Dr Nicholas Bevan

Dr Nicholas Bevan

Friday, 22 November 2013

England was the correct jurisdiction for an English holidaymaker gravely injured in Western Australia

Stylianou v Toyoshima and another [2013] EWHC 2188 (QB)

This is an interesting case that considers the sort of exceptional circumstance that can justify an English court quantifying a claim that under Rome II would ordinarily fall outside its jurisdiction.

The case facts featured an English national who was rendered tetraplegic in a road accident in April 2009 whilst holidaying in Western Australia.  Proceedings being issued in Australia but which were later stayed. Liability was admitted.

Upon the claimant’s return to the UK she issued fresh proceedings in England.  Her reasons were (i) her condition prevented her from to travelling back to Australia and (ii) that all the remaining issues and evidence concerning her future care and needs lay in this jurisdiction  and (iii) that the lower English discount rate would deliver in real terms a much higher award for her than in Australia.

The judgment is of interest as it considers three issues:

·         Which jurisdiction should apply?
·         Which law should apply?
·         Was the second action an abuse of process, given the advanced state of the proceedings in Australia?

Sir Robert Nelson refused the strike out application and ruled that in the special circumstances of the case, England had jurisdiction.

This case is considered in more detail in Butterworths Personal Injury Litigation Service Bulletin issue 112.

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