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International casualty and travel claims: Continued success for specialist Clyde & Co team

  • 6 April 2021 6 April 2021
  • UK & Europe

  • Insurance & Reinsurance

International casualty and travel claims: Continued success for specialist Clyde & Co team

There have been various recent changes to the issue of jurisdiction in respect of European casualty claims caused by the end of the transition period and the conclusion of the UK’s departure from the European Union. In light of these changes, our international casualty and travel claims team is well positioned to handle claims involving these issues.

Clyde & Co is regularly instructed in international claims with claims handled by specialist lawyers. We act for numerous insurers and travel/tourism sector corporates right across Europe and cover the full gamut of injury claims from low value/high volume, right through to claims of the utmost value, severity or sensitivity.

Our global coverage ensures we can operate to clients’ global SLA, wherever claims occur, ensuring a consistency in delivery, best possible claims outcomes, and lowest possible and overall indemnity spend. This niche specialism sits alongside our existing expertise across the Casualty claims space which covers EL/PL, Motor and Fraud amongst other claims types.

Various examples of our expertise and success in these claims have been set out below.

Spanish cycling success

The Claimant was cycling in Majorca, descending a downhill stretch. The Insured driver, driving in front of the Claimant, slowed with the intention of turning left. The Claimant moved to the left lane to overtake the Insured and as he did so the Insured driver turned left resulting in a collision between the car and bike. The Claimant sustained significant injuries leaving him wheelchair bound.

The Claimant stated the Insured had turned sharply without warning, demonstrating a lack of awareness of the Claimant’s position. We argued the Claimant had been cycling recklessly and was unable to react in time once the Insured indicated. An examination of the Claimant's medical records showed that he had a history of reckless cycling and had been involved in a number of collisions previously.

The Claimant's schedule of loss totalled over £3.1 million with additional heads of loss. Pursuant to the Rome II Regulation, Spanish law applied in this instance and we noted that in some instances it had been disregarded by the Claimant incorrectly.

We were able to quickly identify the liability evidence in our favour and build a strong case around this. This allowed us to provide fully detailed arguments to the Claimant. After a joint settlement meeting, the parties remained a significant way apart in their valuations. However we remained committed to our valuation range and highlighted to the Claimant's solicitor the real and significant liability risk to both sides if the matter was to proceed further. An amicable and favourable settlement was then reached with savings for our insurer client of over £5 million inclusive of costs.

Taxi and pedestrian claim in Spain

The Insured taxi driver collided with the Claimant on a pedestrian crossing. The Claimant suffered a traumatic brain injury and multiple fractures, and required continuing care as a result of her injuries.

Pursuant to the Rome II Regulation, Spanish law applied in this instance. Contributory negligence was agreed as it was alleged the Claimant was severely intoxicated and had crossed the road on a red pedestrian light. Liability was ultimately agreed 60/40 in the Claimant's favour.

Upon considering of the issue of damages, the Claimant asserted that there should be a departure from the Spanish tariff system used to quantify damages (“the Baremo”) due to the significant actual losses and after-care costs. The Claimant submitted the Baremo would under-compensate her and pleaded recital 33 and Article 26 of Rome II as proposition for a full English care package to be recoverable at around £4 million.

Our Spanish law expert helped to provide substantial evidence to support taking a hard line against this position. We established that under Rome II Spanish law should apply and that the Spanish Supreme Court has set a clear precedent that applying one system for the calculation of the compensation of damages implies the necessary application of its rules in its integrity without departing from the system on whatever may not be convenient or favourable to either party.

At a joint settlement meeting we presented our arguments to the Claimant in detail and remained confident that the Baremo should not be exceeded. The Claimant eventually accepted our arguments. We managed to settle within the parameters of the Baremo and negotiate a significant saving of over £9 million on damages for our insurer client.

Waterslide claim

The Claimant was injured at a waterpark in Majorca. The Claimant sustained a spinal cord injury after striking his head on the floor of the pool at the bottom of a waterslide. The Claimant alleged he had fell off an inflatable raft supplied to those using the waterslide in question.

We obtained a report from a local standards expert who confirmed the slide met all legal requirements. Two lifeguards provided statements to say that upon arriving at the reception pool the Claimant dived headfirst into it, despite signs around the pool prohibiting diving and a verbal warning from the lifeguard on duty. Our spinal expert averred that that Claimant's injuries were suggestive of a typical diving injury. He did not see how the injuries could have occurred by an overturning raft as alleged by the Claimant (and supported by three of his friends).

In light of the pandemic, our aquatics expert was unable to attend the site, however he conducted his assessment of the waterpark remotely via a video call with staff members and prepared a favourable report.

The Claimant's schedule of loss totalled £5.4 million with some items to be confirmed. The matter was complicated as the waterpark's policy contained a very limited indemnity of €300,000 per claim. We provided the Claimant with evidence of the financial impecuniosity of the waterpark and the difficulties of enforcement in a foreign jurisdiction. We maintained a denial of liability with reference to the expert reports but made an offer of €300,000 to settle the claim which was later accepted.

The combined efforts of Clyde & Co's Manchester and Madrid teams during lockdown restrictions, obtaining instructions and inventive workarounds, enabled us to obtain compelling liability evidence to support our position and seek a favourable commercial settlement at an early stage, again resulting in significant savings for our insurer client.

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