Introduction

The claim arose out of fatal road traffic accident in Germany on 16 March 2004 in which the Appellant’s husband was tragically killed after being hit by a car whilst riding his bicycle. The driver of the car was German and was insured by the Respondent, a German insurance company, which admitted liability at an early stage. This was an Odenbreit-style claim brought, as German law permitted, directly against the relevant (foreign) motor insurer in the English Court. The issues to be determined on the appeal to the Supreme Court concerned only the assessment of damages, namely (1) whether English or German Law applied to that assessment and (2) if English law applied, whether damages were governed by the Fatal Accidents Act 1976, or some other basis.

These questions were of importance as, by contrast with the German law position, the provisions of the 1976 Act do not require credit to be given in the assessment of damages for maintenance payments received by a claimant widow from a current partner. The value of the claim assessed on the basis of the English statute would therefore be substantially greater than if a corresponding German provision were applied. 

As the date of the accident rendered the claim outside the scope of the Rome II Regulation, applicable law stood to be determined by reference to the Private International Law (Miscellaneous Provisions) Act 1995.  The 1995 Act provides that issues arising on a cause of action in respect of personal injury are to be determined according to the law of the place where the tort occurred (s 11).  However, this does not affect procedural rules “to be determined … in accordance with the law of the forum” (s14(3)(b)).

The Court of Appeal had determined that, although the rules regarding assessment of damages in the 1976 Act were ‘procedural’ for the purposes of the Private International Law Act, they could not be relevant to an assessment of damages for the German cause of action because the conceptual differences between the English and German law as to damages for fatal accident claims were too great. 

Could damages be awarded in accordance with the Fatal Accidents Act?

Lord Sumption delivered the leading judgment, holding that they could not (‘though for different reasons than those given by the Court of Appeal). On a proper construction of the 1976 Act, the rules of assessment contained therein apply only to actions brought “under” the Act.  An action to enforce a liability for which the applicable substantive law is German law (per ss 9,11(2)(a) and 12 of the 1995 Act) is not an action under Section 1 of the 1976 Act.

Further, it could not be said that the 1976 Act had extra-territorial effect whether expressly or by any necessary implication. At the time the legislation was passed, actions brought in England on a foreign tort were subject to the double actionability rule which was abolished by the Private International Law Act.  Further, the specific purpose of the 1976 Act was to correct an anomaly in the English law of tort that was unlikely to exist in other jurisdictions and there was no other reason to infer that Parliament intended it to apply to fatal accidents governed by the laws of those jurisdictions.

Relevant rules of assessment?

In the absence of applicable guidance to be derived from the 1976 Act, Lord Sumption held that the relevant principles of assessment were those of normal common law damages; the Appellant should be put in the same financial position, neither better nor worse, as she would have been in, but for her husband’s death. Therefore as in German substantive law, credit must be given for receipts referable to the original loss (maintenance received by the Appellant from her current partner).

Nicola Atkins