EUPillar Katerina Cox (Widow and Sole Dependant of Major Christopher Cedric Cox, Deceased) v Ergo Versicherung AG (Formerly known as Victoria) (A company incorporated in accordance with the laws of the Federal Republic of Germany) [2012] EWCA Civ 854

Summary

The proceedings were in respect of a road traffic accident which occurred in Germany in May 2004 (i.e. before Rome II). Following the accident, the claimant’s husband suffered injuries from which he died. The defendant was the car driver’s insurer. The English court had jurisdiction under Articles 9(1)(b) and 11(2) of Brussels I Brussels I. This was an appeal from Sir Christopher Jolland’s order dated 7th November 2011. Since the accident occurred in Germany, the German law was applicable to the issue of liability. The question was whether German or English law is applicable to the assessment of damages. It was held by the Court of Appeal that German law was to be applied. On 2nd April 2014, the appeal was dismissed by the UK Supreme Court. The drawbacks of English private international law (which had to be applied at the time) were highlighted, and the improvements made by Rome II were put forward. Lord Sumption (with whom Lord Neuberger, Lord Toulson and LordHodge agreed) held: 22 […] Mrs Cox is entitled as a matter of German substantive law to an award of damages for the loss of her legal right of maintenance from her late husband. German law requires credit to be given so far as she has received corresponding benefits by virtue of an alternative legal right of maintenance from someone else. This follows from the nature of the duty in German law and of the head of damages recoverable for breach of it. It is a rule of substantive law. Purely voluntary payments from someone with no legal obligation to make them cannot be regarded as an alternative to what she has lost. It follows that credit need not be given for it. 23 It is not at all satisfactory that such significant consequences should turn on difficult and technical considerations of the kind considered in the previous paragraph. Under the law as it stood at the time of this accident, it was at least in theory possible that assessment rules of the forum could conflict with the substantive rules of the proper law. How that conflict should be resolved if it ever arose is a question on which I should prefer to express no opinion. The rational answer is that someone in Mrs Cox's position should recover in respect of a German cause of action what she would have recovered in a German court. This has now been achieved by changing the law. Section 15A of the Act of 1995 (added by amendment in 2008) applies the Rome II Regulation EC 864/2007 to causes of action arising after 11 January 2009. Article 15(c) of the Regulation applies the applicable law to “the existence, the nature and the assessment of damage or the remedy claimed.” [22-23].