International Injury partner Chris Deacon spoke at the World Law Congress panel on tourism and personal injuries on 20 July 2023. More than 2,000 worldwide leaders gathered at the congress to discuss current matters that the legal world should address, with heads of state, chief justices, justices, judges, academics, notaries, registrars, lawyers, law students and jurists sharing a single forum.
Chris’s address is summarised here.
What does the return of tourism mean for international injury law?
Global tourism has returned with a vengeance following the worldwide Covid-19 pandemic. The Office for National Statistics estimates that the UK received over 31 million overseas visitors in 2022. UK residents meanwhile made an estimated 71 million visits abroad in 2022, most frequently for holidays.
Every year, thousands are injured abroad. Those involved in life-changing incidents while travelling face added challenges with access to justice in a cross-border context. Those challenges have increased following Brexit.
One of the greatest advantages of the European regime on judicial cooperation in civil and commercial matters (the Brussels Regulations and the Lugano Convention) is its additional safeguards for weaker parties to a dispute on the question of jurisdiction and enforcement of judgments from proceedings brought in the courts of an EU member state in reliance on the European regime.
A serious injury victim can rely on the special jurisdiction rules to pursue a claim for damages in their home court against a defendant domiciled in another EU member state in the following circumstances:
- Pursuing an insurer directly where such a direct right of action is permitted. This is notably the case for all EU motor accidents and some claims against hotels or other tortfeasors in a tourism context.
- Pursuing a claim against the other party to a contract if injured while enjoying services provided as part of a consumer contract. Common examples include holiday accommodation, excursions or activities.
- More easily joining an EU-based defendant to proceedings against a co-defendant based in the member state whose courts are seised of the action.
- Enforcing a judgment in any EU member state arising from proceedings brought pursuant to the European regime on jurisdiction.
What effect has Brexit had for UK travellers?
The additional protections provided by EU membership have been lost in the UK, making access to justice for British tourists injured in the EU27 member states considerably harder. We have attempted to import consumer and employment contract jurisdictional protections into UK domestic law, but the rules on jurisdiction and enforcement must now be examined on a case-by-case basis. This increases costs and causes additional delay in individuals pursuing a claim for damages, often when they have urgent rehabilitation, care, medical treatment and accommodation needs following serious injury abroad.
The UK’s re-accession to the Lugano Convention would plug some of the gaps that Brexit has created in access to justice for cross-border injury victims, but the EU has indicated it is unwilling to permit the UK’s re-accession to Lugano. This has the biggest impact on individuals, as commercial parties have the resources to find alternative dispute resolution routes and benefit from the Hague 2005 Convention on Choice of Court Agreements, which specifically excludes consumer contracts.
There have been continued efforts at the Hague Conference on Private International Law to introduce new multi-lateral treaties in the field of enforcement and jurisdiction. The Hague Judgments Convention 2019 will go some way to assisting cross-border injury victims. However, it has significant limitations for injury victims seeking to enforce a judgment from the English courts in a claim for damages following an injury overseas.
The biggest issue post-Brexit, therefore, is perhaps less whether the English courts will accept jurisdiction and more a question of whether the courts of the country where the victim then seeks enforcement of the English judgment against the defendant will recognise that judgment. This was always a feature in serious international injury cases brought against non-EU defendants pre-Brexit. It is now a concern that has extended to the EU and has to be addressed on a case-by-case basis for an additional 27 countries, many of which are visited frequently by British tourists. Brexit has brought about a seismic change to the UK’s private international law landscape and is directly impacting access to justice in tourist-related personal injury claims.
What can British tourists do to stay safe abroad??
One option for British tourists is to book a regulated package holiday. This imposes liability on UK-based tour operators for any non-compliance that occurs while the holidaymaker is enjoying services forming part of the package holiday contract.
British holidaymakers are well-advised to ensure any holiday excursions are booked before travel as part of the package holiday or alternatively rely on the consumer contract basis for jurisdiction in the UK. This is easier when the excursion is booked from the UK before travelling overseas.
If a holiday activity is priced at £100 or more, the holidaymaker should use a credit card as additional protections are available under the Consumer Credit Act. This enables the cardholder to seek redress from the credit card provider for the negligence of the supplier of services booked and paid for using a credit card.
UK-US overseas injuries
For UK victims injured in the US, access to justice via the courts may be reasonably straightforward, with the contingency fee basis for funding a claim offering flexibility and minimum risk for the victim of a serious injury. The best results in these cases often come from collaboration and sharing of risk between lawyers based in the victim’s home jurisdiction and the place the claim is being brought (be that a UK victim injured in a US state or a US victim injured while visiting the UK).
The most common surprise for Brits travelling to the USA is the sometimes low levels of insurance available, particularly for motor accidents because in the UK there is unlimited insurance for bodily injury claims and a guarantee fund, the Motor Insurer’s Bureau, if a vehicle is untraced or uninsured.
For US victims injured in the UK, it is important to explore all options for pursuing a claim as often the victim will secure a more favourable outcome by proceeding in the UK, where costs are recoverable in addition to damages. While enforcement of a judgment between the US and the UK ought to be more straightforward and certain than it is now between the UK and each individual EU member state, as things stand and pending further international legal instruments, enforcement proceedings can still delay victims in securing much-needed compensation. Such risk, delay, uncertainty and additional cost must be considered when advising victims of international tourism accidents. And when considering the steps we can take through international cooperation and law-making to ensure the best access to justice for vulnerable injury victims and weaker parties to disputes.
Conclusions and further reading
A more concerted effort is required internationally to ensure there are reciprocal regimes on jurisdiction and enforcement to enable those seriously injured while travelling overseas to bring a claim in their home courts.
The rules of the English courts on jurisdiction are sufficiently flexible to enable the victim of a serious accident overseas to bring a claim in their home courts on their return to England. This is under the tort gateway. The wide interpretation of the concept of “damage” enables a victim of an accident overseas to bring their claim in England on the basis that the ongoing damage (be that pain and suffering or ongoing and future financial loss) is sufficient to establish damage is being sustained in the jurisdiction of England and Wales. The UK Supreme Court decision of Brownlie  explains further.
The English approach is different to the narrower concept of damage under the European regime, where the damage essentially means the originating accident. This must have occurred in the jurisdiction where proceedings are brought unless the victim falls within one of the special jurisdiction categories under the European regime.
While international conventions, including Montreal for air travel and Athens for carriage by sea, will still apply, a tour operator’s liability when providing a package holiday will extend to, for example, liability for an accident while the holidaymaker is at the accommodation forming part of the package holiday. The most recent and seminal case on tour operator liability is X v Kuoni, handed down by the UK Supreme Court in the summer of 2021.
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