Bianco v Bennett

Foreign-law rights of subrogation do not create substantive rights exceeding those available under the law governing the underlying tort. A foreign institution’s subrogation is recognised under Article 85 of Regulation (EC) No 883/2004, but the nature and extent of the beneficiary’s claim remain governed by the applicable tort law. Under English law, the Fatal Accidents Act 1976 provides the relevant heads of recovery and requires benefits accruing from the death to be disregarded. A claimant cannot therefore recover separately the sums paid by a foreign insurer or employer unless a substantive English-law claim exists. Foreign law relied on as the foundation of such a claim must be pleaded and proved, ordinarily by expert evidence.

The claimant, widow and administratrix of Vladimiro Capano’s estate, brought claims arising from his fatal road accident in England. Liability had been admitted, and damages under the Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934 remained to be assessed.

A preliminary issue concerned whether sums paid or payable by INAIL, an Italian workers’ compensation institution, and Tesco Go, the deceased’s employer, could be recovered from the defendant as subrogated claims. The claimant relied on Article 85 of Regulation (EC) No 883/2004 and provisions of Italian law, but those matters had not been adequately pleaded or proved.

1. The preliminary issue was determined in favour of the defendant. The claims pleaded in items 7, 8 and 9 of the Schedule of Loss were not recoverable.
2. The Master’s order required the recoverability issue to be determined at this hearing, subject only to proof that the pleaded sums had been or would be paid. The claimant could not defer pleading and proving the Italian-law case. Foreign law is treated as fact and must be pleaded and proved, ordinarily by expert evidence. The materials placed before the court were not admissible proof of Italian law, and the court could not conduct its own research.
3. The pleaded claims were claims under the Fatal Accidents Act 1976. That Act permits recovery of the statutory heads identified in sections 1A, 3(1) and 3(5), but no separate head of loss for the sums paid by INAIL or Tesco Go. Section 4 requires benefits accruing from the death to be disregarded when assessing damages. The benefits therefore could not be deducted, but that did not create a right to recover them separately.
4. Even assuming that Article 85 of Regulation (EC) No 883/2004 applied, it was a choice-of-law provision concerning whether and to what extent the institution was subrogated under its home law. It required recognition of the subrogation, but did not require the United Kingdom to apply Italian law to the underlying tort claim. The institutions’ rights could not exceed the rights possessed by the claimant under English law.
5. The court rejected the claimant’s reliance on Deutsche Angestellen-Krankenkasse v Laerersandens Brandforsikring G/S as supporting a wider effect. Properly understood, that authority, together with Hessische Knappschaft v Maison Singer et fils, L’Etoile-Syndicat Général v de Waal and Caisse de Pension v Kordel, supported the narrower analysis.
6. Alternatively, if the claims fell outside Article 85, Articles 4 and 19 of Regulation (EC) 864/2007 produced the same result. The relationship between claimant and defendant was governed by English law, and subrogation could not create additional rights.