Cox v Ergo Versicherung AG (formerly Victoria)
| Jurisdiction | England & Wales |
| Judge | SIR CHRISTOPHER HOLLAND,Sir Christopher Holland |
| Judgment Date | 28 October 2011 |
| Neutral Citation | [2011] EWHC 2806 (QB) |
| Court | Queen's Bench Division |
| Date | 28 October 2011 |
| Docket Number | Case No: HQ09X05363 |
[2011] EWHC 2806 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Christopher Holland
Sitting as a Judge of the High Court
Case No: HQ09X05363
Alexander Layton QC, Marie Louise Kinsler and Henry Morton Jack (instructed by Leigh Day & Co) for the Claimant
Hugh Mercer QC and Sarah Crowther (instructed by Fishburns LLP) for the Defendant
Hearing dates: 27–30 September 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
The Claimant, Mrs Katerina Cox, claims damages from the Defendants, a German insurance company, doing so as the widow and sole dependant of Christopher Cedric Cox ("the Deceased"). A finding of liability is admittedly inevitable; what is in dispute is the appropriate juridic basis upon which her claim proceeds, such potentially impacting upon the heads of damage and the consequent assessment of damages. The resultant issues for the Court are substantially legal–the material facts are in short compass: such as are uncontroversial follow.
The Claimant was born on the 3 rd May 1978 in the Czech Republic. Working in England as an "au pair" she met and married the Deceased. The date of the marriage was the 21 st June 2003.
The Deceased was born on the 13 th May 1972. At all material times he was a respected, serving officer in the regular Army. In August 2003, with the rank of Major, he was posted to Gütersloh in Germany. There he and the Claimant took up residence in the Army married quarters.
On the 21 st May 2004 he was riding a bicycle along a street adjacent to the Gütersloh barracks when he was struck by a car driven by a German civilian, Günter Kretschmer. He was killed instantly. The accident was wholly the fault of the car driver. The Defendants were the relevant motor insurers.
It remains presently to add that there were no children of the marriage; and that as at the date of death the Claimant was almost wholly dependent on the deceased, having only a modest income from part-time work at a local stables. In 2005 she returned to England. She has since entered into a partnership and has a child as a result.
THESE PROCEEDINGS
By way of the Particulars of Claim it is asserted, inter alia,
"3. The Claimant brings this claim for herself:
(1) as sole dependant of the Deceased and in respect of her bereavement pursuant to the provisions of the Fatal Accidents Act 1976; and/or
(2) pursuant to the German law, as dependant and heir of the Deceased.
4. The claims against the Defendant are brought against it in its capacity as insurer of the vehicle and/or the driver of the vehicle. These claims are brought pursuant to German law which provides for and permits a direct right of action to be brought against the third party liability insurer by victims, heirs and dependants in cases such as this. The Claimant will rely in particular on paragraph 3(1) of the Pflichtversicherungsgezest (the Compulsory Insurance Law) to which she will refer at trial for its full terms, true meaning and effect."
The accident is pleaded; the negligence is alleged, and full particulars appropriate to a claim under the Fatal Accidents Act 1976 ("FAA") are appended. The pleading further includes "It is averred that pursuant to s.11 of the Private International Law (Miscellaneous Provisions) Act 1995, German law is the applicable law as the accident occurred in Germany".
The Claimant's case is further clarified by way of an Amended Reply:
"4.…German law, as the applicable law of the tort, governs the question of liability of the tortfeasor and, as the applicable law of the tort and of the insurance contract, governs the question of whether a direct right of action is available against the Defendant insurer. It does not govern the availability of the Claimant's cause of action against the Defendant (which the Claimant says is under the FAA), nor identification of recoverable heads of damages, remoteness or mitigation."
Additionally it is pleaded (paragraph 3):
"In these proceedings the assessment of damages which the Defendant is liable to pay to the Claimant is an issue in tort and, hence, is governed by English law, as the law of the forum."
By way of the Re-Amended Defence of the 21 st September 2010 causation and negligence are respectively admitted. Where primary issue is raised it is with the notion of a cause of action founded on the Fatal Accidents Act 1976 ("the FAA"). It is respectively contended that there is no such cause of action available to the Claimant as against the Defendants as insurers; that the Court has no jurisdiction "to determine any claim or cause of action against the Defendant based either directly or indirectly upon (the FAA)"; and that the Claimant's cause of action arises solely at German law pursuant to certain specified sections of the German Civil Code ("BGB"). In the overall result, the Defendants contend that an award of damages should be based upon heads of damage as prescribed by German law and should be subject to various factors as recognised by that law, all such jointly or severally potentially serving to reduce the award.
In the light of the foregoing, Foskett J ordered a trial of all issues except the assessment of damages and gave permission for expert evidence as to German law. The final, revised list of issues identified 24 in number. Before me fewer, really essential issues have been addressed by way of well researched submissions essentially as to law, supported by expert evidence as to German law, much of which is happily the subject of agreement. It is for me to make the required rulings by way of this judgment.
THE STATUTES
Central to the respective submissions are the following statutory provisions. I gratefully adopt the presentation as annexed to the Claimant's opening submissions:
Section 1 provides, so far as material:
'(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.
(2) [Subject to section 1A(2) below,] every action shall be for the benefit of the dependants of the person ("the deceased") whose death has been so caused.
(3) In this Act "dependant" means–
(a) the wife or husband or former wife or husband of the deceased;'
Section 1A provides, as far as material:
'(1) An action under this Act may consist of or include a claim for damages for bereavement.
(2) A claim for damages for bereavement shall only be for the benefit
(a) of the wife or husband…of the deceased;'
Section 3 provides, so far as material:
'(1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively…
…
(3) In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken into account the re-marriage of the widow or her prospects of re-marriage.'
Section 4 provides:
'In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.'
Private International Law (Miscellaneous Provisions) Act 1995, Part III
Section 9 provides, so far as material:
'(1) The rules in this Part apply for choosing the law (in this Part referred to as "the applicable law") to be used for determining issues relating to tort…
…
(4) The applicable law shall be used for determining the issues arising in a claim, including in particular the question whether an actionable tort…has occurred.
(5) The applicable law to be used for determining the issues arising in a claim shall exclude any choice of law rules forming part of the law of the country or countries concerned.'
Section 11 provides, so far as material:
'(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort…in question occur.
(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being–
(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;'
Section 12 provides, so far as material:
'(1) If it appears, in all the circumstances, from a comparison of–
(a) the significance of the factors which connect a tort…with the country whose law would be the applicable law under the general rule; and
(b) the significance of any factors connecting the tort…with another country,
that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(2) The factors to be taken into account as connecting a tort…with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which...
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Cox v Ergo Versicherung AG (formerly known as Victoria)
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