The High Court in the case of Peter Kelly .v. Groupama was asked to assess damages which the Plaintiff suffered whilst on holiday in Cannes and struck a van, the property of the Municipality of Cannes (insured by Groupama).

The Defendant was the insurer of the van and was sued by directly under the Provisions of the European Communities (Fourth Motor Insurance) Directive incorporated into Domestic Law by Statutory Instrument Number 651 of 2003.

By virtue of Regulation 864/2007 EC, better known as Rome II which came into force on the 11th January 2009 and which introduced general principles applicable to non contractual obligations, the substantive law applicable to the assessment of damages in this case is French Law.

O’Neill J had the daunting task of assessing damages, applying French Law where the Plaintiff had suffered a nasty fracture of the head of the femur where necrosis had led to a total hip replacement for the Plaintiff who was in his seventies.

The Court, whilst bound by having to assess the matter in French Law noted that French Judges enjoyed an unfettered discretion contained within the methodology of assessment of damages and that reference to a Book of Quantum was merely a non obligated practice. The Court heard evidence from a French medical expert who had suggested that general damages would be worth €38,706.00. The Court in exercising its discretion could not subscribe to that view and made an award of €63,500.00 in respect of general damages.

As a foot note, although the Court had an unfettered discretion, it does appear that notwithstanding the fact that the award was higher than the French expert had suggested, it was significantly lower than what the Plaintiff would have enjoyed had the Court been asked to assess the matter in accordance with Irish Law.