Bianco v Bennett  EWHC 626 (QB)
The Claimant was the widow of a man who died after being hit by the Defendant’s car. The accident took place in England, but the Claimant and her husband were both Italian nationals who lived in Italy. The Defendant admitted two-thirds liability. A claim was brought under the Fatal Accidents Act 1976 (“the FAA”) and the Law Reform (Miscellaneous Provisions) Act 1934 (“the LRMPA”). Under the FAA, the schedule of loss included “subrogated claims” for sums paid to the Claimant’s family by the Italian Workers’ Compensation Authority and by her husband’s employer. The question of whether she was entitled to bring these claims was heard as a preliminary issue.
The Claimant wrongly assumed that the scope of the hearing was to determine whether the subrogated claims were recoverable in principle. In fact, the hearing was intended to determine finally whether they could be recovered, subject only to proof of receipt of the pleaded sums. This assumption meant the EU and Italian law that allegedly gave rise to the subrogated rights had not been pleaded.
The Claimant argued that the sums claimed were recoverable pursuant to Article 85 of Regulation 883/2004, which provided that Member States must recognise subrogation rights in relation to benefits arising under the legislation of one Member State for injuries resulting from events in another.
The Defendant argued that any claim based on Italian law would have to be pleaded and proved by expert evidence, and that there was no head of loss under the FAA which was apt to include the subrogated claims.
The subrogated claims as pleaded failed
The Claimant’s failure to plead Article 85 was not objectionable, since as a directly enforceable instrument of EU law it was part of English law, and there is no general requirement in the CPR that a party should plead matters of domestic law. The position regarding the failure to plead the relevant Italian law was different; as with any foreign law, it is treated as a matter of fact and like any other factual averment it should have been pleaded. Having regard to the overriding objective, it was not just or appropriate to adjourn part of the preliminary hearing to allow the Claimant to plead and prove the nature and extent of any subrogation rights arising as a matter of Italian law.
The claims as pleaded could not succeed. Rome II applied, so the law applicable to a non-contractual obligation was that of the country in which the damage occurred. As a matter of English law, claims made under the FAA and the LRMPA were the only basis available to the Claimant for advancing claims in respect of her husband’s death. The subrogated claims were pleaded under the FAA, but the judge agreed with the Defendant’s contention that it provided for no head of loss which was apt to include them. Nor could a claim have succeeded under the LRMPA, since the subrogated claims were clearly not a cause of action possessed by the Claimant’s husband before his death.
Even if the Claimant had properly pleaded and proved the facts on which she sought to rely, the subrogated claims would have failed
Article 85(1)(a) was a choice-of-law provision by which the “home” law of the institution providing benefits in respect of an injury would govern whether the institution was subrogated to rights enjoyed by the beneficiary against the wrongdoer and, if so, the extent of the subrogation. Member States must recognise the rights of subrogation, to the full extent provided for by that law, but the provision did not require the court of the foreign Member State to apply the law of the institution’s home jurisdiction to the claim against a defendant. Questions regarding the nature and extent of the rights of the beneficiary are to be answered by reference to the law applicable to the tort, pursuant to private international law, which in this case was English law. The rights to which the institution is subrogated could not exceed those possessed by the Claimant under English law.
This case demonstrates the importance of pleading and evidencing foreign law. Save for limited exceptions, documentary evidence of foreign law will not be allowed unless it is introduced in support of an expert opinion, for which permission has been obtained. However, this does not apply to directly enforceable EU law.
The judgment also confirms the distinction between the heads of loss which are recoverable in a fatal accident claim as opposed to a claim brought by a living claimant. There is no tortious basis for bringing a claim for the death of a person at common law. The statutory routes open to claimants in fatal accident claims are therefore limited to the provisions of the FAA and the LRMPA. Claims under the FAA are restricted to damages for bereavement, loss of dependency and funeral expenses. Claims brought on behalf of an estate under the LRMPA are restricted to causes of action possessed by the deceased before his or her death. Accordingly, any claim which does not fall into one of these categories will fail.
Finally, it highlights the need for parties to pay careful attention to the wording of orders, to ensure the scope of a preliminary hearing is not misunderstood, as it was to detrimental effect in this case.