Summary
The claimant was Italian. She was suing for personal injury damages caused by a road traffic accident which occurred on 17th February 2011 in Woking, England. As a result of the accident, the claimant's husband, who was working in England, died.
The defendant accepted that he had been 67% liable for the accident. Damages were yet to be assessed. This posed the difficult question as to what heads of damages could be pleaded in the English proceedings. This was important because “Under the terms of the policy the claimant is contractually obliged to seek a subrogated claim against a defendant in a civil case who has been held partially or fully liable for the death.” [8]
The English court had to consider the remedies available in these circumstances. It was necessary for the English courts to take a view on the available of the so-called “subrogated” claims, considering the implications of Rome II. In this context, Mr Justice Warby held:
“28 In my judgment the subrogated claims as pleaded cannot succeed. Rome II applies to claims in respect of accidents, such as the one in issue here, after 11 January 2009: Homawoo v GMF Assurances SA (C-412/10) [2011] E.C.R. I-11603; [2012] I.L.Pr. 2 , interpreting arts 31 and 32 . The general rule under Rome II is that the law applicable to a non-contractual obligation is that of “the country in which the damage occurs”: art.4(1) . The relevant damage for present purposes is the damage sustained at the time and place of the accident: see Recital (17) to Rome II and Jacobs v Motor Insurers Bureau [2010] EWHC 231 (QB); [2010] 1 All E.R. (Comm) 1128; [2010] R.T.R. 35; [2010] Lloyd’s Rep. I.R. 244.
29 The scope of the law applicable to a tort claim is determined by art.15 of Rome II, which provides that it shall govern, among other things, “(c) the existence, the nature and the assessment of damage or the remedy claimed … (e) the question whether a right to claim damages or a remedy may be transferred, including by inheritance; (f) persons entitled to compensation for damage sustained personally”. It is therefore pursuant to art.15(e) that the LRMPA , which provides for the deceased’s estate to inherit causes of action, governs the claimant’s right to sue as administratrix. It is pursuant to art.15(f) that the claimant and her children are entitled to claim as dependants under the FAA . This is clear from the terms of the Commission Proposal for Rome II 2003/0168 which says of the draft provision which became art.15(f) that: “The law that is designated will also determine … whether a person other than the ‘direct victim’ can obtain compensation for damage sustained on a ‘knock-on’ basis, following damage sustained by the victim [such as] … financial. … loss sustained by the children or spouse of a deceased person”.
30 The provisions of the LRMPA and FAA are not only the sole pleaded basis for the claims advanced by the claimant, they are the only basis available to her as a matter of English law for advancing claims in respect of her husband’s death. As Lord Sumption explained in Cox v Ergo Versicherung AG (formerly Victoria) [2014] UKSC 22; [2014] A.C. 1379; [2014] 2 W.L.R. 948; [2014] 2 All E.R. 926; [2014] 1 C.L.C. 430; [2014] R.T.R. 20 at [6], at common law no claim can be made in tort for the death of a human being; the provisions of the LRMPA and FAA are the “sole legal basis on which a claim can be made for bereavement or loss of dependency in English law.
[…]
49 […] The effect of art.19 is, therefore, that Italian law governs whether and the extent to which [the third parties] are entitled to exercise the rights which the claimant has against the defendant under the law governing that relationship. However, the effect of art.4 is, as already noted, that the relationship between the claimant and the defendant is governed by English law.” [28-30 and 49]