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Legal Watch: Personal Injury April 2014 Issue: 014

Damages/Fatal Accident In Greenwoods’ Alert 316 we reported the decision of the Court of Appeal in Cox v Ergo Verisherung AG. The case has now been to the Supreme Court on appeal and is reported at

In This Issue:

(2014) UKSC 22.

• Damages/Fatal Accident

The claimant/appellant’s deceased husband had been an

• Expert Evidence

officer serving in the British army in Germany. He was killed

• Post Jackson/Mitchell Cases

when he was hit by a car driven by a German national. The driver accepted liability. He was insured by the defendant/ respondent, a German insurance company. The claimant brought proceedings against the defendant in England, by virtue of Regulation 44/2001. She later had two children with a new partner. The court was required to determine whether the Fatal Accidents Act 1976 or the German Burgerliches Gezetzbuch (BGB) governed the damages that could be recovered. The Supreme Court held that the 1976 Act provided for a measure of damages substantially more favourable to the claimant than the corresponding provisions of the BGB. In particular, damages under the BGB took account of rights to maintenance from subsequent relationships, whereas S3(3) of the 1976 Act excluded remarriage as a relevant consideration. In addition, the 1976 Act awarded a solatium for bereavement but the BGB did not, although a widow might be entitled to compensation for her own pain and suffering if it went beyond normal grief and amounted to a psychological disturbance comparable to physical injury. The deceased’s death occurred before Regulation 864/2007 (Rome II) came into force and any cause of action arising out of it was governed by the Ss 9 – 15 Private International Law (Miscellaneous Provisions) Act 1995 which partially codified the choice of law in tort. The combined effect of those sections was that issues in respect of personal injury were to be determined according to the law of the place where the victim suffered the injury, unless that law was displaced on

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the ground that the tort had substantially more significant

nothing in the language of the 1976 Act to suggest that its

connection with England. Those rules were subject to

provisions were intended to apply irrespective of the choice

the proviso in S14(3)(b) which preserved the distinction

of law derived from ordinary principles of private international

between substance and procedure. Questions of procedure

law. It was possible for such an intention to be implied if the

were governed by the law of the forum and questions of

purpose of the legislation could not be achieved unless it

substance were governed by the lex causae.

had extra-territorial effect, or if the legislation gave effect to

‘...issues in respect of personal injury were to be determined according to the law of the place where the victim suffered the injury…’

a policy so significant that parliament had to be assumed to have intended it to apply to anyone resorting to an English court. However, the question of extra-territorial application could not have been an issue at the time the 1976 Act was passed. Further, the whole purpose of S1 of the 1976 Act was to correct an anomaly in the English law of tort. Foreign laws were unlikely to exhibit the same anomaly. There was no reason why parliament should have intended the 1976 Act to apply to foreign fatal accidents with no connection to England or English law. It did not have extra-territorial effect. (Per Lord Mance) It made no difference to the outcome of the appeal whether the provisions of Ss 3 and 4 of the 1976

The relevant German damages rules were substantive

Act were substantive or procedural. If substantive, they

because they determined the scope of the liability. English

were irrelevant to a tort subject to German substantive law.

law would regard it in the same light; questions of causation

If procedural, they could not expand a defendant’s liability

were substantive. Such questions included questions of

under the substantive principles of the relevant governing

mitigation because they determined the extent of the loss


for which the defendant ought to be held liable. It was not necessary to decide whether the rules under 1976 Act were procedural or substantive as they did not apply under their own terms. They did not lay down general rules of English law on the assessment of damages, but only rules applicable to actions under the Act itself. Therefore, an action to enforce a liability whose applicable substantive law was German, was not an action under the Act to which the Act could apply. The German rules on damages applied. The claimant was entitled to damages for the loss of her legal right of maintenance from the deceased. Credit had to be given for maintenance from her subsequent partner since the birth of their child, but credit did not have to be given for maintenance received from her partner before they had a child, when he was under no legal obligation to maintain her. It was also necessary to determine whether the choice of law arrived at, in accordance with S11 of the 1995 Act, was displaced by some mandatory rule of the forum. There was

Expert Evidence The clinical negligence case of Rich (Protected Party) v Hull

The claimant submitted that it was not expert evidence but

and East Yorkshire Hospital Trust [Lawtel 8/04/2014) looks

a question of fact for the trial judge as to what the treating

at the fine line that sometimes exists between expert and

doctor thought, and whether that was reasonable.

factual witness evidence.

Allowing the appeal, the deputy High Court judge held

The appellant/claimant had brought a claim against

that when a case management decision could potentially

the respondent/defendant trust alleging that a failure

tie the hands of a trial judge, such a decision had to be

to administer antenatal steroids prior to her delivery in

treated cautiously. The Master’s decision appeared to have

1993 had caused her to suffer cerebral hypoxia-ischemia

been based on arguments that had not been advanced

leading to cerebral palsy. The issue revolved around the

before him and if there had been an application to admit

word “likely” in the relevant guidelines at the time, which

the expert evidence, he might have decided differently. It

said that the college would encourage all obstetric units

was factual evidence, but even if the court was wrong about

to consider the use of steroids when delivery was likely

that, justice required the evidence to be admitted. The court

before 34 weeks. That had been interpreted by the treating

was reluctant to tie the trial judge’s hands in a pre-trial

doctor as meaning more likely than not, that was, more than

decision when it was not aware of all the facts. It was not

50%. The claimant’s proposed witness had been on the

a case where the trust would be taken by surprise. Once

committee that issued the guidelines, and said that “likely”

exploration of the evidence had taken place, the trial judge

in the context meant a material possibility, namely between

would be in a much better position to decide how much

5% and 20%, and it did not have such a high threshold as

weight to put on the evidence.

to mean more than 50%. The Master held that the witness’ evidence was expert evidence regarding which there had been no application to admit, as he was not a treating doctor. The issue on the claimant’s appeal was whether it was appropriate to allow the claimant to admit the witness’s evidence on the meaning of the word “likely”.

‘It was factual evidence, but even if the court was wrong about that, justice required the evidence to be admitted...’

Post Jackson/Mitchell Cases The one substantive case to be reported this week brings both hope and confusion to beleaguered litigators. In Legal Watch: Personal Injury 008 we featured the first instance decision in Chartwell Estate Agents Ltd v Fergies

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Properties SA and another. Bucking the trend, relief was


granted from the sanction in CPR 32.10 arising from failing

• Legal Watch: Property Risks & Coverage

to serve witness statements within the time specified. The judge had held that the application for relief was not made


promptly and the default was not trivial, those being the

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key requirements stipulated in Mitchell. The reasoning for

• Legal Watch: Health & Safety

allowing the application was that both parties had been in default, the trial date could be maintained and a refusal of relief would effectively end the substantive claim. The case has been to the Court of Appeal and having regard

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to the proximity of the trial a judgment has been handed down with the reasons to follow. The appellate court has upheld the earlier decision.

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The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

Legal Watch - Personal Injury - Issue 14  
Legal Watch - Personal Injury - Issue 14  

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