Accidents abroad - overviewJurisdiction in foreign accident claims

In everyday practice, an accident abroad will often have occurred during a package or travel contract which is regulated by the Package Travel, Package Holidays and Package Tours Regulations 1992 (the Package Travel Regs), SI 1992/3288. If the Package Travel Regs apply, the claimant will be entitled to a local remedy and the English courts will have jurisdiction.

SI 1992/3288

Outside the Package Travel Regs, the question of jurisdiction is more complicated. There are four different jurisdictional regimes and which one applies depends on the states involved.

The first regime applies if the accident occurred in the EU but outside the UK. The basic rule is that a defendant is entitled to be sued in the state in which he is domiciled. However, an important exception in personal injury claims is that the claimant may also bring proceedings in the country where the harmful event, normally the accident, occurred. Two other situations where the English courts will have jurisdiction are when the defendant submits to the jurisdiction of the English courts by entering an appearance and failing to contest jurisdiction, or where there are multiple defendants and one of the other defendants is domiciled in England and Wales.

Where the first regime does not apply, there are three other possible regimes:

Obviously, there are many parts of the world which fall within the last category. In such cases, the English courts will only have jurisdiction in specific circumstances. Some of the more common ways in which the English courts will assume jurisdiction include:

Choice of law in foreign accident claims

The general rule for all personal injury claims where the cause of action date is after 1 May 1996 is that the law of the country where the accident occurred will apply. The applicable law of the country can only be displaced if it would be substantially more appropriate for another country's law to apply.

Note, however, that although the recoverable heads of damage are identified in accordance with the applicable law, the quantification of damages is normally regarded as a matter of procedure and so is governed by English law.

In situations where the cause of action is before 1 May 1996 the following rules will apply:

Package holiday claims

The Package Travel Regs give a claimant who can prove that he sustained an accident on a regulated package holiday the right to issue proceedings in the UK if he can show that:

A claimant can be either the individual who purchases the package holiday, any person who has the package holiday purchased on their behalf or any person to whom the package holiday is transferred.

The defendant can be either the individual or the company that organised the holiday, the retailer of the holiday or another relevant party to the contract (e.g. the tour operator).

The Package Travel Regs impose a liability on a prospective defendant to perform their contractual obligations. The contract therefore needs to be examined carefully to prove that the claimant's injuries were caused by the defendant's failure to comply or because of improper performance.

The defence of contributory negligence is available. In addition, the defendant can escape liability if they can show that any failure to perform the contract was attributable to a third party for whom they are not responsible.

Road traffic accidents in the EU

A domiciled claimant who is injured in a road traffic accident which occurred in another European member state can issue proceedings against either the foreign third party insurer in an English court or against the defendant driver in the country where the accident occurred. The claimant must obtain details of the foreign third party's insurer's representative in the UK from the Motor Insurers' Information Centre and send this representative a letter of claim. If no response is received within three months the claimant has a right of action against the Motor Insurers' Bureau.