Cox v Ergo Versicherung AG & Anor

Where a tort occurring abroad is governed by foreign law under Part III of the Private International Law (Miscellaneous Provisions) Act 1995, that law determines the issues relating to the tort, including liability and the heads of recoverable damage. A claimant cannot select the foreign law for liability and then invoke the Fatal Accidents Act 1976 to obtain a different basis for assessing damages. The statutory fatal-accident scheme creates a new cause of action and is not merely procedural. The applicable foreign law may therefore require its own rules on mitigation, remarriage, earning capacity and collateral payments to be applied.

The claimant’s husband, a serving Army officer, was killed in Germany when struck by a car. Liability was admitted, and the defendant was the relevant German motor insurer. The claimant pleaded both a claim under the Fatal Accidents Act 1976 and a claim under German law, relying on German provisions permitting direct proceedings against the insurer.

Foskett J ordered a trial of the legal issues, leaving assessment of damages for later determination. The central question was whether, applying English conflict-of-laws principles, the claimant could rely on the FAA while using German law to establish liability and a direct right of action.

1. Issue 1. The claimant could not rely on the Fatal Accidents Act 1976. Part III of the Private International Law (Miscellaneous Provisions) Act 1995 required the court first to identify the applicable law. German law applied under the general rule, and its application provided a complete legal package governing the actionable tort, including liability and the recoverable heads of damage. It did not include resort to the FAA. [2011] EWHC 2806 (QB), paras 29–30.
2. The claimant’s proposed approach impermissibly combined German law for direct liability and absolute liability with English law and the FAA for damages. The FAA creates a new cause of action for dependants. It is not wholly procedural and cannot be invoked merely because proceedings are brought in England. The reasoning in The Vera Cruz (1884) 10 AC 59 supported that conclusion.
3. The decision in Harding v Wealands [2007] 2 AC 1 provided the governing analysis. Part III concerns the selection of applicable law for issues relating to tort, while questions of procedure remain governed by the law of the forum. The applicable German law therefore governed the substantive basis and extent of the claim, although procedural matters remained governed by English law.
4. Issues 4, 5(2) and 6 were answered on that basis. German law applied its substantive duty to mitigate, including consideration of earnings, maintenance arising from a new relationship, remarriage and cohabitation. These matters were not to be determined under the FAA. Issue 5(1), concerning the MOD pension, depended on the factual extent to which the defendant funded the pension and the claim was met through subrogated payments. [2011] EWHC 2806 (QB), paras 31–36.
5. The disputed issue concerning recovery for loss of services formerly provided by the deceased was left to the judge assessing damages, because its resolution depended on the full facts and German expert evidence. An agreed order was to be submitted.