Roerig v Valiant Trawlers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Sedley,Lord Justice Simon Brown |
| Judgment Date | 28 January 2002 |
| Neutral Citation | [2002] EWCA Civ 21 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2002 |
| Docket Number | Case No: B3/2001/1501 |
[2002] EWCA Civ 21
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GREAT GRIMSBY COUNTY COURT
His Honour Judge Reddihough
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Simon Brown
Vice-President of the Court of Appeal
Civil Division
Lord Justice Waller and
Lord Justice Sedley
Case No: B3/2001/1501
Robert Weir (instructed by Bridge McFarland) for the Respondent
Robert Leonard (instructed by Ince & Co) for the Appellant
Introduction
This is an appeal from the judgment of His Honour Judge Reddihough dated 15 th March 2001. He decided certain preliminary issues in relation to the assessment of damages in favour of the claimant. Although the judge was asked to answer four issues summarised at paragraph 5 of his judgment, the issues were drafted in order to enable the court to answer one question, namely in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?
The claimant is a Dutch lady and brings the action as a dependant of a Dutchman. She does so on her own behalf and on behalf of their Dutch children in the English courts under the Fatal Accidents Act 1976, the Dutchman having been tragically killed on a trawler registered in England and owned by the Defendants, an English registered company. There is no dispute about liability or about the claimant's entitlement to bring the action under the above Act. It is furthermore not in issue that under Section 4 of the Fatal Accidents Act it is provided that in relation to actions brought under that Act:
"Assessment of damages: disregard of benefits
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."
The defendants (appellants in this court) however contend, and for the present it must be assumed, accurately, that under Dutch Law the position is different. In the witness statement of Mr Van der Zwan, paragraph 23 which is the limit of the evidence that has been obtained on Dutch law, the position is put in this way:
"Compensation is also paid to accident victims and their dependants through civil court proceedings. However, under Dutch law the level of compensation is determined by the financial requirements of the claimant. All benefits received by the claimant—whether emanating from social security or from a collective labour agreement's provision—will be taken into account and deducted from compensation. The reasoning behind this is that society provides for its victims and their dependants to an acceptable and reasonably high minimum, which is usually elevated by provisions arranged by the industry they are/were working in. In Ms. Roerig's and her children's case this social security system works out as follows: …"
There then follows a full explanation of the various benefits which have been paid, or will be payable to the claimant and her children following the death of Mr Van der Plas. From preceding paragraphs of Mr Van der Zwan's statement it seems that the benefits are accrued as a result of substantial contributions deducted from the deceased's earnings, as well as substantial contributions by the deceased's employers in Holland. The benefits include (i) a payment under Dutch labour law; (ii) a payment made without legal obligation covered by a personal accident insurance; (iii) a state surviving relatives' pension including amounts for the children; (iv) a widow and orphans' pension from the Workers' pension fund for the Off-shore Fishing Industry. It is further said that in relation to this last pension, the deceased's employers after his death negotiated with the relevant authorities to ensure the benefits were available to the claimant and her children despite the fact that she and the claimant were not married. The preliminary issues are thus designed to find the answer to the one question—does Section 4 of the Fatal Accidents Act apply to the claimant's claim, or must she give credit for the benefits which she and her children would have to give if the damages were being assessed under Dutch Law?
To succeed on this issue in the Court of Appeal the appellants must establish that the judge was wrong in relation to all, or practically all, the issues he decided.
The first issue he decided related to the proper law of the tort. Section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 provides as follows:
"Choice of applicable law: the general rule
(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict 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;
(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and
(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.
3) In this section "personal injury" includes disease or any impairment of physical or mental condition."
It is not in dispute that under the general rule there laid down the applicable law is English law because the accident to the deceased occurred on an English registered trawler, and thus that is the law "in which the events constituting the tort or delict in question" occurred, or at the very least, the law of the country "where the individual was when he sustained the injury". But the appellants rely on Section 12 of the same Act which provides as follows:
"Choice of applicable law: displacement of general rule
(1) If it appears, in all the circumstances, from a comparison of —
(a) The significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and
(b) The significance of any factors connecting the tort or delict 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 that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events."
They contended accordingly that when a comparison is made of the significant factors connecting the tort with England, and the significant factors connecting the tort with Holland, it is substantially more appropriate for the applicable law relating to the issue of damages to be the law of Holland. The judge found against the appellants on that issue.
As regards the second issue it seems that after liability was admitted, and one presumes in case the judge were to be against the claimant on the first issue, the claimant amended her claim to allege a claim in contract as between the deceased and the defendants. The claim as pleaded alleged a contract of employment. It also alleged that the proper law of the contract was English. There thus were two aspects of this issue. The contract relied on was a contract in writing which on its face purported to be such. It was (indeed is) in English and purports to be made between the defendant and the deceased (see page 208A of the bundle). On the trial of the preliminary issue the judge found (contrary to the claimant's argument), that the deceased had a contract of employment with a Dutch company (Diepzee) not with the defendants, and that the arrangement was that Diepzee provided its employees to the defendants. Those findings are not challenged. But the judge, by virtue of the document at page 208A, spelt out another form of contract, and he further found that that contract was governed by English law. He thus decided both aspects of this issue in favour of the claimant.
The final issue, which the judge resolved on the basis that he might be wrong about both the previous issues, was whether Section 4 of the Fatal Accidents Act was substantive or procedural. If it was procedural, then (as was common ground) even if the proper law of the tort was Dutch and/or even if the proper law of any relevant contract was Dutch, the English court would apply Section 4. The judge found that Section 4 was procedural, and thus ruled against the appellant on this aspect also.
We have been very much assisted by a full and comprehensive judgment, and by full and comprehensive skeleton arguments, all of a high standard. At the oral hearing we heard full submissions from Mr Leonard for the appellants on all issues. At the invitation of the court Mr Weir concentrated his submissions entirely on issues 1 (proper law of the tort) and 3 (procedural or substantive), success on either of which would be enough for his client to succeed. The court further suggested to Mr Weir that if he did not succeed on one or other of those issues he was in fact unlikely to be able to uphold the judge on issue 2 (the contract issue). It would not have been...
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