate injured parties in Spain where the vehicle driver is uninsured. While the claimant has elected to bring his claim in this country, one of the distinctive features of this case is that despite being tried in London, the High Court must apply not the English substantive law and principles of compensation, but Spanish law and principles of compensation.

This is a complex and tragic case. The trial before me has been, perhaps inevitably, filled with conflict and emotion. In such challenging forensic circumstances, the court is indebted to the professionalism of counsel: Mr Vincent KC and Mr Pickering on behalf of the claimant DHV; Ms Wyles KC and Ms Blackshaw on behalf of the defendant MIB.

A note on terminology:

DHV’s claim is brought against the MIB pursuant to regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (“the 2003 Regulations”). These Regulations transposed into English law the obligations under articles 5, 6 and 7 of the Fourth Motor Insurance Directive. In particular, before the UK’s withdrawal from the European Union (“EU”), article 7 entitled an injured party resident in the UK to apply for compensation to the compensation body in the UK following an accident in another member state involving an uninsured vehicle. It also contains provisions regarding reimbursement of the UK compensation body by the relevant Spanish guarantee fund. Here the compensation body is the MIB. The guarantee fund in Spain is the Consorcio de Compensacion de Seguros (“the Consorcio”).

The MIB is an organisation established in the United Kingdom shortly after the Second World War. It is funded by a levy imposed on all drivers through their insurance companies, which adds a premium to the insurance policy a driver takes out to reflect the mandatory charge. Its function is summarised succinctly on the splash page of its website (www.mib.org.uk): “Helping victims of uninsured and hit-and-run drivers”. Therefore, if a person in the UK is injured by an untraced hit-and-run driver or a person who is uninsured (or lacks valid insurance), the injured party can make a claim to the MIB for compensation. It is this function of providing compensation for people injured by uninsured drivers that has led to the MIB’s status as defendant in this case. This is because of the 2003 Regulations. Regulation 10 at the relevant time provided:

“10.

MIB is approved as the compensation body for the United Kingdom for the purposes of the fourth motor insurance directive”

The MIB’s status as a compensation body is extended to accidents in European Economic Area (“EEA”) states if certain conditions contained in regulation 13 apply. Regulation 13 at the relevant time provided:

“Entitlement to compensation where vehicle or insurer is not identified

13.

—(1) This regulation applies where—

(a)

an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs on the territory of—

(i)

an EEA State other than the United Kingdom, or

(ii)

a subscribing State,

and an injured party resides in the United Kingdom,

(b)

that injured party has made a request for information under regulation 9(2) , and

(c)

it has proved impossible—

(i)

to identify the vehicle the use of which is alleged to have been responsible for the accident, or

(ii)

within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle.

(2)

Where this regulation applies—

(a)

the injured party may make a claim for compensation from the compensation body, and

(b)

the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain.”

Therefore, in this case the qualifying facts are:

These compensation arrangements were reviewed and explained in detail by the Supreme Court in Moreno at paras 2 to 17. The complexities meticulously explored by the Supreme Court need not detain us here. The position can be reduced to its simplest form: no one disputes that DHV had the right to pursue the MIB in this country for the accident in Spain.

However, a further vital question arises. Which law should govern the quantification of compensation (damages)? Both parties agree it should be Spanish law (for example, as recognised by the claimant in his skeleton argument at para 31 and the defendant at para 4, both confirming the same in the agreed note of law at para 2). However, there is disagreement about why Spanish law applies to a trial conducted in England. I resolve this dispute in Issue 11. It is a vital issue and in this case has far-reaching consequences, necessitating my taking it out of turn.

Primary liability has been accepted by the Consorcio in its capacity as the Spanish guarantee fund. What remains in dispute is whether, and to what extent, DHV contributed to the accident by his negligence, the extent of his injuries and losses, and what compensation is properly due for such as are proved under the Spanish law.

The parties identified 14 issues at the outset of the trial. While I have retained the numeration proposed by the parties, I have refined certain issues slightly, simply to provide additional structure to assist in understanding the analysis necessary for the issue’s determination. The revised issue-list was circulated to the parties and agreed. The substance remains the same.

Therefore, the issues to be determined by the court are:

I will take the issues in the order the parties suggested, save that Issue 11 is so vital and touches on so much, that I take it out of sequence and determine it after Issue 2, before returning to the stated sequence. On this, I agree with Mr Vincent’s submission that there is an “inextricable link” between the resolution of the correct approach to Spanish law (Issue 2) and legal significance of Rome II (Issue 11).

The court has given its decision on Issue 1, and will provide reasons for the exclusion of Mr Gornals’ evidence in the final judgment.

I make plain that my approach to the judgment text is heavily informed by the approach of the Court of Appeal in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ. 407. The court stated at para 58:

Therefore, I focus on what has been essential to my determinations in this case. Numerous side issues were thrown up. I do not need to resolve them all. The critical issues are clear. I focus on those and make such findings of fact as are necessary to determine the prime identified issues here. While I do not set out all the evidence the court received, and it is extensive, I emphasise that as part of my review I considered or reconsidered it all. I reserved judgment for precisely that reason. I provide an assessment of each of the key witnesses and refer to the vital evidence that informed the court’s decision on any specific issue within the dedicated section of the text.

I now provide the court’s overall assessment of the key witnesses. As there will be much discussion about the positioning of DHV at point of impact with the Hyundai minivan, this is a photograph of the van taken from the trial bundle:

Equally, there will be extended discussion about the layout of the roads, where DHV crossed the carriageway and the zebra crossing. Here is an aerial representation of the overall layout, once more from the trial bundle. It is followed by a photograph of the scene of the scene at ground level with the point of impact very near to the bottom centre of the image. One can see the zebra crossing further back as the road bends to the right.

I emphasise that in this section I do not provide a particle-by-particle analysis of the evidence, but the main lines of the court’s findings about the key witnesses to give context to the analysis of the issues that follows. Certain witnesses have been heavily criticised by counsel. A witness’s demeanour can be relevant, but decisions should not be based “solely” on demeanour (Re M (Children) [2013] EWCA Civ 1147 at para 12, per Macur LJ). However, demeanour, fairly assessed in context, retains a place in the overall evaluation of credibility: see Re B-M (Children: Findings of Fact) [2021] EWCA Civ 1371, per Peter Jackson LJ at para 25:

“No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence.”

That said, I emphasise that I place very limited weight on demeanour, save that I carefully observed the evidence of DHV and was satisfied that broadly he was genuinely trying to answer questions, but his cognitive impairments resulted in his losing the way and getting confused. With that principal exception, I have focused heavily on the substance of the evidence witnesses have provided. I am not impressed by the “look in their eye” approach; I evaluate what they said, applying the recognised canons of fact-finding including the question of probability and improbability. In addition to the ten witnesses below, the claimant’s mother WTX gave evidence, but her evidence was not materially disputed. Her evidence was powerful. Her love for her son evident. Her concern for his welfare unmistakable and commendable. One sees instantly how the events of but a second can damage lives for years.

The witnesses I assess here are subdivided into five groups, each with a set of two:

Lay witnesses

Two relevant lay witnesses testified (1) DHV; (2) his former partner KLQ.

In the witness box, DHV adopted a statement he signed on 28 September 2020. At the time of the incident, DHV was aged 29. DHV told the court that he had set up a roofing company and was “doing well as a professional”, becoming a businessman with “an empire”, as he put it. In July 2017, he went to a friend’s wedding in Mallorca with his then girlfriend KLQ. The event was “very nice and everyone was having a great time”. The reception at the Cala D’Or Yacht Club went well. There was dinner and dancing. He was “entertaining the kids” more than dancing. It was a long and enjoyable day and during it he was having to deal with complications back at work in the UK, so had to try to sort out business. He nodded off at the table later on because he was tired and wanted to go back to the hotel. KLQ did not want to leave, which frustrated him a little, so he left alone. He wore a “brand new” white shirt.

He had had a glass of champagne before the reception and drinks after, but he was not drunk. He drank bottled Corona and rum and coke. The account provided in his witness statement continues:

“I then started to walk out of the club on my own looking for a taxi. I left the yacht club whilst KLQ was still saying goodbye to people. I decided to turn right and I walked downhill along Carrer Comellars in the hope I could find a taxi rank. I was on my own.

I looked down the road and saw 6 buildings to the right and the seaside at the end of the road. I thought that the most likely place to find a taxi or find a taxi rank was there, so I walked in that direction.

I decided to cross the road. I saw a zebra crossing and walked towards it. When I got to the crossing I looked up and down the road and saw a car in the distance. The car was very far away in the distance, so I thought it was safe for me to cross the road. I then started to cross the road. I remember being on the zebra crossing but I do not remember how far across I was. My last memory is of walking across the zebra crossing. My next memory is of being in hospital in England.”

Two key issues arise in DHV’s evidence as explored by the parties: alcohol consumption and movements. I examine them in turn.

Alcohol. I found that DHV was very defensive about the amount of alcohol he had drunk. He appreciated, as he told Ms Wyles, that the defendant’s case was that “he was bladdered”. When questioned by his own counsel, he stated that he had consumed six Corona bottled beers over about six hours and two rum and cokes. But during cross-examination, the picture changed. He accepted that he had been given a glass of champagne on arrival at the reception. Indeed, there is a picture of him and KLQ with glasses of champagne. He also accepted the possibility that he had another glass of champagne later. He also agreed that he might have had a glass of wine “with dinner”. It is noteworthy that the Spanish police report indicates that he smelled significantly of alcohol when they encountered him following the collision. His blood was tested for alcohol level and registered a reading significantly in excess of the lawful limit to drive in Spain. However, he was on foot.

Movements. The account of his movements provided at paras 29-31 of his statement contradicts his account from the witness box. The critical difference is that he says that he had in fact crossed the road to the far side away from the Yacht Club and was coming back towards it when he was hit. This is a significant difference. It is difficult to understand why he has provided two materially differing accounts. His filed evidence suggests that he was on the zebra crossing when he was “hit”. Indeed, at various points in accounts he subsequently gave, he repeated this suggestion that he was on the zebra crossing when the collision took place. He now says that his statement on this is “not right”. As he put it, it was “half accurate” or “a little bit inaccurate”. This is an underestimate. There was no suggestion in his witness statement that he successfully crossed the road at the zebra crossing, continued looking for a taxi on the other side, turned and was coming back towards the Yacht Club and that was when the collision occurred. Yet he claims to have a solid and clear memory of this differing account. What is also clear on the second account is that he was struck by the vehicle when he was on the roadway and not the zebra crossing. He accepted that if this was so, the vehicle would have had a right of way.

DHV was highly emotional at most points of his evidence and was constantly on the brink of losing his composure. He became very upset at regular intervals. This was not just about the injustice he sharply felt at having to fight this case following the severe injuries inflicted upon him, but also because his relationship with his girlfriend ended five months after the accident and she began a relationship with one of his former employees and is having a baby with him. This is all the more painful as just the day before the incident in 2017, he and KLQ had discussed getting married and having children, although she had wanted to wait before starting a family.

No one can doubt but that he has been greatly affected by the incident. Sometimes he rapped the witness box hard with his fist in anger and frustration. He told counsel that he did not like her. He said he feels he is better off dead. By the time he left roofing after the accident and when he had tried to resume working life, he was no longer the boss but a labourer. He acutely feels he is a failure. Since the incident all he has had is “trauma” and “that is my life”. At that point of his evidence, he tore one of the pages out of the trial bundle. He was frequently highly argumentative and confrontational, and sometimes did not answer questions. For example, there was this exchange when he testified:

“Ms Wyles: You had at least as many drinks as KLQ?

DHV: Is that an accusation? I’m not answering that.”

He tapped his head and said, “what’s up here is fucking mental because of you lot”. To make her point, counsel put a report to him prepared by his case manager Katie Wright on 21 September 2017. He said, “That would have been days after I tried to take my life.” He wishes he had not got up out of the hospital. He wakes up and does not want to do anything. He smokes weed every day and stares out of the window and has a coffee or another coffee. He says you can go through his call logs in two swipes as no one calls him as everything and everybody he cares about has gone. If he does not win the case, he may do a stupid thing to himself. Being “me” had been “amazing”, as he had all the things in life. People used to respect what he said but no one pays him respect now. He is 37 and must go to his mother for money. He used to help people out. He said that he had been “chained to the bed in hospital” and in his statement reported that KLQ told him that he “was anxious and angry in hospital”. “For example, I smashed a phone for a reason I cannot now remember”. As to the future and a possible return to work, he said in his statement:

“86.

I am extremely worried about what the future holds for me, because I do not know what other job I could do. Almost all my working life has been in roofing. I can deal with the paperwork side of a business but don’t have the skills to sit in an office all day and in any event have no desire or aptitude for that type of work.”

He says that he does not know what he will do if he loses the case. He could “become a serial killer”. Through all this, I am bound to observe, Ms Wyles maintained a calm professional approach and gave DHV space to answer. She did not interrupt; she did not respond when in the middle of an answer to a factual question he suddenly made a disobliging deeply personal comment directed at her. At all points, counsel conducted herself with decorum and distinction.

DHV’s memory of events immediately prior to the collision has vanished, a not unusual reaction to severe traumatic injury. I take nothing from that. However, venturing one step further back, he provided the court with a detailed account of his movements once he left the Yacht Club. The difficulty with that account is that his evidence from the witness box is materially different to his 2020 statement. This difference raises a question about his reliability. This can be combined with his differing accounts of the amount of alcohol he consumed and impacts his credibility. Overall, I am not persuaded that DHV is a reliable and accurate narrator about events once he left the Yacht Club. This is important because the two critical areas of unreliability centre around the amount of alcohol he consumed and his movements in the road immediately prior to the collision. I find that he consumed more alcohol than he was initially prepared to tell the court and that at first he materially underplayed the amount of alcohol he consumed. This makes it more likely that he drank a significant amount of alcohol and the reason for his equivocations being his appreciating the significance of excessive alcohol. I also find that his accounts of his movements once he reached the T junction with the main road are inconsistent and raise doubts about the reliability of his account of his actions in the road.

In due course, these dents to his accuracy and reliability must be combined with the other eye witness accounts and the expert reconstruction evidence to assess holistically, and based on all the evidence, whether the defendant has proved that he was not upright in the road at point of impact but flush to its surface. That is a critical question for the court to determine in this case.

KLQ has tried hard to forget the day and the events as it was a difficult part of her life. It meant that she has a poor recollection of details. For example, she cannot remember getting a drink at the beginning of the reception or lining up for a buffet, although she had mentioned those details in her statement. Her memory of DHV saying he wanted to leave the wedding “has gone”. Her witness box testimony makes clear that she did not see DHV in the road, but only on the pavement. She did not see him step off the pavement and so did not see him in the road. She was not looking at him for a long period of time, it was just a glimpse. She did not see the car before it passed her and was not expecting the car as it was very quiet and there were no other cars or people. Although in para 20 of her statement she had an image of DHV stepping off the road, she confirmed in the witness box that she did not see him in the road. So it seems her account of the image of him “stepping off the road” is not reliable and she cannot explain it. A lot of her statement’s content when put to her received the answer, “I cannot recollect now”. It was put to her that the car was not coming down the road fast. She said it all happened very quickly because that’s how she felt things were unfolding before her – “fast”. However, she cannot say what the speed to the car was and cannot dispute that it was travelling at 40 km/h, the maximum regulation road speed. The position is that she cannot say what the speed was. She confirmed that her statement was true. This passage was put to her and she did not dispute it:

“I did not see the impact itself, I only saw the back of the car travelling down. I heard the impact. I heard a very big noise. Then the tyres skidded in the road.”

Today she does not know whether there was a zebra crossing. She does not now know whether she meant by that sentence that she thought DHV crossed on the zebra crossing as she did not see him in the road. She does not know why she said that the car was travelling very quickly. She did hear a tyre skidding noise but did not see the car skidding. When she was asked about movements and sides of the road, she told the court that now she does not know whether DHV is wrong about which side of the road he was on or whether she is wrong; she cannot say whether he was on the Yacht Club side or the far side. Her evidence on this adds nothing.

KLQ remembers very little about the day and night of the incident. The key conclusions about her evidence now that she had testified are these:

The indelible impression she presented was of someone desperately uncomfortable with being involved in the trial now that her relationship with DHV has ended. The court must treat the evidence contained in her filed witness statement with some caution as the evidence she has given from the witness box in important respects contradicts and undermines it, as it does her overall reliability. With KLQ we see how being emotionally conflicted about a previous intimate relationship impacts the reliability of a narrative account of events.

Accident reconstruction experts

Two accident reconstruction experts gave live evidence: Mr Sorton on behalf of the defendant; Ms Escobar Ruiz on behalf of the claimant. Mr Sorton testified first since the burden of proof lies on the defendant to prove contributory negligence. Each expert provided a detailed individual report, Mr Sorton dated 17 November 2020 and Ms Escobar on 30 October of the same year. They then provided a joint report dated 10 March 2021 in which they summarised their areas of agreement and disagreement. The factual conclusions the court reaches must be based on the totality of evidence, combining expert and all other relevant evidence. The court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts. This principle applies with equal force to the other pairs of experts, on Spanish law, actuarial evidence and medico-legal matters. I will not repeat that important warning and qualification.

Ms Escobar gave evidence assisted by an interpreter. I make every allowance for the process of giving evidence through an interpreter and the fact that this is the first time Ms Escobar had given evidence in a UK court.

Ms Escobar practises from a firm in Malaga, Spain called Intec Malaga, S.L. It provides accident reconstruction services. Ms Escobar has a “Diploma in University Specialisation, Reconstruction of Traffic Accidents” from the University of Valencia. She began research on a PhD (Polytechnic University of Madrid) in the biomechanics of pedestrians in road accidents. She continued her study for 3 years before stopping due to the Covid pandemic and has no plans to return to her doctorate for now. She also has around a decade’s experience in accident reconstruction, leading the department of the accident reconstruction firm in Malaga since 2012. At the time of her initial report, she had participated in the analysis and reconstruction of 540 traffic accidents. She states in her report that her expertise has been “decisive in resolving” more than 120 assessments “in different provinces at statewide level”.

Testifying in this way cannot be easy and at times was not for Ms Escobar. But the hallmarks of being a reliable and persuasive expert do not change, making every allowance for an alien forum and the pressure of court proceedings. Science does not change. I found Ms Escobar’s evidence unsatisfactory at several key points. Her original report contained errors. She fundamentally changed her position about the speed of the vehicle. She was prepared to offer opinions on topics she had no sufficient qualifications to give. She did not answer questions directly and often digressed unhelpfully. Her evidence, for example on the impossibility of the injuries to DHV being consistent with his lying on the ground and being “dragged”, was unconvincing and in defiance not only of expert medical opinion but simple precepts of logic and common sense. It took her far too long to make reasonable concessions which she only made when forced to. For instance, it must have been obvious to her that one plausible explanation of the gap in the bonnet alignment on one photograph was simply because this vehicle was around 17 years old at the time of the photograph and the bonnet just did not fit well. It took repeated questioning and ultimately the court again asking the simple question when she did not answer directly before she accepted what was obvious to everyone in court. There was no sound or safe basis to attribute the bonnet alignment with causation during the accident.

I examine the vital elements of her evidence in detail in course of the evidential analysis on the relevant issues. However, in critical respects I found that her evidence was not reliable, consistent or convincing. I cannot agree with Ms Wyles that Ms Escobar’s evidence generally was “evasive”, but concur that it was unimpressive in parts and of little assistance to the court on certain key point of dispute between the parties that I will review.

Mr Sorton has extensive relevant experience stretching back decades. He operates from a firm bearing his name based in Penrith, Cumbria. He had worked initially in the police force before specialising in road traffic accident analysis. He has assessed and reconstructed over 2000 relevant pedestrian-vehicle impact accidents. This is a very substantial base of comparators and examples in the field for him to draw on. Professionally, he has no inherent predisposition to assist either party, but his experience is chiefly being instructed on behalf of claimants not defendants. He gave evidence about facts that might be seen as critical of the driver in this case Mr Gornals and at times evidence that may be construed as helpful to the claimant and unhelpful to the defendant party that had instructed him. For example, he said that it is unlikely Mr Gornals did brake until possibly the end of the vehicle track post-impact.

The absolute foundation for Mr Sorton’s opinion about point of impact positioning of DHV is the absence of damage to the front of the Hyundai. He also emphasised repeatedly this was entirely contingent on an impact speed of 25-28 mph. As to this critical issue of the claimant’s positioning, Mr Sorton stated that “not a week which goes by without me looking at a case where a pedestrian was struck whilst standing up.” This is a central part of his habitual professional life. I found him to be careful and measured in his evidence, always at pains to alert the court to the limits of his evidence and expertise. There was no overreach, as I encountered with some of the experts (Ms Escobar, Ms Astigarraga – to come). He made concessions when he needed to, not because he was forced to do so but because he plainly saw this as right given the limits of the evidence or his expertise. He was not stubbornly dogmatic in his views. For instance, he accepted that he should have addressed the malignment of the bonnet in his report and does not or does not adequately. He relies heavily on the contemporaneous police report about the lack of damage, and agrees that “perhaps it was remiss of me” not to address the issue.

I found him balanced and helpful. Overall, it was the contrast between the quality of evidence given by Ms Escobar and Mr Sorton that was stark, and markedly in favour of Mr Sorton. I accept the submission that in material respects Ms Escobar’s evidence was confused and inconsistent (see her change of maximum vehicle speed from initial report to joint statement). I further accept the defendant’s submission that Mr Sorton was “open and clearly trying his best to help the court”. This does not mean that I have accepted his evidence in its entirety and rejected Ms Escobar’s wholesale. The analysis of the court is necessarily more nuanced. However, my overall assessment of the two experts is clear: Mr Sorton is by a distance the more persuasive, reasonable and reliable witness. However, I find it simplistic to simply state that Mr Sorton’s evidence is to be preferred to Ms Escobar’s at all points. Such assertions about expert preference carry a risk of losing sight of the cardinal principles: we do not have trial by expert and findings of fact are made on all the evidence, viewing the expert evidence in the context of all the other evidence.

Spanish law experts

Two experts on Spanish law gave evidence, Ms Astigarraga for the claimant and Professor Carreras for the defendant. It is necessary to set out relevant aspects of their evidence as affecting my assessment of their worth as a witness. I must dwell on these witnesses more than expected for two reasons. First, a distinctive character of these proceedings is that the court receives expert legal evidence to assist making findings of fact about the content of the applicable Spanish law. Second, the surprising nature of certain parts of the evidence offered to the court.

Ms Astigarraga is a Spanish lawyer (“Abogada”). She was admitted to the Bar in Malaga in 2009. In February 2023 she started her own firm specialising in personal injury and insurance. She states that she has “vast” experience in the international personal injury field and is regularly instructed as expert in matters of Spanish law. She has been preparing reports in these types of cases for 15 years. She has acted as a lawyer representing clients in such personal injury claims. She has, she told the court on oath, appeared in “about four English High Court cases over 10 years”. She has given evidence in the court in this jurisdiction before, but this is the first time in person, the others being remote. Her work is 70 per cent claimant and 30 per cent defendant. I found Ms Astigarraga to be in certain vital respects an unsatisfactory witness. This unsatisfactoriness ranged from simple factual matters such as the number of times she had testified in English proceedings (it was two cases, neither of which were in the High Court but in the court below) to her persistent attempt to deny she had copied parts of a colleague’s expert report. It seems that the root of her difficulty is that she approached the case at times more as an advocate for the party instructing her rather than an independent arms-length expert.

Critically, she did not mention in her statement of truth a recognition of her Part 35 duties to this court. Further, she failed to mention in her report what was obvious: that she had relied on a separate report produced by Ms Romero, an associate lawyer in her firm as a source for her own report. Additionally, and this adversely impacted her credibility, she tried to suggest under persistent and legitimate questioning from Ms Wyles that she had not copied Ms Romero’s report. Ms Romero’s report is dated 2022. Ms Astigarraga’s reports are dated 2023 and 2024. To understand the significance of this issue as it affects her credibility, it is necessary to outline how it developed. To begin, two extracts of their respective reports:

To this, Ms Astigarraga replied that she and her colleague “work closely together and used very similar language”. However, the extent of the similarity rendered this as the explanation implausible. She then said that there was a central “database” that lawyers in the office use when explaining common principles. This might explain the above two entries. But it did not explain other identical passages, specifically about this case:

Therefore, even the punctuation is identical, no comma after the date in the first paragraph, but a comma after the date in the second. Indeed, there are 28 paragraphs identical to Ms Romero’s in her report. Ms Wyles provided an annex in tabulated form powerfully underlining the point. Finally, Ms Astigarraga accepted that she “might” have copied passages from Ms Romero’s report. Not only had she initially denied this, but she had said at the outset of her evidence that it would be wrong to do so. Further, she had not complied with Part 35 and identified Ms Romero as one source of her report. She plainly copied parts of Ms Romero’s report, failing to cite it as a source as she should have. Her explanation that she “did not copy” was obviously unconvincing and not true. It cannot be just a central database that she and Ms Romero copied because the extract was specifically about DHV’s case and details of medical findings. Therefore, her final concession that the cited passages were copied from Ms Romero was forced through persistent questioning rather than an open concession from a witness in error.

This interlude caused the court to think carefully about Ms Astigarraga’s credibility. It did not destroy it, but these were poor and unhelpful answers and unworthy of a legal professional entrusted with assisting a court on such a central issue as the nature of applicable Spanish law. While I cannot go as far as Ms Wyles invites me – “any vestige of respect for this expert has evaporated” – I have had to approach Ms Astigarraga’s evidence with additional caution. These concerns were added to by her surprising approach to other issues. When she was asked whether a Spanish court might take the alcohol consumed by a pedestrian into account as a “relevant factor”, she said it would not. This led to the witness being directed to cases in the bundle of Spanish authorities where the Spanish court had, it appeared, taken the alcohol consumed by the injured pedestrian into account. Her response to this was that although it was a relevant factor, alcohol consumption was one out of many factors – a change of account. This also affected the court’s assessment of her credibility.

Next, questions about her balance arose. Not one of the Spanish authorities she provided to the court related to cases where the pedestrian had a higher fault contribution than the driver. When asked whether she had looked for such cases, she said, “Yes, I think so”. It is puzzling that she was not able to find any Spanish cases of greater pedestrian fault. Professor Carreras had. This caused the court to anxiously consider her partiality. She mentioned for the first time in the witness box a judgment in Spain that she stated applied adjustments of the Baremo for foreign residents and a report of the Public Prosecutor (Report 3/2016). But she did not refer to the documents in her report and did not supply them in the bundles. She told the court that she could “definitely provide the court with the judgment today”. She never did. Her first mention of the Public Prosecutor’s report was during cross-examination. This was very unsatisfactory, made more so by her assertion that she purported to “introduce it now in oral evidence”. This is entirely contrary to principle and good practice. As to the court’s reasons for refusing to admit the report, one starts with the essential point that the report was never provided to the court. It was heralded for the first time in cross-examination. This operated as a form of forensic ambush that is entirely contrary to proper procedure. If there had been anything of value in the report that was sought to be relied on, the report should have been served and filed so the defendant had fair opportunity to contest its admissibility, and if admitted to counter the contents with rebuttal evidence or balancing or contextual material. All of this should have happened well in advance of a trial that took place seven years after the incident in which the claimant sustained injury. Furthermore, I do not accept the claimant’s submission that even though the court ruled against the admissibility of the Prosecutor’s report, Ms Astigarraga’s evidence about it remains before the court and can be considered. In the absence of the foundational document, her commentary about it is robbed of value. It cannot be properly validated, tested, contextualised, discounted or confirmed. I can place no weight on that part of her evidence.

Ms Astigarraga stated that it is possible for health care or rehabilitation benefits to result in a departure from the strictures of the Baremo, but she has provided no case where that has happened. On consolidation date, her evidence was out of tune with all the other witnesses: Dr Patron, Dr Dominguez and Professor Carreras, Ms Astigarraga being the only witness asserting the 2023 date of consolidation as opposed to 2018. It was a curiously outlying stance. Overall, and as a result of these answers and, as importantly, her inconsistent and at times evasive stance, the court had to treat her evidence with caution. However, it was not rejected completely, but assessed carefully. I do not need to decide whether the weaknesses in Ms Astigarraga’s evidence amount to “a litany of illustrations”, as the defendant asserts. Nor can I say that her report - and presumably her evidence - carries “little or no weight”. Mr Vincent tried hard to salvage her evidence. But I cannot accept his submission that she “displayed everything she needed to as an expert to help the court”. He conceded that her evidence about the copying issue “seems unsatisfactory”. It was. Her evidence overall was unhelpful in material respects, as was her approach and occasional evasiveness. It is enough to say that Ms Astigarraga was an unimpressive and unreliable witness on several critical topics, as the ensuing analysis will draw out.

Professor Carreras is a very engaging, fluent and articulate witness. His command of English is impressive and he testified without an interpreter. While based in Barcelona, he has been practising in Spain for 40 years and has “always represented claimants”, specialising in litigation in traffic accidents, personal injury and insurance claims. He is Professor of Law at the Universidad Ramon Llull de Barcelona. On several occasions he has provided expert reports to English courts on various aspects of Spanish law. He is a founding member of the British Spanish Law Association and served as a member of the Board of Directors. He especially “enjoys” litigating against insurers and banks. Exceptionally, he finds himself on “the other side” of the courtroom, as here. He says that is how he “knows all their tricks”.

I detected no sense of partiality, and was satisfied that at all times he was attempting to assist the court rather than argue one side of the case on behalf of those who instruct him. He has not been involved in a case with Ms Astigarraga before. I found his evidence straightforward, directly engaging with the question, aware of his limitations and balanced. I found no reason to doubt his balance or credibility. That said, it does not follow that I accepted his evidence in its entirety. I did not. He was a persuasive witness who was unmistakably trying to assist the court. For instance, when he was asked whether there was any decided Spanish case in which the Spanish court had awarded damages for personal injury in accordance with foreign law rather than the Baremo, he said, “I looked for hours and hours” and told the court he reviewed somewhere in the region of 300 to 400 judgments.

I limit here my analysis of his evidence to matters that have affected my assessment of Professor Carreras as a witness. In due course I return to the substance of his evidence as I do with Ms Astigarraga. The vital point in the contrast between the two is not so much that Ms Astigarraga does not explicitly state in her report that she is aware of her Part 35 duties, significant though that is, it is that her report and evidence is not in critical respects Part 35-compliant. That is a far more serious matter. She did not take as a starting-point an overriding duty to the court rather than her instructing party. This case was not short of advocates; it needed impartial expert advice. Professor Carreras provided it; largely, Ms Astigarraga did not.

Actuarial evidence

Two actuarial experts gave evidence, Mr Peraita for the defendant and Mr Lecuona for the claimant.

Mr Peraita is a very experienced actuary. He has been a full member of the Spanish Institute of Actuaries for 50 years and has been president both of the Spanish and the European institutes. He has prepared experts reports for legal proceedings, and has participated in more than 150 cases in the last ten years, and has been professor in two universities. He has taught actuarial mathematics. He has given advice to international organisations such as the World Bank on actuarial principles, but has not given evidence in other jurisdictions. He has not given evidence in the UK before.

His first report was dated 1 August 2024. His second report contained his assessment of the compensation of DHV and is signed 30 August 2024. His third report was his comments on the valuation by Mr Lecuona and dated 10 September 2024. He prepared a joint statement with Mr Lecuona dated 27 September 2024. Finally, he prepared an additional note with a different interest rate, with 3.5 per cent and 2.5 per cent. His opinion is that the applicable interest rate is 3.5 per cent, a matter affecting a very long time right up to end of life or retirement. He checked the inflation rates in both Spain and the UK and noted that both national banks are aiming at 2 per cent.

I found Mr Peraita to be knowledgeable and also very fair-minded. He reached a conclusion that differed from Mr Lecuona but that was significantly in favour of DHV about the extent of deductions for future benefits. While Mr Lecuona deducted benefits all the way to the notional end of life, Mr Peraita only deducted the benefits up to the age of 67. Thus Mr Peraita’s analysis financially favoured DHV on this. I got no sense that Mr Peraita was partial in any respect, except for his great respect for international principles of actuarial science about which he spoke with a passion. The application of sound actuarial principle is something vital to him. He gave the example of a book on actuarial science he ordered from Amazon in “Chinese” in error, but he was able to understand it despite the language differences because of the internationally recognised calculations. He contrasted this with certain of Mr Lecuona’s calculations which he stated had no basis in good or recognised actuarial practice. This was consistent with his understanding of the nature of the Baremo which he said was imbued with a spirit “favourable to the victim”.

I found him to be authoritative and he was able to speak around his answer by reference to the nature of practice in Spain, the principles at the heart of the Baremo and his extensive experience. This was persuasive. That said, it is not possible to reach a binary position about whether the court completely preferred the evidence of Mr Lecuona or Mr Peraita. It was acutely issue-specific. As he said, actuarial calculations are not a “crystal ball”, but provide a consistent and rational basis for the calculation. The assumptions when applied to one person is a “bet”, because he might live longer than the assumptions and run out of money. But the valuation is to make a reasonable estimation to reflect the total of damage inflicted. In this sense, the assumptions do not necessarily reflect reality but an approximation to it.

Mr Lecuona’s qualifications are that he has a degree in business and economics and as an insurance actuary. He has experience of preparing reports for the Spanish courts over more than 20 years, being instructed by both “sides”, defendants and claimants. Each year he prepares about 60-100 reports in the actuarial firm he works for. He has never given evidence in this country before.

Mr Lecuona has not applied the Baremo strictly. He has not slavishly adhered to the Baremo limits because he thinks they are “unfair” in this case and to apply them in the UK would be to “depart from reality”. He has used UK costs (of care, for example) then applied the Spanish correcting factors such as growth and benefits increase, so he has mixed his methodology. As he put it, “In this section I was being extremely orthodox and the applying the law and the law directs us to take these correcting factors into account and I do so.” He put his ultimate position this way:

“I am saying it would not be fair to adjust to apply it in the same way and it would not allow for ‘just repair’ for the injured person. If the cost of care in that country were lower, then I would take into account the lower cost of care there or it would be unjust enrichment of the person. Therefore, one should use the Baremo system and then adjust for different situations in other countries.”

The value of Mr Lecuona’s evidence depends in part on the court’s decision on the Issue 11 dispute about the extent to which it is possible to depart from the strictures of the Baremo scheme, or, alternatively, whether implicit in that system is the flexibility to make awards to reflect what Mr Lecuona called “the reality”.

Medico-legal experts

The final pair of experts consists of the two medico-legal experts. This type of witness plays a distinctive role in Spanish personal injury proceedings. They assist the court on how the medical evidence accords with the sequelae and the categories of compensation under the Baremo system. Their role is authorised under the Baremo itself (article 37). Dr Dominguez was instructed on behalf of the claimant; Dr Patron on behalf of the defendant.

Dr Manuel Dominguez Salgado is Doctor of Medicine and a specialist in neurology and neurophysiology. He is a specialist physician at the Gomez Ulla Central Defence Hospital in Madrid and an associate professor in neurology at the University of Alcala de Henares. He is Professor of Neurology at the National School of Work-Institute of Health Carlos III.

He could not recall whether he had seen all the medical reports or joint statements of the defendant’s medical experts. This is significant because it is part of the task under Spanish law for a medico-legal expert to assess the medical evidence in providing assistance to the court. He therefore confined himself to a consideration of the claimant’s medical experts and at no point refers to the defendant’s medical expert evidence. This did not strike me to be due to an inherent bias or forensic hostility, but because he misconceived them as being “not relevant” and instead based his opinion on “the treating doctors”, thinking that the claimant’s experts were the treating doctors. This resulted in opinions and recommendations based on an incomplete evidential record and a consequent imbalance. Further, he replicated a significant passage of script from an article (in excess of two pages) without attributing it to the source. Therefore, it is in the body of his report unattributed in breach of Part 35 requirements. The claimant submits that “this was not plagiarism” and Dr Dominguez thought copying an article is “the normal thing to do.” The submission misses the point: the question is his approach to the court. He had the opportunity to accept his error. Instead, he compounded it by claiming that in fact he had cited the source in a footnote. This was not true: he had also copied the footnote from the source article. These acts caused the court to think carefully about his openness. The simple way forward was to admit the error and apologise. Instead, he offered in his oral evidence obviously incorrect explanations. This was unconvincing.

The claimant’s submission is that Dr Dominguez was “doing his best to assist the court”. I must view the effect of his effort rather than merely considering his intentionality. Due to the significant oversight in the evidence he considered, the weight that can be properly placed on his evidence is reduced. However, his error does not, in my judgment, invalidate it. However, at times Dr Dominguez did not answer the question, and had to be pressed by counsel to respond to the direct question she asked. He offered an unconvincing opinion when awarding points for one of the Baremo categories, hearing loss (8 point out of 50) when there were no expert reports to support the finding as clearly required by the Baremo system.

Doctor Alejandro Patron Figari is a medical specialist in bodily injury evaluation and member of the Barcelona Medical Association. He has a Master’s degree in Medical Evaluation and Medical Expertise from the University of Barcelona, and is an insurance medical expert registered with the Insurance Expert Association in Spain. He has been a professional expert for 20 years and has given evidence in court on average three times a week. He provided a report having been instructed by the defendant, a supplementary report after he received further documents, and updating “letters”, culminating in a third and final report dated 15 April 2024.

Dr Patron is a very experienced expert and is in court very frequently assisting judges with his expertise. He is also an engaging and affable character with a larger-than-life confident personality who was eager to try to assist the court. He was able to explain complex matters in simple and vivid terms that were very helpful. He has excellent communication skills and is able to find analogies and metaphors to simplify potentially complex or highly technical issues. All this does him credit. His opinion evolved as he saw more and more documents. As he put it, “I am not a specialist in neurology, but I am a specialist in bodily damage.” The challenge to the witness was centred in part on the fact that he did not include in his September 2023 report code 01136 on cognitive disorder, which he did in the April 2024 report. He was questioned at length about what made the difference that led to the inclusion of cognitive disorder after a substantial delay.

I found that he was at points unbalanced in his conclusions, not motivated by a hostile attitude towards the claimant, but rather an insistent adherence to his opinion being right. There were occasions when he only accepted the conclusions of other experts with reluctance. At other times, he was unrealistic, as when he suggested that DHV could in future be employed as a “soldier”. This was obviously so unfeasible and potentially dangerous that it displayed an unwillingness to accept evidence that was contrary to his overall stance towards the case. Such matters reduced the weight the court could place on Dr Patron. That said, on other issues, his evidence made good sense and the court was able to accept it, such as with the requirement that there should be audiometry testing and that anosmia is the eradication of the ability to smell (what Dr Patron calls the “abolition”) rather than the alteration. The court was left in the position, as it had been with Dr Dominguez, that it did not accept or reject the entirety of the evidence of the expert but carefully assessed it in the context of the totality of evidence.

Overall, I do not accept the claimant’s submission that “limited importance should be placed on the medico-legal experts and limited importance on Dr Patron in particular.” It is a distinctive feature of Spanish law that the court is assisted by such experts. No one objected to these experts being called in the trial before me. Indeed, their evidence was explored for an extended period. The Baremo system is alien to our courts. I found the evidence from these experts of assistance in evaluating how to fit the facts of this case as I found them to be within that Spanish system of compensation. I reject the claimant’s broad submission that the “medico-legal evidence is not useful”. Of the two experts, I found Dr Patron, with the qualifications I have identified, to be overall more reliable and helpful.

Substantive or applicable law

This case involves a “foreign” element. This means that although it is tried in England, and concerns the injury to a person resident in Britain, the accident occurred in Spain with a Spanish driver and a vehicle normally based in Spain. This prima facie involves a conflict of laws. Dicey, Morris & Collins on the Conflict of Laws, 16^th ed., (2023) (“Dicey”) states at 1-001A:

“that part of the law of England and Wales which deals with cases having a foreign element. By a ‘foreign element’ is meant simply a contact with some system of law other than English law. Such a contact may exist, for example, because a contract was made or to be performed in a foreign country, or because a tort was committed there.”

I accept Mr Vincent’s succinct submission that the “starting-point is that Spanish substantive law applies”. Ms Wyles agrees. The reason why Spanish law should be applied by an English court remains in dispute, and it will be necessary for the court to rule on it (see Issue 11). The court was referred to a decision of this court in Lambert v MIB [2022] EWHC 583 (QB) (“Lambert”), a judgment of Sarah Crowther QC sitting as a Deputy Judge of this court, to whom the court is grateful. Lambert in turn cites this court’s earlier decision in Yukos Capital S.a.r.L v OJSC Oil Company Rosneft [2014] EWHC 2188 (Comm), a decision of Simon J. It repays citing what Simon J held:

I must flag up an area of dispute on the law between the parties about determining the Spanish law. The defendant’s case is that as held by the Privy Council in Perry v Lopag Trust Reg No 2, (Cayman Islands) [2023] UKPC 16 (“Perry”),the task of the trial judge when there are disputed issues of foreign law is to “determine what the highest relevant court in the foreign legal system would decide if the point were to come to it.” The claimant does not dispute what is said in Perry but disputes that is binding or has any application to a situation (not considered in that case) where the victim of a motor accident seeks to invoke recital 33 of Rome II. Several disputes about the Spanish law arise in the issues between the parties. I determine them at each point on the evidence before me about the content of the applicable Spanish law and decide it as a finding of fact.

Therefore, I make plain that my approach to this case is:

Procedure and evidence

All this begs a question. What evidence should be received and examined and using which procedure? This question was settled by the Court of Appeal in Wall v Mutuelle. In that case, a British resident Steven Wall was injured in a motorcycle accident in France. It was agreed, liability being admitted, that he could sue the other driver’s French insurers in this country due to European regulations and directives that predated Rome II. The parties disputed whether the compensation due to the claimant should be quantified using French modes of evidence and procedure or English. The Court of Appeal was clear that the English approach to evidence and procedural rules should be used. Longmore LJ said about Rome II at para 12:

“It cannot be the case that the Regulation envisages that the law of the place where the damage occurs should govern the way in which evidence of fact or opinion is to be given to the court which has to determine the case. An English court is ill-equipped to receive expert evidence given in the French manner.”

Jackson LJ put it more fully and trenchantly at para 43:

“it is unrealistic and inefficient to expect courts to adopt the evidential practices of a different jurisdiction when determining questions of fact. The courts of each European jurisdiction have developed evidential practices with which both their judges and practitioners are comfortable. Germany, for example, has developed the ""Relationsmethode"", in which the judge exercises a high degree of control over the evidence to be received as the case develops. The Netherlands have a different procedure, although there too the judge takes a dominant role in the questioning of any oral witnesses. France has the procedures described by the experts in this case. If an Englishman is injured in one of those jurisdictions and sues there, it is inconceivable that the local courts will meekly adopt English evidential practices. There is no way that those courts would countenance several days of oral evidence and extensive cross-examination of experts in order to assess quantum of damages. The judges and practitioners do not have the requisite experience to adopt our evidential practices. We do not have the requisite experience to adopt theirs.”

Indeed, article 1(3) of Rome II states in terms that the Regulation shall not apply to evidence and procedure. While it is a derogation from article 15, it must be narrowly construed, but the Court of Appeal in Wall v Mutuelle has made the situation clear. This answers the question why this court has conducted the instant trial according to English procedural law and admitted, excluded and tested the evidence in accordance with English legal practice and not Spanish. However, that does not mean that Spanish substantive law is disapplied. This is a matter I must return to in Issue 11, and a further reason to take it out of turn.

I find that:

Due to the determination of this issue having far-reaching implications in this case, and while retaining the numeration proposed by the parties, I take it out of turn and provide my analysis and decision here. The question of whether recital 33 of Rome II applies to the assessment of compensation in DHV’s claim may usefully be further divided into three sub-issues:

Applicability of Rome II

Claimant’s submissions. The claimant’s case is that Spanish substantive law applies to this case because of Rome II, and Rome II is part of Spanish law, being directly applicable to it. In this case there is a conflict of laws because DHV was injured in Spain and brings a claim for compensation for his injuries and losses in England. It is because of Rome II that the law of the “state of accident” applies. The applicability of Rome II in conflict of laws road traffic accident claims was confirmed by the Supreme Court in Moreno.

Defendant’s submissions. The defendant submits that the claimant’s analysis runs “entirely contrary” to the Supreme Court’s analysis in Moreno. The Supreme Court made it clear that there is “no choice of law issue arising in claims for compensation under regulation 13” and therefore “the Rome II Regulation does not fall to be considered nor does it apply.”

In one real sense, this is a phony war. What is really at stake is whether recital 33 of Rome II applies and its significance for DHV’s case. The route the claimant seeks to support its recital 33 argument is by maintaining that this is a Rome II case. Conversely, the defendant argues that Rome II does not apply in this case, with the consequence that recital 33 contained within it does not apply. There remains the further question whether recital 33 would make a difference to how a Spanish court would decide the level of compensation in this case, but that argument is cut off at the root if Rome II does not apply. This is what lies behind what might appear a highly technical dispute. It carries with it great potential significance.

The incident at the centre of this claim occurred after the UK’s Brexit vote in 2016 but prior to the end of the transition period at 23:00 hours on 31 December 2020. While after withdrawal from the EU, European law no longer generally applies in the UK, certain exceptions were made, including when there has been damage caused prior to the end of transition (Article 66(b), UK-EU withdrawal agreement and section 7A, European Union (Withdrawal) Act 2018 (“EUWA”)). One part of retained European law is Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (“Rome II”). The parties do not dispute that Rome II has been retained. The dispute is about its relevance to DHV’s claim. What is clear is that due to the arrangements around the UK’s withdrawal from the EU, Rome II is capable of being applied in this case. The question is whether it in fact bites.

In May 2002, the European Commission (or “Commission”) published an initial draft of a proposal for what was to become the Rome II regulation. The court was provided with an account of the legislative passage drawn from the authoritative monograph by Andrew Dickinson (The Rome II Regulation: The law applicable to non-contractual obligations (2010) (“Dickinson”)). Dickinson documents significant differences of approach between two key elements of the legislative process, the European Parliament and the Council of Europe, that is between the elected MEPs and the appointed ministers of Member States. The regulation was finally adopted in July 2007 and came into force (except for Article 29) on 11 January 2009.

Rome II is divided into 40 recitals and 32 articles. Definitionally, Rome II comes after Rome I (Regulation (ECHR) No 593/2008) which provides for rules within the EU “on the law applicable to contractual arrangements”. In other words, it lays out a series of rules for the applicable law in various contractual situations with a cross-border element (sale of goods, consumers contracts, provision of services). Rome II on the other hand lays out rules “on the law applicable to non-contractual obligations”. Its purpose, as recital 4 makes clear, is to identify “measures relating to the harmonisation of conflict-of-law rules as those facilitating the mutual recognition of judgments.” This is because, as recital 6, observes:

“6.

The proper functioning of the internal market creates a need, in order to improve the predictability of the out- come of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought.”

This replicates recital 6 in Rome I. Further, the aim was that, as recital 16 sets out, the:

“16.

… rules should enhance the foreseeability of court decisions and ensure a reasonable balance between the interests of the person claimed to be liable and the per- son who has sustained damage. A connection with the country where the direct damage occurred (lex loci damni) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.”

This is an expansion of recital 16 of Rome I, which instead ends with the sentence that “The courts should, however, retain a degree of discretion to determine the law that is most closely connected to the situation.” Rome II then examines precisely this question of forum. Its rules address the question of where the damage or loss occurred, as recital 17 explains:

“17.

The law applicable should be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. Accordingly, in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively.”

Recital 18 then provides an explanation of the purpose of article 4, a key article on how forum of the trial court is connected to site of damage:

“18.

The general rule in this Regulation should be the lex loci damni provided for in Article 4(1). Article 4(2) should be seen as an exception to this general principle, creating a special connection where the parties have their habitual residence in the same country. Article 4(3) should be understood as an ‘escape clause’ from Article 4(1) and (2), where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country.”

This may be understood as a further working out of the discretion articulated in recital 16 of Rome I.

Tiffany Moreno was a resident of the United Kingdom who was injured while on holiday in Greece in a road traffic accident by a vehicle driven by an uninsured driver. She sustained very serious injuries. Ms Moreno claimed damages against the MIB in the High Court in England. She argued that English law should apply, the motivation being that Greek law would result in a significantly lower level of damages.

The Supreme Court unanimously ruled that although the trial of her personal injury claim took place in England, Greek substantive law should be applied to assess compensation. This decision overruled previous Court of Appeal decisions in which the court had assessed compensation in accordance with English law and not the law of the state of accident (Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; Bloy v Motor Insurers’ Bureau [2013] EWCA Civ 1543). It is necessary to follow the careful analysis of the Supreme Court. This will involve fuller than customary citation, but it is required given the centrality of Moreno to rival submissions in this case on the Rome II point, but more widely, as will very soon become clear. As the court states from para 31:

“31 The inference is that, to whichever special provision of the Fourth Directive the victim of a motor accident may have to have recourse, the compensation to which he or she is entitled is and remains the same. It is the same compensation as that to which the victim is entitled as against the driver responsible, or his or her insurer, or, that failing, as against the guarantee fund of the state of the accident. The compensation remains the same if and when the victim has recourse instead to the compensation body established in his own state of residence under article 6 or 7.

…

If the victim chose or were led to pursue the responsible driver or a direct action against his or her insurer or a claim against the insurer’s local claims representative, the measure would be that applicable in the state of the accident.

32 In the case of a claim against the driver responsible or his or her insurer or the guarantee fund of the state of the accident, such compensation would normally be measured in and under the law of the state of the accident.

…

the reference to applying the laws of the member state to the payment of compensation is further confirmation of an intention that the law of the state of the accident should govern liability and the measure of compensation.

33 … clauses 7.2 and 8.2 of the agreement between compensation bodies and guarantee funds expressly provided that the compensation body established to give effect to those articles was to “apply, in evaluating liability and assessing compensation, the law of the country in which the accident occurred”, and, further, indicated that the final paying guarantee fund might refuse reimbursement to the extent that the compensation body had “not observed the rules of applicable law”. Gilbart J referred to this agreement as a “private agreement” that “cannot be used to interpret the Directives or the Regulations”, and Mr Beard pointed out that it post-dated the Fourth Directive. This is in my opinion to undervalue the role of the agreement and to view matters over-technically. Clauses 7.2 and 8.2 of the agreement introduced in relation to compensation bodies provisions paralleling those applicable under the predecessor green card and motor insurance bureaux schemes. The making and approval by the European Commission of the agreement containing such clauses were pre-conditions to the coming into force of articles 6 and 7 of the Fourth Directive. They can and in my opinion should be seen as part of a consistent scheme, to be viewed and construed as a whole.

34 A further indication of the way in which the scheme was intended to operate is provided by clause 7.3 of the agreement. According to clause 7.3:

… "The guarantee fund of the member state in which the accident took place, even though it is not responsible for the reimbursement described in section III below, shall provide, upon request, to the compensation body to which a claim for compensation has been made, all necessary advice assistance and information-in particular on the content of the

applicable law”

…

The rationale behind clause 7.3 is clearly that the guarantee fund of

the member state of the accident will be able to provide the necessary

information about the applicable law of that state to enable the

compensation body in the victim’s state to be able to settle the victims claim in accordance with that law.”

The Directives do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victim’s entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident.

35 It would not be consistent with the scheme of the precursor green card system or with the scheme of the series of European Directives and associated agreements from 1972 onwards, for the compensation body established and acting under article 6or 7of the Fourth Directive to provide compensation other than in accordance with the law of the state of the accident.

36 Further confirmation of this intention is present in the express provisions of articles 6and 7. First, the provision in article 7 for compensation to be provided in accordance with the provisions of the Second Directive requiring each member state to ensure compulsory insurance in minimum amounts and to set up or authorise a guarantee fund to cover property damage or personal injuries caused by unidentified or uninsured vehicles is a yet further pointer towards the intended link between the compensation available in the state of the accident and that available from the victim's local compensation body.”

One of the purposes of the scheme is to ensure that an injured party receives the same level of damages whether the driver is uninsured or insured. Further, the difficulty of applying different national compensation schemes is that the injured party may receive more in its state of residence than in the state of the accident. This produces the paradoxical result that the compensation body in the state of residence would pay out more than it could recoup from the state of accident guarantee fund. As the court stated at para 37:

“37 Second, the provisions of article 6 and 7 regarding reimbursement are significant. Under article 6(2) what is clearly envisaged is that the compensation body in the state of the victim's residence should be able to recover from the compensation body in the state of the insurer the whole sum that the former compensation body has paid out to the victim. The latter compensation body is then subrogated to the victim's rights against the responsible driver or his insurer ""in so far as the compensation body in the member state of residence of the injured party has provided compensation''. But, on the analysis accepted by the Court of Appeal in the Jacobs case [2011] 1 WLR 2609and supported on this appeal by Mr Beard, there is no necessary correlation between the amounts paid out by the compensation body of the state of the victim's residence and that recoverable from the compensation body of the state of the insurer or that to which that latter compensation body is subrogated. Clauses 7.2 and 8.2 of the agreement between compensation bodies and guarantee funds would bar the compensation body which paid the victim from recovering more from the compensation body of the state of the insurer than was payable in respect of the claim under the law of the state of the accident.”

This would operate unfairly on the resident state compensation bodies.

“39 I conclude, in these circumstances, that the scheme of the Directives is clear, and that they do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victim's entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes. In consequence, it also makes no difference to the measure of liability of the body or person ultimately responsible, which route is chosen.”

Returning to the question of the applicability of Rome II, while the defendant’s case is that it is not relevant, the claimant points to a particular passage of the Moreno judgment. Lord Mance says at paras 20-21:

“20 Turning to regulation 13, directly in issue in Jacobs and now on the present appeal, Moore-Bick LJ concluded first that it must contemplate the victim being able to show the existence of liability on the part of the person responsible for the accident. The answer on this point lay, he considered, in the words ""shall compensate the injured party in accordance with the provisions of article 1"" of the Second Directive. He went on, at para 32:

‘I think it is reasonably clear from the recitals to the Second Directive that its purpose was to assimilate the position of the victim of an unidentified or uninsured driver or vehicle to that of the victim of an identified and insured driver or vehicle; it is not its purpose to require the establishment of a system of no-fault compensation. It is, therefore, implicit in the scheme of the Second Directive that the victim must be able to establish that the driver is liable to him in respect of his injuries, but whether that requires proof of fault will depend on the law of the country in which the accident occurred. The reference in regulation 13(1)(c)(ii) to an insurance undertaking which insures the use of the vehicle assumes the existence of a liability on the part of the driver which ought to be, but is not, covered by insurance. It follows, in my view, that the obligation imposed on the bureau by regulation 13(2)(b) to compensate the injured party in accordance with the provisions of article 1 of the Second Directive carries with it the implicit proviso that the injured party must be able to show that the driver is liable to him. As in the case of a claim under regulation 12, that is a question to be determined by reference to the applicable law identified in accordance with the appropriate conflicts of laws rules. At the time the 2003 Regulations were made the applicable rules were those of the Private International Law (Miscellaneous Provisions) Act 1995, but since the introduction of Rome II, the rules set out in that Regulation will apply and will normally lead to the application of the law of the country in which the accident occurred.’

21 There is no reason to differ from this analysis. Nor is there any reason to differ from Moore-Bick LJ's further analysis in paras 33—34 of the basic reasoning behind the expression in regulation 13(2) ""as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain.”

Therefore, Moore-Bick LJ cites Rome II in terms. Further, and also in terms, Lord Mance approves of Moore-Bick’s analysis. It seems to me clear. Here is the Supreme Court endorsing the analysis of the Court of Appeal that to decide which law applies in a regulation 13 compensation case, the trial court should normally follow the Rome II regulation, which in turn leads to the application of the law of the country “in which the accident occurred”. This is the obvious result of an application of article 4 of Rome II. Article 4 is found in Chapter II of Rome II, the section on “Torts/Delicts”. It provides a “General rule”:

“Article 4

General rule

1.

Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

2.

However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3.

Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”

Article 4.2 applies to a situation where, for example, a pedestrian in France is injured by an uninsured driver when both have habitual residence in Great Britain. In such circumstances, compensation is measured using English law. Article 4.3 is the so-called “escape clause”, what we might call a safety valve, that disapplies “the law of state of accident rule” where a “manifestly closer connection” to another state exists “in all the circumstances”. However, it is article 4.1 that is relevant to DHV’s case.

The effect of recital 33

Claimant. Recital 33 is relevant to the level of damages recoverable by DHV from the Spanish court because it is part of a directly applicable European regulation. It reflects an important concept fundamental to justice in DHV’s case, compensation for the actual losses incurred. Recital 33 must have some effect and cannot be merely exhortatory.

Defendant. Recital 33 is incapable of altering substantive law. The recital is “toothless” and is the result of a compromise during the negotiations during the regulation passage. The “short route” identified by the claimant is to ask what the Spanish court would do. This does not work because if the Spanish court were considering a purely domestic case with a Spanish resident injured party and driver and based vehicle, recital 33 would have no application as there is no conflict of law, which is the purpose of Rome II.

I start on this sub-issue by examining the status of words used in European Union legislation. Halsbury, Volume 47A (2022) states the following in respect of the meaning of words in European Union legislation at para 163:

“The preamble is an aid to the interpretation of the measure; but a recital in the preamble is not a legal ruleand words used in the preamble cannot alter the scope of the provision being construed where they are not endorsed by the latter.”

Authority for the proposition that a recital is not a legal rule is provided in Case 215/88 Casa Fleischhandel v Bundesanstalt für Landwirtschaftliche Marktordnung [1989] ECR 2789 (“Casa Fleischhandel”). There the European Court of Justice (“ECJ”) states at para 31:

“Indeed, a recital in a regulation, although it may shed light on the interpretation to be given to a rule of law, cannot in itself constitute such a rule.”

As noted, the Preamble to Rome II consists of 40 recitals. Recital 24, for example, explains that “Environmental damage’ should be understood as meaning adverse change in a natural resource”. Recital 27 explains that since Member States vary greatly in their concepts of industrial action, as a “general principle … the law of the country where the industrial action was taken should apply.” It is clear that these recitals, valuable though they are, provide explanation and interpretation and do not in themselves constitute substantive rules. This quality is reflected in recital 29 which provides:

“29.

Provision should be made for special rules where damage is caused by an act other than a tort/delict, such as unjust enrichment, negotiorum gestio and culpa in contrahendo.”

This recital calls for the provision of “special rules”, but is not a rule, consistent with the ECJ in Casa Fleischhandel. In similar vein, recital 21 states that “The special rule in Article 6 is not an exception to the general rule in Article 4(1) but rather a clarification of it.” This supports that the rules are in the articles and the recitals explain and interpret them. Dickinson is described by the Court of Appeal in Wall v Mutuelle (para 16) to be a “valuable monograph”, and therefore this court has examined the text carefully. Dickinson notes uncontroversially at para 3.76 that “the Regulation is directed at judicial bodies within the Member States that may be called upon to determine disputes concerning non-contractual obligations.” Dickinson states at para 14.26 that “in its applications to claims arising out of road traffic accidents, Art 15(c) must be read together with Recital 33.” Article 15 sets out rules on the “Scope of the law applicable”.

“The law applicable to non-contractual obligations under this Regulation shall govern in particular:

(a)

the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;

(b)

the grounds for exemption from liability, any limitation of liability and any division of liability;

(c)

the existence, the nature and the assessment of damage or the remedy claimed …

The text then details the legislative history of the passage of the regulation. It is clear that the European Parliament had proposed an amendment to “apply the principle of restitutio in integrum, having regard to the victim’s actual circumstances in his country of habitual residence.” This was rejected. The compromise, such as it was, amounted to a reminder in recital 33 to “take into account all relevant circumstances … including … the actual losses”, and in particular the actual costs of after-care and medical attention in the country of habitual residence. This placement of the reminder in the preamble at recital 33 is rightly described by Professor Symeonides as “precarious” (see Dickinson at para 14.30). In the end, Dickinson concludes at para 14.31:

“Nevertheless, as a mere recital in an instrument dealing with rules of private international law, [recital 33] cannot possibly modify the rules applicable to the assessment of damages in Member States, and it cannot alter the way in which the Rome II Regulation … approaches these questions.”

The terms of recital 33 make it clear that the foreign court quantifying damages should do so “According to the current national rules on compensation” and not outside or beyond those national rules. The national rules must here be the national rules of Spain (lex loci). The claimant relies on what Attorney-General Varz says in Lazar v Allianz SpA C-250/14. At para 82 of his Opinion he says:

“Lastly, although the lex loci damni may, in some circumstances, be considered to be unfavourable where the more or less direct victims have their habitual residence in a country other than the country in which the accident occurred, recital 33 in the preamble to the Rome II Regulation specifically requests the court seized to take into account, when quantifying damages for personal injury, ‘all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention’. The court is therefore requested, as far as possible, to take into account, in particular in assessing damage suffered by persons who are not resident in the country where the fatal accident occurred, differences in the standard of living and the expenses actually incurred or borne by those victims in their country of residence.”

It should also be noted that Rome II ends with three “statements” from the Commission. The second is about road accidents. It states:

“Commission Statement on road accidents

The Commission, being aware of the different practices followed in the Member States as regards the level of compensation awarded to victims of road traffic accidents, is prepared to examine the specific problems resulting for EU residents involved in road traffic accidents in a Member State other than the Member State of their habitual residence. To that end the Commission will make available to the European Parliament and to the Council, before the end of 2008, a study on all options, including insurance aspects, for improving the position of cross-border victims, which would pave the way for a Green Paper.”

Dickinson states that any future “study” by the Commission may “lead to reform of Member States’ substantive rules regulating compensation for road traffic accidents, or to adjustment of the rules applicable in the Rome II Regulation.” The court has not been provided with any information about any further developments in the European law in line with the Commission’s statement. As Dickinson notes, “In this process, Recital (33) should be seen as no more than the point of embarkation.”

Wall v Mutuelle is relied on by the claimant and said to be the only case in which our courts have considered recital 33 of Rome II in respect of the assessment of damages. The claimant points to the judgment of Longmore LJ, who states at para 11:

“This recital does appear to contemplate that, at least in road accident cases, the court determining compensation should have regard to loss incurred in the state of the victim’s habitual residence in particular the costs of after-care and medical attention. That is no doubt partly because they are matters of fact, often calculated by the court of habitual residence and, inevitably, according to rules of evidence and procedure which may be different from rules of evidence and procedure applicable in the state where the damage occurs.”

He continues at para 29:

“In the light of recital (33) to the Regulation, I do not consider that the same evidence is necessary or called for in respect of the pecuniary losses suffered by the claimant.”

The claimant’s submission is that Longmore LJ “can only” have concluded that losses would be “evidenced, assessed and calculated by reference to the domestic experts.” Longmore LJ said at para 16:

“16 It is therefore gratifying that Professor Andrew Dickinson in his valuable monograph The Rome II Regulation: The Law Applicable to Non- contractual Obligations (2008) appears to agree. In chapter 3 on ""Foundations and Scope'' he says at para 3.39:

‘the direction to "apply' the "law' of a particular country must not be understood as requiring the member state court to put itself in the position of a court of that country and to decide the case as that court would have decided it. Instead, it requires the member state court to take from the legal order of the country whose law applies rules of the kinds specified, in particular, in article 15 (scope of the law applicable) and to import those rules into its own legal order.’”

“Rules” as to the assessment of damages are therefore to be “imported”; if there is a rule as to what kind of loss is recoverable, that rule is to be imported. But mere methods of proving recoverable loss are not to be imported. Christopher Clarke LJ said at para 49:

“I agree with Longmore and Jackson LJJ that the evidence should not be confined to rules which dictate a result or to black letter rules; but should extend to judicial conventions and practices such as tariffs, guidelines or formulae used in practice by foreign judges in the calculation of damages, as suggested by Professor Dickinson.”

Wall v Mutuelle does not decide that recital 33 permits an English judge to go beyond what a “foreign” (in this case Spanish) judge would do. The reference to recital 33 by Longmore LJ is confined to para 29. He does not explain how recital 33 results in the outcome all three judges agree on: that English evidence and procedure should be used. There is no explanation of what legal status recital 33 has or its legal force, let alone whether or how it may permit an English judge to go beyond what a judge in the state of accident would do or the lex loci ostensibly stipulates in stated limits in a compensation scheme. Equally, there is no reference to recital 33 by either Jackson or Christopher Clarke LJJ. The Court of Appeal’s judgment, to the extent that is relevant to this case, emphasises:

Thus, and returning to the propositions identified in Issue 2 and combining them, I do not construe the Baremo provisions for myself in an act of autonomous interpretation, but seek to identify how a Spanish judge would construe them. In that determination of Spanish construal, I take into account not just “black letter” law, but practices and conventions, where evidenced, that are used in Spain, not England. It was put succinctly by Jackson LJ at para 46:

“the [English] court will establish the facts using English evidential practices. It will then assess damages in accordance with French law (‘law’ being broadly construed, as set out above).”

I cannot accept the argument that Wall v Mutuelle is authority for any proposition that an English court may award compensation in excess of what a Spanish court would award. The claimant is right to acknowledge in his skeleton argument at para 54 that it is “not crystal clear” from Rome II or any decided case what outcome difference recital 33 makes. In Wall v Mutuelle the Court of Appeal recognised that the English judge should apply French guidelines and French judicial practices and subject them to the same margin of discretion as a French judge would have. In that case it was agreed by the parties that a French judge has a discretion to depart from the guidelines, and hence an English judge applying French law would have the same discretion, not arising independently out of the English law, but directly from French practice. Thus, the Court of Appeal stated at para 28 that the English trial judge should “be informed of what a French judge would regard as an appropriate starting-point.” At root, what the Court of Appeal was deciding in Wall v Mutuelle is what evidence should be admitted in an English trial, not whether the English court could award damages beyond what a French court would. Therefore, Wall v Mutuelle is of negligible support, if any, to the claimant’s case on this point.

The court’s conclusion is reached because of several component parts. For the sake of clarity, and because of the high importance of this issue to so much of this case, I set them out distinctly.

First, I accept Mr Vincent’s submission that Rome II is part of Spanish law and directly applicable to it. But that only takes the claimant so far. I concur with the defendant’s submission that as a matter of historical record, the 2003 Regulations did not come into effect because of Rome II but predated it. Indeed, the conflict of laws rules were expressed at the time of the coming into force of the 2003 Regulations in the Private International Law (Miscellaneous Provisions) Act 1995. Following the enactment of Rome II, however, that regulation held sway. There is force in the claimant’s submission that a conflict of laws problem may be “quickly answered but it is still a conflict situation.” I find that in Moreno the Supreme Court recognised the applicability of Rome II to a comparable regulation 13 case to answer the question of which law should apply in a conflict of laws situation. Professor Carreras agreed that Rome II is directly applicable in Spain and “hypothetically” Rome II applies to govern which national law applies, even if it would never be mentioned in the proceedings.

Second, contained within this conclusion is an acceptance of the defendant’s submission, over the counter-submission by the claimant, that the observation of the Supreme Court in Moreno at paras 20-21 is obiter. This is because at no point in the judgment did the Supreme Court engage with, discuss and explicitly decide in light of competing submissions that Rome II did apply to Ms Moreno’s case. The question was what law applied to assess damages, English or Spanish, not the legal route whereby that national law was applicable. In this sense, the observation about Rome II was incidental to the decision. It is properly viewed as obiter. However, this is to undervalue the force of obiter from the Supreme Court. It is highly persuasive. I find no sufficient difference between the factual situations in Ms Moreno’s case and DHV’s to distinguish Moreno or put aside what the Supreme Court has clearly indicated about Rome II. Therefore, I judge that Rome II does apply to DHV’s case which is brought under regulation 13, just as Ms Moreno’s was. Rome II is here relevant to determining which law should apply in this conflict of laws situation. By virtue of article 4.1 of Rome II, the applicable law in DHV’s claim is the law of the state of accident, that is, Spanish law.

Third, I find that recital 33 is not and cannot amount to a legal rule. Recital 33 is situated in the preamble to Rome II. No one has sought to persuade me that a Spanish court, mindful as it would be of judgments of the ECJ, would differ from that position and elevate this recital into a legal rule. The highpoint of the claimant’s submissions is that recital 33 “should have some effect”. The claimant submits that this recital is “an outlier” that goes beyond “mere encouragement”. I find that given its status, recital 33 while relevant to this case, possesses necessarily limited legal effect. The difficulty the claimant faces is that it is obvious that a recital in a preamble is just that, of plainly limited value, and not a legal rule, so what the claimant attempts is to extract the maximum effect without crossing the line into a legal rule, which Mr Vincent sagely recognises as a limitation. While it can inform the interpretation of Rome II and its application (for example, to article 15(c) on compensation), it cannot change substantive Spanish law. While it acts as an exhortation and reminder about one aspect of the philosophy underlying Rome II, it has no more than persuasive force or interpretive weight. I find that this is the conclusion a Spanish court would reach. I note the suggestion of Professor Symeonides cited in Dickinson at para 14.30 that it may be that recital 33 is of exhortative value in borderline cases where under article 4(3) the “escape clause” may be invoked where there is “manifestly” a closer connection with a country other than indicated by articles 4(1) and 4(2).

Fourth, as a result of these conclusions about the applicability of recital 33, I do not need to determine the claimant’s more drastic fallback position that the 2003 Regulations should be “rewritten” and words “struck out” to make them compatible with Rome II and/or recital 33. There is no need for this act of extensive legal editorialising. I have found that Rome II and recital 33 are relevant to DHV’s case.

Fifth, I have been provided with no comparable case where a Spanish court has applied recital 33 or explained any relevance, let alone enhanced relevance, this recital has had to a road accident claim. There is no authority to support the application of recital 33 to the assessment of compensation due to a foreign resident person injured in Spain whose actual losses in the state of habitual residence outstrip what is identified explicitly in the Baremo limits. Put another way, there is no Spanish authority to support the use of recital 33 to award compensation for actual losses in the state of habitual residence at a greater level than would be awarded to an injured person in Spain.

Sixth, since Issue 11, as framed by the parties, invites the court to consider recital 33 alone, I do. I find no credible basis to conclude that because of recital 33 a Spanish judge would award compensation to an English resident injured party for actual losses that go beyond what would be awarded under the Baremo to a Spanish resident. This is because, as detailed in the preceding analysis, recital 33 carries little weight, being a recital in a preamble that cannot change substantive Spanish law about the compensation award – and the parties agree that substantive Spanish law applies to DHV’s case.

However, I am conscious that this is only part of the claimant’s argument. He further argues that actual losses in the state of his habitual residence in excess of the specified Baremo limits can be compensated due to article 33 of the Baremo. It is this argument that the court must next consider.

The effect of article 33

As to how a Spanish court would approach article 33 of the Baremo and how an English court should approach this question, the court makes the following 12 observations, weaving in the arguments and counterarguments of the parties.

First, the problem about the existence of limits to compensation in a court of habitual residence when the applicable law is that of the state of accident is one of some antiquity. In all the authorities put before the court and the cases cited in them, one can track the evolution of this issue before the courts. As long ago as 1971, the House of Lords in Boys v Chaplin [1971] AC 356 (“Boys”) considered what Lord Hodson at 373A called “one of the most vexed questions in conflict of laws”: which law is to be applied in the forum (trial) court after a road traffic accident abroad. In Boys, two British servicemen in Malta were involved in a road accident in 1962 and the injured party brought the claim in England. The court decided that English law applied. Subsequently, the Court of Appeal reached similar conclusions in Jacobs and Bloy v MotorInsurers' Bureau [2014] 1 Lloyd's Rep IR 75. Both these latter decisions were overturned by the Supreme Court in Moreno. What is noteworthy is that as long ago as Boys, Lord Wilberforce, while dissenting said at 389D-E:

“But in relation to claims for personal injuries one may say that provisions of the lex delicti, denying, or limiting, or qualifying recovery of damages because of some relationship of the defendant to the plaintiff, or in respect of some interest of the plaintiff (such as loss of consortium) or some head of damage (such as pain and suffering) should be given effect to.”

The law in England now is that it is normally the law of the state of accident that applies.

Second, it appears that it is settled by Moreno that the compensation awarded in these conflict of laws road traffic accident cases should be the same irrespective of whether the claim is pursued in the state of accident or of habitual residence. Therefore, the injured party was entitled to the same compensation, irrespective of whether the claim was brought against the driver responsible, the driver's insurer, the motor insurance bureau of the state of the accident or the compensation body established in the victim's state of residence; and that the Directives did not leave it to individual member states to provide for compensation in accordance with any law which they might choose. Instead, compensation should proceed on the basis that quantum would be measured on a consistent basis, by reference to the law of the state of the accident. This was one of the high objectives of Rome II: added certainty and predictability and preventing forum shopping.

Third, mindful of the logic of Moreno, the claimant argues that while the compensation that DHV is entitled to should be the same whether his claim is determined in Spain or England, article 33 of the Baremo would permit a Spanish court to make an award of actual losses in England, even if they exceed the expressly stipulated limits of the Baremo scheme. On this, I must observe that there is no authority from Spain laid before this court indicating that article 33(2) resulted in the Spanish court awarding compensation losses beyond the stipulated Baremo limits for a Spanish “domestic” case (parties Spanish residents, vehicle based in Spain). For reference, article 33(2) provides:

“2.

The principle of full reparation is intended to ensure full compensation for the damages suffered. Compensation under the system considers any personal, family, society and economic circumstances of the victim, including those affecting loss of income and loss or diminution of earning capacity.”

Fourth, there is no Spanish authority in which article 33(2) has resulted in compensation being awarded for actual losses in a country of habitual residence outside Spain beyond what is specified in the Baremo limits.

Fifth, and tellingly to my mind, if article 33 had the legal effect that the claimant contends for it is probable, highly likely or even inevitable that there would have been cases out of the hundreds or thousands of cases litigated in Spain since the inception of the Baremo in which article 33 would have been invoked to go outside the limits of the tables and stipulated awards. Not a single case has been brought to this court’s attention. That is powerful inferential evidence about the true status that a Spanish court would grant article 33. Ms Astigarraga was asked in terms by the court to produce any decided Spanish case that supported her opinion. She provided none. This is not surprising: Professor Carreras searched diligently “for hours” to see if there was any decided Spanish case in which recital 33 or article 33 had been used in the way the claimant sought. The Professor examined “300 or 400 cases”. In none of them did a court award damages in a way that a “foreign court” (state of habitual residence) would. When he was asked about the compensation being awarded beyond the Baremo limits, he replied:

“There is no judge in Spain that has ever applied foreign damages in Spain. When I started practising it was before Baremo. You could get very high compensation. The insurance industry was about to collapse. So the first Baremo system was introduced. It was not good and was revised in 2015. There was then a good system of compensation and it was “full reparation”, but within the limits of the Baremo.”

Sixth, the prevailing legal situation in which there is no use of article 33.2 to award compensation beyond Baremo limits is inevitable given the express terms of article 33.5. It provides:

“5.

The objective nature of the valuation of the damage means that compensation is paid in accordance with the rules and limits established in the system, so that compensation cannot be set for concepts or amounts other than those provided for therein.”

Article 33 has to be read as a whole and particularly in the context of its immediately neighbouring provisions. Therefore, article 33.2 must be read in the context of article 33.5. This latter provision makes it plain that compensation “cannot” be awarded for amounts not provided for within the “rules and limits established” in the Baremo. I cannot accept that a Spanish court would find that open-ended expenses incurred in a foreign country significantly in excess of the Baremo limits would be compensable under Spanish law. I am confirmed in that conclusion by the total absence of any Spanish decision to that effect.

Seventh, the consequence of the lack of support in decided Spanish cases is that the claimant urges this court to apply Spanish law in a way that, on the submission of the claimant, “may mean pushing the envelope” and which may be “at the extreme end of any discretion”. Acknowledging that “there does not appear to be a reported [Spanish] case” in support of the claimant’s argument, Mr Vincent nevertheless invites this court to do something the Spanish court “even very probably” would not do and adopt a course it is “very unlikely” that the Spanish court would take. I cannot think that this is a principled or plausible course for the High Court in England to take or the proper way to look at the legal test, the proper formulation of which I turn to now.

Eighth, I follow what the Privy Council recently said in Perry v Lopag Trust Reg No 2, (Cayman Islands) [2023] UKPC 16 (“Perry”) where Lord Hodge said at para 11 (emphasis provided):

“11.

First, the task of the trial judge when there are disputed questions of foreign law is to determine what the highest relevant court in the foreign legal system would decide if the point were to come to it: Dexia Crediop SpA v Comune di Prato [2017] EWCA Civ 428; [2017] 1 CLC 969 (“Dexia”), para 34; Morgan Grenfell & Co Ltd v SACE Istituto per I Servizi Assicurativi del Commercio [2001] EWCA Civ 1932 (“Morgan Grenfell”), para 50. It is not sufficient for a party to identify a judgment of a foreign court of first instance which may be on point and assert that the task of the appellate court is simply to analyse that judgment.”

For completeness, I set out what the Court of Appeal said in Dexia and Morgan Grenfell and provide the necessary emphasis. In Dexia, a joint judgment, the Court of Appeal said at para 34:

“Approach to issues of foreign law

34.

English law treats foreign law as a question of fact proved by the evidence of suitably qualified experts in the relevant foreign law. In the case of disputed questions of foreign law, the task for the trial judge is to determine what the highest relevant court in the foreign legal system would decide if the point had come before it.”

In Morgan Grenfell, a judgment to which all the court substantially contributed, Clarke LJ said at paras 50-52:

I have set down the way that these three higher courts have expressed the test to show the commonality of approach. The Privy Council recently, the Court of Appeal in 2001 and then again in 2017, make clear that this court’s task is to determine what the highest Spanish court would decide. The key word is would. It is not my task to determine what the Spanish court may do, or is very unlikely to do, but what it would do. This must mean what the Spanish court is likely to do or would probably do. It is not about conjecturing what it may decide at “an extreme end of any discretion”. The claimant’s approach seems to me to be fanciful and wrong.

Ninth, I return to the expert evidence on the Spanish law. Professor Carreras stated in his report at para 128:

“Therefore, it is not possible to invoke the principle of full reparation as an absolute and unlimited rule, but rather as a relative and limited rule, subject to the criteria and limits established in the Baremo itself.

This is the interpretation that has been consistently followed by the Supreme Court, which has repeatedly affirmed that the Baremo constitutes a closed system, with its own logic and coherence, which must be applied integrally and exhaustively, without resorting to other legal sources or criteria.”

As Ms Wyles submits, Professor Carreras was not challenged on this opinion at 128. It is difficult to conceive how he could credibly have been given the lack of support for Ms Astigarraga’s position, but also her position in cross-examination. Para 128 of Professor Carreras’s report was put to Ms Astigarraga. She agreed it. Ms Astigarraga was explicitly invited in terms by the court to provide any authority that supported her opinion about recital 33 and article 33, and did not. I have made it clear how I strongly prefer the evidence of Professor Carreras and harbour significant doubts about the credibility and authoritativeness of Ms Astigarraga. It is also highly relevant that in their joint statement the two Spanish law experts agree at paras 75c and 77:

“75c. Objectivity in the valuation of the damages which means that compensation is paid in accordance with the rules and limits established in the system, so that compensation

cannot be set for concepts or amounts other than those provided for in the system.

…

77.

Both experts agree that in order to carry out the assessment of damages in objective terms, this must be done, in any event, according to the rules and limits established in the

system, the so-called Baremo.”

Therefore the joint agreed expert evidence is that damages must be assessed “according to the rules and limits” of the Baremo. Therefore, the claimant’s argument must be that article 33.2 authorises the Spanish court to go beyond the “limits” established in the Baremo even if it is “very unlikely” that the Spanish court would do so. Alternatively, the claimant must resort to the submission that article 33.2 removes the explicit Spanish limits and creates open-ended compensation commensurate with actual losses incurred in England. There is no Spanish authority to support this submission. I find that the true legal position in Spain is as Professor Carreras told the court:

“The Baremo prescribes tables. Some people will do well out of those table limits, others less well. But it cannot be seen as objectively “full reparation” although that is the avowed spirit of the Baremo and its purpose. It is full reparation within the scheme or there would not be a scheme. Everyone in Spain gets the same, no matter where you live in Spain. There is not one Spain but many Spains. The cost of living difference between Extremadura and Barcelona is very great, but the injured person will get the same in both places. If there is a system with maximums, then it cannot provide full reparation by definition.”

Therefore, even in Spain, there may be “full reparation” in Extremadura, but not in Barcelona, where the associated costs are higher. Nevertheless, the Spanish court would award the same in accordance with the Baremo tables and limits. This is strong supporting evidence that it is highly unlikely, as the claimant accepts, that the Spanish court would make an award for actual losses in excess of the Baremo limits and tables.

Tenth, I take recital 33 of Rome II and article 33(2) of the Baremo together and see if in conjunction they permit the conclusion the claimant contends for. They do not. There is no decided Spanish authority which deploys the two provisions together. Nevertheless, I have identified the inherently limited legal effect of a recital, as set out in Halsbury and by the ECJ in Casa Fleishhandel and have been provided with no Spanish case which decided that actual losses in the state of habitual residence should be awarded where they exceed the expressly stated limits of the Baremo.

Eleventh, I do not disapply the Baremo in the way the Spanish court would apply it. This is dealt with in article 26 of Rome II. This is where the applicable law of state of accident is disapplied by the forum court (here state of habitual residence) where it is “manifestly incompatible with the public policy (ordre public) of the forum”. I have received no argument about this, but address it for completeness.

Twelfth, and in overall conclusion, I find that a Spanish court would not award DHV compensation for his actual losses in England if they exceed what is set out explicitly in the Baremo, despite the words of article 33.2, but would be limited by the “rules and limits” established by the Baremo, as article 33.5 makes clear. I find that a Spanish court would view article 33.5 as the practical limit and outer boundary of the article 33.2 ambition. The claimant sought to persuade the court “to apply Spanish law even though it has not been applied in the cases of Professor Carreras or Ms Astigarraga like that or indeed in any previous case in Spain”. In the claimant’s skeleton argument at para 50, it is submitted that

“the English court should do what is possible under Spanish law to achieve the result envisaged by Recital 33 – not just what a Spanish Court would normally do, or probably do – or even very probably do.”

I find that such an argument is contrary to the approach of the Court of Appeal in Dexia and Morgan Grenfell and the Privy Council in Perry. It is misconceived and must be rejected. The claimant’s encouragement that the court should do something at the extreme limits of discretion, something that the Spanish court was unlikely to do, seems to me to cut across the very grain of the deliberately formalised and carefully calibrated Baremo system, constructed to promote predictability, clarity and consistency. Points are awarded, material factors enumerated, tables with scales and figures provided. The concept of an expansive Baremo is inimical to the system design. It exudes capriciousness.

The court’s finding on Issue 11 is, I recognise, crucial. I find that:

This issue is divided into two parts (A) the claimant’s positioning; (B) the reasons for his positioning.

The claimant’s positioning

A substantial body of evidence was directed towards this issue. To provide structure to the analysis, I examine four sub-issues:

Mr Gornals provided two accounts of his speed along the road. The first account was given to the police officers who attended the scene. The precise time that the account was given is not recorded, but it can be confidently placed between 01:47 hours when the officers on patrol were called to the scene and 03:30 hours when the police report was “issued as a statement”. The officers were “only 400 metres from the location”, so likely attended promptly, given the seriousness of the incident, with “an injured person lying in the road”. Indeed, it is recorded that they proceeded to the scene “without delay”. Having examined DHV, and spoken to the wedding guests around him, the officers spoke to Mr Gornals. Mr Gornals gave this account to the attending police officers:

“Mr Alia [Gornals] said that he was the driver involved in the collision, and he told us that he was coming from Cala Egos towards Cala D’Or to go running, as he often does at night. He said that he was driving in his lane, at a speed of approximately 40 km/h, that he was focused on the road and felt something hit his vehicle, braked and stopped a few metres ahead. Until he got out of the vehicle, he was not aware that he had hit a person.”

Later that same day at 14:25 hours, Mr Gornals provided the police with a more detailed account in a “Statement Document”. He said when asked about his speed, “that it was about 40 kph”. This statement was read by Mr Gornals and signed by him, the investigating officer and witnessed by the “secretary”.

At the scene, the police also encountered a driver of a vehicle coming in the opposite direction Mr Sanchez. The police report states:

“At the location, we found EUSEBIO SANCHEZ ALVARO … who said that he witnessed the accident and gave us his details in case they were needed, in case we wanted to call him in to describe what he had seen.”

It can be seen that Mr Sanchez was a cooperative witness. True to his word, he did assist the police later that day and provided a statement at 17:55 hours, which he also signed, along with the investigating officer and the secretary. He stated that “The vehicle in question [the Hyundai] was not driving at excessive speed, that it must have been travelling at about 40 km/h.” This is the assessment of a disinterested third party who observed the aftermath of the incident immediately following the collision and provided police authorities with a contemporaneous account.

In closing submissions, neither party sought to rely on KLQ’s account of speed. In her original statement, she stated at para 20:

“20.

I have in my head an image of DHV stepping off the road but I cannot quite say that I saw it. It all happened very quickly. I saw the car coming down very fast, When I saw the report, I thought the car was travelling at 40mph and I was OK with that, this is the speed I would say he was doing, 35 to 40 mph. As I reckon now that 40km/h is 25mph I would say no way – the car was going faster than that.”

In trial evidence on oath she stated that she cannot say what the speed was and could not disagree with the suggestion that the vehicle was travelling at approximately 40 km/h, thus not being driven at excessive speed.

It is noteworthy that the claimant’s pleaded case as set out in the particulars of claim (para 4) is that:

“M. Gornals was at fault and negligent in that he:

(a)

Drove too fast in all the circumstances.”

At trial, the claimant was presented with a forensic difficulty. Driving “too fast” would make it more likely that an upright impact would cause damage to the front of the vehicle. Therefore, the claimant was eager to urge upon the court an impact speed at collision of under 40 km/h. At times the suggestion was that there could have been braking from an excess speed so that at point of impact the speed was lower to reduce the possibility of frontal damage – a real difficulty in the claimant’s case. There are problems with this argument. The pleaded case at para 4 continues that Mr Gornals:

“(b)

Failed to slow down in the vicinity of a pedestrian crossing.

(c)

Failed to keep a proper look out.

(d)

Failed to see the Claimant in the road in time or at all.

(e)

Failed to brake in time or at all so as to avoid a collision.”

Therefore, the original claim was that Mr Gornals failed to slow down; he failed to brake in time or at all; and he failed to see the claimant in the road in time or at all. This is how the case has been pleaded. There has been no application to amend these elements of the pleadings. It is clear that the claimant’s case was that Mr Gornals was driving “too fast”. If he did not see the claimant, he could not have had the trigger or cause to brake and this is consistent with the claimant’s assertion that he “failed to slow down”. Therefore, Mr Vincent’s submission that Mr Gornals “probably did [brake]” prior to impact is rejected. It is speculative, based on no evidence and is contrary to the claimant’s pleaded case.

Mr Gornals’s original account given at the scene is that he was driving at approximately 40 km/h. That is not surprising given that 40 km/h is the speed limit. In his second account, which he read and signed, he gave a consistent speed of 40 km/h. Mr Sanchez, a disinterested stranger, also independently supports this approximate speed. Their evidence taken together - and the cumulative effect is important - more than counters the claimant’s argument that Mr Gornals may have been exaggerating his speed and in fact he may have been driving more slowly. This struck me as an implausible suggestion. It must be remembered that Mr Gornals’s first account was in the immediate aftermath of the impact and at the scene. It is at the very least as likely, if not more so, that if he were providing an inaccurate speed to the police that it would have been to suggest he was driving more slowly than he actually was. Mr Vincent submitted later that Mr Gornals’s comments may have been “exculpatory”. The point offered is that Mr Gornals may have been “pretending” to drive faster than he actually was to indicate that he has less time to react. This is an unconvincing argument. It does not in any event fit with two other pieces of evidence: first, that Mr Gornals said from the outset that he did not see DHV at all in front of his vehicle, so reaction time had nothing to do with it on his account; second, Mr Sanchez provides material and consistent support for the speed Mr Gornals told the police he was driving at.

I find that little weight can be placed on KLQ’s account of speed. Her trial evidence differed significantly from her original statement dated 20 August 2020. She accepted on oath that she “could not disagree” with the suggestion that the Hyundai was not travelling at excess speed, even though she originally stated that there was “no way” he was only driving at 40 km/h. In any event, her evidence provides no reliable support that the Hyundai was being driven materially more slowly than 40 km/h. Finally, it should be noted that Mr Gornals volunteered to be breathalysed, as indicated in the police report. The result was a “zero” alcohol reading.

I accept Mr Vincent’s submission that the reconstruction experts cannot say anything about impact speed from the physical evidence. It is a sound point, well made. The evidence of these experts fundamentally depends on the finding about speed that the court makes. However, I cannot concur with Mr Vincent’s further submission that the court “has very little to go on” in respect of vehicle speed. As I have indicated, there is a body of unconnected, mutually consistent contemporaneous evidence provided shortly after the incident in July 2017. Courts have repeatedly emphasised the importance of contemporaneous evidence (“always of the utmost importance”, per Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431). Assembling the available evidence, the court finds that it is likely that Mr Gornals was driving his Hyundai at 40 km/h or very close to it. I add that qualification because it is unrealistic to find he was driving at precisely 40 km/h. I reject the claimant’s submission that the court “has very little to go on” to determine speed. A holistic analysis of the evidence firmly points to 40 km/h or very near to that as being the Hyundai’s speed at point of impact.

The police report records that the officers, while detailing the injuries of the claimant, noted that he was “smelling significantly of alcohol” (counsel frequently referred to this as smelling “strongly” of alcohol, but the translated police report states “significantly”). The officers also spoke to the people from the wedding who were attending DHV. The officers recorded:

“None of the people who were with the injured man wanted to make a statement, as they were very nervous. They simply told us that they were coming from a wedding and that the person who was hit had been very drunk.”

When Mr Gornals provided his second account at the police station later that day, he was asked whether he wanted to add anything or make any allegations. He said that, when he stopped the vehicle and moved to the rear “he saw a group of about 15 to 20 very drunk people heading towards his vehicle” and that “the friends and family of the man were very drunk in that place”. From among this group of wedding guests, it seems, the statement was contemporaneously made to the police that DHV had been “very drunk”. According to Mr Gornals, they also were very drunk, and his description of their being “very drunk” matched their description of DHV being “very drunk”. It is a small piece of evidence indicating the kind of drinking that was taking place at the wedding and supporting in a limited way that DHV was “very drunk” and “was smelling significantly of alcohol”. This evidence does not sit in isolation, but must be viewed in the context of the contemporaneous scientific testing. This shows that DHV had an ethanol (blood-alcohol) level of 2 grams per litre. This is four times the Spanish permitted limit for driving and 2.5 times the driving limit in the UK. The testing was conducted at 04:13 hours. This is therefore two hours after the collision. It is a widely recognised scientific fact that the body metabolises (eliminates) alcohol over time, but I have received no “count-back” evidence, as one might have received in a drink-driving case in the UK. While it is likely as a matter of science that the actual alcohol level at point of impact was higher than 2 grams per litre, I proceed on the recorded figure in the absence of other scientific evidence and decline to speculate.

As to KLQ’s account about DHV’s drinking, it must be remembered that I found that her evidence about speed to carry little weight. In respect of the claimant’s drinking, her difficulty is that by her own admission she had not consistently monitored what he was doing as she had spent time dancing without him. Therefore, little store can be placed on her observations about the alcohol he had consumed. She had certainly seen him drink around 8 alcoholic drinks, but accepts that he could have consumed more. Indeed, DHV accepts that he may have consumed 11 alcoholic drinks at least, including 2 glasses of champagne, 6 Corona beers, 2 rum and cokes and a glass of table wine. I find that KLQ’s statement that “we were not drunk” to be unreliable, self-serving and unlikely to be accurate. It runs contrary to the observation of Mr Gornals, as related to the police in his police station statement, and the police impression that DHV was smelling significantly of alcohol. It seems likely that more alcohol was being consumed than KLQ and DHV were prepared to accept, for obvious reasons.

It must be immediately observed that the police officers did not make sworn statements, did not give evidence on oath and were not cross-examined and thus their account was not tested. I take all of that into account in assessing the weight that can be placed on their account. Equally, what the officers were told by the wedding guests that DHV was “very drunk” is hearsay. The wedding guests, whoever they were, have not been identified, nor have they given statements (assuming one of them is not KLQ) and have not been cross-examined. This also diminishes the weight the court can place on their accounts. That said, what is recorded is not that DHV had been drinking, but that he was “very drunk”. This is consistent with the police observation that he smelled “significantly of alcohol”. It seems to me that scientific testing evidence forms an invaluable anchor-point and means of comparison. DHV was on any view significantly over both the Spanish and English legal limits for driving (4 times and 2.5 times respectively). He was not driving, but a pedestrian. As pointed out, there is not a legal limit prescribed for pedestrians. One then reconsiders DHV’s account. He denied drinking to the point “where I do not know what I am doing”. Mr Vincent submits on the back of this that there is no evidence to the contrary. This misses the point. The case does not turn on whether DHV had drunk so much that he became an automaton or incapable of exercising any control over his body. What the totality of evidence establishes as likely to the civil standard is that DHV had drunk alcohol to the extent that his judgment and self-control were materially impaired. This is a different matter. I carefully allow for the qualifications to the sources of evidence I have identified, so important that I repeat them: Mr Gornals and the police officers did not give evidence; the wedding guests’ comment is hearsay and they remain unidentified and not cross-examined. But all this evidence interlocks and is supported significantly by the scientific blood testing. Mr Vincent submits that it is “impossible to know what ‘very drunk’ means”. It is certainly - and at the least consistent with - having one’s bodily control impaired. Mr Vincent further submits that “very drunk” does not equate to being drunk enough to “collapse unconscious in the road”. It could do. But it is unnecessary to go that far. It is not necessary for the defendant to prove that DHV going from an upright position to being flush to the ground was solely caused by his level of inebriation. The court considers matters probabilistically. I must consider the question of negligence (breach of duty or “fault”) and contribution at Issue 4. Here I simply examine what can be proved by the evidence about the claimant’s bodily positioning.

It is certainly the case that when someone is four times the legal alcohol limit for Spain or twice that for the United Kingdom, she or he on balance and on average:

Mr Vincent submitted that if there were other evidence to show that the claimant were lying in the road then “the blood alcohol level might well explain why he was doing it.” This is adopting a fragmented and siloed approach to the evidence. All the evidence must be viewed together. It is not that there must be some “smoking gun” evidence that DHV was lying horizontally which the scientific testing can then be deployed to support. Instead, the proper evidential analysis is to examine all the evidence together and in the context of all the other evidence to assess what can be proved to the civil standard. The blood alcohol levels are not shut out from the analysis until some other evidence exists of the claimant being flush to the road surface. Rather, the proper analysis is probabilistic, contextual and holistic.

Viewing all the evidence together, I find that it is likely that DHV had consumed alcohol to an extent that he was drunk. Further, it is likely that his judgement, bodily control and reactions were impaired without being altogether removed.

I now examine the lay witness evidence about DHV’s positioning in the road. DHV was adamant that he was not lying in the road and had no reason to do so. His difficulty is that he cannot recollect the moment of impact. Therefore, objectively, the most he can say is that he does not believe he would have been flush to the carriageway. While he was vehement about this, I found DHV’s evidence about his movements after leaving the Yacht Club to be unreliable.

He has provided three materially inconsistent accounts of what he did. In his September 2017 account to his case manager, he stated that he followed “a gentleman”. KLQ saw no such person. In cross-examination, DHV accepted that he did not in fact follow anyone. Second, his sworn witness statement narrates how he was struck on the zebra crossing. Here was an attempt to suggest that he was complying with good road sense and using a designated crossing. This account could not survive the developing evidence and at trial he abandoned it as being “a bit inaccurate”. On oath in the witness box he provided a third version. He claims to be “concrete” about the new version. Nevertheless, the account contained further problematic elements. He stated that he could see “the sea” at the end of the road. That was plainly impossible. He changed his account to what he saw being “a pond” or “the car park”. He spoke of passing six buildings. There are not six buildings to pass. Further, the fact that he crossed the road at a non-designated place when there was a zebra crossing in the vicinity, lends some support that he was not observing better road safety practice. This also in a small way is a factor affecting his credibility. Consequently, I can place little weight on DHV’s adamance that he was upright at point of impact.

KLQ provides little assistance as she did not see the collision. She cannot say what happened to DHV after she last saw him on the kerb when he must have been upright.

Mr Gornals did not see the collision. He was not aware that he hit a pedestrian until after he got out of the vehicle upon stopping in the car park. At the local police station later that afternoon, Mr Gornals told the police that he “felt an impact on the underside of the vehicle”. The claimant submits that this is “an extraordinary account”. I am not persuaded by that submission. Common sense and experience tells us that it is often possible to distinguish between a vehicle being struck on its top as opposed to its underside. Few people would argue with that. It may certainly be the case that it is more difficult to distinguish between an under-vehicle impact and a frontal one, but it is not impossible or implausible for Mr Gornals to have sensed the location of impact. However, I find that a degree of caution must be exercised about Mr Gornals’s degree of attention.

First, he explained that he continued driving forward due to concern about cars coming from behind. There is no evidence of immediately following traffic. Then he says that he did not see anyone in front of him. The experts agree that due to DHV’s white T-shirt and shorts with pale legs exposed, Mr Gornals should have seen him even if the claimant was flush to the road. Further, the Hyundai’s headlights, even if dimmed, would have illuminated the roadway in front of the vehicle. Yet Mr Gornals did not see the claimant despite stating to the police that he was “focused on the road”. This indicates a significant degree of inattention on Mr Gornals’s part. However, his contemporaneous accounts to the police include that he felt something strike the underside of vehicle and that is why he thought it was “some kind of object, a bin or a parked motorcycle”, in other words, something lying low in the road and that he “was not aware that he had hit a person” until he got out of the vehicle. Ms Wyles makes the point on behalf of the defendant that if DHV had been upright at point of impact it would have been materially more likely that Mr Gornals would have seen DHV.Counsel submitted with some force that there is a difference between someone lying in the road and someone “standing right in front of your windscreen”.

Mr Sanchez did not see the impact. However, he saw the Hyundai very shortly after the collision with DHV and before the Hyundai turned into the car park. Indeed, Mr Sanchez “gave way to it” as it crossed his side of the road. He noticed “what appeared to be a loose piece of plastic hanging from beneath the sump guard/bumper” and “and as the vehicle continued forward he saw an unconscious person come free from underneath it.” Graphic though it is, Mr Sanchez’s account cannot support one party over the other on this sub-issue.

The lay witness evidence does not assist greatly in determining DHV’s positioning at impact. I cannot place much weight in DHV’s assertion that he was or must have been upright as his accounts are inconsistent and unreliable. KLQ did not see the collision, nor did Mr Gornals or Mr Sanchez. However, Mr Gornals did feel an impact on the underside of his vehicle. I find that this is not implausible, despite the claimant’s criticisms. His belief that he had struck some object or bin in the road in the road supports his sense that the impact was underneath his vehicle. It is some, albeit limited, evidence consistent with DHV being flush to the road surface at impact.

Let me emphasise at the outset that I place no weight on the conclusion of the Spanish police officers that the pedestrian was crouched or lying in the roadway. Beyond what Mr Sorton said that their investigation was of poor quality, they did not give evidence and there is no information about their qualifications for offering such an opinion. I sharply distinguish between their assessment of the position at point of impact and their contemporaneous recording of what they saw and were told at the scene. Having cleared the way, I turn to my assessment of the two reconstruction experts, Mr Sorton and Ms Escobar.

Ms Escobar states that what was conclusive to her opinion of an upright impact was the nature of the injury to DHV. This is problematic. Ms Escobar is not medically trained. Biomechanics is not her area of expertise and she has no qualifications in the field and has left incomplete her doctoral research. Her central reliance on injury mechanism causes the court to question her reliability and authority as an example of unjustified overreach. Thus while she persisted in stating that what was “conclusive” of an upright impact was DHV’s injuries, she does not have the expertise to reliably or safely advance this opinion to the court.

Her claim that there was a dent to the left-hand side of the vehicle which she could not then substantiate also adversely effected the court’s assessment of the expert. Ms Escobar stated that if there was a collision when the vehicle was moving at 40-50 km/h there would “not necessarily have to be any damage”. This might be a theoretically possibility, but it is highly unlikely. By contrast, I found Mr Sorton to be a reasonable and thoughtful expert witness. For example, he readily accepted that the misalignment of the bonnet could conceivably be due to a collision with DHV upright. He need not have made that concession and it speaks to his reasonableness that he did. Mr Vincent submitted that the court might feel that “there was not much between these two experts”. I cannot accept that submission. There were very significant differences between the quality of evidence presented by Ms Escobar and Mr Sorton.

First, the bonnet misalignment. The “gap” that could be seen in what Mr Sorton called the “shut line” of the bonnet was variable, an inconsistent area of misalignment. This supported Mr Sorton’s suggestion that it may just be a bonnet that does not fit properly, probably due to the age of the vehicle. Mr Sorton fairly accepted that the bonnet gaping could be due to an impact, and accepted that he could not “absolutely” exclude that mechanism. However, he did not believe that this was likely as the area was “too discrete”. It was revealing that Ms Escobar had not mentioned the factor before the joint statement. She said it was “relevant” to the accident, even though she had not mentioned it once in her report. She said without any source or supporting evidence that it was “statistically unlikely” that the bonnet was deformed before the accident. It was not a reliable or safe suggestion and without foundation. Her explanation of the mechanism of deformation whereby an impact on the left-side would lead to a raised right-hand side of the bonnet is inconsistent with the photographic evidence showing a gap on the left. In the end, Ms Escobar accepted that the malalignment of the bonnet could be attributed to a badly fitting bonnet in this 17 year-old vehicle.

Second, the licence plate. Ms Escobar accepts what is the obvious drawback with advancing this as a candidate for the impact with DHV: it cannot be known whether this disfigurement to the licence plate predated the collision. It must be emphasised that this Hyundai vehicle was well over a decade-and-a-half old at the date of accident. Mr Sorton made the telling point that the area of damage is too far across from the impact with the left wheel. The blood trail indicated that part of his body was lined up with the left wheel. If so, it is improbable that the area of licence plate damage could have been caused by DHV’s leg. Ms Escobar also could not explain how there could be an upright frontal impact that caused this damage and nothing else. This area of the vehicle provides no material support for an upright impact.

Third, the dent to the vehicle’s left-hand side. Ms Escobar spoke about a dent to the left-hand side of the vehicle in the Joint Statement. When during her evidence, Ms Escobar was asked to identify the dent she claimed to have observed, she was unable to. This could not possibly support a collision in an upright position. I found that the Newcastle collision example proffered by Mr Sorton was of value. Mr Vincent submits that “if one removes the damage to the vehicle’s windscreen, there is nothing [no damage] to see”. This fails to recognise that Mr Sorton brought this example specifically to the attention of the court in his evidence. I found him to be a fair, balanced and reliable witness and accept his evidence that having been involved in the Newcastle case there had been damage to the front of the vehicle (“a crack to the bumper”). In that case, the experts agreed that the taxi was travelling at 28 mph or 45 km/h. It is true that the damage from that other case was not clearly visible on the photographs produced for the court, but that is not the end of the matter. Mr Sorton also produced another example in his report, a white van that was travelling at 25-28 mph (40-45 km/h). This was an “upright” impact with a pedestrian. It produced both damage to the windscreen from a head strike but also “a crack to the lower plastic valance” plus the nearside grille “pushed in” and the bonnet dented “over its full length”. There is nothing remotely akin to such damage in this case. Mr Sorton was keen to emphasise that whether there was a “head strike” (contact with the windscreen) depended on many factors including the shape of the bonnet.

As indicated, I reject Mr Vincent’s submission that in truth “there might not be much between the experts”. There was. The divergence between them is clear and must be resolved by the court. While I agree with Mr Vincent that “there is no reason to assume that the impact speed was in fact 40 km/h”, the assessment of the speed of the Hyundai is not a matter of assumption but evidence. The court has undertaken a global analysis of all the evidence together.

Damage. I reject Ms Escobar’s suggestions of damage to the vehicle consistent with a frontal upright impact. There is nothing to suggest what the condition of the licence plate was before the accident. At the time of the incident, the vehicle was 17 years old. The gap in the bonnet is variable and as Ms Escobar accepted in the end could be consistent with a bonnet that simply did not fit well. The dent she once believed to have spotted did not materialise.

Consequences. There was a clear difference in credibility and reliability between these witnesses, significantly in Mr Sorton’s favour. I accept Mr Sorton’s evidence that at 40 km/h it is unlikely that a vehicle will “escape damage” if colliding with an upright pedestrian head on. It is not surprising that in his extensive experience over many years and approximately 2000 cases he has not come across a case where a 40 km/h impact had not caused “meaningful damage” to the vehicle. I accept Mr Sorton’s evidence that the shape of the front of the Hyundai does not affect the level of damage as opposed to the position of the impact on the pedestrian. I found Ms Escobar’s evidence to be unconvincing in critical parts and raised doubts about her as a source of reliable opinion. In the end, however, and crucially, she accepted that the lack of damage is consistent with someone lying in the road. I find that since the vehicle was (on the finding of the court to the civil standard) travelling at 40 km/h (or very closely to it), it is unlikely that the vehicle would not be damaged if colliding with an upright pedestrian in front of it. There was no damage to the vehicle consistent with a vehicle being driven at 40 km/h and colliding with an upright pedestrian.

Therefore, I find that:

Reasons for positioning

The court has found to the civil standard that DHV was flush to the road at point of impact, it must now consider the reason. The fact that he crossed the road in a non-designated place is also a relevant factor about his conduct and lends some limited support for his conduct in the roadway. All the relevant factors must be considered together. It is likely that DHV’s alcohol consumption impaired his judgement, bodily control and ability to react effectively and in a timely way without removing them. I cannot accept that DHV deliberately placed himself flush to the roadway in an act of self-harm or protest or as an unfathomable prank. But he was flush to the road surface when the Hyundai struck him. It is likely that his level of intoxication contributed to the collision for the reasons of impairment given at Issue 3A and in this paragraph. The precise mechanics may never be definitively known in the absence of clear eye witness evidence. But that does not mean that the defendant cannot prove its case on this issue. I do not accept that it required something “pretty extraordinary” for DHV to find himself in that reduced position in the roadway, as Mr Vincent submitted. Drunken people are more likely to have their judgement impaired. People who are drunk can stumble and are more likely to than a sober person. They are more likely to have their bodily control and reactions impaired. One does not need expert evidence to understand these common features of daily life. Here the claimant was significantly intoxicated with alcohol. I accept Mr Vincent’s submission it would be “unfair” – alternatively viewed, not reflective of the evidence – to assume or conclude the claimant “had all the drinks in a short period of time”. But the blood alcohol level is an objective marker. Realistically, Mr Vincent accepted that the claimant “clearly was not sober”. It is a necessary concession to make. As counsel for the claimant further conceded, “alcohol in the blood can explain all sorts of careless and negligent behaviour”. The evidence establishes to the civil standard that DHV had been drinking and was drunk. He likely stumbled rather than deliberately choosing to lie in the middle of the road. I make it clear that the court simply cannot say definitively whether he stumbled because of his drunkenness or because of his inebriation he was not able to react effectively following stumbling. But I accept Ms Wyles’ submission that either he stumbled because he was drunk or his intoxication contributed to his inability to take evasive action to avoid the oncoming vehicle once he had stumbled. Certainly, reviewing the photographic evidence of the roadway at the collision site from the police report, there is no clear or obvious reason why a person crossing the road with due diligence would stumble and end up flush to the carriageway. The road surface is smooth and even without any visible potholes or trip hazards and none have been mentioned in the police report or by any witness. There is no evidence of rain or that the carriageway was wet. This was Mallorca at the height of the summer. Therefore, I find that it is likely that the claimant’s level of intoxication contributed to his being positioned flush to the road surface at point of impact. Mr Vincent submitted once more that the evidence does not establish that the claimant was “so drunk he might have lost consciousness while crossing the road.” That is not what is needed for the defendant to prove this sub-issue.

In a civil trial it is both unnecessary and in any event often impossible to reach conclusions to a far higher standard. The balance of probabilities is the applicable standard for good and proportionate reason. The defendant has discharged its burden and proved the issue to the requisite level of likelihood. It is submitted on behalf of the claimant that “tripping or losing his footing” is not negligent. I consider negligence in Issue 4. However, to anticipate, the breach of duty lies in crossing the road not at the zebra crossing (accepted not at a designated crossing point), at a place where the Hyundai vehicle had right of way (accepted), and after consuming so much alcohol that DHV was drunk (court finding, and accepted he was “not sober”) and likely had his judgement, bodily control and reaction times impaired which is in turn likely to have impaired his ability to evade the oncoming Hyundai minivan effectively and swiftly.

Therefore, I find that:

Issue 4 can be usefully divided into two sub-issues (A) proving contributory negligence; (B) apportionment.

Proving contributory negligence

The parties agree that in Spanish law damages can be reduced in proportion that the driver proves that the pedestrian contributed to the account due to her or his conduct (article 1 of Act 8/2004 and as noted in the experts’ Joint Statement at para 12). The summary of the position by the Spanish law experts in their joint statement will sound very familiar to those practising English law. The experts agreed:

“that where there is concurrent fault of both the victim and the driver, then recovery of damages is reduced in proportion to the comparative fault and responsibility of each of them. This obviously involves looking at both the degree of fault and the contribution that that fault made to the outcome.”

It is for the defendant to prove the nature and level of contribution. When a driver has admitted liability and the pedestrian is aged 14 or over, the maximum contribution of a pedestrian is limited to 75 per cent. I reference but do not repeat the analysis in the previous issue that DHV’s level of inebriation resulted in his having his bodily control impaired, which likely contributed to his stumbling and inability to take effective or timely evasive action once he was flush to the carriageway. It is a breach of duty when drunk in this way to attempt to cross the road at a place where vehicles have right of way and is not designated for pedestrian crossing (the last point now agreed between the parties). The conduct of pedestrians crossing the road is regulated by article 124 of Decree 1428/2003. It provides:

“Article 124. Pedestrian crossings and road crossings.

1.

In areas where there are pedestrian crossings, those who intend to cross the roadway must do so precisely through them, without being able to do so through the surrounding area, and when such crossings are at level, the following rules must also be observed:

a)

If the crossing has traffic lights for pedestrians, they will obey their instructions.

b)

If there is no traffic light for pedestrians but the circulation of vehicles is regulated by an agent or a traffic light, they will not enter the roadway while the signal from the agent or the traffic light allows the circulation of vehicles on it.

c)

In the remaining pedestrian crossings marked with the corresponding road markings, although they have priority, they must only enter the roadway when the distance and speed of the approaching vehicles allow them to do so safely.

2.

To cross the roadway outside a pedestrian crossing, they must ensure that they can do so without risk or undue hindrance.

3.

When crossing the road, they must walk perpendicular to its axis, not delay or stop unnecessarily and not impede the passage of others.”

There is a zebra crossing 32 metres from the point of impact. The parties dispute whether a Spanish court would find that such a distance renders the claimant’s crossing point beyond an area “where there are pedestrian crossings”. On this, I am persuaded by and accept the evidence of Professor Carreras, viewed in the context of all the evidence, that a Spanish court would find that 32 metres is sufficiently proximate to a designated crossing point to require the pedestrian to use the specified facility. In not using the zebra crossing, the claimant was at fault. I reject the claimant’s argument that there is no breach of article 124. Mr Vincent submits that the significance of the distance is “a matter for the court”. That is correct in part. The true question is how a Spanish court would assess this. I find that a Spanish court would clearly find that there was fault and I accept Professor Carreras’s evidence, having listened to both experts on this question.

I have been provided with decisions from Spain in which high levels of fault and contribution have been found by the Spanish court against the pedestrian. On 24 April 2014, the Supreme Court found a 70 per cent contribution. This was a case in which a pedestrian attempted to cross a street at the pedestrian crossing when the traffic light was red and was run over by a car that was found to drive slightly over the speed limit. The Court of Appeal allocated 30 per cent liability to the driver and 70 per cent to the pedestrian. The Supreme Court dismissed the appeal because

“in view of the facts declared proven we must consider reasonable the share of responsibility attributed to each one of the intervening parties, namely, 70% to the pedestrian and 30% to the driver of the tourism. This unequal influence on the development of the accident is derived from the fact that the pedestrian crossed a pedestrian crossing in a red traffic light phase for her, with a vehicle speed of 52 km / h when the limit was 50 km / h, when a vehicle stopped at the right lane reduced visibility to the driver. The rest of the pedestrians did not cross and the pedestrian when noticing the defendant's vehicle, instead of stopping, she ran. Therefore, the significant, although not exclusive, intervention of the victim is the one that favors the appreciation of the concurrence of faults, with the consequent proportional moderation of compensations, which adjusts to the proven facts that have been appreciated without any sign of arbitrariness, the court having decided the case according to logic and reasonableness”.

In a pedestrian injury case decided on 24 November 2020, the Court of Appeal of Huesca assessed contribution at 75 per cent. On 30 June 2015, the Court of Appeal of Pontevedra set contribution at 75 per cent. Therefore, Spanish courts are prepared to find high levels of pedestrian fault up to the maximum of 75 per cent. In the instant case, the zebra crossing was sufficiently near to the claimant to require that he should cross the road using it. By placing himself in the roadway beyond the perimeter of the nearby zebra crossing, I find that DHV was at fault and the suggestion that he was crossing “without risk” as specified in the article 124 bears little scrutiny given how DHV was struck by the minivan. His crossing in this way was obviously risk-laden. His drunken state resulted in his creating an “undue hindrance”. His intoxication meant that he was hindered and so was the oncoming traffic.

The traffic had a right of way at that point of the road. Mr Vincent submits that there might be some “non-negligent explanation” for the claimant’s flush position in the carriageway. But while there conceivably may be several remote, theoretical or hypothetical explanations, the court must focus on probabilities. I have carefully analysed then weighed all the relevant evidence together and in the context of the totality, and can with no difficulty reject the speculative explanations suggested on behalf of the claimant. I look for what is probable. Here the evidence clearly points to the explanation of DHV being drunk and not in sufficient bodily control as the most likely explanation by far for his positioning at point of impact. His counsel submitted that to end up flush to the carriageway would be an “extreme” reaction to alcohol, and DHV gave evidence that he did not have an alcohol problem. However, it is not uncommon for people without alcohol problems to trip or stumble when drunk, that is simply our experience of the world. There is nothing fanciful in that. A straw man argument is advanced on behalf of the claimant that the defendant must prove that DHV was “lying there deliberately or was unconscious”. To prove negligence, the defendant need not go that far. It is important not to lose sight of what needs to be established. Having focused carefully on the live issues, I am satisfied that the defendant has proved on a balance of probabilities that DHV was flush to the carriageway at point of impact due to his negligence in the ways identified above. I shortly turn to the degree of contribution. I reject the claimant’s submission that “there is an absence of proof of fault on his part”.

Overall, I accept the defendant’s submission that if the court finds that the claimant was flush to the road surface, the reasonable and safe inference is that either he stumbled because of his inebriation or his level of intoxication affected his ability to right himself and get up and effectively evade the oncoming Hyundai minivan. I have firmly in mind the requisite civil standard and am satisfied to that forensic standard. By acting so he was placed “in the middle of the roadway”, as Ms Wyles puts it, he did something that was “an unsafe thing to do” and “occupied the traffic lane when the vehicle had the right of way”. As such, I am satisfied that, as the defendant submits, “there is a clear link between DHV’s conduct and the damage [collision and injury]”.

I find that:

Apportionment

While I have read the Spanish authorities on pedestrian fault, I reach my conclusion about contribution on a fact-specific basis, acutely based on the evidence in this case and the findings of the court about the conduct of the parties. I have identified at sub-issue 4A. above the nature of the claimant’s contribution to the accident. I now consider the elements of fault that can be properly attributed to the driver Mr Gornals. On behalf of the claimant a Spanish judgment was presented to the court where the driver was found to be 100 per cent “at fault”. There an 84-year-old pedestrian crossed a roadway using two crutches. The driver was blinded by the sun in an area of good visibility. The Spanish court held:

“He is acknowledging that he was driving without looking around him. He did not see that there was an obstacle in front of him. Before the collision he did not see it. The fault of the driver is of such intensity that it absorbs any slight lack of diligence that could be attributed to the pedestrian. The circumstances actually concurrent in circulation are the fundamental parameter from which the behaviour of the driver of the vehicle has to be assessed in order to determine whether the accident is or is not related to his duty to drive in with foresight and in a safe manner that enables him to control his vehicle at all times without risk to other users (art. 45 RGC).”

This example, urged upon the court on behalf of the claimant, shows the dangers of extrapolating indiscriminately from other highly fact-sensitive decisions without being alive to the material differences. There are significant factual difficulties with the instant case. I cannot accept that there was only a “slight lack of diligence” on the part of the claimant here. On the other hand, I agree that Mr Gornals cannot appeal to anything like blinding sunlight. He sought to rely on other factors, as he told the police: the street lighting is insufficient (“a poorly lit area” as per his statement); the visibility not good; the “ground level changes making road visibility difficult”. He nevertheless had a duty to pay sufficient attention and did not. On the other hand, as Professor Carreras stated in evidence I accept:

“the driver can circulate [drive a vehicle] with the reasonable expectation that no pedestrians will stand in the trajectory of the vehicle when the vehicle has the right of way.”

To summarise the position of Mr Gornals:

I cannot think that except for the 75 per cent maximum that the English and Spanish courts would decide the question of contribution differently, and both parties accept this proposition. In both jurisdictions, the question of apportionment centres around degree of fault. Applying the facts as I have found them, I have assessed what a Spanish court would conclude about apportionment.

The starting-point is that both the claimant and the driver are at fault. Both have significantly contributed to this collision. The accident is unlikely to have happened if DHV had not crossed the road at an undesignated place when drunk and ended up flush to the surface near the middle of the roadway. The accident could and should have been avoided if Mr Gornals had been paying proper attention to the road. Both factors are significant. In argument, both parties have materially underplayed the fault that lies at their door.

The defendant argues for 75 per cent contribution by DHV. That is the maximum amount. While I accept Ms Wyles’ submission that the claimant “occupied the middle of the road” when “it was unsafe to do so” and “did not get out of the way” of an oncoming vehicle that had right of way, the very significant level of contribution by the claimant she invites the court to find is too high. It fails to reflect the level of inattention and thus careless driving by Mr Gornals. Ms Astigarraga’s opinion is that a Spanish court is “unlikely” to conclude that DHV contributed to the accident since Mr Gornals could have stopped if he had been paying proper attention. Supported by Ms Astigarraga’s opinion, the claimant submits that there is no fault attributable to DHV “whatever”, irrespective of the court’s findings about his “positioning in the road”. Mr Vincent’s argument extends to the proposition that even if DHV were “lying in the road”, that positioning cannot be attributed to his intoxication. The court has rejected this argument, and found that his level of intoxication impaired his bodily control. Further, he chose to cross in a risk-laden way. The “no fault” argument is untenable. As Ms Astigarraga accepts, the fact that DHV crossed at a place that was not designated is “a very important factor”. I cannot see how this is consistent with no or “very little” fault on DHV’s part.

I have indicated that applying the rules of road use in Spain, DHV was at fault. Purely by way of example, the Court of Appeal of Malaga decided in 2005 that the pedestrian was “manifestly” at fault when intoxicated and lying in the road (Sentencia de la Audiencia Provincial de Málaga no. 587/2005, 13 July 2005). However, this decision is of limited value to the defendant because in that case the defendant driver had “no possibility of reaction or evasive manoeuvre whatsoever”. Mr Gornals had such an opportunity and failed to take it due to his culpable inattentiveness. Ms Astigarraga proposes that if the court finds DHV to be at fault, the apportionment should be no more than 25 per cent. I cannot think that a Spanish court would so conclude. In closing argument, Mr Vincent modified the claimant’s position to argue for a maximum 33 per cent contribution by DHV. On this, I repeat that I have not found that DHV deliberately sought to lie in the road for whatever reason, whether self-harm, protest of some kind, or risk-laden dare or prank. But I cannot accept Mr Vincent’s submission that the claimant did not make a “deliberate decision to run a risk”. DHV intentionally took a risk-laden course as previously identified by crossing the road at a non-designated point where traffic has a right of way and when he was drunk and had impaired bodily control and ability to take effective and timely evasive action.

Professor Carreras states that the Spanish court would find a “higher degree of fault on the pedestrian’s part”, that is more than 50 per cent. In submission, Ms Wyles argued for 75 per cent, that is, the maximum permitted contribution. To my mind, this fails to reflect the true degree of Mr Gornals’s fault. Therefore, the rival arguments about the contribution of the claimant are “a maximum of 33 per cent” (DHV’s position) or the “allowable maximum” of 75 per cent (the defendant’s stance).

I cannot accept either submission. I have read all the Spanish cases placed before the court. Each case is fact-specific as is DHV’s case. The Supreme Court of Spain endorsed a first instance apportionment of 50:50 liability in an accident between a truck and a cyclist, where both were at fault. The Court of Appeal of Huesca had apportioned liability as 100 per cent to the driver. The truck began to move after being stopped by a traffic light in the red phase when the cyclist tried to overtake the truck on the right side in a stretch of the road that narrowed and in adverse weather conditions. The cyclist was hit by the truck and sustained very serious injuries. The Supreme Court ruled that

“the cyclist, from the moment he joins the circulation, assumes in part and consciously the risk created by the circulation of motor vehicles, which the law initially attributes to the driver of the truck. This risk finally materialized when he was run over, when he could have avoided the accident circulating as and where he did it, and also the driver of the truck could have avoided it if he had been more cautious and noticed the presence of the cyclist to his right.”

Here was a case, therefore, where both parties could have avoided the accident if they had not been at fault. The cyclist by his negligence put himself at risk. The driver failed to pay due attention, which would have averted the accident. In DHV’s case, he as a pedestrian was flush to the road when he should not have been there and this was due to his negligence. Therefore, it seems to me that his contribution is higher than the cyclist in the Supreme Court case.

In the Pontevedra case decided on 30 October 2020, a pedestrian without due attention stepped into the road in front of a motorcycle. The Court of Appeal found that visibility was good and the motorcyclist failed to pay sufficient attention and there was no evidence of braking or evasive action. Such lack of diligence contributed to the collision. The apportionment was 75 per cent liability for the pedestrian and 25 per cent for the motorcyclist.

In the Court of Appeal of Huesca case decided on 24 November 2020, in very poor visibility conditions, a pedestrian without a reflective waistcoat stepped out into the road and collided with a motor vehicle. The pedestrian had a blood-alcohol level of 1.54 grams per litre. The driver did not see the pedestrian at all before impact. The court found that the driver had a margin, not a very great one, but material nonetheless, to stop or slow down to avoid the pedestrian. This resulted in 75 per cent liability to the pedestrian and 25 per cent to the driver. In that case, ambient conditions and the lack of visible clothing meant that it was difficult for the driver to see the pedestrian. By contrast, DHV was wearing a white T-shirt and his bare white legs were exposed and the Hyundai’s headlights would have illuminated the roadway. Therefore, DHV would have been more visible than in the Huesca case. On the other hand, DHV was flush to the road surface and had a higher blood-alcohol level (2 grams per litre). In cases where there has been a vehicle right of way and the pedestrian has negligently stepped into the road, the Spanish courts have tended to assign a higher degree of fault to the pedestrian. A measure of attribution of fault to the driver is found where the driver was paying insufficient attention and could have taken evasive action or even avoided the collision. I remain unpersuaded by Mr Vincent’s submission about the fact that the driver continued driving for 57 metres after impact, save that it is indicative of the level of inattention paid by Mr Gornals. That said, I do not accept the claimant’s submission that “it is difficult to see what difference a crossing would have made”. A marked zebra crossing is a different matter to a roadside sign alerting drivers to pedestrians. I accept Ms Wyles’ submission that this presents “a completely different case”.

Stepping back, and considering everything, I ask myself whether either party was more at fault in causing this collision and then what the contribution of the other party is. I cannot accept the claimant’s submission that there is no contributory negligence “at all” on the part of DHV. That is an entirely unrealistic submission in defiance of the great weight of evidence. Equally, I cannot accept “that it was the driver who is more at fault”. On the totality of evidence, the opposite is the case.

I find that:

I agree with the submission made on behalf of DHV that the nature of the injuries “are not the subject of any great dispute”. Such contestation as remained centres on two matters (A) hearing loss; (B) future earning capacity. Future earning capacity is determined at Issue 13(g)(iii).

Hearing loss

Submissions. The claimant submits that there are two questions (1) is the court satisfied that there is a hearing loss on the evidence? (2) applying Spanish law, can this court make an award under the Baremo? Mr Vincent argues that the claimant sustained damage to the temporal bone and points to the fact that the claimant has made self-reports about his difficulties with hearing and “there can only be so much that can be proved by testing”. Consequently, the court can make an award. The defendant disputes that an award can be made on the evidence before the court given the clear terms of the Baremo and the requirement for audiometry testing.

First, the burden is on the claimant to prove that an award for hearing loss should be made.

Second, it must be remembered that the court is evaluating whether the Spanish court would make an award under the Baremo on the evidence before this court. In respect of “hearing system”, the Baremo specifies in detail the conditions necessary for evaluation and award:

“B)

HEARING SYSTEM

02028 Loss of hearing acuity. (See tables B and C). 1-70

The evaluation of a hearing deficit must be based on a clinical examination complete and thorough accompanied by evidence which must include, at a minimum, a tone audiometry, a vocal audiometry and a impedanciometry (tympanometry with determination of the threshold of reflexes stapedians). The reality of hearing loss can be confirmed by the performance of objective tests such as otoacoustic or potential emissions auditory evoked. The assessment is carried out in two stages; determination of the average hearing loss measurement and evaluation of possible auditory distortions.”

Third, it is plain from the Baremo that there must be audiometry testing. This was confirmed by the expert instructed on behalf of the claimant Dr Dominguez. He stated that loss of hearing acuity is “to be determined by ENT specialist”. Dr Patron stated in evidence that there must be validated expert audiometry assessment if “points” are to be awarded under the Baremo. Code 02028 makes plain that such testing is “a minimum”. Therefore, I cannot accept Mr Vincent’s submission that DHV’s self-reported hearing loss would “be good enough in English courts” and thus sufficient for an award. The key point is how to apply the evidence, such as I find it to be, to the Spanish compensation rubric. On that basis, the absence of testing is critical.

Fourth, no such testing has been obtained. This was confirmed by DHV in cross-examination when he stated that he had not been formally tested. I reject the submission that DHV’s self-reports of hearing difficulties recorded in medical reports convert his comments and concerns into sufficient medical evidence or testing under the Baremo. The Baremo requires confirmation of hearing loss through “objective tests”. There are no objective tests of DHV’s hearing.

Fifth, there is no evidence of medical assessment of vestibular damage. However, despite being pleaded originally in the particulars of claim, it seems this is not pursued as a sequela.

I find that:

The date of consolidation is, the experts agree, the date on which the injured person has finalised the healing process or the injury turns into a sequela. Both instructed Spanish medico-legal experts, Dr Dominguez on behalf of the claimant and Dr Patron for the defendant, agree that the date of consolidation in Spanish law is 25 January 2018. Professor Carreras agrees with them. One might have expected given the agreement of the medico-legal expert instructed by the claimant that this issue would be concluded. It is not.

The claimant relies on the dissenting opinion of Ms Astigarraga and a survey of the English medical evidence. Ms Astigarraga’s opinion is that the date of consolidation is 8 January 2023, that is, five years after the joint medico-legal expert view. She states that is because the extent of DHV’s permanent symptoms arising from the accident was not established until his residency at the Transitional Rehabilitation Unit (“TRU”). She says that this approach is based on the doctrine of the Spanish Supreme Court that the point of consolidation is reached when “the permanent symptoms can be established” (her opinion in the Joint Statement, para 113).

The difficulty for the claimant’s argument is that the interventions must be curative rather than rehabilitative. This is because by definition the consolidation date is when there is stabilisation and the injuries that remain turn into sequelae. Sequelae can, of course, receive medical or other attention with a view to alleviating or living with their effects rather than their elimination or “cure”.

The interventions in DHV’s case have been directed at rehabilitation, but that does not render the interventions curative. There is no evidence offered in the written reports of any English medical expert that the intervention provided is curative. Clearly what has been happening is that attempts have been made to address the consequences of DHV’s injuries. That is not the same as curing them. The flaw in the claimant’s argument on this issue is revealed by his noting that “it is of interest to see what the two Spanish medico-legal experts have to say”. He then submits that “this is a paradigm example of the possibly different outcomes” where the English law of evidence is applied to a case where Spanish law is applicable. The claimant’s reliance on Wall v Mutuelle is misconceived.

The evidence before this court must be regulated by English laws of procedure and evidence. But once that is done, the duty of the court is to determine as best it can what a Spanish court would do applying the lex loci, Spanish substantive law. This court may exercise a discretion that the Spanish court would exercise and should have regard to not just Spanish black letter law but judicial conventions, practices and guidelines found in Spain. Wall v Mutuelle makes all this perfectly clear (albeit with France as the state of accident) and beyond doubt. I find that the Spanish court’s approach to date of consolidation would be influenced by the terms of the Baremo. Article 37.1 provides:

“Article 37. Necessity of medical report and reciprocal duties of cooperation

1.

The determination and measurement of sequelae and temporary injuries must be carried out by means of a medical report in accordance with the rules of this system.”

Ms Astigarraga accepted that the consolidation date required medical evidence. Ms Astigarraga herself is not medically qualified. She can provide no authoritative or reliable medical opinion. I cannot accept that a Spanish court would prefer Ms Astigarraga’s opinion on date of consolidation to the consensus view of the two medico-legal experts. However, I am persuaded that a Spanish court would receive and consider the medical evidence from England. I can see no credible reason why it would not. Thus this court must examine carefully what the substantial body of English medical evidence reveals.

The Spanish medico-legal experts agree that the interventions following 2018 have been rehabilitative. I have examined the English medical evidence and conclude that a Spanish court would reach the same conclusion. For example, in August 2018 Professor Worthington speaks of the claimant being “likely to benefit from rehabilitation for at least another 12 months”. In September 2023, Dr Scott notes the variability in the claimant’s clinical presentation, but that is not the same as providing evidence of curative interventions after January 2018. While in November 2021 both neuropsychologists speak of DHV benefitting from further treatment, that is not to say that such intervention is curative. One hopes that medical intervention is of benefit in the management of sequelae; that is the point of intervention. Both Dr Agrawal (2020) and Professor Trimble (2023) speak of DHV’s need for further treatment. Once more, this is not the same as indicating that such intervention is curative. When counsel for the claimant was asked if any of the medical experts had said that the interventions or treatment were curative, the answer was that there was nothing in the reports that said that expressly. The English medical reports are very detailed and substantial. It is surprising indeed if these medical interventions were curative that not a single medical report indicates as such or anything that materially amounts to it. Some of the reports contain the comments and self-reports of DHV that the counselling sessions have been of “benefit” to him. That may be so, but it is not evidence of curative treatment. It is clear that DHV’s mood, emotional state and presentation are not constant, but variable dependent on many factors, including problematic or dysfunctional personal relationships, lifestyle choices and substance abuse (drinking heavily, gambling, using cocaine).

I judge that the two medico-legal experts are correct and Ms Astigarraga wrong. Their jointly agreed position is not merely a curiosity or “of interest” as Mr Vincent seeks to confine its value to. It is persuasive and powerfully probative evidence directly on the issue of the kind that is admissible before the Spanish court and that both parties agree can and would be taken into account by it. I accept it. The submission that this evidence subverts or incorrectly usurps the “English expert evidence”, as Mr Vincent termed it, does not engage with the detail and effect of that domestic evidence. The true position is that there has been a sustained attempt to manage DHV’s sequelae and provide rehabilitation, which is precisely what one would expect. A person may have permanent sequelae and at the same time receive medical interventions to manage them. That is what has happened here. In this vein, DHV was admitted to a rehabilitation unit (the TRU) in September 2022. Thus Mr Vincent’s submission that the claimant “underwent treatment after January 2018 which produced objectively beneficial long-term effects” misses the true focus. There have been interventions which alleviate and ease the claimant’s life situation. That is not the same as being curative.

I find that:

The claimant relies on Ms Astigarraga. She states that the table to be used must be the updated table “as of the date of settlement or judgment” and that this applies “even if the Court decides to award Penalty Interest under Article 20 of the Spanish 50/1980 Insurance Contract Act.” Ms Astigarraga points to an article by Professor Mariano. She also relies on a supportive Supreme Court decision.

The defendant relies on Professor Carreras. He states that Ms Astigarraga is wrong. It is the table at the date of consolidation that applies, here 2018 (see finding on Issue 6). He states that the Supreme Court in Spain established this principle in its ruling of 26 October 2011, and subsequently confirmed it, with lower courts following the decision. As to interest, in almost all cases in Spain the claimant will claim interest, as DHV has. The correct table is either for the date of accident or of consolidation, whichever is later. Here it should be the date of consolidation in 2018 – the later date.

First, it is necessary to be clear what the Baremo says:

“Article 40. Time of determination of the amount of the compensatory items

1.

In any event, such discounting shall not apply from the time when any interest in arrears begins to accrue.”

I find that a Spanish court would deem Professor Carreras correct. The notionally correct date should be the date of consolidation as interest is claimed from the accident, but the date of consolidation postdates it, and thus that is the later date.

Second, the Supreme Court case Ms Astigarraga sought to rely on was decided in the criminal chamber of the court. It was in any event decided before Article 40 came into force. I accept the evidence of Professor Carreras that it would carry little weight with the Spanish court. He further stated that the Spanish civil court never cited or relied on decisions from the criminal chamber. Ms Astigarraga was invited to provide any civil case in support of her argument. She was not able to do so. Further, it must be remembered that Professor Carreras lists as part of his professional experience practising in criminal cases (see B1324, para 3). While this is of little additional weight, it meets the suggestion that Professor Carreras has no experience in criminal matters. He evidently has and was not challenged to the contrary.

Third, while I accept Ms Astigarraga’s evidence that the Spanish court may well consider the academic article of Professor Mariano, it remains the opinion of a lawyer and not a court judgment. Professor Carreras stated that Professor Mariano is a well-known advocate who seeks to maximise the damages claimants may claim. There is nothing wrong in that, but it affects balance. Further, Ms Astigarraga was unable to provide any decided civil decision that has adopted or endorsed the approach of Professor Mariano. Professor Carreras was not challenged about his characterisation of Professor Mariano and his affiliations. Accepting Professor Carreras’s evidence, I judge that Professor Mariano’s article would carry little weight with the Spanish court, especially in light of the clear wording of article 40 itself. Whether it amounts to “wishful thinking”, as Professor Carreras terms it, is less important than there being no legal support in any case decided by the Spanish civil courts for Professor Mariano’s suggestion. It is undoubtedly an interesting approach, but not one that has been endorsed by any Spanish civil judgment that has been put before this court.

Fourth, I accept Professor Carreras’s evidence that to use the updated table as a judgment or settlement alongside the award of interest (whether penalty or not) would amount to “unjust enrichment”. It is for this reason, as Professor Carreras has said, that “it never happens”.

I find that:

Ms Astigarraga conceded that pre-consolidation care could not be recovered under the Baremo. Mr Vincent sought to revive this part of the claim by submitting that the combination of recital 33 of Rome II and article 33 of the Baremo could operate to permit the court to make such an award. Ms Astigarraga never said this. It is correct, therefore, as the defendant points out, that there is no evidence to this effect. Nevertheless, I examine whether a Spanish court would make an award for pre-consolidation care by relying on recital 33 and article 33. There is no decided case from Spain in which this has happened or even been suggested as a possibility.

Furthermore, this argument depends on the court’s decision in respect of Issue 11 where recital 33 and article 33 are fully considered. As has already become clear, the court concludes that neither provision alone or in combination would result in the Spanish court making an award outside the rules and limits of the Baremo.

Therefore, I find that:

The claimant made clear in written closing submissions that the claim under this issue depended on the court ruling in favour of Ms Astigarraga’s opinion that the court could go beyond the Baremo limits and tables by invoking article 33 (and recital 33). This approach is rejected by the court in Issue 11, one of the reasons it was essential to provide the court’s answer to Issue 11 early in the judgment.

Therefore, the Spanish court would receive actuarial evidence in accordance with the explicit terms of the Baremo. That is, article 88.3 (financial dependency in fatal accident cases), article 125.6 (future third party assistance) and article 132.4 (future loss of income). Professor Carreras refers to these three provisions as “three exceptional situations” that have been expressly made allowance for under the Baremo.

Ms Astigarraga mentioned a case involving a Danish resident injured person where the public pension benefit parameter was altered. However, this is explicitly permitted under article 88.3. It is further support that compensation is calculated within the parameters of the Baremo’s limits and tables. The Danish case fell within article 88. I cannot accept Mr Vincent’s submission that Ms Astigarraga’s evidence about article 33 of the Baremo is “reasonable” and “needs no explanation” or the Baremo “system” and its policy under article 33 is just “philosophical puff”. As I found in Issue 11, a proper analysis of both recital 33 and article 33 points firmly away from Ms Astigarraga’s evidence. She is wrong about these provisions.

I find that:

This issue is divided into two areas of future expenses (A) rehabilitation and (B) care. They are examined in turn.

Future rehabilitation

In respect of future rehabilitation and care expenses, article 113 of the Baremo must be read in combination with article 116. These articles provide:

“Article 116 Home and Outpatient Rehabilitation

1.

The injured person shall be reimbursed directly the amount of the costs of future rehabilitation which, according to the corresponding medical report, the injured person requires at home or in an outpatient setting in respect of the sequelae referred to in letters a), b) and c) of paragraph 3 of article 113, after which stabilisation occurs.

Article 113. Foreseeable future healthcare costs

3.

The sequelae which, in any case, give rise to compensation for future healthcare costs are:

a)

Chronic coma or chronic vegetative states.

b)

Very severe and severe neurological sequelae.

c)

Spinal injuries equal to or greater than fifty points.

d)

Amputations or other sequelae requiring the fitting of prostheses.”

Therefore, to come within article 116, DHV must bring himself within para 3 of article 113. It is common ground that his injuries do not accord with any of the specified injuries at a) to d). The claimant’s submission is that this is an example where this court could invoke the “spirit” of the Baremo and the terms of article 33.2 to provide full reparation to DHV notwithstanding his not fitting within the terms set out in articles 116 and 113.

As indicated in Issue 11, I find that a Spanish court would not use article 33 or any other provision to go beyond what is set out in the Baremo scheme. The analysis at Issue 11 applies. But as a further example, article 116.3 makes plain:

“The maximum amount of compensation is the amount set out in Table 2.C for this type of expense.”

This means that in Spain if the actual rehabilitation costs exceed the stipulated maximum in Table 2.C, that amount of expenses recoverable are limited by the Table 2.C limit. This supports Professor Carreras’s point that the scheme allows for “full reparation” within the limits set out in the Baremo.

I find that:

Future care

The Spanish law experts agree that post-consolidation care is recoverable under article 121 where a claimant has a single sequela attracting at least 50 points or his personal autonomy is affected analogously to the sequelae under Table 2C2. DHV’s case originally was based only on a single sequela attracting 50 points (see Ms Astigarraga’s report, para 192). By closing submissions, the claimant also relied on the personal autonomy head. Article 121 provides:

“Article 121.

Need for assistance from a third person

As to the 50 points claim, this is addressed in Issue 13. There is no sequela that a Spanish court would find attracting 50 points. Therefore, this basis fails.

As to personal autonomy, the claimant’s case is that “there is ample medical evidence about his lack of capacity to manage his own finances”. That lack of capacity in this specific domain is not disputed by the defendant. Managing finances is just one aspect of personal autonomy. The evidence that emerged clearly during the trial is that in many other significant respects, while DHV lives with several ongoing problems, his personal autonomy remains substantially intact. It has certainly not been “particularly” impaired in a way analogous to what is required in the Baremo, where Table 2.C.2 refers to amputation. As the initial basis of the claimed award was on a points basis, it is accepted on behalf of the claimant that the experts did not deal with or identify medical evidence that is capable of supporting such an award (see article 121(2)). Nevertheless, the claimant maintains that there is sufficient medical evidence to justify the award. I find nothing indicating that the loss of autonomy, which must not be underestimated, is analogous to that following amputation.

I find that:

I deal with two areas of expert evidence (A) medico-legal experts and (B) Spanish law experts.

I return to my conclusions on Issue 2. The task of the English court is to determine what compensation the Spanish court would award on the evidence before the English court, having used the English law of evidence and procedure, and then applying Spanish law to the facts (and vice versa). In this task, there is no doubt that the Spanish court would be informed by the medico-legal experts. That is a distinctive feature of Spanish law. The Baremo expressly states at article 37:

“Article 37. Necessity of medical report and reciprocal duties of cooperation

1.

The determination and measurement of sequelae and temporary injuries must be carried out by means of a medical report in accordance with the rules of this system.”

Therefore, the English court in determining what a Spanish court would do in the “assessment of awards under the Baremo” must take into account the judicial conventions, practices and guidelines of Spain. Wall v Mutuelle makes this clear. Professor Carreras explained how a Spanish court would take medico-legal evidence into account. I accept his evidence. No one has said that such evidence is binding or determinative. The Spanish court could prefer one expert over the other or some parts of one expert over the other. Professor Carreras explained how the expertise of medico-legal experts is to assist with how the medical evidence fits within the categories of injury and sequelae under the Baremo.

I cannot accept the claimant’s submission that the evidence of the two medico-legal experts, Dr Dominguez and Dr Patron, who each gave such extensive and detailed testimony, should only be regarded as “illustrative”. I am not persuaded that they do not assist with “whether the requirements of each injury code are met or not”. I do accept that ultimately this court must make the decision. But it cannot be right to ignore the evidence of the medico-legal experts or to relegate their evidence to illustration. I am not convinced that this is what Wall v Mutuelle decided. In that case, the Court of Appeal stated in terms that the judicial conventions and practice of the state of accident should be considered by the English judge. There is clear and convincing evidence that a Spanish court would take the medico-legal evidence into account. So should this court. Indeed, as submitted on behalf of the defendant, the medico-legal experts are performing exactly the exercise needed under the Baremo to assist in quantifying the points. I accept the submission that they have expertise in how injuries fit within the Baremo. I am bound to say that I have not been troubled by adopting this course, despite Mr Vincent’s submission that this court “is not used to dealing with such evidence”. Our courts have great experience of tailoring our approach to a great variety of sources of evidence. My approach has been that the medico-legal evidence is another part of the totality of evidence to be carefully weighed alongside and in the context of all the other evidence.

I agree with Mr Vincent that this court is “not recreating a Spanish courtroom”. But the claimant did not dispute the admissibility of the medico-legal expert evidence. He sought to rely on Dr Dominguez. I cannot accept that the evidence should be relegated into illustrative insignificance. While the evidence of the medico-legal experts is not determinative, a Spanish court would take it into account as a judicial convention or practice. So should the English court.

The evidence of Spanish law experts is limited to the law. Their expertise does not extend to medical matters such as the quantification of “points” to be awarded for injuries or sequelae under the Baremo. In any event, the legal experts agreed that they “followed” the medico-legal experts. The evidence of the legal experts is evidence for the purposes of finding facts about the content of Spanish law. As for the assessment of compensation under the Baremo, the comments of the law experts amounts to no more than argumentation rather than evidence.

I find that:

The parties ask the court to determine seven discrete awards (a.-g.). They are considered in turn. I acknowledge and accept Mr Vincent’s submission that the assessment of awards is “in the hands of the court” and it may award Baremo points at variance to the submissions of the parties.

Temporary loss of quality of life

The parties agree that the award for this item depends on the court’s decision on the year of consolidation and the table of the applicable year.

I find that:

Permanent sequelae

The Baremo’s approach is to assess the seriousness of permanent injuries and award “points” for them. After that, where there are multiple injuries, there is an adjustment using the “Balthazar Formula” (Annex of the Royal Decree 8/2004). The final adjusted total is given an economic value linked to the age of the injured person. The value is found in Table 2A2.

Under this heading, the court considers sequelae under the following codes:

The rival cases under these heads are:

The parties agree that DHV’s damage falls within the “moderate” category under this code. The range is 21-50 points. The defendant maintains that the damage is at the very bottom of the range at 21 points with 2 further points for aggravation or destabilisation of other mental disorders under Code 01167. The claimant submits that this is the very top of the category and 50 points should be awarded. The claimant did not address Code 01167 separately, submitting that the cognitive issues fell entirely under Code 01136 rather than being divided.

It assists to set out the elements of the moderate category:

“a)

Memory disorders resulting in learning limitations and recall difficulties.

b)

Moderate emotional symptomatology: Episodes of habitual irritability before stressful situations or flattened affect with easy crying or almost daily apathy. Occasional episodes of euphoria or inappropriate expressions of joy with lack of control and impulses. Common sleep disturbances that affect the patient's daily activities.

c)

Cognitive disturbances observed by third parties in the patient's surroundings: memory and concentration disturbances. Self-referential ideas or occasional suspicions. Moderate difficulty to carry out work activities. Language disturbances are detected during speech: presence of circumstantial language.

d)

Significant reduction in social activity with gradual disappearance of interpersonal relations.

e)

Requires some supervision of some activities of daily living.”

Next, the court reviews the evidence and argument around each criterion detailed in (a)-(e) – each “item”, as counsel sometimes called them.

a)Memory. In the joint neuropsychologists’ statement, it is stated that:

“Dr Scott observed a range of ‘above’ and ‘high’ average scores for memory new learning ability and general non-verbal intellectual skills that suggest a good cognitive recovery and will represent a useful intellectual reservoir that he can draw on in the future. There was some relative weakness on auditory memory tasks when assessed by Professor Worthington but this had improved at Dr Scott’s examination and in any event this may have been a longstanding area of weaknesses given his previous ADHD diagnosis.”

It is certainly the case that the medical records document DHV’s self-reports about memory difficulties. However, there is no objective assessment of the level of his difficulty. During the trial, as noted by Dr Patron, DHV called out from the back of the court to correct his mother’s defective memory of certain details. Therefore, at best, his memory difficulties are uneven. I note that Dr Patron did not altogether dismiss his memory difficulties and awarded points for “relative weakness on auditory memory tasks” under Code 01167, as an aggravation or exacerbation of a previous condition.

b)Moderate emotional symptomology. There is no evidence of euphoria. As to DHV’s sleep patterns, while there is evidence from the claimant himself, that must be viewed in light of the evidence of Ms Makda:

“DHV said that he goes to bed anytime from 11 pm to 1 am and wakes up anytime from 8 am to 6 am. He said he takes a sleeping tablet.”

Ms Kirby states:

“DHV reports that his sleeping pattern has improved as it was very poor after the accident. He feels fatigued during the day but he doesn’t sleep during the day. He goes to bed from between 7pm to 11pm and is usually up around 7am.”

These are independent reports that reveal a consistent pattern. While there is occasionally some disruption of his sleep, it does not amount to the “sleep disturbances” envisaged by the Baremo that “affect the patient’s daily activities”. Recognising the independent evidence, Mr Vincent was realistic in submitting that there is the evidence in the care records contrary to what DHV says and it is “up to the court whether to accept it”. The independent evidence is from two carers. There is no reason to doubt it. However, there is evidence of DHV’s irritability, something evident during his evidence. Mr Vincent characterised this as the claimant having it “in spades” and manifesting in lack of control and impulsive outbursts. There is little doubt, to my mind, that this feature is something that DHV lives with, as evidenced by the stark change of character that his mother attests to, and about which she was not challenged.

c) Cognitive disturbances observed by third parties in the patient's surroundings et cetera including circumstantial language. As to concentration disturbances, it was very clear during the claimant’s evidence how he was unable to concentrate or focus. The court was told that “circumstantial language” amounts to talking in circles or going back on oneself. That was certainly evident during DHV’s testimony. I emphasise that at no stage did I detect that he was putting this on. Indeed, he became frustrated with himself that he lost his train of thought or drifted from the question or simply got lost within an answer. I also accept his mother’s evidence of the difficulties he has in his (“the patient’s”) surroundings on a day-to-day basis. She was not challenged about this. As to work activities, as will be made clear, the court has found that he has absolute loss of capacity in terms of future employment. I have no difficulty in concluding that he would find “moderate difficulty” in carrying out work activities. I have dealt with memory elsewhere.

d) Social activity/relationships. DHV has a group of half a dozen friends, on his mother’s evidence. He also told the court how he saw his friend XXX almost every day. However, I accept the evidence that his social life is very substantially diminished compared to before the accident when he had lots of friends and a very full social life. He was not challenged about this. He previously had a girlfriend that he shared a house with and that relationship has ended. That kind of intimacy and shared life seems a remote prospect presently with the difficulties DHV lives with.

e) Supervision. DHV requires supervision around finances and handling money.

I now draw this together to consider how a Spanish court would assess this code in terms of points. There is force in Mr Vincent’s submission that “this is the most important code.”

First, Dr Patron states that all the criteria must be met for the maximum award. It certainly does not say that in the Baremo. I can envisage a situation whereby several of the criteria were met and/or were severely present which would overall justify an award at the top of the range or even the maximum (if the overall picture fell short of promoting the case to the next level). In fairness, Dr Patron accepted that this was not a rule of law, just a practice he had experience of. I therefore accept the submission by the claimant that it is not necessary to satisfy every one of the criteria for a maximum award. Equally, within any criterion, I accept the corresponding submission that it is unnecessary to establish each element. Some of the items are, as Mr Vincent correctly submitted, “alternatives”.

Second, Dr Patron fixes the appropriate points as being “in the low arc” because, he observes, “the symptoms do not stop him carrying out essential activities of daily life and many personal development activities according to the revised reports.” While true, I accept the criticism of Dr Patron that these considerations are not listed within the Baremo.

Third, I place less weight on the claimant’s submission that there is “no evidence that an award of 50 points is rare, like a 10 in ice skating.” I am not assessing other cases. If DHV’s properly fulfils the criteria, then the court should find that the Spanish court would award the maximum.

Fourth, I find that while there is some interference with DHV’s memory, it is not serious or severe. While his sleep may occasionally be disrupted, there is not a sleeping disorder, nor is there clear evidence or sustained or regular interference with his daily activities. The claimant displayed, despite himself, circumstantial language and losses or lack of concentration during his testimony. There is no reason to believe that this does not occur in his daily life and his mother spoke about the effect all this has had on her son’s behaviour. There can be little argument but that he has at the very least moderate difficulty in carrying out work activities. While DHV is not friendless, his friendship circle has materially shrunk. He has lost many friends due to his behaviour and inability to function stably in social settings. This is entirely understandable, while obviously very painful to the claimant. He no longer lives with the girlfriend he had been in a relationship with since childhood. He requires supervision around money, and while that is significant, he does not need supervision around other daily activities. Therefore, the “some” stipulated in the Baremo is “one” daily activity requiring supervision.

I have carefully examined this code, agreeing it is “the most important code” in the claimant’s case. I reject the suggestion that DHV’s life circumstances only justify the very lowest points award under this code and category. That plainly does not reflect the evidence and I accept Mr Vincent’s submission that it is difficult to understand how Dr Patron placed the claimant “at the bottom of the bracket”. That said, I cannot find (which is to say I am not persuaded that a Spanish court would find) that DHV’s circumstances justify the maximum award under this code and category. Doing the best I can by examining and re-examining the totality of evidence, I judge that the Spanish court would make an award just above the middle of the range. I emphasise that I have reached this conclusion having reviewed all the expert evidence and having had the benefit, which has been particularly valuable here, of seeing the live evidence from Dr Dominguez, Dr Patron, WTX and DHV himself.

I find that:

As previously indicated, there is no audiometry testing, the minimum requirement. An alternative basis was proposed by the claimant in that there was damage to the temporal bone, frequently or usually correlating with loss of hearing. I accept Dr Patron’s response to this that the question is the impact of any injury on the hearing faculty. No loss of hearing has been properly evidenced or proved.

I find that:

The bracket runs from 7-10 points for loss of smell and taste. The defendant contends for 7 points; the claimant for 8. Plainly DHV has not lost his sense of smell and said in cross-examination that he accepted that he retained “some sense of smell”. However, he cannot distinguish between smells. That is a significant impairment to the faculty. As Dr Alder notes, the claimant also reported altered sense of taste, which is perhaps inevitable given the substantial interference with his sense of smell. The impairment here justifies more than the very bottom award in the category of 7 points. Overall, the claimant’s submission is accepted.

I find that:

Dr Dominguez originally awarded 5 points. However, he then stated he was “open to suggestion” about the level of award dependent on reports about DHV’s recovery. Dr Patron has recommended 1 point. In closing submissions, the claimant argues for 5 points, which is the maximum points award in the category. The consultant orthopaedic surgeons are Mr Martin Bircher and Mr Warwick Radford. In their Joint Statement, they agreed that the fracture to the scapula did not involve the shoulder joint. DHV had regained full range of movement in his left shoulder girdle. They then continued:

“3.3

... We agree any soft tissue injury to his left shoulder

girdle will not result in arthritis in in later life as a result of the index accident.

3.4

We agree DHV had a comminuted (multifragmentary) fracture of his right scapula which does not appear to have involved his shoulder joint. We agreed it was appropriate to his scapular fractures conservatively. We agree his right shoulder has regained a functional range of movement. DHV’ range of movement has improved from when he was seen by Mr Bircher to when he was seen by Mr Radford. We believe this difference is due to the timing of our respective examinations. We agree he is not at risk of developing arthritis in his right shoulder in later life.”

In cross-examination, Dr Dominguez had put to him that the award of 5 points was too high, given the lack of pain and the functional range of movement. He said he would “probably agree”. This was because the medical literature shows that necrosis is very painful and difficult to treat. There is no such degree of shoulder pain with DHV.

I find that 5 points is too high. However, this is not at the very bottom of the range. I find that:

The range under the Baremo for post-traumatic arthrosis and/or painful forearm-wrist is from 1-5 points. The defendant argues that the award should be 1 point; the claimant argues for 3.

The medical report of Mr Ragoowansi, a consultant hand surgeon, dated 26 February 2024 states that DHV only experiences pain in the right wrist when it is challenged with “heavy lifting/carrying”. It is comfortable when carrying out daily routines. This supports the consultant’s report dated 6 November 2023 that states that the pain is “at a lower level”. In evidence, Dr Patron pointed out how at times during DHV’s testimony he banged his right hand forcibly on the witness box. This is true. There did not appear to be a reaction to the action on the several occasions it occurred. DHV does experience some pain in the right wrist, but this is when the joint is challenged with more intensive activity. He experiences no pain when going about daily activity. The pain is at the lowest end of the scale. I accept the evidence of Dr Patron.

I find that:

The claimant concedes that no award is recoverable under this code for skin system – scars. This is because although initially Dr Dominguez awarded two points, Ms Astigarraga accepted that what is required is symptomatic scarring at the date of consolidation. As at January 2018, DHV had no unhealed scars. Therefore, Dr Patron’s opinion is accepted as being correct: DHV does not qualify. DHV had no unhealed scarring as at 25 January 2018.

I find that:

This code covers aggravation or destabilisation of other mental disorders and can be dealt with shortly. The range here is from 2 to 10 points. There is no allocation of points under this code by Dr Dominguez. Dr Patron awards 2 points for this based on the joint opinion of the neuropsychologists Dr Worthington and Dr Scott. They jointly state:

“DHV displays neurobehavioral problems consistent with a frontal lobe brain injury, which are likely to be an exacerbation of premorbid personality characteristics and his ADHD diagnosis.”

This seems a rational and evidence-based conclusion. It is clear why Dr Patron acted upon it, as does the court. I should add that I cannot place weight on the opinion of Ms Astigarraga. She is a lawyer, not a medical or medico-legal expert. Dr Patron is correct to award 2 points due to exacerbation.

I find that:

Putting all the awards together, I summarise the position as follows:

Cosmetic damage

The claimant submits that the damage is in the “important” (or “major”) category and 30 points should be awarded. The defendant submits that the proper categorisation is “moderate” with 10 points awarded.

First, it is important to be clear what article 102 provides:

“Article 102.

Degrees of aesthetic damage

1.

The measurement of aesthetic damage is made by assigning a range of scores to each of the grades, considering, in particular, the following factors:

a)

the degree of ordinary visibility of the injury,

b)

attraction to the gaze of others,

c)

the emotional reaction it provokes and

d)

the possibility that it may lead to a disruption of the interpersonal relationship of the injured party.

2.

The degrees of aesthetic damage, in order from highest to lowest, are as follows:

a)

“Importantisímmo”. Most important, corresponding to extremely serious aesthetic damage, such as that caused by major burns, major loss of substance and major alterations to facial or body morphology.

b)

“Muy importante”. Very important, which corresponds to a lesser aesthetic damage than the previous one, such as that caused by the amputation of two limbs or quadriplegia.

c)

“Importante”. Important, which corresponds to a lesser aesthetic damage than the previous one, such as that caused by the amputation of a limb or paraplegia.

d)

“Medio”. Medium, which corresponds to a lesser aesthetic damage than the previous one, such as that caused by the amputation of more than one finger or toe, significant lameness or particularly visible scars in the facial area or extensive scars in other areas of the body.

e)

“Moderado”. Moderate, which corresponds to lesser aesthetic damage than the previous one, such as visible scars in the facial area, scars in other areas of the body, amputation of a finger or toe, or mild lameness.

f)

“Ligero”. Slight, which corresponds to a lesser aesthetic damage than the previous one, such as that caused by small scars located outside the facial area.”

First, the court reviews the aesthetic damage. DHV has a visible alopecic (hairless) scar measuring 5x5 cm in the posterior area of the left side of the head and neck; erosive scars to left shoulder and scapular region; scars to the right shoulder (in a tattooed area); a scar on the distal area of right forearm; small scar on right pelvic area. Dr Patron told the court that the head and shoulder area of the claimant where there were areas of scarring amounted to 5 to 6 per cent of the skin surface. It would, using Dr Patron’s measurement approach, be 5 or 6 hands-area of scarring. It is for that reason he assesses DHV as 10 points, or mid-range in the moderate category.

Second, the example of important damage given is the amputation of a limb or paraplegia. To be reminded, paraplegia is total or partial paralysis of the lower half of the body. Judged by these comparators, DHV’s aesthetic damage does not fall within the important (major) category.

Third, there are various routes to qualifying as medium damage. DHV’s overall aesthetic damage is not equivalent to the loss of more than one finger or toe. The scarring to the head is to the posterior area of the left side of head and neck. The several further areas of scarring cannot be classified as “extensive”.

Fourth, as no party contends that the damage is “slight”, one arrives at the moderate category. I certainly cannot see how the award of 30 points advocated on behalf of the claimant is justified. However, given the number of areas of scarring, although they are not extensive in area, this damage is at the top of the moderate category. The award should be 13 points.

I find that:

Surgical procedures

DHV underwent three surgical procedures. He is entitled to compensation for them under article 140 of the Baremo for:

“the particular personal damage suffered by the injured for each surgical intervention to which he is submitted is compensated with an amount between the minimum and the maximum established in Table 3B, in view of the characteristics of the operation, complexity of the surgical technique and type of anaesthesia.”

Dr Patron classified the procedures on behalf of the defendant. Dr Dominguez did not do likewise for the claimant. Instead, the claimant relies on the opinion of Ms Astigarraga. There are two disputes between the parties (1) the proper classification of the nasal fracture; (2) which annual table applies.

On (1): Dr Patron classifies the nasal fracture as Group 1 (Code 923: simple fracture nasal bones, surgical treatment). Ms Astigarraga states it is Group 2, with a higher award. However, she accepted that this was a medical matter. There is no medical evidence advanced on behalf of the claimant on this question. I accept the evidence of Dr Patron. This is a Group 1 award.

On (2): Ms Astigarraga applies the table for 2024. Dr Patron (followed by Professor Carreras) states that the correct table is 2018. As previously decided, the 2018 table is the applicable one.

I find that:

Permanent loss of quality of life

There is a four-point scale for the assessment of permanent loss of quality of life: “very serious”, “serious”, “moderate” and “mild”. The dispute between the parties is whether the loss is “moderate” (defendant’s case) or “serious” (claimant’s). The definition of serious damage under the Baremo is as follows:

“Serious damage is that where the victim loses personal autonomy to perform some of the essential activities in the development of ordinary life or most of their specific activities of personal development. The moral damage derived from the loss of any possibility of carrying out a work or professional activity is considered serious damage.”

First, I have found that the loss of earning capacity is absolute. Therefore, the court concludes that DHV’s “possibility” of returning to or carrying out meaningful remunerative work has gone. This is one of the distinctions between the serious and moderate categories, as moderate includes the inability to carry out the work or professional activity at the time of accident. DHV’s inability extends beyond that and in remunerative work terms is absolute.

Second, using the definition provided by the Baremo, this is moral damage and “considered serious damage”. This does not surprise me. It was vividly clear to me having seen DHV just how devastating to his sense of self, in terms of respect and esteem, the loss of his ability to work has been. I find that for this previously successful small businessman, who had made a significant mark in his field by a relatively young age, this has been high order moral damage. It is fanciful to argue otherwise and ignores the weight of the evidence.

Third, it is not disputed that while DHV is able to perform many other essential activities, he is not able to attend to his finances without support or supervision. This is not a small matter, and while on its own it would not be sufficient to make a finding under this head, when combined with the absolute loss of earning capacity, the damage is serious.

Fourth, it is notable that the claim is not for the highest category of “very serious” damage, but “serious”. This is the correct classification.

Fifth, Ms Astigarraga uses the 2024 table. The defendant contends that the 2018 table should be used. For reasons previously given, the 2018 table is correct. The range is €40,741.60 - €101,854.

I find that:

Pre-consolidation pecuniary losses

Pre-consolidation gratuitous care has been conceded by Ms Astigarraga as not recoverable.

Pre-consolidation case management, temporary treatment, TRU rehabilitation. The defendant accepts that these expenses are recoverable in principle. The court has found that the consolidation date is 25 January 2018. None of the above expenses were incurred before this date, so none is recoverable.

Miscellaneous expenses. The claim for the cost of flights in the sum of £570 is agreed between the parties. As to subsistence, Ms Astigarraga agrees that the expenses must be evidenced. They are not. She agrees, therefore, that they cannot on the evidence be recovered.

I find that:

Post-consolidation pecuniary losses

There are three potential post-consolidation pecuniary losses (1) future rehabilitation: (2) future third party assistance; (3) future loss of earnings.

The parties agree that this is not recoverable under the Baremo by DHV.

The Baremo provides for third party assistance under article 121, as set out previously. Two routes lie to an award: impairment of a sequela equal to or greater than 50 points or because such third party assistance is necessary because the personal autonomy of the injured person is “particularly affected” and analogous to the loss of personal autonomy under Table 2.C.2. It bears repeating article 121(2) on this point:

“2.

In the cases not foreseen in the table, this aid may only be compensated if a loss of personal autonomy analogous to that produced by the sequelae foreseen in the table is accredited by medical expert evidence.”

The claimant submits that he qualifies under both routes. First, the award under Code 001136 should be 50 points for the cognitive (et cetera) impairment. Second, and in any event, his personal autonomy has been particularly affected qualifying him under the second route. The claimant accepts that this is a question that the medico-legal experts “have not addressed” but maintains that nevertheless “there is ample medical evidence before the court that he needs the care”. If the court agrees, the limits within the Baremo should be disapplied due to the article 33 full reparation principle.

The defendant’s position is that no award should be made for future third party assistance. There is no sequela amounting to at least 50 points. DHV’s personal autonomy has not been “particularly” or sufficiently affected. However, if the care/autonomy threshold is met, the award should be strictly limited to what is permissible under the Baremo. This is because the defendant should prevail on its article 33/recital 33 argument (Issues 9 and 11). Thus, the daily hours of care are limited to two hours per day under Table 2C2. The hourly cost of care is limited by article 125.

The court has found in its decision on permanent sequelae that under Code 01136 cognitive disorder and neuropsychological impairment, even with the 01167 additional “aggravation” points, the qualifying condition of 50 points is not met. This route to the award fails.

Next, I consider autonomy. DHV’s personal autonomy has sustained impairment. His finances require supervision. As Mr Vincent powerfully submits, “just look at his life today”. There has unquestionably been a real and measurable impairment of DHV’s personal autonomy. However, the key point is that while there may be observable impairment to personal autonomy, the level of autonomy loss must be analogous to that produced by the sequelae in the table. That is analogous to amputation. It is a matter of considerable significance that an adult who ran his own business and employed staff now needs his finances supervised. While the totality of evidence reveals that DHV has by no means become totally dependent on other people, he does require third party support due to his personal autonomy being impaired. However, the specific terms of article 121 make plain the level of loss of autonomy required for an award under this head. The claimant’s autonomy loss does not equate or amount to a loss analogous to amputation. Therefore, the loss of autonomy in the claimant’s case is not sufficiently analogous to the Table 2.C.2 sequelae.

I find that:

The parties agree that loss of future earnings is recoverable under article 126:

“Article 126.

Concept of loss of earnings

In cases of sequelae, loss of earnings consists of the loss of earning capacity from personal work and, in particular, the loss suffered by the injured party due to the net loss or reduction of income from his or her work.”

The dispute is about whether DHV’s work disability is “absolute” or “total”. Absolute entails a complete inability to work for remuneration in future. The defendant relies on the evidence of Professor Trimble that in future the claimant “should be able to work at some point in the future”. The claimant submits that the balance of the medical evidence indicates that the claimant will not work remuneratively in future.

First, the claimant must prove this matter to the civil standard.

Second, I have carefully reviewed the joint psychiatry statement. At para 8.2, it states:

“The experts agree that the Claimant is unlikely to be able to undertake any meaningful remunerative work at present. Dr Agrawal considers this is likely to be the situation for the rest of his life given the nature of his neuropsychiatric condition which is likely to persist for the rest of his life. The experts agree the Claimant should be provided with appropriate voluntary/vocational and leisure activities with vocational rehabilitative input to improve the structure of his daily routine and improve his quality-of-life. Prof. Trimble suggests that with such provision the Claimant should be able to return to part time work, at least initially voluntarily and at some point in the future with remuneration.”

Therefore, the starting-point is that DHV is unable to undertake any meaningful remunerative work at present.

Third, I am bound to observe having had DHV in front of me in the witness box for an extended period, and present at the back of the court for many days, that this is far from a surprising conclusion. What was particularly noticeable was that his outbursts and lack of control in court occurred despite himself, when he was attempting to be restrained and participate. The cognitive and neuropsychological/psychiatric damage that has been done to him was very evident and manifests in his public presentation.

Fourth, when Dr Patron was asked about future remunerative work, he suggested that DHV could work in the army. It was an implausible and misconceived suggestion. I found it unhelpful. It revealed an unrealistic approach to DHV’s obvious and significant social functioning difficulties. While it is true that DHV worked for four years following the consolidation date, it is vital to bear in mind that he was unable to continue and his business had to close.

Fifth, it is plain that DHV has had his ability to conduct social relationships materially damaged. While he sees his friend [XXX] almost every day, I accept DHV’s evidence that he has lost most of his friends. This is aside from a small group of loyal stalwarts (whom his mother described as “half a dozen good friends”), he has found himself largely socially isolated. This is substantially due to his behaviour and inability to relate to people. The joint opinion that he cannot work remuneratively at present must be in significant measure connected to his inability to liaise appropriately, let alone courteously, with other people including customers, other employees and people in authority. I find that Dr Patron’s suggestion that he could work alone “as a gardener” fails to allow for the fact that he would have to liaise with customers, suppliers, respond to suggestions about his work, make alterations, deal with criticisms. It is unrealistic to expect that DHV can achieve this in a satisfactory or sustainable way.

Sixth, it seems to me entirely speculative to predict reliably when this can change. There is a material distinction between remunerative work – this is about loss of earnings – and DHV beginning to be introduced to voluntary rehabilitative activities. I accept Dr Dominguez’s evidence that they are closer to interventions or “treatments”. There is no evidence before me about the effectiveness of such interventions in DHV’s particular case. These have not been tested. To project forward years in the absence of empirical foundation is speculative. It is for that reason that the most Professor Trimble can offer is the comment that with the correct provision, DHV “should” be able to work remuneratively “at some point in the future”. He does not say at what point this is likely. He does not clarify whether it is before or after retirement age. On this there is no evidence.

Seventh, I accept and prefer Dr Agrawal’s evidence that this is likely to be the prevailing situation for the rest of DHV’s life. I find that this opinion accords with the rest of the evidence, save for the conjectural comment by Professor Trimble, and is entirely consistent with how the claimant presented at court despite himself. At no point did I sense that DHV was putting on an act. In fact, the reverse was true: he was deeply upset and disheartened that he could not control himself, despite his efforts.

Eighth, I find that the claimant has proved on a balance of probabilities that DHV is unlikely to undertake any meaningful remunerative work for the rest of his working life.

Ninth, that being so, the court must examine the quantifications of the relevant award. There is dispute between the actuaries about this. It is agreed between the parties that relevant benefits must be allowed for. I prefer the analysis of Mr Peraita on this question. The sum he arrived at is £408,348.05. That is the right sum.

I find that:

I should add that the parties agree that there should be an award for the temporary loss of quality of life under the 2018 Baremo tables in the sum of €10,998.75.

The parties also agree that pre-consolidation loss of earnings are recoverable. With the date of consolidation of 25 January 2018, the number of qualifying days is 189. The claimant’s pre-accident net income was agreed at trial as £35,714 per year. Therefore, the figure for 189 days is £18,493.

Following the circulation of the draft judgment, the parties communicated to the court their agreement about the following matters:

This leaves only the figure for Permanent Loss of Quality of Life. The parties helpfully provided further submissions to assist the court to assess the appropriate level of award.

The Court has found that the Claimant’s permanent loss of quality of life falls within the “serious” category provided for in the Baremo. By reference to the 2018 tables, the range of compensation provided for this category is €40,741.60 - €101,854. The parties dispute where in the range the claimant’s case should be placed. In short, the claimant submits that the award should be €100,000; the defendant €65,000. The relevant provisions of the Baremo are now set out. The Baremo defines “serious damage” as:

“Serious damage is that where the victim loses personal autonomy to perform some of the essential activities in the development of ordinary life or most of their specific activities of personal development. The moral damage derived from the loss of any possibility of carrying out a work or professional activity is considered serious damage.”

Article 107 defines “Moral damages for loss of quality of life caused by sequelae”:

“Compensation for loss of quality of life is intended to compensate for the particular moral damage suffered by the victim as a result of sequelae that prevent or limit his or her personal autonomy to carry out essential activities in the development of daily living or his or her personal development through specific activities.”

“Essential activities” are defined in Article 51: “Essential activities of daily living”:

“For the purposes of this Law, essential activities of daily living are defined as eating, drinking, grooming, dressing, sitting, getting up and going to bed, controlling sphincters, moving around, performing household chores, operating devices, making [decisions] and perform[ing] other similar activities related to physical, intellectual, sensory or organic self-sufficiency.”

“Personal development” is a defined term in Article 53: “Loss of personal development”:

“For the purposes of this Act, loss of personal development is understood to be the physical, intellectual, sensory or organic impairment that prevents or limits the performance of specific personal development activities.”

Article 54 defines “Specific personal development activities”:

“For the purposes of this Law, personal development activities are understood to be activities such as those related to enjoyment or pleasure, relationship life, sexual activity, leisure and sports, the development of training and the performance of a profession or job, which are aimed at the fulfilment of the person as an individual and as a member of society.”

The valuation of this award in money terms is to be based on the approach mandated by Article 109: “Measurement of loss of quality of life injury.”

“1.

Each of the degrees of damage is quantified by means of a compensation range that establishes a minimum and a maximum expressed in euros.

2.

The parameters for the determination of the amount of damages are the importance and number of activities affected and the age of the injured person which expresses the foreseeable duration of the damage.

3.

The maximum of the range for each degree of harm is higher than the minimum assigned to the harm of the preceding highest degree of severity.”

I turn to the rival submissions. The claimant recognises that he has not sustained the same kind of physical injury and associated limitations as a person with severe spinal injuries. While the claimant envisages an award at the top of the range for such an injured person, he submits that the cumulative effects (damage) he has sustained justify an award similarly at the very top. This is because “his brain injury seriously limits his ability to engage in relationships, social activity, remunerative and satisfying work, and family life.”

The defendant submits that the “only” essential activity identified was “managing finances without supervision”. While the effect on earning capacity and relationship life is important, the number of activities affected is neither high nor “most of” in Baremo terms. It is acknowledged that the foreseeable duration of the damage to his activities is “relatively long”. The defendant examines each parameter to gauge where in the range it suggests the award should be placed. Since only one essential activity (attending to finances) has been “lost” (seriously impaired), that indicates “the bottom of the range”; the specific personal autonomy activities lost indicates the “middle” of the range; the claimant’s age also indicates the middle of the range.

The court now provides its conclusion. The claimant sustained the injuries at the age of 29. He will live with the impact of the injuries for the rest of his life in differing ways. I regard this as an aggravating feature under article 109. While it is a valid approach to examine each parameter discretely as the defendant does, one must also stand back to view the overall impact on the claimant’s life and the interaction between different manifestations of the injuries. Overall, the “moral damage” sustained by the claimant unquestionably qualifies as “serious damage” in Baremo terms. I bear in mind that there is no realistic possibility of his being able to carry out remunerative work or professional activity and have found that there has been an “absolute” loss. The court has made findings about the interaction between that loss of working capacity and the adverse impact on his sense of self and identity and undoubtedly this also impacts his ability to make and sustain meaningful relationships and the quality and conduct of his social life and personal relationships. I accept his mother’s evidence about the dramatic impact on her son as a person whose life has been transformed for the worse. I judge the impacts on the claimant to be serious and sustained. It was impossible to listen to his evidence without being struck by the depth and degree of the deleterious impact on him. This is a particularly “important’ loss to the claimant in article 109 terms. These are personal development activities relevant to article 54. The defendant has not sufficiently allowed for these complicated interlocking impacts. There is also the agreed loss of ability to attend to his finances without supervision, an essential activity for article 51 purposes. While it may not have the florid and observable physical manifestations of other qualifying activities, it is something we take for granted and is an activity with daily relevance. However, I cannot think that the claimant’s life situation where, for example, he does see friends, although more limited in number, and is able to perform most of life’s daily activities without supervision merits an award at very nearly the maximum amount.

Further, I am not persuaded that there is a route via these articles to make an award for third-party assistance that the other articles of the Baremo prevent recovery of. The key is how a Spanish court would judge this matter. I am clear that the Spanish court would be faithful to the terms of the articles and construe them as providing the basis for an award for the “particular moral damage suffered to the victim” in article 107 terms. There is no explicit provision here, nor any formulation indicated within these particular articles, to compensate for third party assistance and what amounts to consequential loss.

Overall, while the defendant has underestimated the level of award, the claimant has placed it too high. The award range varies by €61,112.40 from bottom to top. I judge that all the impacts together place the claimant at a 75 per cent position within this range. That is an award of €45,841.80 above the lowest limit. The final figure is €86,583.40.

The court will hear further submissions on outstanding consequential matters, including penalty interest under Spanish law (Issue 14), before the final order will be settled. The dispute between the parties on penalty interest will be the subject of a separate judgment.