A RETIRED Dublin man who was injured in a traffic accident in France has been awarded some €88,000 in the first case where an Irish court assessed compensation under the laws of another EU state.
Peter Kelly (75), Sandford Road, Ranelagh, Dublin, sued French- domiciled insurer Groupama over an incident in which a Cannes municipality van hit him as he was crossing Traverse de la Tour, a lane in Cannes, while on holiday there on June 16th, 2009.
He suffered a fractured hip which, while not requiring immediate surgery, subsequently deteriorated and he had to undergo a total hip replacement operation less than two years later.
Groupama accepted liability and successfully argued in the High Court here that French law should be applied in assessing damages as provided for under a 2009 EU regulation harmonising laws of member states in relation to non-contractual matters.
The Rome II regulation allows certain cases to be fought in a person’s home country even where the applicable law is that of the State where the event at issue occurred.
Awarding Mr Kelly €88,167 yesterday, Mr Justice Iarfhlaith O’Neill noted that the French courts, as a matter of practice, used a book of quantum made up of previous awards in other courts there so as to ensure awards were consistent throughout France.
Despite that, he was satisfied the amount of compensation that could be awarded by a French court was still a matter of judicial discretion.
While the book of quantum was a tool or guide, it did not fetter a judge in deciding what the amount should be.
The Irish court could also have regard to the level of compensation awarded under our laws, he found.
In this case, Mr Kelly had been very active before the incident, having played tennis, cycled, hill-walked and engaged in normal physical activities around his home, including gardening, the judge said.
Since the incident he had had to give up cycling and tennis, and was limited as to what he could do concerning the other activities.
In assessing damages, the judge applied the methodology and headings under which a French court would make its award, including permanent loss, pain and suffering and aesthetic injury.
Under the various headings, using the French book of quantum, Mr Kelly would be entitled to €38,506, but, in this case, the appropriate level of award for all these matters was €63,900, the judge ruled.
The parties had already agreed special damages of €24,267, bringing the total award to €88,167, he noted.
The judge also granted the insurer leave to appeal his decision on condition it paid out €60,000 to Mr Kelly.