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Suffering an injury abroad can be a difficult situation to find yourself in for a number of reasons. 

It can be difficult to ascertain whether making a claim against the liable party would be worth the hassle. Furthermore, the ambiguity surrounding the place of trial and law applicable can make this task even more daunting. Thankfully, the EU has recognised this issue within their jurisdiction. In 2015, 86% of all European citizens decided to go on holiday in another European country. This leads to a certain inevitability that a number of these holiday-makers will unfortunately suffer an injury through no fault of their own.

As mentioned above, there are two questions that must be answered when deciding whether to bring a claim against the person responsible: -

• 1.In which jurisdiction do I make my claim?
• 2.What law is applied?

The answers to the above questions depend on the type of injury suffered and the method of booking the holiday.

Rome II Regulation

The European Union introduced the Rome II Regulation in 2007. The purpose of this Regulation was to ensure that harmonised protection was afforded to EU citizens in circumstances where personal injuries have occurred in a foreign EU jurisdiction through no fault of the claimant and are not related to a contractual issue. This Regulation strictly covers civil issues such as Tort which is the basis of a claim for the clear majority of personal injury claims. This Regulation sets down homogenous procedures to be followed by each European county.

Article 4 of this Regulation provides the rule that in circumstances where a tort occurs in a foreign country the law applicable to the country where the event occurs is the law to be used in the courts. This rule may be revoked in two significant ways: -

• 1.The two people involved in the tort are both habitually resident (explained in Article 23) in the same foreign country
• 2.Where it is unequivocal that the tort is manifestly more closely connected to another country (forum convenience). This can be established through indicators such as witness location, previous/existing relationship between the parties, etc.

Article 5 of this Regulation covers Torts that arise out of a defective product and sets out guidelines to be observed when deciding where the case should be heard. The main point of focus here is where the product is marketed. The following rules generally apply here: -

• 1.If the product is marketed in the country where the victim is habitually resident at the time of damage occurring, then the case may be taken in this country.
• 2.Failing the above, if the product is marketed in the country where it is acquired this shall become the governing law.
• 3.Failing the above, if the product is marketed in the country where the damage occurred this shall be the governing law.

It is worth noting that the above proviso regarding manifestly closer connections to different countries may also apply in this situation.

Although the above articles are the main sources of dictation regarding law applicable and choice of court, it must be noted that the parties can reach an agreement to override the above provision by mutually deciding where the case should be heard and what law should be applied. This is provided for in Article 14.

Package Holiday Directive

The European Union, in an attempt to harmonise the law surrounding package holidays, introduced the Package Holiday Directive (90/314/EEC) in 1990. This has since been repealed and replaced by an updated Directive (EU/2015/3202). Although this Directive predominantly functions as an instrument for ensuring compliance with contracts it may still be utilised as a mechanism for personal injury cases in certain circumstances.

This Directive applies to all package holidays that meet the following criteria laid down in Article 2: -

• 1.It must relate to package or linked travel offered by a trader to a traveller
• 2.The travel must last longer than 24 hours unless overnight accommodation is included
• 3.It must not be on a not-for-profit basis to a limited group of people
• 4.It must not be an agreement between two people (natural or legal) where the purpose of travel is for business

The Package Holiday Directive is primarily employed in situations where a traveller has suffered a personal injury as a result of a defective form of transport (usually in this circumstance it will be a car) that was hired as part of the package. This instrument can be invoked as a contractual issue for failure to provide non-defective products against both the trader offering the package travel and the company supplying the vehicle. 

*Irish solicitors may not calculate fees or other charges in contentious business as a percentage or proportion of any award or settlement nor is it our practice to do so.