The High Court has handed down an important ruling regarding the application of the Fatal Accidents Act 1976 with regard to accident claims overseas in Cox v Ergo Versicherung AG (2011).

The English claimant was involved in a fatal RTA whilst in Germany.  The third party was German and liability was admitted.

The claimant's widow sought to rely on the Fatal Accidents Act 1976 to calculate the dependency claim, whereas the defendant pleaded the equivalent German law.

According to English law, dependency is assessed at the moment of death, so a widow's remarriage or prospects are irrelevant, as are any benefits that she may be receiving. By way of contrast there is a duty to mitigate under German law and the compensation is therefore net of any relevant deductions. 

In this case, the difference would have been very significant because Mrs Cox was in receipt of a war widow's pension for the rest of her life.  This would therefore have to be deducted from the dependency award if the dependency damages were calculated according to German law but would have been irrelevant for the purposes of an award derived from the Fatal Accidents Act.

The defendant argued that following Harding v Wealands (2007) 2 AC 1, German law is the applicable law, both regarding liability and the applicable heads of loss.  The court agreed that German law should apply and therefore reiterated the principle that heads of loss should be determined with reference to the law of the country where the accident occurs.

It should be noted that this accident pre-dated the application of Rome II and consequently English law applied to the assessment of damages, subject to the heads of loss permissible by German law.