The Dekagram: 5th January 2026

In this special Welcome Back edition of the Dekagram, Kerry Nicholson takes a deep dive into applicable law, and in particular a rare case decided under Article 4(3) on Rome II. We hope you enjoy the first update of the year!

Court of Session provides guidance on Applicable Law under Rome II

Towards the end of last year Popa and others v XDP Limited [2025] CSOH 119 came before the Court of Session in Scotland for a determination about whether English or Scottish  law applied under Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). It related to the death of a lorry driver in a road traffic collision in the course of his employment, driving HGVs from a depot in Skelmersdale, England, to a depot in Cleland, Scotland.

Factual Background

The relevant facts were agreed between the parties. The deceased, Mr Popa, was a Romanian national. He had been living in Liverpool since December 2019. The pursuers of the claim were his wife and son, who lived in Liverpool, and his parents, who were Romanian nationals living in Romania. The defenders were a private company registered in England. Mr Popa had been an agency worker for XDP driving HGVs, and then subsequently signed a contract of employment with them. His recorded his place of work was XDP’s Skelmersdale depot. He had been trained in England. The only route he drove was from the Skelmersdale depot to the Cleland depot in Scotland.

On 29 January 2022, Mr Popa turned up for work at the Skelmersdale depot and started his shift. There was a yellow weather warning in place, citing strong westerly winds crossing Scotland. Mr Popa set off with in HGV with a trailer that was lightly loaded, rendering it liable to be affected by high winds.  On the course of his journey on the M74, Mr Popa noted that his vehicle was being impacted by the high winds, so he slowed down to between 50 and 55 miles per hour. However, the HGV was increasingly affected by the crosswinds. It tipped over and crossed the barrier into southbound carriage way, where it was struck by oncoming vehicle. The Scottish emergency services attended the scene. Sadly however, Mr Popa sustained a head injury which was not survivable. Police Scotland investigated the accident. There were several crosswind warning signs on M74 northbound near the accident locus.

The Pleaded Case

The pursuers brought a claim in common law negligence against XDP. It was averred that there was no transport manager on site when Mr Popa left, that the route subject to Met Office yellow weather warning, and that XDP did not communicate this to him. It was pleaded that a suitable risk assessment should have been carried out at Skelmersdale depot, and that XDP should have:

1. Monitored weather conditions and taken care to inform drivers of these conditions.
2. Aborted the delivery of a light load from Skelmersdale to Cleland during conditions of high winds until such time as those winds subsided.
3. Communicated with drivers en route and reminded them to slow down in conditions of high wind.
4. Communicated to drivers the importance of safety first and that drivers should pause their journey and park up if they felt that their vehicle was being affected by high winds.
5. Set up a system of work whereby drivers could pause their journey and park up until adverse weather conditions abated.
6. Communicated to drivers that if they chose to pause and park up they would not suffer any penalty, financial or otherwise.

It was the pursuers’ case that the “centre of gravity” of the claim was in Scotland.

XDP pleaded contributory negligence. It was their case that Mr Popa was an experienced HGV driver, and he should have stopped or slowed his speed significantly in response to the winds. Had he slowed to around 20 – 30 miles per hour, the accident likely would have been avoided. He was appropriately trained and qualified, and he had been issued with XDP’s handbook which contained advice on driving in winds. He was aware of the weather conditions.

The Issue for Determination

The parties agreed that the Scottish courts had jurisdiction. The issue for determination was the choice of law based on the above agreed facts. The parties agreed that the matter was to be determined by interpretation and application of Article 4 of Rome II.

Article 4 of Rome II provides as follows:

General rule

1. Unless otherwise provided for in this Regulation, the law applicable to a noncontractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

2. However, where the person claimed to be liable and the person sustaining the damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.

The parties were in agreement that both Mr Popa and XDP were habitually resident in England. Therefore, English law applied under Article 4(2) unless Article 4(3) was successfully invoked by the pursuers.

Article 4(3)

The court reviewed some of the previous decisions which applied Article 4(3). In particular, it considered Pickard v Motor Insurers’ Bureau [2017] RTR 20. That case involved a road traffic collision in France involving one uninsured French driver, Ms Bivard, and two British nationals – Mr Pickard and Mr Marshall – who had been driving a car and trailer registered and insured in the UK, who were returning to the UK after working in France for several months. The men were standing  on the side of the motorway while the trailer was being repaired by the driver of a recovery truck. Ms Bivard fell asleep at the wheel. She collided with the men and the trailer, shunting it into the recovery truck. Mr Marshall’s head hit Ms Bivan’s windscreen. The trailer fell on his leg and he died at the scene. His widow, Mrs Marshall, brought an action against the Motor Insurers’ Bureau, which denied liability on the basis that its equivalent in France was not liable to compensate Mrs Marshall and therefore it had no liability. French law directed that Mr Pickard and his insurer, as the driver and insurer of the car, and the insurer of the recovery truck, were liable. The court held that there were a number of circumstances which made it clear that the tort was manifestly more connected with France than England and Wales:

These are: first that both Mr Marshall and Mr Pickard were hit by the French car driven by Ms Bivard, a national of France, on a French motorway. Any claims made by Mr Marshall and Mr Pickard against Ms Bivard, her insurers (or the FdG as she had no insurers) are governed by the laws of France; secondly the collision by Ms Bivard with Mr Marshall and Mr Pickard was, as a matter of fact and regardless of issues of fault or applicable law, the cause of the accident, the injuries suffered by Mr Marshall and Mr Pickard and the subsequent collisions; and thirdly any claims that Mr Marshall and Mr Pickard have against Generali, as insurers of the vehicle recovery truck, are also governed by the laws of France.

Submissions

The pursuers relied on the following “pull factors” to show that the centre of gravity of the tort was in Scotland:

1. The accident occurred on the M74, a road wholly located in Scotland.
2. Mr Popa was travelling in Scotland on a journey which he made every day of his employment. This case was not the kind of road traffic accident where the parties were unknown to each other and the place of the accident was mere happenstance.
3. Mr Popa’s death occurred 14 miles from XDP’s delivery depot and place of business in Cleland, to which Mr Popa was travelling.
4. The emergency services, consisting of Police Scotland, the Scottish ambulance Service and the Scottish Fire and Rescue Service, attended at the scene of the accident.
5. The post-mortem examination of the body of Mr Popa was carried out in Glasgow.
6. The cause of the accident related to Scottish weather conditions at a particular location in Scotland which was known to be subject to crosswinds.
7. A weather warning particular to Scotland had been issued.
8. XDP made allegations of contributory negligence, which related to the specific location, against Mr Popa, namely, that he should have aborted his journey or alternatively reduced his speed at or near the locus.
9. This action has been raised against XDP in Scotland and some of the issues had already been considered at a Fatal Accident Inquiry in the Sheriff Court.
10. Indirect consequences had been suffered by Mr Popa’s parents in Romania.

XDP accepted that the accident took place in Scotland, that the local weather was relevant and that eye witnesses were likely to reside in Scotland. However, they submitted that these factors were of limited weight considering how the pursuers had framed their case on how the accident came about and why XDP were in breach of duty. The monitoring of weather conditions, the decision to proceed with the delivery, the loading of the HGV, any instructions given to Mr Popa on the route, and all other decision making and preparation for the journey occurred in England. It was those decisions that were the alleged breaches of duty and formed the basis of their case. There were no exceptional circumstances requiring the application of Article 4(3).

Decision

Article 4(2), and consequently English law, applied unless the pursuers could show that Article 4(3) was satisfied by showing that the tort was more closely connected with Scotland than England. The court considered that the factors relied upon by the pursuers, other than the location of Mr Popa’s parents, were nothing more than stating that the accident occurred in Scotland and the usual consequences that flowed from that. There were not, for example, any unusual factors such as those in Pickard, that would justify the application of Article 4(3). Each case must turn on its own facts and as such there could be no binding authorities, but in the court’s view the case of Pickard was a good example of the sort of circumstances required for Article 4(3) to apply. In this case, Mr Popa and XDP were habitually resident in England, and Mr Popa’s workplace was in England, although his work did involve much driving to Scotland. The acts and omissions that the pursuers alleged amounted to breaches of duty were all carried out in England. Therefore, the pursuers failed to establish that Article 4(3), and therefore Scottish law, applied.

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining Deka chambers Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She is now enjoys working within the team on travel related and other claims.