Anthony Gold Solicitors
15 MAY 2014
Cox v Ergo Versicherung AG (formally known as Victoria)  UKSC 22; (2014) APIL 033
20, 21 January, 2 April 2014
Lords Neuberger P. Mance, Sumption, Toulson, Hodge.
The Fatal Accidents Act 1976 was only applicable to actions brought under the Act and did not have extra-territorial effect.
The claimant's husband was killed in a road traffic accident in Germany. The Defendant driver was a German national resident and domiciled in Germany. He was insured by the respondent, a German insurance company, under a contract governed by German law.
The claimant and her husband were living in Germany at the time of the accident but the claimant returned to the UK soon after this. She was entitled to sue the insurer in the UK court as this was where she was domiciled. She sued for bereavement and loss of dependency. The question was whether she was entitled to damages under the English or German legal system.
The High Court held that English rules of private international law distinguished between questions of procedure (governed by the law of the forum) and questions of substance (governed by the laws chosen by the forum court from among the relevant legal systems to arrive at its judgment of an international or inter-jurisdictional case).
The High Court found that Part 3 of the Private International Law (Miscellaneous Provisions) Act 1995 (the 1995 Act) selected the applicable law as the starting point of the proceedings, which in the instant case, was German law and so the claimant could not rely on the 1976 Fatal Accidents Act. The claimant appealed and the Court of Appeal dismissed the appeal.
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The Supreme Court also dismissed the appeal, finding that the relevant German damages rules were substantive and the damages rules of the 1976 Act could not be applied to a cause of action under the equivalent German law. The provisions of the 1976 Act did not lay down general rules of English law relating to the assessment of damages, but only rules applicable to actions under the 1976 Act itself. The 1976 Act could not be applied to an action to enforce a liability whose applicable substantive law was German law.
The unanimous Supreme Court Judgment confirms that the 1976 Act will not have extra-territorial status in respect of such claims which arise in the UK courts. The Court commented there was nothing in the Act to suggest that its provisions were intended to apply irrespective of the choice of law derived from ordinary principles of private international law.