Daniela Bianco (Widow and Administratrix of the estate of the late Vladimiro Capano on behalf of herself and dependant children) v Anthony J Bennett
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 12 March 2015 |
| Neutral Citation | [2015] EWHC 626 (QB) |
| Court | Queen's Bench Division |
| Date | 12 March 2015 |
| Docket Number | Case No: HQ14X00580 |
[2015] EWHC 626 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ14X00580
Katherine Howells (instructed by Seddons) for the Claimant
Marie Louise Kinsler and Luka Krsljanin (instructed by DWF LLP) for the Defendant
Hearing date: 9 March 2015
Vladimiro Capano was an Italian who worked for Tesco Go SpA, an engineering and design company. He lived in Turin with his wife Daniela and their twin children, Elisa and Matteo, now 16. Between October 2010 and February 2011 Mr Capano commuted weekly from Turin to England, to work on a car project with McLaren in Woking. On the evening of 17 February 2011 he was walking home down Triggs Lane in Woking. As he crossed the road he was hit by a car driven by the defendant. He died in hospital three days later. His widow now brings this claim for damages for personal injuries and wrongful death caused by the negligence of the defendant.
The defendant has admitted that he was two thirds to blame for Mr Capano's injuries and death, and judgment for the claimant on liability was entered on 21 February 2014 by consent, subject to a deduction of 33%, with damages to be assessed. The claimant claims £481,079 on her own behalf and on behalf of the children under the Fatal Accidents Act 1976 (FAA), and £7,513 as administratrix of the deceased's estate, pursuant to the Law Reform (Miscellaneous Provisions Act) 1934 (LRMPA). There is no dispute that these claims are valid in principle, though quantum is not yet agreed and may have to be assessed.
Two further claims made by the claimant are however disputed as a matter of principle. These are described in the claimant's Schedule of Loss as "subrogated claims", and I shall use that term. The claims relate to sums paid and to be paid to the family by INAIL, the Italian Workers Compensation Authority, and a sum paid by Mr Capano's employer, Tesco Go. The subrogated claims in respect of INAIL, set out at items 7 and 8 of the Schedule of Loss, amount to £343,442. The claim in respect of Tesco Go, set out at item 9 of the Schedule of Loss, is for £65,195. The question now before me at this trial of a preliminary issue concerns the recoverability of these claims.
The question is set out in paragraph 1 of the Order dated 27 November 2014 by which Master Eastman directed this preliminary trial:
"Subject to the claimant proving that the sums claimed in paragraphs 7–9 of the Schedule of Loss have been paid and/or are to be paid to the Claimant:
'Are the claims pleaded at paragraphs 7, 8 and 9 of the Schedule of Loss dated 4th June 2014 recoverable by the Claimant, on behalf of INAIL and TESCOGO, from the Defendant?'"
That order was made at the case management conference (CMC). It was made by consent. Three further things are to be noted about the Master's order. The first is that the issue is formulated by reference to what is pleaded, and specifically to what is pleaded in those three paragraphs of the Schedule of Loss. The second is that the order reserved for determination after the preliminary issue trial the question of whether the sums claimed had or were to be paid to the claimant, but no other question. The third point is that the Master's order contained no provision for the service of any evidence. Neither party has filed or served any evidence. It follows that the court can only proceed at this trial by reference to the pleaded case and the relevant law.
The claims pleaded in the claim form and Particulars of Claim are conventional claims for damages pursuant to the LRMPA and FAA. No other cause of action is indicated in either document. No reference is made in either document to the subrogated claims. The prayer for relief in the Particulars of Claim claims relief under four headings: damages under the LRMPA, damages under the FAA, "bereavement damages", and interest. The subrogated claims first emerged, so far as the statements of case are concerned, in the Schedule of Loss dated 4 June 2014.
The Schedule of Loss is divided into three sections. The first is an Introduction, setting out basic facts about the nature of the claim and details of the dependants, as required by PD16 5.1. The second section is headed "Law Reform (Miscellaneous Provisions) Act 1934" and contains two items: 1 is general damages, and 2 is comprised of funeral expenses and damaged clothing cut off at hospital. The third section is headed "Fatal Accidents Act 1976". There are 9 heads of claim, starting again at 1. Items 1 to 6 are for bereavement, financial dependency, loss of services, and miscellaneous expenses. The subrogated claims are items 7, 8 and 9 in this section of the Schedule.
The claim in respect of INAIL is pleaded, so far as relevant, in this way:
"7 Subrogated claim (INAIL) Past Loss
The claimant has the benefit of a payment totalling €509,307.93 equivalent to £427,818.66 from an Italian insurer (INAIL) who pays a benefit to the family of the deceased if the deceased dies whilst in employment.
Under the terms of the policy the claimant is contractually obliged to seek a subrogated claim against a defendant in a civil case who has been held partially or fully liable for the death.
To date the policy has paid out €65,078.89 to the family and €1,907.24 in respect of funeral expenses. Interest on that sum to date is sought at €1,906.35; a total claim of €68,892.48.
8 Subrogated claim (INAIL) Future Loss
The remaining €442,321.80. This is paid in instalments as follows:
To the claimant at a rate of €14,406.60 p.a. for 25.4 years
To the dependent children at a rate of €5,762.64 p.a. for 6.63 years
…"
The pleaded case therefore sets out what are said to be contractual obligations of the claimant under the terms of a policy of insurance with INAIL, to "seek a subrogated claim". No reference is made to any provisions of Italian law, statutory or otherwise. The subrogated claim in respect of Tesco Go is pleaded, so far as relevant, as follows:
"9 Subrogated Claim (Deceased's Employer)
The deceased['s] employer is obliged under article 2122 of the Italian Civil Code to provide compensation to the family of a deceased who dies whilst at work. The sum payable is €77,612.90 equivalent to £65,194.84. Where a third party is at fault, the claimant is bound to seek a subrogated claim."
Again, the pleaded case asserts an obligation on the claimant to "seek a subrogated claim". The source and nature of that obligation are not clearly explained. One might surmise that the obligation derives from Article 2122, which is the only provision of Italian law referred to. That however would be speculation and, as it turns out, this is not the claimant's case. In the submissions of Ms Howells, to which I shall come, the obligation relied on is said to flow from Article 1916 of the Italian Civil Code, a provision which is also said to create the right of subrogation relied on in respect of INAIL.
English law holds, of course, that the content of foreign law is a question of fact, and if foreign law is to be relied on it must be pleaded and proved as a fact, as a rule by expert evidence: see Dicey Morris and Collins on the Conflict of Laws 15 th edn Rule 25(1). Dicey's Rule 25(2) is that: "In the absence of satisfactory evidence of foreign law the Court will apply English law to such a case." This rule, commonly known as the "presumption" that foreign law is the same as English law, has recently been re-examined and endorsed by the Court of Appeal in OPO v MLA [2014] EWCA Civ 1277, [2014] EMLR 4: see [108]–[111] (Arden LJ). It is apparent that the claimant's legal team contemplated that expert evidence of Italian law would be adduced in support of the claim: the claimant's directions questionnaire of July 2014 identified an Italian law expert as a potential witness; and an application for permission was foreshadowed in the skeleton argument for the CMC submitted by counsel then instructed for the claimant. However, no application to adduce expert evidence was in the event made, then or subsequently.
The defendant's initial skeleton argument for this trial responds concisely to the case as it is pleaded on behalf of the claimant. Ms Kinsler submits that the claim is pleaded as an English law tort claim pursuant to the FAA and LRMPA; and that it is rightly so pleaded, having regard to Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II). Noting that the subrogated claims are advanced under the heading of the FAA, she submits that the heads of loss recoverable in English law pursuant to the FAA are circumscribed, and confined to funeral expenses, bereavement award, and loss of dependency. There is no head of loss which is apt to include the subrogated claims. Moreover, the receipt or anticipated receipt by the claimant of any sums paid by her late husband's insurer and/or employer are disregarded in the assessment of her claim as irrelevant. Accordingly, the answer to the question raised for determination is no. To the extent that the claimant seeks to advance a case based on Italian law, warned Ms Kinsler, the defendant would object on the basis that any such claim would have to be pleaded and proved by expert evidence.
As I have indicated, the skeleton argument filed by Ms Howells on behalf of the claimant puts the case differently from the way it is stated in the Schedule of Loss, and refers to unpleaded matters of Italian law. Ms Howells accepts that the claim is governed by English law. She submits, however, that the sums claimed are recoverable by the claimant on behalf of INAIL and Tesco Go pursuant to Article 85 of ...
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