Bacon v Nacional Suiza Cia Seguros Y Reseguros SA

Early in the morning of 7 September 2007 the Claimant, who was then just twenty-seven years old, and his partner, Laura Wrench, together with other family members departed from Warrington, where they lived and worked, for a holiday in Spain. They flew from Manchester to Alicante. Sadly at about 11.45 pm Spanish time that very same evening the Claimant was struck by a Toyota motor car as or shortly after he had crossed a road as a pedestrian. The accident had tragic consequences. The Claimant was grievously injured and has been rendered paraplegic at the T1/T2 level.

The Defendant is a Spanish insurance company which provided liability insurance to the driver of the Toyota car. The Claimant seeks damages from the Defendant in respect of his injuries. The Claimant is permitted to pursue the Defendant in this jurisdiction because, under Spanish law, he has a direct right of action against the driver’s insurer and, pursuant to the decision of the European Court of Justice in Case C-463/06 FBTO Schadverzekeringen NV v Jack Odenbreit [2007] ECR I-11321 (13 December 2007), the Claimant is entitled to sue the insurer in the courts of the Claimant’s own domicile. The situation is to some extent anomalous – the Claimant could not have pursued an action against the driver alone in this jurisdiction but would have been compelled to sue him in the Spanish courts.

It is common ground that the system of law pursuant to which the Defendant’s liability is to be determined is the law of Spain. The parties are not however agreed as to why that is so. The Defendant says that this result is achieved by application of Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations, usually referred to as “Rome II”. The Claimant says that Rome II is by its own terms inapplicable to a claim for damages arising out of a road traffic accident which occurred on 7 September 2007 in respect of which proceedings were issued before 11 January 2009. This raises an issue as to what has sometimes been called the temporal scope of Rome II. The significance of this issue is that, if the Claimant is right, Spanish law is applicable to the determination of liability by reason of s.11 of the Private International Law (Miscellaneous Provisions) Act 1995. However if Spanish law is applicable for this reason, then on the authority of Harding v Wealands [2007] 1 AC 1 the law of Spain will be of only limited relevance to the assessment of damages. It will be limited to the determination under what heads damages are recoverable. The assessment of the quantum of damages under those heads will be a matter for the law of the forum, thus English Law. If however Spanish law governs the determination of liability by reason of the application of Rome II, then by reason of Article 15(c) thereof, it will also govern “the existence, the nature and the assessment of damage or the remedy claimed”. It is said that the approach of Spanish law to the assessment of damages is significantly less beneficial to the Claimant than is the approach of English law.

On 25 November 2009 Master Eyre determined that there should be tried as preliminary issues firstly the question by which route the law applicable to the determination of liability is Spanish law and secondly the determination of the issue of liability itself. It is those issues which I tried on 29 and 30 June and 1 July 2010 and in respect of which I now give judgment. I turn first to liability.

Evidence on the relevant content of Spanish law was provided by two practising Spanish lawyers, Senõr David Sanchez for the Claimant and Senõr Luis Carreras for the Defendant. Both furnished reports and gave oral evidence at the trial. Unsurprisingly there was very little difference between them in respect of this straightforward area of Spanish law. The matter is governed by Royal Legislative Decree No 8 of 2004 which provides, so far as relevant in the translation with which I was provided:-

“Section 1. Civil Liability

1.

The Driver of a motor vehicle is liable for harm caused to persons or property arising out of traffic by virtue of the risk created from driving a vehicle.

In the case of personal injury, this liability may only be exonerated where it can be proved that the injury was solely due to the conduct or negligence of the injured party or force majeure extraneous to the driving or functioning of the vehicle; defects in the vehicle and the breakage or failure of any of its parts or mechanisms are not considered to be force majeure.

. . .

If the driver and the injured party are both negligent, liability and the share of the quantum of damages shall be fairly adjusted, having regard to the magnitude of their respective wrongdoing.”

It should be noted, as Senõr Sanchez confirmed, that this provision applies only to accidents involving moving vehicles – “traffic” being a translation of “la circulacion”. Liability is strict, but where both the driver and the injured party are negligent, liability is to be adjusted having regard to the magnitude of their respective wrongdoing – “culpa”. The adjustment of liability must be carried out fairly – “la equitativa moderacion de la responsabilidad”. The source of the power of apportionment is thus not expressed in the same manner as in the Law Reform (Contributory Negligence) Act 1945, which refers to responsibility “for the damage” rather than for the accident – c.f. Eagle v Chambers 2003 EWCA Civ 1107, [2004] R.T.R. 9. However it emerged from the expert evidence that the approach in the two jurisdictions is not dissimilar. In Eagle v Chambers at paragraph 16 Hale LJ, delivering the judgment of the court, observed:-

“It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The court “has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon”; per Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801, paragraph 20.”

So too the Spanish approach recognises that in most situations it is the vehicle that has the greater potency or potential to cause damage.

In their joint report the two experts on Spanish law said this:-

“Burden of the proof;

We are both agreed that pursuant to Article 1 of Act 8/2004 the burden of the proof is on the driver and/or his insurers who will have to prove that the driver was driving using the diligence required in the prevailing circumstances and that the pedestrian was at fault.”

The level of diligence required of a driver is commensurate with the risk created by the inherently dangerous activity of driving a motor vehicle in proximity to other road users, including pedestrians. The diligence required of a pedestrian is commensurate with his inherently less dangerous activity. However, that is not to say that in a proper case a pedestrian may not be found entirely responsible for an accident in which he is struck by a moving vehicle. The decision of the Supreme Court dated 27 January 2005, No 25 of 2005, was just such a case. A boy ran out onto the highway in darkness, appearing suddenly in front of a taxi which struck him. The court noted that when a pedestrian is seen in time, a reasonably diligent and attentive driver can usually stop or manoeuvre his vehicle so as to avoid a collision. Nonetheless, the court found that no fault at all could be attributed to the driver and that the “sole effective and originating cause lay with the conduct of the pedestrian who thus caused the accident through his reckless behaviour”. So too in a judgment delivered on 22 February 2010, No 83 of 2010, the Supreme Court again found a “pedestrian” solely at fault. The facts are striking and the Spanish lawyers did not suggest that they were comparable with those which I have to consider. A passenger being driven on a motorway on which pedestrians are prohibited alighted from a car in which she was being driven (which presumably had stopped) at night and crossed the motorway in order to relieve herself, apparently in the central reservation. She was struck by a moving car. The Supreme Court took into account that the driver could not reasonably expect to encounter a pedestrian crossing the road in such circumstances and emphasised that the court must not predicate its apportionment of liability upon requiring the driver to make an impossible manoeuvre which, if made, would have put his own safety in jeopardy. The court must not expect of the driver evasive measures which are simply unrealistic.

I turn to the facts. The Claimant and his partner Laura Wrench had got up at about 2.30 – 3.00 am on the morning of 7 September 2007 in order to catch a 5 am flight from Manchester to Alicante. They travelled with Ms Wrench’s father, his girlfriend and Ms Wrench’s grandparents. The flight landed at 8.00 am local time. The Claimant had some food of some description on the plane but he drank no alcohol. On arrival at Alicante there was some delay associated with car hire arrangements. Ms Wrench’s father drove the party to an area known as the “Urbanizacion Buenavista”, the distance of which from Alicante or its airport is not in evidence. The grandparents were dropped off at a family villa in the Urbanizacion complex. The Claimant and Ms Wrench, her father and his girlfriend then proceeded to the Motel Moseno, which is separated from the Urbanizacion complex by the old N332 national road running from La Marina to Guardamar del Segura in Alicante. This used to be a main highway but as a result of the building of a by-pass some years ago it has been redesignated the N332-a and carries local traffic.

Motel Moseno stands behind Bar Moseno, which is set back a few metres from the road with a parking area in front. As I understand it the party had not reserved accommodation. Ms Wrench and her father’s girlfriend went to inspect the rooms that were offered. Whilst they did so the Claimant and Ms Wrench’s father remained in the bar area. Ms Wrench was unable to say what the Claimant and her father were doing during this period, although she did say that her father had some tapas. It was a hot day and they had had a long journey, attended by some frustration at the airport at Alicante.

After unpacking and freshening up the Claimant and Ms Wrench went to a bistro in the Buenavista complex, where they met the rest of the party, stayed for about an hour and on their own account each had a beer. The Claimant thought that they had had lunch at the bistro. Ms Wrench said that they had not. Fortunately the Claimant has suffered no cognitive deficit in consequence of his injuries but his recollection of the events preceding his later accident was understandably hazy. I think that on this point Ms Wrench is likely to be right.

The Claimant and Ms Wrench and possibly her grandmother were then driven to La Marina by Ms Wrench’s father in order to use a cash machine and to go for a walk. They stayed at La Marina for some time. The Claimant said when pressed in cross-examination that he presumed that they would have stopped in a café for some refreshment but said that as it was hot he would not have drunk beer as it would not have quenched his thirst. I do not find that entirely convincing, but Ms Wrench, for her part, said that whilst in La Marina they had nothing to eat or drink.

After the visit to La Marina the Claimant and Ms Wrench returned to the motel, having first dropped off Ms Wrench’s grandmother at the Urbanizacion. They had a period of rest. Later they had dinner at the motel. The Claimant said that he had had one 330ml bottle of lager-type beer with his meal, which was fish. Ms Wrench in her Witness Statement said that they had each had a bottle of beer with their meal but in cross-examination she said she thought that they had had two beers each. She emphasised that she would not have wanted the Claimant to get drunk, and I accept that that would indeed naturally have been her attitude. At about 8.30 pm the Claimant and Ms Wrench decided to go for a walk on the beach. Ms Wrench was a little reluctant as her sandals were causing her discomfort and it was a thirty minute walk to the beach. However they went. They walked on the beach for between forty-five minutes and one hour and then returned to the bistro in the Urbanizacion complex where the rest of the party were drinking. They each had a drink – in the Claimant’s case a further beer. They then decided to return to the motel. They were tired. They did not wish to stay late drinking. They wished to get up early in the morning. The Claimant cannot remember leaving the bistro and has no clear recollection of events thereafter.

From the bistro to the N332-a, which they needed to cross in order to return to the motel, is about a three-minute walk. Ms Wrench was clear in her recollection that they left the bistro at between 10.45 and 11.00 pm. It was also her evidence that they proceeded without delay or deviation to the road. At that point she stopped to adjust the strap on one or both of her sandals, where there had been uncomfortable rubbing throughout the day. The Claimant knew that she was stopping but he proceeded to cross the road. Where the road from the Urbanizacion complex emerges onto the N332-a there is a service road parallel with the main road. Ms Wrench stopped at more or less the point at which the service road gives onto the main road. Because of the presence of ditches parallel with and at the side of the road it is necessary for a pedestrian coming from the Urbanizacion complex, wishing to approach Bar Moseno, to cross the road in a diagonal direction, at about forty-five degrees. This the Claimant did.

The N332-a is unlit. It was a dark night but visibility was clear and good. Some artificial light emanates from the Bar Moseno and car park area and from the Urbanizacion complex, but essentially the area is unlit. The Claimant was wearing dark navy-coloured three-quarter length trousers and a dark top.

Ms Wrench’s account of the accident in her Witness Statement is as follows:-

“The Sandals on my feet were causing me some discomfort. I stopped at the side of the road to adjust the strap on my sandals again and rub my feet. Rob carried on across the road. I stood up and saw that Rob was in the middle of the road and do remember that he was looking in both directions as I was conscious that we were no longer in England where the traffic travels on the opposite carriageway. The road is long and straight at this stretch and it is possible to see quite some distance. I was still at the side of the road and was about to start crossing when I saw the headlights from a car in the distance travelling down the road that Rob was on. Rob had virtually completed crossing that carriageway when I first saw the light in the distance. I then looked back and saw that Rob had crossed the white line that I could see marking out [of] the carriageway. The car travelling in that carriageway was going very fast. I later recounted to the police that I thought it was travelling in the region of 90 or 100 km/h. There was no other traffic in the area. I do remember hearing very loud music coming from the car that I could hear from the side of the road. Rob had crossed the white line and had turned to face me as he had crossed the road and was now in the car park area, over the white line marking out the road.

I saw the front of the car hit Rob. He was thrown up in the air. The car did not stop. I screamed and ran back the short distance to the bistro and to my father. We then ran to Rob who was lying in the car park to the motel by the side of the road. I do not know who called the ambulance but eventually it arrived.”

In fact the car did stop although Ms Wrench was not to know that. The occupants thought that they must have hit an animal. The driver braked in a normal fashion and came to a halt in a safe place off the road about 50m on. Having inspected the car with the light afforded by a mobile telephone they returned to the scene to see what had happened.

Ms Wrench maintained her account in her oral evidence. She thought that the Claimant had reached the safety of the hard shoulder, or the car park area, beyond the carriageway before he was struck. She thought that the car must have veered off the road before or as it struck him. She did not see the impact – her view would have been impeded by the car itself.

It was no part of the case of Mr Gerard McDermott QC, for the Claimant, that the car had veered off the carriageway. It was accepted that the driver had maintained a straight course along the carriageway. Accordingly, Mr McDermott made it very clear at the outset of the trial that his case was that, in spite of Ms Wrench’s evidence, it was more likely that the Claimant had very nearly completed his crossing of the whole carriageway when he was struck. He repeated that submission in closing. It was, he said, most likely that the Claimant had nearly finished crossing the road. He suggested that Ms Wrench may be confused or mistaken for a number of reasons, including the angle of view and the interposition of the car at the critical moment.

As Ms Wrench recounts the road is long and straight at this stretch. In the direction from which the colliding vehicle was travelling the road is straight for at least 200m before going into a gentle bend to the left, as one looks at it from the area of the Urbanizacion and Bar Moseno. When Ms Wrench first saw the headlights of the approaching car the Claimant had, she said, only two or three steps to go before getting to the hard shoulder. If Ms Wrench first saw the headlights as the car rounded the bend, it still had at least 200m to travel to the point of impact. As I find hereafter the car was probably travelling at a speed somewhere between 80 and 90 kph. At 80 kph this passage would have taken 9 seconds. At 90 kph it would have taken 8 seconds. Either is more than ample time in which the Claimant could have reached a point of safety if at that point he had only two or three steps to go. Looked at another way, at whatever point he was on the carriageway, the Claimant had the opportunity to see the approaching car for at least 8 seconds. The speed limit on this section of the road is 90 kph.

A police report on the accident was completed by officers forming part of the Investigating Unit which attended the scene. It was common ground that I can give the findings set out in this report such weight as I consider appropriate. The driver was breath-tested with negative results. It was his unchallenged evidence before me that at the time he was working as a professional diver and that he had not consumed any alcohol for at least two months prior to the accident. The police found that he had committed no offence. They found that he was “following the route” and they did not find, as the proforma report invited them to find, if appropriate, that he had left the road. The report records the observations of “the professional staff (Emergency Medical Aid Service and Highway Assistance Organisation) who attended the injured Claimant at the scene, that there was a strong smell of alcohol on his breath. A request was made to the hospital to measure the alcohol level of his blood but this could not be done as the Claimant was undergoing emergency surgery. In the course of that surgery the Claimant underwent a substantial blood transfusion, described in his discharge report as “intensive replacement of blood volume” so that subsequent testing of alcohol content was to no effect. It was recorded that the Claimant was wearing inappropriate clothing to walk on an unlit rural road at night – it is a requirement of Article 123 of the Spanish Highway Code that pedestrians should in such circumstances wear luminous or retro-reflective clothing.

There was evidence before me in the shape of an affidavit from a Mr Rives, who was driving a SEAT car in the direction of La Marina at about 23.50. He was therefore travelling in the opposite direction to the Toyota which struck the Claimant. His affidavit, reading in translation, is to the following effect:-

“That the appearing party was driving said car towards the town of La Marina at the time aforementioned, i.e. 23.50, therefore it was night time and said stretch of road did not have any street lighting and the only lighting that there was came from some villas or single-family dwellings of the Urbanizacion Buenavista and some lighting from the restaurant, El Mosano, located on the left side of the road in the direction in which the appearing party was driving.

That the appearing party was driving with dipped headlights and when he was near the place where the restaurant El Mosano is located, i.e. on the left side in the direction that the appearing party was driving as described above and said Urbanizacion Buenavista on the right side, he suddenly saw a young man crossing the road, dressed in dark-coloured clothes, without any reflective clothes or lights, which forced the appearing party to make an evasive manoeuvre in order to avoid running him down.

That even in the few seconds in which he had visual contact with the pedestrian the appearing party was able to notice that he was walking in a strange manner and subsequently learnt that he crashed later on into a car driving in the opposite direction, which the appearing party had passed.”

Mr Rives had for some reason returned to the scene of the accident – possibly because he was returning along this road after dropping off his passenger in La Marina. He told those at the scene of the accident that he had earlier had to take evasive action in order to avoid hitting a pedestrian in the road.

Miss Wrench did not see a car travelling in the direction in which Mr Rives was travelling. On the other hand all three occupants of the Toyota report seeing a car proceeding in the opposite direction very shortly before the impact. Indeed the front seat passenger in the Toyota says that the car coming in the other direction flashed its lights, although that is not recorded by the driver. The driver says that he was on dipped beam headlights as there was a car coming the other way towards him, and that it had its headlights down and so was not dazzling him or causing him to look away. The driver of the Toyota says that the other car passed him as he reached the Bar Moseno and almost at the same time that he passed he felt a bump. He records that he did not even have time to put his lights back up again as the other car passed before the accident happened. None of the occupants of the Toyota report being aware that the oncoming vehicle had made an evasive manoeuvre.

The damage to the Toyota was photographed by the police. It was to the side of the nearside front wing, over the wheel arch, to the extreme nearside corner of the front spoiler and to the door-mounted wing mirror. There was damage on the frame over the front passenger side window and the front passenger could not open the passenger door after the impact. There was some damage to the hood of the bonnet at a point above the wheel arch.

All three occupants of the Toyota gave oral evidence at the trial. The driver was Adrian Cartagena, born on 16 December 1985 and thus twenty-one at the time of the accident. He had at the time held a full driving licence for about four years. He had collected his friends, Abel Zaragozo and Alvaro Rodriguez from La Marina and they were proceeding to a disco in the village of Rojales. They were in no hurry. Abel Zaragozo was just seventeen at the time. He was a passenger in the front seat, although he was for the most part turned round to face Alvaro Rodriguez, who was sitting in the middle of the rear seats. Alvaro Rodriguez was eighteen at the time. They were chatting and there was rhythmical music playing on the radio or CD player, but not at such volume as to prevent their conversation. I regard Ms Wrench’s description of the music as having been “very loud” as an understandable exaggeration. There may have been no other competing noise, and with the car windows open, as they probably were, the music would be clearly audible.

The driver saw nothing of the Claimant before feeling a bump to the side of the car. He thought he was travelling at about 80 kph. Alvaro, in the back seat, put the speed at roughly between 70–80, perhaps 80–85 kph. He possibly saw a shadow out of the passenger side window after the impact.

Approximately 50m from the point of impact in the direction of travel of the Toyota there is a sign indicating the start of a 50 kph speed limit. The driver accepted that “probably” he should at the point of impact already have been slowing down in anticipation of that restriction, but he denied that he was, in consequence, driving unwisely. In the event, with normal and not emergency braking after the impact, he came to a complete halt before the 50 kph restriction sign. The driver was aware that pedestrians do sometimes cross the road in that area, in particular to get from Buenavista to the Bar Moseno or to the car dealer next door.

Mr McDermott naturally made much of the fact that here were “three lads on a night out”, chatting and listening to rhythmical music. He suggested that the driver was driving too fast in the circumstances, that he was insufficiently alert to the possibility of pedestrians in the area, and that he was not paying attention to his driving and in particular not keeping a proper lookout on the road ahead.

As the driver approached the point of impact there was a line of tall, dark conifers forming a dense hedge along what was to him the right hand side of the road. The road was, as I have already recorded, unlit. At about the point to which the Claimant was proceeding there is a substantial concrete culvert marking the end of the ditch where it passes under the hard-standing giving onto the car park. The top of the culvert forms a substantial curb standing proud of the hard-standing. There is also a metal no-entry sign on a metal post at about head height.

I have given the most anxious consideration to the question how, in all probability, this accident occurred. There are naturally some puzzling features about which both counsel speculated. If Ms Wrench is right in her clear recollection that they had left the bistro by 11 pm, how is the lapse of time before the accident to be accounted for? Why did the Claimant set out across the road in the knowledge that Ms Wrench was stopping to adjust her sandal strap? Why did Ms Wrench not see the car driven by Mr Rives, assuming as seems likely that it was the Claimant who Mr Rives saw? Why did the headlights of Mr Rives not illuminate the Claimant sufficiently to enable Adrian Cartagena to see him in the road?

On this last point I think it likely that the interval of time between the two cars crossing and the impact must be longer than the driver and his passengers recall. It is of course only a matter of seconds. However, if the Claimant was, when Mr Rives passed him, on the carriageway and sufficiently close to require avoiding action by Mr Rives, then unless the interval between Mr Rives passing him and the impact was more than momentary, the front of the Toyota must inevitably have hit him. The impact was not to the front of the Toyota. It was to the side, extending at its very extremity to the nearside corner of the front spoiler. The precise location of the point of impact is I think significant.

The Claimant sustained no cranial or facial injury, but despite Mr McDermott’s submission on this point I do not consider that that really assists me in evaluating which way he was facing at the moment of impact. He was thrown into the air, and I do not feel able to draw any reliable inference from the lack of cranial or facial injury as to his direction of motion before this occurred.

I cannot ignore the evidence of the professional staff that there was a strong smell of alcohol on the Claimant’s breath. I think that I should approach this evidence on the basis that such persons could and would, in the context of this obviously important police enquiry, distinguish between a smell of alcohol and a strong smell of alcohol. They would appreciate the significance of that distinction. I regard it as an inevitable finding that the Claimant was to some extent inebriated. I do not suggest that he was drunk to the point of not knowing what he was doing, because that would involve wholesale rejection of his and Ms Wrench’s evidence, which would be unjustified. On the other hand I cannot escape the conclusion that both have underestimated the amount and the effect of the alcohol consumed. Such underestimates are common in many and diverse circumstances. By the time of the accident the Claimant and Ms Wrench had been up for at least nineteen and three-quarter hours, albeit they had had some rest. On any showing the Claimant had had a fair amount to drink and not a great deal to eat. Although it is untested, I see no reason to disregard the evidence of Mr Rives to the effect that the pedestrian he saw was walking in a strange fashion. However, I should make it clear that my ultimate finding as to how the accident occurred would be the same, even if I had concluded that alcohol had not played a part.

I see no reason to reject Ms Wrench’s account that the Claimant had in fact made it to the hard shoulder on the other side of the road before turning to face her. I think that the most likely reconstruction is that, for whatever reason, he stepped back into the road into the path of the oncoming car. In my judgment the point of impact is more consistent with his effectively stepping into the side of the car than of his having almost achieved a position of safety before being struck by it. He may well have recoiled from the ditch, or from the raised concrete culvert, or from the no-entry sign, none of which he may have made out clearly in the dark or have been expecting. His movement back into the road may have been part-stumble, part-lurch, combined with his turning round to face Ms Wrench. He may have decided that he should not have left her to negotiate the road on her own, particularly if he had just had a lucky escape from the SEAT. He may have been momentarily confused as to the direction from which traffic on his side of the carriageway would be travelling.

Anyone who has driven at night along unlit rural roads knows how very difficult if not impossible it is to pick up a pedestrian in dark clothing at the side of the road before one is almost upon him, particularly when driving with dipped headlights as this driver was. Here the difficulty was compounded by the high conifers forming a dense hedge along the road. If, as I think likely, the Claimant effectively emerged from the dark background of these conifers into the side of the car, it is understandable that the driver did not see him. Having seen the driver he struck me as a responsible young man. I was also struck by the careful way in which his front seat passenger gave his evidence. Admittedly I have seen both some two and a half years after the accident. Mr McDermott urged me to regard as unsatisfactory the driver’s evidence in cross-examination to the effect that he could not expect a pedestrian to be crossing the road at this point, whereas in his witness statement he had said that he was aware that pedestrians do cross the road at times to get from Buenavista to the Bar Moseno or to the car dealer which is next door. As so often there was some doubt whether his witness statement reflected his actual experience or a reconstruction of what was likely. As to his oral evidence, I am not sure that he was really saying any more than that he could not have known that a pedestrian would attempt to cross the road at night at that particular time and place. Taking all the evidence into account, I regard the more likely explanation for his not having seen the Claimant before the impact as being that the Claimant stepped back into the path of the oncoming vehicle rather than that he was not keeping a proper lookout. Had the Claimant been completing his crossing of the road from left to right, whilst the Toyota approached at close quarters, I think it likely that the driver would have seen him. The fact that the driver did not see him is in all the circumstances in my judgment more consistent with the Claimant having stepped back into the road than it is with the driver not having kept a proper lookout, even taking into account the fact that there was music playing and a conversation being carried on.

As I have already pointed out the Claimant had the opportunity to observe the oncoming Toyota for at least 8 seconds. Wherever he was on the carriageway when first he had the opportunity to see the oncoming lights, he had the opportunity to achieve a place of safety. It is I think unlikely that the Claimant would have failed to complete his crossing of the road before the Toyota arrived at that point. Mr McDermott suggested that when one sees a vehicle approaching in the dark at a distance of 100m it is difficult to assess its speed. I accept that that is so, but here there was so much time to respond to the oncoming vehicle that I find it difficult to accept the suggestion that the Claimant may have made a simple misjudgement as to the time available to him to reach a place of safety.

I can see no basis upon which I can conclude that the driver was driving too fast. I should add that I do not regard Ms Wrench’s assessment of the speed as 90 or 100 kph as reliable – she is not a driver and would not be able readily to distinguish between 80 and 100 kph. He was within the speed limit and the characteristics of the area called for no reduction in speed.

Having concluded that the most likely explanation for the driver not having seen the Claimant is that the Claimant emerged from the dark background of the conifers, there is simply no sound or principled basis upon which I can conclude that the driver was in any way at fault. There was a hard shoulder, so pedestrians walking along the road did not present a particular hazard to which he had to be alert. He could not reasonably expect that pedestrians dressed in dark clothing would suddenly emerge into his path on a straight stretch of road. Directing myself as I understand a Spanish court would as to the approach to be adopted, my conclusion is that the Claimant was entirely to blame for this accident.

My conclusion on liability renders this issue academic. Since the issue was fully argued before me and in case the matter goes further I propose briefly to express my conclusion. Had I determined that the driver bore some responsibility for the accident, I would have concluded that Spanish law governs the existence, the nature and the assessment of damage, or the remedy claimed because of the applicability of Rome II.

The purpose of Rome II is stated in its Recitals. Recital No 15 reads:-

“The principle of the lex loci delicti commissi is the basic solution for non-contractual obligations in virtually all the Member States, but the practical application of the principle, where the component factors of the case are spread over several countries, varies. This situation engenders uncertainty as to the law applicable.”

That is of course in part capable of being a reference to the position in England as a result of Harding v Wealands, which adopted an approach out of line with that followed in most other legal systems in the European Union – see Andrew Dickinson The Rome II Regulation, Introduction, Section B. Indeed, at paragraph 1.11 of the same work Mr Dickinson describes the decision in Harding v Wealands as “controversial”. Recital No 6 to Rome II emphasises the need “to improve the predictability of the outcome of litigation, certainty as to the law applicable”. Mr McDermott referred me also to Recital No 14, which refers to “the requirement of legal certainty and the need to do justice in individual cases [being] essential elements of an area of justice”. He also sought to suggest that application of Rome II in this case would amount to an injustice. The difficulty I have with that submission is that whenever the law is changed there will be those who will benefit from the change and those who are disadvantaged by it. Sometimes there are transitional provisions, sometimes there are not. Mr McDermott points out that if the construction of Rome II which I have indicated above that I favour is adopted, there is the potential for two claims arising out the same event being subject to different tests to determine the applicable law simply as a result of one claim coming to trial sooner than the other. That may or may not be surprising but I find it difficult to characterise it as unjust when there are so many competing considerations involved. In any event, I have concluded that the Regulation achieves a clear, if arbitrary, result. In what follows I gratefully adopt, without attribution, much of the analysis and legislative history which is helpfully set out in the skeleton argument of Mr Palmer QC and Miss Kinsler.

Rome II has two provisions dealing with temporal scope: Articles 31 and 32. Article 31, headed “Application in time”, provides:

“This regulation shall apply to events giving rise to damage which occur after its entry into force.”

Article 32 headed “Date of Application”, provides:

“This Regulation shall apply from 11 January 2009, except for Article 29, which shall apply from 11 July 2008.”

There is no express provision in the Regulation which defines the date of entry into force. In these circumstances, the date when EU legislation enters into force is laid down by The Treaty on the Functioning of the European Union.

Mr McDermott argues that Rome II does have a ‘date specified in it’ when it shall enter into force, and that that date is specified in Article 32 which provides: “This Regulation shall apply from 11 January 2009”. It is his argument that Rome II entered into force some 18 months after it was adopted and applies only to events (i.e. accidents, in the present context) which occur after 11 January 2009.

I agree with Mr Palmer QC for the Defendant that this argument is simply irreconcilable with the wording of Articles 31 and 32, which refer respectively to the Regulation’s entry into force and the date(s) when the Regulation “shall apply”. This different phraseology is repeated in other language versions:

To English eyes the concept of a difference between the date when an instrument comes into force and the date when it ‘applies’ may seem a little strange. However, the differentiation between the two concepts is well established in the creation of EU Legislative Acts, and has a sensible purpose which is explained in the Joint Practical Guide of the EP, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions (2003) at paragraphs 20.1-20.11. In particular, I note the following paragraphs:-

“20.1.

In legislative acts, a distinction is made, according to the legal effects to be obtained, between the date of entry into force, the date from which provisions are to have effect, and the date of application.

Entry into force

20.2.

Acts of general application enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.

20.2.1.In principle, legislation must give those concerned sufficient time to adapt.

20.2.2.

A distinction must be made between entry into force and application, which do not necessarily coincide. The date of application may be set after – or where retro-application is duly justified – before entry into force.

. . .

Deferred application of regulations

20.10

A distinction is sometimes drawn between the entry into force of a regulation and the application of the arrangements introduced by it, which is deferred. This is done, for example, in the case of regulation which set up common market organisations. The purpose of the distinction may be to enable the new bodies provided for in the regulation (for example, management committees) to be set up immediately and to enable the Commission to adopt implementing measures on which those new bodies have to be consulted.

20.11

Should it prove necessary to defer the application of part of the regulation until a date after its entry into force, the regulation must clearly specify the provisions concerned.

Example:

Article . . .

This Regulation shall enter into force on (the day/nth day following that of its publication in the Official Journal of the European Union).

It [Article N] shall apply from . . .”

This drafting technique is standard and widely used. See, for example, Article 26 of Regulation (EC) No 1393/2007 of 13 November 2007 on the service of documents in the Member States.

Article 28(1) of the Regulation prescribes that the Regulation is not to prejudice the application of international conventions to which non-Member states are parties, which lay down different conflicts rules relating to non-contractual obligations, although it seems to be anticipated (by Article 29) that Member States might withdraw, when they can, from such conventions. Conventions to which Member States only are signatories, on the other hand, are to be subsidiary to Rome II, once Rome II applies.

Consideration of the legislative history of Rome II also demonstrates that the concepts of ‘entry into force’ and ‘application’ were intended in this instrument to be separate, and that it was not intended that the date of application was to be equated with entry into force.

As Rome II was adopted under Article 251 of the Treaty Establishing the EC, now Article 294 of the Treaty on the Functioning of the European Union, the procedure required the Commission to submit a proposal to the European Parliament and the Council, whereafter the proposal would undergo various stages of amendment and approval, prior to adoption.

The Commission’s initial proposal dated 22 July 2003 contained a simple Article 27, which provided that the Regulation should enter into force on 1 January 2005 and apply to non-contractual obligations arising out of acts occurring after its entry into force.

After lengthy consultation, revisions to the text were proposed on 27 September 2004. The sense of the previous Article 27 was preserved, but split into two Articles; Article 27 provided that the Regulation should apply to damages occurring after the entry into force of the Regulation, and Article 27A provided for a specific date to be inserted, on which the Regulation should enter into force.

Further consultation resulted in minor changes to words such as ‘damage’ in Article 27, but a similar draft was still on the table in December 2005.

None of the wordings proposed thus far dealt with the problem of Article 26 (now 29), which imposed a duty on Member States to notify the Commission of the list of conventions referred to in Article 25 (now 28) by a date which preceded the date when the Regulation entered into force; this is the sort of problem anticipated by paragraph 20.10 of the Joint Practical Guide. The problem was addressed at a meeting in March 2006:

“Several delegations considered that the distinction between the date of entry into force and the date of application was confusing. The Presidency pointed out that the date of entry into force brought along obligations for Member States which would have to be fulfilled prior to application (e.g. notification of Conventions).”

The revised wording prepared on 10 April 2006 addressed the issue and produced Article 27, providing that the Regulation should apply to events giving rise to damage occurring after the entry into force of the Regulation, and Article 27A providing that the Regulation should apply from a date 18 months after adoption, except for Article 26 which should apply from a date 12 months after adoption.

It may be noted that Article 27A, version dated 10 April 2006, still retained, in this draft, the old heading “Entry into force”. This must have been simply a slip or error. This was corrected in the next draft, dated 21 April 2006, although again it would seem that, through oversight, the correction was omitted in some other language versions, since the Dutch and Spanish versions of the Final Regulation still have the heading “Entry into force” above Article 32. The text however contains the words “is van toepassing” and “se aplicara a partir del” respectively, i.e. shall apply from.

No further changes of substance were made to the wordings of what were Articles 27 and 27A until they became Articles 31 and 32, with the dates of application (11 January 2009 and 11 July 2008) actually inserted, in the Regulation as adopted on 11 July 2007.

From these travaux préparatoires it is quite clear that the legislature intended that there should be a difference between the concepts of entry into force of the Regulation and application of it. It is simply not possible to contend that the intention of the legislature was to nominate the date(s) of application as set out in Article 32 as being the date(s) of entry into force, when it was clearly necessary to have the Regulation enter into force, and to be in force, well in advance of its date(s) of application.

It follows, in my judgment, that Mr McDermott’s primary argument that Article 32 prescribes that the Regulation enters into force on 11 January 2009 and thus applies only to events giving rise to damage which occur after that date, is simply unsustainable. The Regulation draws a clear and deliberate distinction between two distinct concepts and ascribes to them different effective dates.

Mr McDermott’s alternative argument is that the Regulation should be regarded as inapplicable to legal proceedings which have been started before 11 January 2009. This is, in my judgement, equally unsustainable. It is simply not what the Regulation says. There are no relevant transitional provisions. By contrast, in the Brussels I Regulation (EC Regulation 44/2001 on Jurisdiction and Enforcement of Judgments) the legislators did provide a transitional rule at Article 66 (1):-

“This Regulation shall apply only to legal proceedings instituted after the entry into force thereof.”

Mr McDermott’s alternative argument was adopted as an appropriate suggested meaning of Articles 31 and 32 by the learned editors of Dicey, Morris and Collins on the Conflict of Laws 14^th Ed. in the Second Supplement [2008] at paragraph S35-168. However it found no favour with Mr Dickinson op. cit., who at paragraph 3.319 described it as, although practical, almost impossible to reconcile with the text of the Regulation and its legislative history. I respectfully agree. So, by the time they came to issue their Third Supplement 2009 did the learned editors of Dicey, Morris and Collins – see paragraph S35-168 which now reads:-

“As to Article 32, there is a lack of clarity as to what the Regulation is to apply to as from January 11 2009. It is suggested that in combination, Articles 31 and 32 should be construed, on their present wording, as meaning that events giving rise to damage after August 19, 2007, are subject to the Regulation in circumstances where the law applicable to the non-contractual obligation in question is determined by the court, whether at trial or by way of a preliminary issue, on or after January 11, 2009.”

It is pointed out by Mr McDermott that this recantation occurred only after the accession of Mr Dickinson to the editorial team. That may be so, but Mr Dickinson’s view now carries a notable imprimatur.

Mr McDermott’s suggested construction would bring with it its own problems, since there is no uniform approach within the European Community to the question when proceedings are deemed to be instituted or commenced.

Mr McDermott also points out that the result of adopting the construction which I favour has been described by Sir Richard Plender and Mr Michael Wilderspin as “quite absurd” – see The European Private International Law of Obligations, paragraph 17-018 which at footnote 48 contains a collection of other epithets: “bizarrerie” (Legier); “alarming” (Wilderspin) and “an unsatisfactory muddle” (Dickinson). He also prays in aid an article by Alexander Bucken of Cologne University (IP Rax vol 2 pp 125-128) in which he too advocates assimilating the date of application and the effective date. However it appears to me that at least two of these commentaries (Plender and Wilderspin and Bucken) proceed from the premise that the legislature during the legislative process either overlooked or was unaware of “the delineation between the two notions”, i.e. entry into force and date of application. That does not seem to have been the case.

Finally Mr McDermott prayed in aid an observation by the Bundesgerichthof in Xa Zr 19/8 to the effect that the Rome II Regulation “is to be applied to events causing damage which have occurred since it came into force on 11 January 2009 (Articles 31 and 32 Rome II Regulation). This is, of course, obviously correct whether the translated words “came into force” refer either to “entry into force” or to “date of application”. Before I drew any conclusions from this passage I would wish to be sure that the translation had been rendered with the distinction between “date of entry into force” and “date of application” in mind. The Court does appear to have been concerned in part with contracts concluded “before the effective date of the Rome II Regulation” – see paragraph 22, and the action was apparently begun in September 2006 – see again paragraph 22. However the statement cited of itself tells one nothing about the possible application of Rome II to events causing damage which have occurred before 11 January 2009. There is no discussion of why the “effective date” is to be regarded as 11 January 2009 rather than 20 August 2007.

The Rome II Regulation is directed at the Member States and their courts. It directs those States and their courts that as from 11 January 2009 the law which they shall apply to a non-contractual obligation arising out of events giving rise to damage occurring on or after 20 August 2007 shall be as prescribed by the Regulation. Since the court has been required to determine what is the applicable law at a hearing taking place after 11 January 2009, the court is obliged to apply the provisions of the Regulation. I therefore conclude that Spanish law is here the governing law by reason of the application of the Rome II Regulation.

Mr McDermott had a final argument to the effect that application of the Rome II Regulation would deprive the Claimant of an accrued right. I do not consider that this argument could avail him. The Claimant’s substantive accrued right was a cause of action in Spanish law. Insofar as at 7 September 2007 the Claimant had a right to have his damages assessed in accordance with English law, that was no more than a right to avail himself of the prevailing procedural rules of the English court. It is in the nature of procedural rules that they are liable to change. The Claimant has, on this hypothesis, been deprived of no accrued substantive right.

Since preparing this judgment I have had the advantage of reading the judgment of Slade J in Homawoo v GMF Assurance SA [2010] EWHC 1941 (QB) delivered on 27 July 2010. In that case the accident occurred in France on 29 August 2007. Proceedings were commenced by issue of a Claim Form on 8 January 2009. It is not clear when it was served. On 10 March 2010 judgment was entered for the Claimant for damages to be assessed. Slade J was asked to determine whether the Rome II Regulation applied to the claim. She expressed no concluded view on that question, deciding that it was necessary to refer the matter for determination by the European Court of Justice. Her preliminary view was that there is no warrant for interpreting “shall apply from” in Article 32 as either applying to proceedings commenced after 11 January 2009 or as applying to a determination by the court after 11 January 2009. She concluded that the clear language of Article 31 precludes application of the Regulation only to events giving rise to damage which occur on or after 11 January 2009 unless the ECJ determines that that is indeed the proper interpretation of the Regulation.

Slade J also discussed the opportunities for tactical manipulation of legal proceedings, considerations which were ventilated before me. Whatever may have occurred in the interval between 20 August 2007 and 11 January 2009, there is of course no scope for any further tactical manoeuvring. No tactical manoeuvring took place in the present case. In this case the Claim Form was issued on 27 August 2008, shortly before expiry of the Spanish one year limitation period. No effort was made to serve it until after 11 January 2009.

The difference of opinion between Slade J and myself is therefore quite slight. I share her view as to the unsustainability of an interpretation of Article 32 that it applies only to proceedings commenced after 11 January 2009, and I equally share her view as to the clarity of the language of Article 31 on the face of it precluding application of the Regulation only to events giving rise to damage which occur on or after 11 January 2009. I also understand her point that parties engaging in settlement negotiation need to know whether Rome II applies to the calculation of damages at issue and that Rome II cannot only apply where legal proceedings have been commenced or are determined by a court. There may have been uncertainty before 11 January 2009. However just as there is no scope for further tactical manoeuvring, so in my judgment there can be no scope for uncertainty now. If compromise cannot be achieved resort must be had to the court. The court is directed to apply the Regulation.

Since in the present case I have concluded that the point does not arise, I have naturally considered whether any purpose is served by my expressing my own view. If the matter is to be referred to the ECJ in any event, there will in due course be an authoritative determination. However the reference may not proceed – the action may be compromised. Out of deference to the arguments of counsel, and since my conclusion on liability may be taken further, I have decided that, having come to a conclusion on a point fully argued before me, I should express my view, which is that the Regulation achieves a clear, if arbitrary, result. Even if the point had arisen this is not a court of last resort. The question whether the matter is acte clair does not therefore arise – cf CILFIT v Ministry of Health of Italy [1982] ECR 3415 at 3430, paragraph 16.