FATAL ACCIDENT AND FATAL PLEADINGS: THE NEED TO PLEAD AND PROVE FOREIGN LAW
On the face of it the case of Bianco -v- Bennett  EWHC 626 (QB) is simply a case about fatal accidents. I was going to discuss it solely on the Fatal Accident Blog. On close reading, however, it reveals some procedural issues.
The claimant was the widow of an Italian national killed whilst a pedestrian in England. Liability was agreed with one-third contributory negligence. In addition to the claim for dependency the claimant made two “subrogated” claims. One for £313,442 paid by the Italian Workers Compensation Authority, the other for £65,195 paid by the deceased person’s employer. This was the trial of a preliminary issue in relation to those subrogated claims.
- Matters of foreign law must be pleaded and proven by evidence.
- The court will not carry out its own researches into foreign law.
- In the absence of a pleaded case and evidence to prove foreign law the claimant could not succeed.
- It is prudent, when seeking the trial of a preliminary issue, to confirm exactly what the court is being asked to try and precisely what evidence is needed for the court to determine the issues it is being asked to try.
PLEADING FOREIGN LAW
- he question is set out in paragraph 1 of the Order dated 27 November 2014 by which Master Eastman directed this preliminary trial:
“Subject to the claimant proving that the sums claimed in paragraphs 7-9 of the Schedule of Loss have been paid and/or are to be paid to the Claimant:
‘Are the claims pleaded at paragraphs 7, 8 and 9 of the Schedule of Loss dated 4th June 2014 recoverable by the Claimant, on behalf of INAIL and TESCOGO, from the Defendant?'”
- That order was made at the case management conference (CMC). It was made by consent. Three further things are to be noted about the Master’s order. The first is that the issue is formulated by reference to what is pleaded, and specifically to what is pleaded in those three paragraphs of the Schedule of Loss. The second is that the order reserved for determination after the preliminary issue trial the question of whether the sums claimed had or were to be paid to the claimant, but no other question. The third point is that the Master’s order contained no provision for the service of any evidence. Neither party has filed or served any evidence. It follows that the court can only proceed at this trial by reference to the pleaded case and the relevant law.
- The claims pleaded in the claim form and Particulars of Claim are conventional claims for damages pursuant to the LRMPA and FAA. No other cause of action is indicated in either document. No reference is made in either document to the subrogated claims. The prayer for relief in the Particulars of Claim claims relief under four headings: damages under the LRMPA, damages under the FAA, “bereavement damages”, and interest. The subrogated claims first emerged, so far as the statements of case are concerned, in the Schedule of Loss dated 4 June 2014.
- The Schedule of Loss is divided into three sections. The first is an Introduction, setting out basic facts about the nature of the claim and details of the dependants, as required by PD16 5.1. The second section is headed “Law Reform (Miscellaneous Provisions) Act 1934” and contains two items: 1 is general damages, and 2 is comprised of funeral expenses and damaged clothing cut off at hospital. The third section is headed “Fatal Accidents Act 1976”. There are 9 heads of claim, starting again at 1. Items 1 to 6 are for bereavement, financial dependency, loss of services, and miscellaneous expenses. The subrogated claims are items 7, 8 and 9 in this section of the Schedule.
- The claim in respect of INAIL is pleaded, so far as relevant, in this way:
“7 Subrogated claim (INAIL) Past Loss
The claimant has the benefit of a payment totalling €509,307.93 equivalent to £427,818.66 from an Italian insurer (INAIL) who pays a benefit to the family of the deceased if the deceased dies whilst in employment.
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.
To date the policy has paid out €65,078.89 to the family and €1,907.24 in respect of funeral expenses. Interest on that sum to date is sought at €1,906.35; a total claim of €68,892.48.
8 Subrogated claim (INAIL) Future Loss
The remaining €442,321.80. This is paid in instalments as follows:
To the claimant at a rate of €14,406.60 p.a. for 25.4 years
To the dependent children at a rate of €5,762.64 p.a. for 6.63 years
- The pleaded case therefore sets out what are said to be contractual obligations of the claimant under the terms of a policy of insurance with INAIL, to “seek a subrogated claim”. No reference is made to any provisions of Italian law, statutory or otherwise. The subrogated claim in respect of Tesco Go is pleaded, so far as relevant, as follows:
“9 Subrogated Claim (Deceased’s Employer)
The deceased[‘s] employer is obliged under article 2122 of the Italian Civil Code to provide compensation to the family of a deceased who dies whilst at work. The sum payable is €77,612.90 equivalent to £65,194.84. Where a third party is at fault, the claimant is bound to seek a subrogated claim.”
- Again, the pleaded case asserts an obligation on the claimant to “seek a subrogated claim”. The source and nature of that obligation are not clearly explained. One might surmise that the obligation derives from Article 2122, which is the only provision of Italian law referred to. That however would be speculation and, as it turns out, this is not the claimant’s case. In the submissions of Ms Howells, to which I shall come, the obligation relied on is said to flow from Article 1916 of the Italian Civil Code, a provision which is also said to create the right of subrogation relied on in respect of INAIL.
- English law holds, of course, that the content of foreign law is a question of fact, and if foreign law is to be relied on it must be pleaded and proved as a fact, as a rule by expert evidence: see Dicey Morris and Collins on the Conflict of Laws 15th edn Rule 25(1). Dicey’s Rule 25(2) is that: “In the absence of satisfactory evidence of foreign law the Court will apply English law to such a case.” This rule, commonly known as the “presumption” that foreign law is the same as English law, has recently been re-examined and endorsed by the Court of Appeal in OPO v MLA  EWCA Civ 1277,  EMLR 4: see - (Arden LJ). It is apparent that the claimant’s legal team contemplated that expert evidence of Italian law would be adduced in support of the claim: the claimant’s directions questionnaire of July 2014 identified an Italian law expert as a potential witness; and an application for permission was foreshadowed in the skeleton argument for the CMC submitted by counsel then instructed for the claimant. However, no application to adduce expert evidence was in the event made, then or subsequently.
- The defendant’s initial skeleton argument for this trial responds concisely to the case as it is pleaded on behalf of the claimant. Ms Kinsler submits that the claim is pleaded as an English law tort claim pursuant to the FAA and LRMPA; and that it is rightly so pleaded, having regard to Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II). Noting that the subrogated claims are advanced under the heading of the FAA, she submits that the heads of loss recoverable in English law pursuant to the FAA are circumscribed, and confined to funeral expenses, bereavement award, and loss of dependency. There is no head of loss which is apt to include the subrogated claims. Moreover, the receipt or anticipated receipt by the claimant of any sums paid by her late husband’s insurer and/or employer are disregarded in the assessment of her claim as irrelevant. Accordingly, the answer to the question raised for determination is no. To the extent that the claimant seeks to advance a case based on Italian law, warned Ms Kinsler, the defendant would object on the basis that any such claim would have to be pleaded and proved by expert evidence.
- As I have indicated, the skeleton argument filed by Ms Howells on behalf of the claimant puts the case differently from the way it is stated in the Schedule of Loss, and refers to unpleaded matters of Italian law. Ms Howells accepts that the claim is governed by English law. She submits, however, that the sums claimed are recoverable by the claimant on behalf of INAIL and Tesco Go pursuant to Article 85 of Regulation (EC) No 883/2004 on the co-ordination of social security systems (the 2004 Regulation).
- The 2004 Regulation, which replaced similar provision in earlier Regulations, is directly applicable in Member States. The relevant parts of Article 85 state as follows:-
“1. If a person receives benefits under the legislation of one Member State in respect of an injury resulting from events occurring in another Member State, any rights of the institution responsible for providing benefits against a third party liable to provide compensation for the injury shall be governed by the following rules:
(a) where the institution responsible for providing benefits is, under the legislation it applies, subrogated to the rights which the beneficiary has against the third party, such subrogation shall be recognised by each Member State;
(b) where the institution responsible for providing benefits has a direct right against the third party, each Member State shall recognise such rights.”
- Article 85 of the 2004 Regulation, submits Ms Howells, requires the United Kingdom to recognise, in proceedings brought in this jurisdiction, rights of subrogation provided to INAIL and Tesco Go in Italy. Those rights, she submits, must be given effect in this country. The claimant’s argument addresses the nature and extent of the rights which arise under Italian law. It sets out, by reference to documents included in the trial bundle over the objections of the defendant, the workings of the Italian system of compulsory insurance for workers, and the role of INAIL, identifying the provision of Italian law under which it is said that INAIL has made and will make payments to the claimant (Article 85 of the Presidential Decree No 1124 of 30 June 1965, the consolidated law on compulsory insurance against accidents at work and occupational diseases). The claimant’s argument goes on to assert that the payment which Tesco Go made to the family was one required of it by Articles 2122 and/or 2118 of the Italian Civil Code, which impose a duty on an employer to pay wages in lieu of notice upon the death of an employee. It is said, further, that pursuant to Article 1916 of that Code “INAIL and Tesco are subrogated to the rights of the claimant against third parties who are liable for the damage”. This is the right of subrogation to which it is said that Article 85 requires the United Kingdom to give effect. In order to explain the way she puts the claimant’s case, Ms Howells has taken me through all of these provisions in the course of her oral submissions. This has been a helpful exercise in enabling me to understand the way the claimant wishes to put her case.
- The first question I have to resolve however is whether, as submitted by Ms Kinsler, all of this is objectionable as an illegitimate attempt to introduce in support of the subrogated claims matters which require pleading and proof, but are neither pleaded nor the subject of any evidence. That is the basis for the defendant’s objection to the inclusion in the trial bundle of the material referred to by Ms Howells. Ms Howells naturally accepts on the claimant’s behalf that if the claims are good in principle it would be necessary for her client to establish that she had received or would receive the sums which are the subject of the subrogated claims. That much is clear from the Master’s order. Ms Howells has however also maintained that the Master’s order does not provide for the determination of all the questions of law that, on her client’s case, are involved. She accepts that the claim as she seeks to put it has not been fully pleaded. Her position is however that the question asked is one of “recoverability in principle”, leaving it open to the claimant to plead, at the end of this hearing or subsequently, matters of Italian law which are not presently pleaded and, having done so, to adduce evidence on a later occasion to prove the content and effect of the relevant provisions, so far as they bear on this case.
- In response to Ms Kinsler’s objections it is said that the claimant has proceeded on the understanding or assumption that the Master’s order does not require these matters to be pleaded or established by evidence at this stage. Ms Howells points out, and it is not in dispute, that the claimant’s intention to rely on Article 85 was made known to the defendant a considerable time ago. That cannot be said to come as a surprise, and the defendant has suffered no prejudice. Ms Kinsler responds that the onus is on the claimant to state her case fully and clearly, and to establish it in the ordinary way. She submits that, on its true interpretation, the Master’s order provided for the question of whether the subrogated claims can be recovered to be determined finally at this hearing, subject only to proof of the fact of receipt or anticipated receipt of the pleaded sums.
- In my judgment, Ms Kinsler is right in these submissions. The issue identified for trial as a preliminary issue was the recoverability of the subrogated claims. That was subject to the express reservation of one question of fact: whether the pleaded sums had been or were to be paid. No other reservation or qualification was contained in or implicit in the order. All other matters in issue between the parties on this aspect of the claim were therefore for determination at this trial, and not at any later stage.
- Generally speaking, the matters in issue between parties are to be identified by reference to the statements of case. Here, the order defining the issue for trial specifically referred to the pleading of the claims in items 7, 8 and 9 of the Schedule of Loss. In those paragraphs, the subrogated claims are set out as heads of damage recoverable in English law pursuant to the FAA. The pleaded basis for that is, in the case of the INAIL claim, a contractual obligation owed by the claimant to INAIL to seek a subrogated claim and, in the case of the Tesco Go claim, an obligation to seek a subrogated claim which is of an unspecified nature and origin.
- The Schedule of Loss makes no reference to Article 85 of the 2004 Regulation. However the 2004 Regulation, as a directly enforceable instrument of EU law, is part of English law. It is not a general requirement of the rules of pleading as laid down by the CPR, that a party should plead matters of domestic law on which it relies. It is sometimes convenient or appropriate to do so if, for instance, the legal proposition is of an unusual kind and for that or some other reason might take the opposing party by surprise. But that is not suggested by the defendant, and it is not as such objectionable for the claimant to advance arguments based on Article 85.
- But the position is different, in my judgment, when it comes to the provisions of Italian law which Ms Howells has identified as the foundation of the subrogated claims. Since Italian law is treated, like any foreign law, as a matter of fact, any averment as to the existence and content of a rule of Italian law should, like any other relevant factual averment, be pleaded. As it is, the only provision of Italian law to which express reference is made in the Schedule of Loss is Article 2122 of the Italian Civil Code, alleged to impose a duty on Tesco Go to pay the claimant what it has paid. There is no reference in the Schedule to Article 85 of the Presidential Decree of June 1965, on which reliance is placed so far as the INAIL claim is concerned, nor is there reference to Article 2118 of the Civil Code, relied on in respect of the Tesco Go claim, or to Article 1916, on which both limbs of the claimant’s subrogated claims are now known to depend.
- The matter goes beyond a question of pleading. The Italian law materials that the claimant placed in the trial bundle, and to which I have been referred, have enabled me to see the general shape of the claimant’s case, but they are not admissible evidence of the foreign law relied on. The English court will not conduct its own researches into foreign law: Bumper Development Corporation v Commissioner of Police for the Metropolis 1 WLR 1362, CA. A practical expression of this principle is that “a court is not permitted to assess any documentary evidence of foreign law, save that which is introduced in support of expert opinion”: Richard Fentiman, International Commercial Litigation, 2nd edn (OUP) para 20-30. There are some limited exceptions to this, but none that could apply in the present case.
- These principles have obvious practical justifications. Even where agreed translations of foreign materials are provided – which is not the case here – an English lawyer is liable to lack an understanding of the right approach to construing the foreign statutes or other materials relied on. And there may be much room for debate between those expert in the foreign law about the true interpretation of that law.
- The claimant’s proposed reliance on Article 1916 of the Italian Civil Code serves as an illustration of the potential value of expert evidence. The claimant’s pleaded case is that she is obliged or bound “to seek a subrogated claim” in respect of the sums received or to be received from INAIL and Tesco Go. The claimant’s translation of Article 1916 is, so far as relevant, as follows:
“1916 Right of subrogation of insurer. An insurer who has paid the indemnity is subrogated, to the extent of the amount of the said indemnity, to the rights of the insured against third persons who are liable for the damage.
The provisions of this article also apply to workmen’s compensation insurance and accident insurance.”
It is not obvious that this provision supports the pleaded case. Ms Howells submitted, in another context, that the term subrogation has different meanings in different laws and may sometimes be used to designate legal principles of a different character from subrogation as understood in English law. To an English lawyer, however, Article 1916 appears to provide for conventional subrogation, by which the insurer assumes the rights of the insured, to the extent of the indemnity provided by the insurer, and not otherwise. Moreover, whilst INAIL would seem, on the face of it, to provide “workmen’s compensation insurance”, the term “accident insurance” is not an obvious fit for the obligation to pay wages in lieu of notice which Tesco Go is said to have had, pursuant to Articles 2122 and/or 2118 of the Italian Civil Code.
- The defendant is in my opinion entitled to object to reliance by the claimant on the Italian law which has now been identified as founding her case under Article 85. The Italian law case, as now explained, is not pleaded, or not sufficiently so, and there is no admissible evidence before the court to support it. In addition, there is no or no adequate evidence before the court as to the factual context of the schemes pursuant to which the payments have been and are to be made.
- I recognise that the claimant is not seeking to secure findings on these issues at this hearing, but that serves to reinforce the grounds of objection rather than to meet them. The position adopted by the claimant can properly be regarded as amounting, in substance, to a late application to adjourn the hearing of part of the preliminary issue ordered by the Master and/or or to vary the Master’s order by adding a further qualification to this effect: “and subject to the claimant pleading and proving the nature and extent of any rights of subrogation conferred on INAIL and Tesco Go by Italian law”. In my judgment it is not just or appropriate to deal with the preliminary issue on any more limited a basis than the one prescribed by the Master’s Order.
- In reaching this conclusion I have had regard to the overriding objective. Factors favouring my conclusion are the need to deal with cases at proportionate cost, saving expense, ensuring that a case is dealt with expeditiously, and that it has allotted to it an appropriate share of the court’s resources. I accept that the claimant has approached this hearing on what I have found to be a false assumption or understanding as to the scope of the preliminary issue. It is not suggested, however, that the defendant caused or contributed to the making of that assumption. If I took the approach that is urged on me by Ms Howells there would be delay, and cost incurred in pleading the claimant’s Italian law case and, more significantly, securing expert advice and potentially expert evidence on both sides. There would be further cost incurred in preparing evidence as to the relevant factual matters. It is hard to predict to what extent the claimant’s case would be disputed, but it would be wrong to assume that everything put forward by Ms Howells would be admitted by the defendant.
- 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: Case C-412-10 Homawoo, interpreting Articles 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”: Article 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 MIB  EWHC 231 (QB).
- The scope of the law applicable to a tort claim is determined by Article 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 Article 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 Article 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 Article 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.”
- 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  UKSC 22,  AC 1379 at , 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.”
- The subrogated claims are plainly not causes of action possessed by the deceased before his death, so the LRMPA is rightly not treated as applicable in the Schedule of Loss. The claims are pleaded as falling under the FAA, but they cannot be brought within its terms. Section 1 of the FAA provides a right of action for a wrongful act causing death. By s 1A, damages for bereavement can be recovered. Section 3(1) provides the basis for the recoverability of damages for loss of dependency and loss of services: it provides that the claimant may recover “such damages … as are proportioned to the injury resulting from the death to the dependants respectively”. By s 3(5) damages may be awarded for funeral expenses incurred by the dependants. All of these claims are pleaded on the claimant’s behalf. No other heads of damage are recoverable under the Act.
- The dependants have the benefit of s 4 of the FAA which provides that “in assessing damages in respect of a person’s death under this Act, benefits which have accrued or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.” The intention of Parliament and the effect of this provision is that all benefits coming to a dependant as a result of death are to be left out of account; today “all that must be done is to quantify the loss of dependency”; Arnup v White Ltd  EWCA Civ 447,  (Smith LJ). Accordingly, there can be no question of the claimant having to give credit in the assessment of damages under the FAA for any benefits received from INAIL or Tesco Go as a result of her husband’s death. Such benefits fall to be ignored for the purposes of assessing the damages payable under the Act. It follows that, unless INAIL and Tesco Go can recoup from the dependants, they will recover compensation for what they have lost as dependants of Mr Capano, whilst retaining the benefits received from INAIL and Tesco Go. But that is a matter between those parties. It cannot give rise to a right on the claimant’s part to recover from the defendant the amount of the benefits paid or payable.
- For these reasons I agree with the defendant that the answer to the question posed by the preliminary issue is no; the claims pleaded in items 7, 8 and 9 of the Schedule of Loss dated 4th June 2014 are not recoverable by the claimant.
The judge went on to find that even if the issues had been properly pleaded the “subrogated” claims would fail in any event. They were not recoverable under the Fatal Accidents Act and did not arise out of the dependency of the claimant.