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”,

  • 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

Dementia Friends image

Dementia Friends

Maples Solicitors are proud to announce that they have now joined to become Dementia Friends which is an Alzheimer’s Society initiative.

The private client department of Maples Solicitors prepare Wills and Lasting Powers of Attorney on a regular basis and this often involves dealing with clients who are suffering from dementia. The private client team pride themselves on spending as much time as is necessary to assist all of their clients, but those suffering from dementia often require additional assistance and time to ensure that they have fully understood the legal documentation that they are creating. The private client department are regularly complimented on the way they deal with such clients, whether this be explaining things to them in a clear and uncomplicated manner, spending time with them or putting them at ease.

It is a misconception that anyone suffering from dementia cannot make a Will or Lasting Power of Attorney. Only if someone lacks sufficient mental capacity are they unable to make such a document. It is therefore vitally important upon any diagnosis of dementia that legal advice is taken as soon as possible to make sure that your affairs are in order so that it is easier for your family to deal with your affairs if you are unable to do so yourself.

To become Dementia Friends, Maples Solicitors have pledged to develop their understanding of dementia and continue assisting clients suffering from dementia with their legal affairs in a respectful, friendly and efficient way that is not daunting making the process as easy as possible.

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