Brexit to Brownlie - Changes to Claiming for Accidents Abroad

Author:
Darrel Jardine
Associate Solicitor, Holiday Claims
Date:
04/04/2022

2021 saw big changes to the way residents of England and Wales can recover compensation following accidents abroad. Especially with accidents that occurred outside of the scope of the Package Travel & Linked Travel Arrangements Regulations 2018.

 

Brexit

 

The general rule is that if an accident occurs abroad, a claim can be brought within the court system of the country the accident took place. Chasing a case in any foreign court is not simple, and foreign law carries with it uncertainty: language barriers, court attendance and costs to name a few.

The UK’s membership of the EU allowed many exceptions to the general rule. For example, a road traffic accident which happened to a British resident whilst in Spain, could be brought to a court in the U.K. However, since 31 December 2020, this is no longer the case.

It was hoped that some of the previous legislation could have continued, but unfortunately this was no longer possible, now leaving UK residents unable to pursue their claim in this country. Or are they?

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The Brownlie Case

 

It has been a possibility for accidents abroad to be brought through the English Courts against foreign Defendants, under English Common Law. Meeting the criteria for a successful claim has, however, been very difficult. 

That was until a case which occurred in October 2021, when a judgment in the Supreme Court of England and Wales changed things. This case meant that making a claim much more achievable, meaning that more claims for compensation following foreign accidents might now be chased in this country than when the UK was in the EU.

In the case of Lord and Lady Brownlie, Lord Brownlie’s daughter and her two young children were on holiday in Egypt in 2010, when they were involved in a horrific road traffic accident. Lord Brownlie and his daughter lost their lives, and Lady Brownlie suffered significant injuries.

Their driver was found liable for the accident, who was employed by the hotel where the Brownlie family were staying. After years of legal disputes, the case was finally heard in the Supreme Court in 2021. One of the main issues however was whether or not there was a strong enough connection between the circumstances of the case and the jurisdiction of England and Wales.

Because of this, the Supreme Court explained their legal position on the matter: if a resident of England and Wales is injured abroad and suffers some damage (physical or financial) in this country, then they can still bring their claim in England and Wales. There was no limit placed on the value of damage, and no detailed explanation of what “some” means. Therefore, it seems that this decision has widened the opportunity for making a claim for accidents abroad, including in EU countries.

 

What Does This Mean for the Future?

 

This decision means that anyone who is injured abroad but recovers here (e.g., seeks medical treatment, undergoes surgery or therapy) can bring a claim here. Likewise, anyone who suffers a loss of earnings through time off work, or requires paid or unpaid care & assistance, could also claim for it here.

The Brownlie decision is new, and there will be more discussions to determine how it can be applied in fairness to both Claimants and Defendants. Furthermore, it looks possible for this decision to fill the void left by the UK leaving the EU.

Like all claims, there are of course many considerations; how likely you are to succeed under foreign law, costs, and the recognition of the judgment of the English court in the Defendant’s home jurisdiction.

If you have any questions, or have recently been involved in an accident abroad, get in touch with our expert Travel Law team today.

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