Roerig v Valiant Trawlers Ltd

The applicable law for a tort is displaced under section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 only where another country’s law is substantially more appropriate. The general rule is not displaced merely because an injured person or the dependants of a deceased person live and suffer financial loss abroad.

The availability of a head of damage is substantive. Its quantification, including whether resulting benefits must be deducted, is procedural and governed by the law of the forum. In an action under the Fatal Accidents Act 1976, section 4 therefore requires the court to disregard benefits accruing from the death.

A Dutch seaman employed by a Dutch company was killed aboard an English-registered trawler owned by the defendant English company. His Dutch dependant brought an action under the Fatal Accidents Act 1976. Liability and her entitlement to sue were admitted.

Dutch benefits, including pensions, social security and an insurance payment, became payable following the death. Dutch law was assumed to require their deduction from dependency damages, whereas section 4 of the 1976 Act required them to be disregarded.

His Honour Judge Reddihough determined preliminary issues in the claimant’s favour. The defendant appealed. The principal questions were whether Dutch law displaced English law for assessing dependency loss and whether the deduction of benefits concerned substantive law or procedural quantification. The court also considered an alleged contract with the vessel owner and the correct appeal route from the preliminary ruling.

1. Appeal dismissed unanimously. Lord Justice Waller delivered the judgment, with which Lord Justice Sedley and Lord Justice Simon Brown agreed.

2. Section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 requires the court to compare the factors connecting the tort generally with the country selected by the section 11 rule and those connecting it with another country. The issue must first be identified with suitable precision. Here it was the recoverability and assessment of dependency loss.

   The English connections included the place of the tort, the vessel’s English registration and the defendant’s English incorporation. The deceased, the dependants, the employment arrangements and much of the fishing operation were connected with the Netherlands. Nevertheless, Dutch nationality, residence and receipt of the loss in the Netherlands did not make Dutch law substantially more appropriate. The word “substantially” imposed a demanding threshold, and the general rule was not easily displaced.

3. The existence of liability for a particular head of damage is a substantive matter. Quantification of an admitted head is procedural and governed by the lex fori. Whether death-related benefits should be deducted from dependency damages concerns assessment rather than the existence of liability. It is also closely connected with the forum’s public policy and its overall method of assessing damages.

   The majority reasoning in Chaplin v Boys and Stevens v Head supported that distinction. Accordingly, even if Dutch law governed the recoverability of dependency damages, English law governed deductions from the award.

4. There was also a narrower statutory ground. The claimant could sue in England only under the Fatal Accidents Act 1976. Provisions governing damages “under” or “in” an action under that Act necessarily applied. Section 4 therefore required all benefits resulting from the death to be disregarded.

5. The contractual issue was unnecessary to the decision. Waller LJ was nevertheless inclined to uphold the judge’s conclusions that the signed crew agreement could create independent contractual obligations and that English law governed that agreement.

6. The determination of the preliminary issues was a final decision for appeal purposes. Had the issues not been tried separately, they would have formed a substantive part of the final damages trial. The proper appeal route was therefore directly to the Court of Appeal.

1. Court of Appeal: Dismissed the defendant’s appeal from the determination of the preliminary issues. The defendant was ordered to pay the claimant’s appeal costs, subject to detailed assessment.

2. Great Grimsby County Court: His Honour Judge Reddihough decided the preliminary issues in the claimant’s favour on 15 March 2001. He held that English law governed the tort, that an additional contract governed by English law existed, and that section 4 of the Fatal Accidents Act 1976 was procedural.