Case No: HQ09X05363
Neutral Citation Number: [2011] EWHC 2806 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28 October 2011 

Before :

SIR CHRISTOPHER HOLLAND
Sitting as a Judge of the High Court
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Between :

	MRS KATERINA COX
(Widow and Sole Dependant of MAJOR CHRISTOPHER CEDRIC COX, Deceased)

Claimant	
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	ERGO VERSICHERUNG AG
(Formerly known as VICTORIA)
(A company incorporated in accordance with the laws of the Federal Republic of Germany)	

Defendant	

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Alexander Layton QC, Marie Louise Kinsler and Henry Morton Jack (instructed by Leigh Day & Co) for the Claimant
Hugh Mercer QC and Sarah Crowther (instructed by Fishburns LLP) for the Defendant

Hearing dates: 27 – 30 September 2011
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Judgment
Sir Christopher Holland : 
INTRODUCTION
1.	The Claimant, Mrs Katerina Cox, claims damages from the Defendants, a German insurance company, doing so as the widow and sole dependant of Christopher Cedric Cox (“the Deceased”).  A finding of liability is admittedly inevitable;  what is in dispute is the appropriate juridic basis upon which her claim proceeds, such potentially impacting upon the heads of damage and the consequent assessment of damages.  The resultant issues for the Court are substantially legal – the material facts are in short compass:  such as are uncontroversial follow.
2.	The Claimant was born on the 3rd May 1978 in the Czech Republic.  Working in England as an “au pair” she met and married the Deceased.  The date of the marriage was the 21st June 2003.
3.	The Deceased was born on the 13th May 1972.  At all material times he was a respected, serving officer in the regular Army.  In August 2003, with the rank of Major, he was posted to Gütersloh in Germany.  There he and the Claimant took up residence in the Army married quarters.
4.	On the 21st May 2004 he was riding a bicycle along a street adjacent to the Gütersloh barracks when he was struck by a car driven by a German civilian, Günter Kretschmer.  He was killed instantly.  The accident was wholly the fault of the car driver.  The Defendants were the relevant motor insurers.
5.	It remains presently to add that there were no children of the marriage;  and that as at the date of death the Claimant was almost wholly dependent on the deceased, having only a modest income from part-time work at a local stables.  In 2005 she returned to England.  She has since entered into a partnership and has a child as a result.
THESE PROCEEDINGS 
6.	By way of the Particulars of Claim it is asserted, inter alia,
“3.	The Claimant brings this claim for herself:
(1)	as sole dependant of the Deceased and in respect of her bereavement pursuant to the provisions of the Fatal Accidents Act 1976;  and/or
(2)	pursuant to the German law, as dependant and heir of the Deceased.
4.	The claims against the Defendant are brought against it in its capacity as insurer of the vehicle and/or the driver of the vehicle.  These claims are brought pursuant to German law which provides for and permits a direct right of action to be brought against the third party liability insurer by victims, heirs and dependants in cases such as this.  The Claimant will rely in particular on paragraph 3(1) of the Pflichtversicherungsgezest (the Compulsory Insurance Law) to which she will refer at trial for its full terms, true meaning and effect.”
7.	The accident is pleaded;  the negligence is alleged,  and full particulars appropriate to a claim under the Fatal Accidents Act 1976 (“FAA”) are appended.  The pleading further includes “It is averred that pursuant to s.11 of the Private International Law (Miscellaneous Provisions) Act 1995, German law is the applicable law as the accident occurred in Germany”.
8.	The Claimant’s case is further clarified by way of an Amended Reply:
“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.”
Additionally it is pleaded (paragraph 3):
“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.”
9.	By way of the Re-Amended Defence of the 21st September 2010 causation and negligence are respectively admitted.  Where primary issue is raised it is with the notion of a cause of action founded on the Fatal Accidents Act 1976 (“the FAA”).  It is respectively contended that there is no such cause of action available to the Claimant as against the Defendants as insurers;  that the Court has no jurisdiction “to determine any claim or cause of action against the Defendant based either directly or indirectly upon (the FAA)”;  and that the Claimant’s cause of action arises solely at German law pursuant to certain specified sections of the German Civil Code (“BGB”).  In the overall result, the Defendants contend that an award of damages should be based upon heads of damage as prescribed by German law and should be subject to various factors as recognised by that law, all such jointly or severally potentially serving to reduce the award.
10.	In the light of the foregoing, Foskett J ordered a trial of all issues except the assessment of damages and gave permission for expert evidence as to German law.  The final, revised list of issues identified 24 in number.  Before me fewer, really essential issues have been addressed by way of well researched submissions essentially as to law, supported by expert evidence as to German law, much of which is happily the subject of agreement.  It is for me to make the required rulings by way of this judgment.

THE STATUTES
11.	Central to the respective submissions are the following statutory provisions.  I gratefully adopt the presentation as annexed to the Claimant’s opening submissions:
“Fatal Accidents Act 1976
     Section 1 provides, so far as material:
‘(1)	If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.
 (2)	[Subject to section 1A(2) below,] every action shall be for the benefit of the dependants of the person (“the deceased”) whose death has been so caused.
 (3)	In this Act “dependant” means – 
(a)	the wife or husband or former wife or husband of the deceased;’
Section 1A provides, as far as material:
‘(1)	An action under this Act may consist of or include a claim for damages for bereavement.
 (2)	A claim for damages for bereavement shall only be for the benefit
(a)	of the wife or husband … of the deceased;’
 	Section 3 provides, so far as material:
‘(1)	In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively …
  … 
 (3)	In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken into account the re-marriage of the widow or her prospects of re-marriage.’
Section 4 provides:
‘In assessing damages in respect of a person’s death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.’
 Private International Law (Miscellaneous Provisions) Act 1995, Part III
 Section 9 provides, so far as material:
‘(1)	The rules in this Part apply for choosing the law (in this Part referred to as “the applicable law”) to be used for determining issues relating to tort …
 …
 (4)	The applicable law shall be used for determining the issues arising in a claim, including in particular the question whether an actionable tort … has occurred.
 (5)	The applicable law to be used for determining the issues arising in a claim shall exclude any choice of law rules forming part of the law of the country or countries concerned.’
Section 11 provides, so far as material:
‘(1)	The general rule is that the applicable law is the law of the country in which the events constituting the tort … in question occur.
 (2)	Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being – 
(a)	for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;’
Section 12 provides, so far as material:
‘(1)	If it appears, in all the circumstances, from a comparison of – 
(a)	the significance of the factors which connect a tort … with the country whose law would be the applicable law under the general rule;  and
(b)	the significance of any factors connecting the tort … with another country,
that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(2)	The factors to be taken into account as connecting a tort … with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort … in question or to any of the circumstances or consequences of those events.’
Section 14 provides, as far as material:
‘(2)	Nothing in this Part affects any rules of law (including rules of private international law) except those abolished by section 10 above.
 (3)	Without prejudice to the generality of subsection (2) above, nothing in this Part – 
(a)	authorises the application of the law of a country outside the forum as the applicable law for determining issues arising in any claim in so far as to do so – 
(i)	would conflict with principles of public policy; …
(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.
(4)	This Part has effect without prejudice to the operation of any rule of law which either has effect notwithstanding the rules of private international law applicable in the particular circumstances or modifies the rules of private international law that would otherwise be so applicable.’ ”
DIRECT ACTION
12.	Adverting to the Claimant’s adoption of a direct action against the insurers, the following provisions have potential relevance:
i)	Directive 2000/26/EC of the 16th May 2000, “the Fourth Motor Directive”.
Article 3:  “Each Member State shall ensure that injured parties … enjoy a direct right of action against the insurance undertaking covering the responsible person against civil liability”.
ii)	The European Communities (Rights against Insurers) Regulations 2002 provide for direct liability of an insurer to a person injured in a United Kingdom road accident.
iii)	In Germany:  at all material times provisions of the Insurance Contracts Law in conjunction with provisions of the Compulsory Insurance Law provide for a direct action by a victim against a tortfeasor’s insurers, subject only to a cap reflecting the sum insured (such having to comply with minimum levels set by law) , see section 3 of the PflVG.
iv)	Directive 2009/103/EC of the 16th September 2009.
Article 18 replicates the earlier Article 3.
13.	It is common ground that an individual cannot rely directly on a Directive in an action against another private individual;  rights are as provided by the laws of the constituent states.
14.	It is at this point convenient to draw attention to a decision of the European Court:  FBTO Schadeverzekeringen NV v Jack Odenbreit (2007) ECR 1-11321.  The headnote identifies the issue as arising out of Regulation (EC) No. 44/2001 with a ruling that Article 9(1)(b) and 11(2) of that Regulation “must be interpreted as permitting the injured party to bring an action directly against the insurer before the courts for the place in a Member State where the injured party is domiciled provided that a direct action is permitted and the insurer is domiciled in a Member State”.  As will be apparent, the decision is cited by both parties before me.
FAA and BGB
15.	The issues between the parties are inspired by the contrast between the respective provisions with respect to claims arising out of a fatal accident as between the FAA and Bürgerliches Gesetzbuch (“BGB”), that is the German Civil Code.
16.	Pursuant to the FAA there is scope for just one action, such being for the benefit of all dependants of the deceased.  Liability has to be proved.  As to assessment, the essential post 1976 philosophy was identified by Smith LJ in Welsh Ambulance Services v Williams [2008] EWCA Civ 81 at paragraph 50:
“ … 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.”
All such is at one with the availability of a claim for damages for bereavement (s.1A), the irrelevance of a widow’s re-marriage or prospects for such (s.3(3)) and the disregard of benefits “which have accrued or will or may accrue” as a result of the death (s.4).
17.	Turning to the BGB, as helpfully illuminated by the respective expert witnesses, Rechtsanwalt Oskar Riedmeyer and Professor Gerhard Dannemann, the presently material features can be summarised as follows:
(a)	Following upon a motor accident the death of a victim may give rise to more than one form of action.  S.823 provides for a claim with respect to the victim’s injuries if there was a period of suffering between accident and death.  It also enables a claim for the victim’s special damage, typically damage to his vehicle.  The same section can be invoked by the widow if she has had a bad psychological response to the death of her husband – that said, it cannot be invoked to recover as for bereavement.  Turning to claims by dependants, each such has an individual right of action pursuant to s.844(2).  A claim with respect to funeral expenses can be separately maintained pursuant to s.844(1).
(b)	As to liability, such is strict pursuant to ss.7 and 8 StVG.  Proven contributory negligence may serve to reduce an award.
(c)	Pursuant to s.844(2) a widow may claim for the loss of her erstwhile right to maintenance from the deceased.  As to a claim for the loss of the benefit of services formerly provided by the latter, the situation is unclear.  Thus whilst Professor Dannemann has been unable to find any reported case featuring an award by a German court for loss of services, Rechtsanwalt Riedmeyer speaks by way of experience as to settlements which included such compensation.  What is apparent is that any potential for an award to reflect the loss of the deceased’s services is peculiarly fact sensitive – something specific to the erstwhile relationship is an essential requirement and even then the prospect for an award may be speculative.
(d)	An award under s.844(2) is normally fulfilled by way of an annuity.  However a lump sum award can be made as an alternative if circumstances militate against an annuity – for example, if the claimant lives outside Germany.
(e)	Fundamental to an award pursuant to s.844(2) is the aim to restore the claimant to the financial position that he or she would have enjoyed as a dependant of the deceased, but to do so in “nett” terms.  It is for the claimant to be compensated, but not knowingly overcompensated.  To that end, an award is not made as at the moment of death;  it seeks to reflect and react to the subsequent history so far as such impacts upon the loss of dependency – excluding only receipt of the proceeds of an insurance policy.  This philosophy and its impact readily appears from a staged approach to the assessment of a widow’s s.844(2) claim, that is (as the experts agree), standard for a German court:
(i)	Establish the likely prospective lifetime income of the deceased (it being assumed that he would die before the claimant).
(ii)	Deduct from (i) any savings that the deceased would have been likely to make.
(iii)	Deduct from the foregoing the fixed costs incurred in running the matrimonial household.
(iv)	Allot to the claimant 45% of the balance.
(v)	Add this latter sum to the fixed costs as per step (iii).
(vi)	Deduct any allowance for contributory negligence (if such be proved).
(vii)	Deduct from the ongoing balance the income which the claimant has made, or would be likely to make by taking up paid employment.
(viii)	Deduct from the still ongoing balance maintenance accruing to the claimant through re-marriage or through a relationship other than marital following the birth of a child.
Fundamental to the foregoing is a substantive requirement of German law:  the duty to mitigate, such justifying ongoing reference to her earning capacity and to benefits accruing from re-marriage or from a similar relationship.
18.	It is evident from the foregoing that an FAA claim is potentially more valuable to the Claimant than a BGB claim, thus fuelling the issues before me.
THE CASE FOR THE CLAIMANT – ISSUE No. 1
19.	My understanding of the Claimant’s case, as forcefully advanced by Mr Layton QC, is as follows.  The starting point is the entitlement of Major Cox had his injuries not been fatal.  As to this, he would have had a clear prima facie entitlement to maintain an action for damages against Herr Kretschmer as the person causing injury by way of “wrongful act, neglect or default”.  Thus, by focussing upon the position of Major Cox had he survived, s.1 FAA is potentially engaged.
20.	Attention then turns to ss.9, 11(1) and 11(2)(a) Private International Law (Miscellaneous Provisions) Act 1995 Part III (“Part III”).  By reference to such, the applicable law to be “used for determining the issues arising in a claim, including in particular the question whether an actionable tort occurred” is German law.  It is submitted that as the applicable law, German law would have enabled Major Cox to sue the Defendants as the insurers of Herr Kretschmer directly and would have provided for absolute liability.  Turning then to Odenbreit, op.cit., Major Cox could have sued in this country as a person domiciled here – with the Defendants domiciled in another Member State.
21.	It is then that attention turns to assessment of damages.  It is submitted that with an action in tort postulated, then assessment would be regarded as a matter of procedure, not substance, and thus governed by English law as the lex fori.
22.	Thus far the postulated situation mirrors that which founded a Court of Appeal decision:  Maher v Groupama Grand Est [2010] 1 WLR 1564.  Two English claimants respectively suffered injury in a French road accident.  They brought claims for damages against the French insurer of the other driver.  Judgment on liability was entered by consent.  There were issues as to the assessment of damages and the award of interest.  The nub of the matter for present purposes appears from the headnote:  
“for the purposes of resolving problems in the conflict of laws, English law recognised a distinction between substantive matters which were governed by the lex causae and procedural matters, such as remedies, which were governed by the lex fori;  that, since many cases depended on the resolution of more than one issue, English law characterised individual issues that arose for determination as being either substantive or procedural rather than characterising the claim as a whole;  that the issue of what damages the claimants should receive … was an issue that arose in tort, not contract;  and that … since the assessment of damages in tort was a procedural matter the claimants’ damages were to be assessed by reference to English law being the lex fori”.
23.	At this point Mr Layton QC turns from the postulated claim of Major Cox to the actual claim of Mrs Cox.  His submission is that the foregoing serves to satisfy s.1(1) of the 1976 Act and therefore, per s.1(2) and (3) Mrs Cox may maintain an FAA claim as brought in this jurisdiction.  Given a viable postulated claim (available to Major Cox had he not died) against the insurer Defendants, then invoking the FAA, has the effect of “piggybacking” an actual claim on to that which has been postulated.  There is nothing in the FAA to gainsay this approach.  Indeed, having commenced proceedings in an English court, reliance on the FAA is mandatory and arguably provides the only procedural route to achieve the assessment of damages.  As to this Mr Layton submits that the FAA as a whole is to be categorised as procedural, but that in any event ss.3 and 4 are such.  In a nutshell, having invoked the admittedly applicable German law as the lex causae to establish the Defendants’ liability to her, she now had to have assessment of damages by reference to English law as the lex fori by way of the FAA.
24.	Reliance is placed upon certain obiter dicta to be found in a Court of Appeal decision, Roerig v Valiant Trawlers Ltd [2002] 1 WLR 2304.  The essential decision appears from the headnote:
“The claimant, a Dutchwoman, brought an action under the Fatal 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 under section 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.”
In giving the judgment of the Court, Waller LJ having set out the decision summarised in the headnote, then went on to make further observations seemingly as obiter dicta:
“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.”
25.	For good measure, Mr Layton expressly retains fall back reliance on the provisions of Part III:  s.12(1) and s.14(3)(a)(i).
THE CASE FOR THE DEFENDANTS – ISSUE No. 1
26.	It is convenient to preface the submissions of Mr Mercer QC with citation of certain passages to be found in speeches sustaining a House of Lords decision, Harding v Wealands [2007] 2 AC 1.  The claimant (an Englishman) had been seriously injured in New South Wales, Australia, by reason of admittedly negligent driving by the defendant, an Australian.  A claim for damages for personal injuries was commenced in this jurisdiction, the defendant being resident in this country.  The resultant issue, per Lord Hoffmann in para 13, “… is whether damages for personal injury caused by negligent driving in New South Wales should be calculated according to the applicable law selected in accordance with … Part III or whether it is a question of procedure which falls to be determined in accordance with English law”.  In the result the House unanimously held that such calculation was a matter of procedure.  Opportunity was taken to consider the impact of the provisions of Part III.  A particularly pertinent passage is to be found in the speech of Lord Rodger of Earlsferry, in which there is to be found analysis of Part III and guidance as to a court’s approach:
“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.”
A further piece of general guidance is to be found in Lord Hoffmann’s speech:
“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.”
27.	Citing the foregoing, Mr Mercer QC submits by reference to Part III:
(a)	The applicable law per s.11 is German.
(b)	Turning to s.9(4), Gernan law is to be used to decide whether an actionable tort has occurred.
(c)	Per Lord Hoffmann an “actionable tort” embraces the wrong and the scope of the consequent liability.
(d)	Putting the foregoing together, German law, and in particular s.3 PflVG and s.844(2) BGB serve to identify the occurrence of an actionable tort:  a claim based on absolute liability against the Defendants as Herr Kretschmer’s insurers to the limit of the insurance cover, with the heads of damage and substantive law provisions as to mitigation of damage all as summarised in paragraph 17 hereof.
28.	In short compass once German law is identified as the applicable law and is applied, there is no scope for the FAA.  Mrs Cox does have a claim pursuant to German law, principally s.844(2) and, having regard to Odenbreit, op. cit., she can pursue it by way of her current action, it being pleaded as an alternative to the FAA claim.  What she cannot do is rely on the FAA.  What then of the lex fori?  This must cover assessment of that which German law prescribes as recoverable.  Essentially the Particulars of Claim invoke two separate forensic ‘packages’, FAA and BGB.  There has to be a choice between such, to be dictated by the applicable law;  there cannot be “pick and mix” between such.  This approach is consistent, the Defendants submit, with Roerig, op.cit.:  there the applicable law was English, the FAA therefore applied and all that Waller LJ said was on that footing – at its highest the argument was no more than whether Dutch law could bear upon certain issues – hampered by lack of evidence as to Dutch law.
ISSUE No. 1 – JUDGMENT
29.	Issue No. 1 is in the following terms:  “Applying English conflict of laws principles, can the Claimant rely on (FAA) as pleaded in paragraph 3(1) of her Particulars of Claim?”  In my judgment the answer is ‘No’.  As to this, I refer to the respective cases as deployed above:  I am entirely satisfied that the Defendants’ case is to be preferred.  In my judgment Part III is for present purposes the source of the material provisions of English conflict of laws.  The provisions as cited clearly make selection of the applicable law as the unsurprising starting point.  With German law thus identified, its application has to follow, propounding a package of provisions, inter alia so as to address, per s.9(4) of Part III “the question whether an actionable tort … has occurred”, that is, whether there is liability and if so (as Lord Hoffmann points out, op. cit.) for what by way of heads of damage.  The answers as provided by the applicable German law have been summarised in paragraph 17 hereof – they do not include resort to the FAA.  This approach to the issue has, in my opinion, the explicit support of Lord Rodger of Earlsferry, op. cit., but is plainly incompatible with Mr Layton’s case.  Thus he postulates s.1 FAA as the starting point and only subsequently turns to the admittedly applicable law for the benefits of direct action and absolute liability, thereafter spurning all other aspects of the lex causae before returning to the lex fori for a standard FAA damages assessment.  I cannot regard his case as reflecting Part III as illuminated by Harding v Wealands, op. cit.
30.	When preparing this ruling my attention was drawn to The Vera Cruz (1884) 10 AC 59.  In this case the House of Lords had to rule upon the nature of a fatal accident claim as established by the fons et origo, the Fatal Accidents Act 1846, that is, Lord Campbell’s Act – was it such as to be within the jurisdiction of the Admiralty Division?  Per Earl of Selborne LC at p.67:  “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.”  Per Lord Blackburn at p.70 “ … a totally new action is given against the person who would have been responsible to the deceased if the deceased had lived … an action which … is new in its species, new in its quality, new in its principle, in every way new … ” As it seems to me, this serves to dispose of Mr Layton’s more extreme suggestion, namely that the FAA is in total procedural so as to come wholly into play so soon as the lex fori becomes operative;  and questions an approach which starts with the deceased’s postulated claim.
ISSUES Nos. 4, 5 and 6
31.	The resolution of some further issues necessarily follows.  Issues Nos. 2 and 3 having been deleted, I can turn to the following:
Issue No. 4:  “Does German law apply to limit the Defendants’ liability by reference to German principles of mitigation?”
Issue No. 5:  Does German law apply to determine whether 
(1)	  the MOD pension;  and/or
(2) maintenance from the Claimant’s new partner (or her right thereto, if any)
are to be taken into account in determining the extent of the Defendants’    liability?”
Issue No.  6:  Does German law apply to determine whether the possibility or prospect of the Claimant re-marrying and/or cohabiting with a new partner is to be taken into account in assessing the Defendants’ liability?
As to such, it is common ground that had I been able to uphold the Claimant’s contention that her claim could be advanced as a FAA claim, then the answers would have been respectively ‘No’.  As it is, BGB provides as a matter of substantive law a duty to mitigate (inter alia, so as to obviate the risk of double recovery) – such is the agreed opinion of the experts.  Thus, following on from Issue No. 1, the answer to No. 4 is ‘Yes’, with Nos. 5(2) and 6 effectively turning on the same duty.  As to Issue 5(1), I deal separately with this matter hereinafter.
32.	I should add that, as I intimated in the course of argument, I am unwilling to address issues that are in effect satellite to Issue No. 1 in any detail.  I have been asked to make rulings on the basis of bare essentials in terms of fact.  I am conscious that the BGB approach is not fixed, as it were, at the moment of death but seeks to reflect ongoing developments that must inevitably be potentially fact sensitive.  I am unwilling to address specifics in ignorance of the full facts and of the German expert advice on the basis of such – and when I am not currently seeking to apportion and apply the lex causae and the lex fori.
ISSUES Nos. 5(1), 7, 8, 9, 10, 11 and 12
33.	To deal with these issues I have to add to the history.  On the 1st August 2004 Mrs Cox, no doubt at the invitation of the Ministry of Defence, signed a form headed “Assignment of Claim”.  This invokes an accident at Gütersloh on the 21st May 2004 involving her husband and proceeds so far as material:  “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.”
34.	Events consequent upon the signing of this form can be summarised.
(a)	The Ministry (“MOD”) paid repatriation costs and commenced paying an ongoing widow’s pension.
(b)	By way of the Area Claims Office the MOD used the signed form to invoke a longstanding, somewhat convoluted German procedure whereby through the good offices of Bundesanstalt für Immobilienaufgaben (Federal Institute for Real Estate Matters) claims are made from time to time for payment by the Defendants as Herr Kretschmer’s insurers of sums appropriate to cover the MOD’s outlay.  The essential premise is the liability pursuant to s.844(2) BGB to pay damages to the Claimant.  To the extent that such liability is being met by way of responding to the subrogated claim as advanced by the MOD, the Defendants are in the process of paying such damages.
(c)	In the event the procedure is effective (the German Federal Republic stands pro tem as agent of the UK) so that claims amounting to €87,000 have been met and as at May 2010 (the latest available documentation) the Federal Bureau had initiated a further subrogated claim for €112,328.84.
(d)	By way of their agreed advice the German experts advise that in response to the Claimant’s BGB claim credit would have to be given for such payments as have been made and will be made pursuant to this procedure.  Indeed, if the MOD pension is in the event wholly funded by the Defendants then the German law would regard such as deductible, thus adding a ninth step to the procedure spelled out in paragraph 17 hereof.
35.	In the course of the hearing time was expended (with, I hasten to add, the best of intentions) in subjecting the form of the 1st August 2004 and the German procedure to close forensic analysis, focusing on the law of the assignment, its meaning and effect.  Unhappily I cannot convince myself that any such has more than academic interest.  As to this, if the claim could be advanced as a FAA claim, none of this has any materiality.  If it can only be regarded as a BGB claim, it is obvious beyond dispute that by way of this procedure the Defendants are paying monies from time to time for which credit has to be given.  What remains for further detailed investigation is the following:
a)	the sums paid and payable by way of the MOD pension;
b)	the extent to which such payments are in the event defrayed by the Defendants – any excess by way of pension payment over the Defendants’ payment is essentially a collateral benefit;  and
c)	the extent to which the full value of the claim is in the event met by the pension – is there an excess calling for separate recompense?
36.	In the overall result, I see this aspect of the case as essentially one of fact:  with a procedure started by the signing of the form the Defendants are making payments that serve to offset their BGB obligations – and doing so without raising any issue.  I cannot usefully say more under this head.
ISSUES Nos. 22, 23 and 24
37.	These issues relate to that which is a matter of dispute between the German law experts:  the extent to which the BGB permits a widow’s claim for the loss of services formerly provided by the deceased.  On listening to the evidence it became readily apparent that a considerable amount might turn upon that which has yet to be vouchsafed:  the full facts sought to be relied upon.  I am quite satisfied that these issues must be left to the judge charged with the assessment of the damages.
CONCLUSION
38.	I look forward to receiving an agreed order to give effect to the foregoing.  I must express my warm appreciation of the skills and endeavours of respective leading counsel and those who supported them.