“4. … German law, as the applicable law of the tort, governs the question of liability of the tortfeasor and, as the applicable law of the tort and of the insurance contract, governs the question of whether a direct right of action is available against the Defendant insurer. It does not govern the availability of the Claimant’s cause of action against the Defendant (which the Claimant says is under the FAA), nor identification of recoverable heads of damages, remoteness or mitigation.”
“In these proceedings the assessment of damages which the Defendant is liable to pay to the Claimant is an issue in tort and, hence, is governed by English law, as the law of the forum.”
“ … nothing that a dependant (or for that matter anyone else) could do after death could either increase or decrease the dependency. The dependency is fixed at the moment of death; it is what the dependants would probably have received as benefit from the deceased, had the deceased not died. What decisions people make afterwards is irrelevant. The only post death events which are relevant are those which affect the continuance of the dependency (such as the death of a dependant before trial) and the rise (or fall) in earnings to reflect the effects of inflation.”
“The claimant, a Dutchwoman, brought an action under theFatal Accidents Act 1976 on behalf of herself and her children as dependants of a Dutchman who was killed while working on an English-registered trawler owned by the defendants. The judge ruled by way of a preliminary issue that in assessing damages for loss of dependency benefits accrued or accruing to the dependants under Dutch law as a result of the deceased’s death were to be disregarded undersection 4 of the Act . On the defendants’ appeal– Held, dismissing the appeal, that the question whether in assessing damages for the loss of dependency deductions should be made for benefits received was a matter for the lex fori; that, in any event, since the action was brought under the 1976 Act, section 4 of that Act applied; and that, accordingly, the benefits paid or payable to the dependants under Dutch law had to be disregarded.”
“20. The claimant brings these proceedings under the 1976 Act. She does not rely on any provision of Dutch law or on any appointment as administrator under Dutch law, nor could she do so. Procedurally an action on behalf of a person killed in an accident is only available in the English courts by virtue of what is now sections 1 and 2 of the 1976 Act. The defendants asserted by their defence that it was more appropriate for the applicable law for determining the issues that arose in the proceedings, including at that stage liability, to be determined by the law of the Netherlands. But no application was made to stay the proceedings, nor would such an application have succeeded. Thus it must be accepted that the proceedings were properly brought under the Act. … 26. It also seems to me that there is good reason why, once it is established that a particular head of damage is recoverable by whatever is the appropriate law, the assessment of the appropriate figure for that head of damages should be for the forum, including in particular what deductions should be made according to the public policy of the forum.”
“58. The first step which Parliament had to take was to abolish the pre-existing common law rules of double actionability which were perceived to be causing the problem. Except for defamation claims, where the common law is preserved by section 13, Parliament abolished these rules in section 10. Indeed Part III affects these rules and no others. This is stated expressly in section 14(2): ‘Nothing in this Part affects any rules of law (including rules of private international law) except those abolished by section 10 above.’ This provision serves to delimit the scope of the enactment in Part III and means that there is no room for arguing that the abolition of the rules covered by section 10 must have impliedly effected a change in some other rule of law. More particularly, it immediately suggests that Part III does not affect the assessment of damages since that matter was never governed by the double actionability rules which were abolished by section 10. If that is so, the assessment of damages must continue to be governed by the lex fori. 59. The abolition of the common law rules was just the first step in the reform. The next step was to replace them with new rules. That is what Part III is designed to do. As section 9(1) explains, the rules in Part III are to apply for choosing the law (‘the applicable law’) to be used for determining ‘issues relating to tort or (for the purposes of the law of Scotland) delict’. So Part III does three things. First, it provides that the English court is to use a particular law (the applicable law) to determine whether an actionable tort has occurred: section 9(4). In effect, this replaces the double actionability test. But, secondly, section 9(4), read along with subsection (1), goes on to provide that the applicable law is to be used to determine other ‘issues relating to tort’. Finally, sections 11 and 12 provide the rules by which the applicable law, which is to be used to determine these issues, is to be chosen. Under section 12 the English court can separate out various issues relating to the tort and, where appropriate, a different law is to be used to determine different issues (dépeçage). 60. Where matters are in dispute, the first step will be for the court to use the rules in sections 11 and 12 to decide what the applicable law is. Rather as, under Boys v Chaplin[1971] AC 356 , there was a general rule of double actionability which could be disapplied in certain circumstances, so too section 11 gives the general rule for choosing the applicable law, while section 12 provides for that general rule to be displaced where it would be substantially more appropriate for the law of another country to apply. Once the court has chosen the applicable law or laws in accordance with these sections, the judge will use the chosen system or systems to determine whether an actionable tort has occurred and any other issue ‘relating to [the] tort’ which arises. Parliament has not defined ‘issues relating to tort’, but it has at least indicated certain matters which do not fall within that category. These are to be found in section 14(3) which provides inter alia: ‘Without prejudice to the generality of subsection (2) above, nothing in this Part … (b) affects any rules of evidence, pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum’. This provision reinforces section 14(2) by spelling out three types of rule which Part III is not to affect and one approach which it is not to authorise. It is not to affect any rules of evidence, pleading or practice and it is not to authorise a court to determine ‘questions of procedure in any proceedings’ otherwise than in accordance with its own law. So, while Part III authorises - indeed requires - an English court to use the applicable law to determine ‘issues relating to tort’, it does not authorise the court to use anything other than English law to determine any ‘questions of procedure’ which arise in the proceedings.”
“In applying this distinction to actions in tort, the courts have distinguished between the kind of damage which constitutes an actionable injury and the assessment of compensation (ie damages) for the injury which has been held to be actionable. The identification of actionable damage is an integral part of the rules which determine liability. As I have previously had occasion to say, it makes no sense simply to say that someone is liable in tort. He must be liable for something and the rules which determine what he is liable for are inseparable from the rules which determine the conduct which gives rise to liability. Thus the rules which exclude damage from the scope of liability on the grounds that it does not fall within the ambit of the liability rule or does not have the prescribed causal connection with the wrongful act, or which require that the damage should have been reasonably foreseeable, are all rules which determine whether there is liability for the damage in question. On the other hand, whether the claimant is awarded money damages (and if so, how much) or, for example, restitution in kind, is a question of remedy.” ‘Without prejudice to the generality of subsection (2) above, nothing in this Part … (b) affects any rules of evidence, pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum’. This provision reinforces section 14(2) by spelling out three types of rule which Part III is not to affect and one approach which it is not to authorise. It is not to affect any rules of evidence, pleading or practice and it is not to authorise a court to determine ‘questions of procedure in any proceedings’ otherwise than in accordance with its own law. So, while Part III authorises - indeed requires - an English court to use the applicable law to determine ‘issues relating to tort’, it does not authorise the court to use anything other than English law to determine any ‘questions of procedure’ which arise in the proceedings.”
“Applying English conflict of laws principles, can the Claimant rely on (FAA) as pleaded in paragraph 3(1) of her Particulars of Claim?”
“Lord Campbell’s Act gives a new cause of action clearly … because the action is given in substance not to the person representing in point of estate the deceased man … but to his wife and children, no doubt suing in point of form in the name of his executor.”
“Does German law apply to limit the Defendants’ liability by reference to German principles of mitigation?”
“I … hereby assign all my claims arising from the above-mentioned accident to the United Kingdom … represented in turn by the Ministry of Defence, represented in turn by the Area Claims Officer North West Europe insofar as such claims are for the cost of … repatriation costs and pensions which costs have become necessary as a result of the said accident. I note that this assignment affects only the outlays paid by the Ministry of Defence. Any personal claim which I may make will remain unaffected by this subrogation.”