Cox v Ergo Versicherung AG
Under the Private International Law (Miscellaneous Provisions) Act 1995, the rules of German law on the assessment of damages for a fatal accident in Germany applied, because they were substantive, including the duty to mitigate.
Facts
Major Cox, a British army officer, was killed in Germany when he was struck by a car driven by a German driver, who was insured by Ergo. His widow sued the insurers in England for damages for the loss of dependency. It was common ground that German law governed liability. The question was whether her damages should be assessed in accordance with German law, under which her damages would be reduced to reflect the support she received from her new partner and her duty to mitigate her loss, or English law.
Legal principle
The Supreme Court held that German law governed the assessment of damages. Lord Sumption said that the rules of German law in question, which defined the scope of the dependants' claim and the duty to mitigate, were substantive rules, governing the existence and extent of the liability, not mere rules of procedure about the quantification of damages, so they applied under the 1995 Act. The distinction drawn in Harding v Wealands between substantive heads of damage and the procedural quantification of damages was applied, but the German rules fell on the substantive side of the line. Under the Rome II Regulation, which applied to later events, the assessment of damages is in any event governed by the applicable law.
Related cases on choice of law in contract and tort
- Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50
- Boys v Chaplin [1971] AC 356
- Foster v Driscoll [1929] 1 KB 470
- Harding v Wealands [2006] UKHL 32, [2007] 2 AC 1
- Ingmar GB Ltd v Eaton Leonard Technologies Inc Case C-381/98, [2000] ECR I-9305
- Libyan Arab Foreign Bank v Bankers Trust Co [1989] QB 728
- Ralli Brothers v Compañía Naviera Sota y Aznar [1920] 2 KB 287
- Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190
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