Fatal accidents within the European Union - conflict of laws

A recent case regarding a fatal road traffic accident involving a UK citizen posted in Germany has raised the issue of conflict of laws in the High Court.

Cox v Ergo Versicherung AG (formerly known as Victoria) [2011] EWHC 2806 (QB)

The claimant was the widow of an Englishman who was a British Army officer posted in Germany when in May 2004 he was killed in a road traffic accident by a German motorist. The claimant sued the German-domiciled insurer of the motorist in the English courts, which she was entitled to do under a previous ruling made by the European Court of Justice ('ECJ') in FBTO Schadeverzekeringen NV v. Jack Odenbreit (C-463/06).

The dispute that arose between the claimant and defendant was whether assessment of damages should be calculated using German law or English law.

The claimant argued that as she was wholly dependent on the deceased at the time of the accident she was entitled to bring her action against the German insurer in the English courts under the Fatal Accidents Act 1976 ('FAA') and damages would be assessed under English law. The defendant German insurers argued that damages should be assessed under German law because the accident took place in Germany and both parties agreed that liability for the accident was to be governed by German law.

After the accident the claimant left Germany and returned to the UK where she met a new partner and had a child. Under the FAA the claimant's subsequent relationship would not be taken into account however, under German law her subsequent relationship would be taken into account as a mitigating factor on assessment of damages. The claimant would be placed at a disadvantage if her damages were assessed under German law as her award would be significantly lower.

The High Court held that the German law was to be applied and it was not open to the claimant to have mixture of English and German law. There was an actionable wrongdoing which embraced not only the wrongful act, but also the consequent liability. As the parties had agreed that liability was to be governed by German law, so should assessment of damages. There was no scope for the FAA to apply in this case.

However, the High Court granted permission to appeal.

Comment: Interestingly, two weeks after the judgment in this case was handed down, the ECJ provided the ruling in Homawoo v GMF Assurances [2011] EUECJ C412/10. In Homawoo the ECJ allowed damages to be assessed on the law of the claimant's home country as the accident took place before 11 January 2009 (prior to the implementation of the Rome II Regulation which regulates conflict of laws in the European Union). As the accident here was in May 2004, it will be interesting to see whether the Court of Appeal follows the decision in Homawoo or distinguish the cases from each other and on what grounds.

Ashfords' Personal Injury Team has extensive experience in all areas of personal injury claims, ranging from accidents on public property or at work to road traffic accidents and clinical negligence.  If you are a claimant and would like to discuss a potential personal injury claim and the funding options available to you, including the option of a "no win no fee" arrangement, please contact Stephen Walker, Partner, on 01884 203057.   

 Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.