Claiming for an Accident Abroad

23rd May 2010
Claiming for an Accident Abroad image

Claiming for an Accident Abroad

If you are going abroad on holiday, be safe and have a nice time. However sometimes things do go wrong. If you are injured abroad, or your holiday is ruined in some other way, there is a possibility, depending on the circumstances, that you might have redress through the Courts in this country after you get back.

There are three general categories of accidents abroad, eg:

  • “Package Holiday” accidents;
  • accidents for which someone domiciled in England and Wales is responsible;
  • accidents for which a foreign national is responsible.

If you were on a “package holiday” booked from this Country then it may well be covered by the provisions of the Package Travel, Package Holidays and Package Tours Regulations 1992 as amended. The Regulations define what the “package” element must include. (Generally it means an arrangement which includes transport and accommodation.)

Many accidents whilst on package holidays involve part of the “package”,
eg

  • accidents because of the defective state of the accommodation, or
  • food poisoning from meals in the hotel restaurant or
  • injuries in transit / on transfers.

If the tour operator has not properly discharged its obligations under the contract, then the Regulations provide that the tour operator may be held liable.

If the Regulations apply, then proceedings can be brought in England and Wales. Generally the effect of the foreign law and foreign limitation periods is not relevant, although there are exceptions. (For example, in one leading case a holiday maker tripped and fell through a plate glass window suffering multiple injuries. The plate glass in the window conformed to local building regulations but would not have met British Standards. In that case the Court held that the tour operator had not been negligent.)

Do bear in mind that not all “package holiday” accidents abroad will be covered by the “package holiday” Regulations.

If the Regulations do not apply, then look to see if any of the following apply.

Firstly, did the accident involve another person from England and Wales?

Examples might include the following:

  • Someone working overseas for a British company injured in the course of their employment;
  • Someone injured through the negligence of a travel companion, as for instance whilst travelling as a passenger in a car driven negligently into a collision by the travel companion.
  • Someone injured by the negligence of a third party who just happens to be from England and Wales. (It is certainly not unheard of, especially in those foreign parts which are popular with tourists from the UK.)

In these cases, provided at least one of defendants is domiciled in England and Wales, then the Courts in England and Wales will have jurisdiction. However, as a general rule, the relevant law that will be applied will be the foreign law. This is because the Private International Law (Miscellaneous Provisions) Act 1995 provides that (generally) “the applicable law is the law of the country in which the events constituting the tort in question occur”.

This can have important implications, because the foreign law might provide remedies for the Claimant which are different to those generally available in England and Wales.

Furthermore, by the Foreign Limitation Periods Act 1984 the relevant limitation period (ie the time in which the case is to be settled or proceedings begun) will be the foreign limitation period, which may be different to that laid down in England and Wales.

As with all things, there are exceptions to these rules, and whether or not any of the exceptions will apply will depend on the specific circumstances.

The second scenario is an accident in which the only defendant is a foreign national. In these cases proceedings will generally need to be brought overseas, possibly in the country where the accident occurred or possibly in the country where the foreign national is domiciled, if different.

It is also worth bearing in mind that there are specific rules governing claims arising out of accidents in the air and at sea.

The international carriage of passengers, baggage and cargo by air is largely governed by a series of Conventions dating back to the Warsaw Convention 1929. There have been several amendments to that Warsaw Convention. The most recent Convention is the Montreal Convention 1999. It is however important to note that not all nations have ratified the Montreal Convention. Indeed some have not ratified all the subsequent amendments to the original Warsaw Convention, so different rules and interpretations may apply depending on the nationality of the airline. The importance of the Montreal Convention (or Warsaw Convention) is that it sets limits on the amounts of compensation which may be awarded. Those limits have recently been increased in the UK by the Carriage by Air (Revision of Limits of Liability under the Montreal Convention) Order 2009. However, if you are flying with a foreign cut-price no-frills airline you might not be entitled to the same amount of compensation you might have received with a UK airline.

The corresponding provisions governing the carriage of passengers and their luggage by sea are laid down by the Athens Convention, which is applied in UK law by the Merchant Shipping Act 1995. Here it is important to bear in mind that the limitation period for personal injury claims is two years. Moreover proceedings may have to be brought in the Admiralty Division of the High Court, not the County Court.

Remember, however, that as Claimant, whatever the circumstances of the accident, the burden of proof rests with you. Given that your witnesses might be overseas, you should make certain that you make a careful note of their names and contact details.

If they are willing to make statements at the time supporting your case, so much the better.

You should also ensure that they include within their statement declarations to the effect that the statement is “true to the best of {their} knowledge and belief” and that they make it “knowing that it will be placed before the Court and relied upon as {their evidence} when the case is heard.”

It would also be prudent to take photographs.

On the basis that a “picture saves a thousand words”, the best photographs are those that enable you to explain what happened. They need to explain both the context and the scale of the accident. (For instance, if it was a tripping accident, can you calculate the depth of the trip from the photograph? If in doubt put something like a coin into the picture in proximity to the trip.)

If you want advice on an accident that has occurred abroad then please ring Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com


Who Will You Be Entrusting With Your Conveyancing? image

Who Will You Be Entrusting With Your Conveyancing?

WHO WILL YOU BE ENTRUSTING WITH YOUR CONVEYANCING WORK?  THE CHOICE IS YOURS!

Are the selling agents or perhaps the mortgage broker pushing or trying to persuade you to use a particular conveyancing firm? If so, we would strongly recommend that you ask the following pertinent questions so that, armed with all relevant facts, you are better able to make a reasoned decision:-

Why?

Are the agents receiving a kickback or referral payment from the firm concerned? Using a firm in cahoots with an estate agency inevitably leads to a potential conflict of interest. Will such firm be working in your best interests or simply those of the introducer? Here at Maples we pride ourselves on being completely independent and we consider the idea of a referral fee both abhorrent and unethical. We much prefer to obtain our work based on past performance and recommendation.

How Much?

Do not be misled by a seemingly attractive basic figure initially quoted but be sure to enquire about and read the small print for add ons for so called “extras” (such as mortgage costs, preparation of a stamp duty land tax return, telegraphic transfer fees and the like) which suddenly spring up at a later date and only become apparent in the firm’s final statement. Ensure that you are comparing like for like. Here at Maples, we give you a complete and all inclusive rundown of our professional charges and all disbursements at the outset, with no hidden extras.

Where?

Is the firm local or, as is more likely, based in a completely different part of the country? If the latter, then the transaction will, without a doubt, be dealt with by post, phone or email and lack any personal contact. Here at Maples we are fully accessible, like to meet our clients to discuss and advise upon the transaction face to face and share with you the benefit of our wealth of local knowledge and experience.

Who?

Will you actually be aware as to who will be dealing with the matter for you or will you simply be a reference or matter number at the end of a phone in a firm dealing with volume conveyancing? Here at Maples, you will be assigned to your own experienced and dedicated conveyancer who will be responsible for and deal with the transaction for you from beginning to end, with a high level of personal service throughout.

Making a hasty and bad appointment could seriously prejudice or delay your transaction and cost you dearly. Getting honest answers to these four simple questions at the outset could make all the difference.

To discuss any Conveyancing matters please contact either Claire Smith or Anita Zaborniak of our Conveyancing Team or telephone the office 01775 722261.

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Testimonials

Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

Daven Naghen LLB

"I felt the service I got from Maples was excellent and was very honest all through the process. I would recommend Maples as a first class Solicitors group"

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

This is the second time we have used Mike Pepper at Maples Solicitors in the sale of our house. We cannot praise Mike enough for the highly efficient and professional service that he has provided us with. He is by far the best solicitor we have ever worked with, and the service that he has provided us with has gone far and beyond anything we have ever experienced. We have found the whole process to be a very relaxing experience.

Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!

Anita Zaborniak

We found it a pleasure to deal with Anita Zaborniak, she was most helpful and informative and kept us up to date with the progress of the purchase of our new home. If we were to move again we wouldn’t hesitate to use Maples again.