Dr Nicholas Bevan

Dr Nicholas Bevan

Friday, 4 April 2014


Cox v Ergo Versicherung AG [2014] UKSC 22

The Supreme Court has ruled that the widow of Major Cox, who was killed when he was knocked off his bicycle in Germany, is not entitled to the more generous approach to quantifying her loss under the Fatal Accidents Act 1976. 

The driver responsible was insured with German based insurer, Ergo Versicherung AG. Mrs Cox brought a direct action in England against the foreign insurer, under articles 9 and 11 of the Brussels I Convention (Council Regulation (EC) No 44/2001 of 22 December 2000) applying the FBTO Schadeverzekeringen NV -v- Jack Odenbreit, CJEU 2007 Case 0463/06see my earlier post Tale of Two Cases.

Liability was not disputed. 

The accident predated the application of Rome II (Council Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations).  However it was common ground that the effect of the Private International Law (Miscellaneous Provisions) Act 1995 was that German law applied to the claim.  Mrs Cox contended that the Fatal Accidents Act 1976 should still govern the way her damages should be assessed.

The applicable German law (governed by s 844 of the Bűrgerliches Gezetzbuch) requires a victim’s right to maintenance be assessed on a full restitution basis but it has strict rules against double recovery. 

By comparison, the Fatal Accidents Act 1976 creates a statutory exception to our own common law rule against double recovery.  This occurs in the way that a dependency claim is treated as crystallising from the moment of death.  Sections 3 & 4 expressly leave out of account the re-marriage of the widow or her prospects of re-marriage as well as benefits that have or will or may accrue as a result of the death.  This exception is a result of deliberate Government intervention which was categorised by a majority of the Supreme Court as a matter of substantive law.

The Supreme Court followed Harding v Wealands [2006] 2 AC 1 which treats the heads of of damage as a matter of substantive law to be determined by the foreign applicable law (in this case Germany), whereas the approach to be adopted in their assessment is a question of procedure that is governed by the law of the forum (in this case, England).  

Since the Fatal Accident Act 1976 does not have extra-territorial jurisdiction its special rules for quantifying a dependency claim do not apply to Mr Cox's accident in Germany.  Although English law applied to the procedural aspects of quantifying Mrs Cox’s loss, the court would have to apply the relevant German law governing the basic restitutionary principles.  The result was that the normal common law rule against double recovery applies to this claim, so that Mrs Cox was entitled to her net loss only. This is consistent with the common law ‘not a penny less nor a penny more’ principle.

This ruling is also just as relevant to accidents on or after 11 January 2009, which are governed by Rome II.  Under Rome II the old distinction between substantive and procedural law no longer applies. But see my earlier post CPR rules apply to foreign accident claims which considers the implications of  Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138.

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