COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GREAT GRIMSBY COUNTY COURT
His Honour Judge Reddihough
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal
LORD JUSTICE WALLER
LORD JUSTICE SEDLEY
and – Valiant Trawlers Ltd Defendant/Appellant
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robert Leonard (instructed by Ince & Co) for the Appellant
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Waller:
“Assessment of damages: disregard of benefits
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.”
“Compensation is also paid to accident victims and their dependants through civil court proceedings. However, under Dutch law the level of compensation is determined by the financial requirements of the claimant. All benefits received by the claimant - whether emanating from social security or from a collective labour agreement’s provision - will be taken into account and deducted from compensation. The reasoning behind this is that society provides for its victims and their dependants to an acceptable and reasonably high minimum, which is usually elevated by provisions arranged by the industry they are/were working in. In Ms. Roerig’s and her children’s case this social security system works out as follows: ... ”
“Choice of applicable law: the general rule
(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict 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;
(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and
(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.
3) In this section “personal injury” includes disease or any impairment of physical or mental condition.”
“Choice of applicable law: displacement of general rule
(1) If it appears, in all the circumstances, from a comparison of –
(a) The significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and
(b) The significance of any factors connecting the tort or delict 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 that may be taken into account as connecting a tort or delict 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 or delict in question or to any of the circumstances or consequences of those events.”
Issue 1 Proper Law of the Tort
(ii) The first exercise is to identify the issue in relation to which it might be suggested that the general rule should not be applicable. It is not I think seriously argued that in relation to issues giving rise to liability the general rule should not have applied. The argument relates to the assessment of damages, and in particular to the assessment of a particular head of damage accepted as recoverable under both Dutch and English law “dependency”, and ultimately to the question whether benefits accruing from the death of the deceased should be deducted when making that assessment. The characterisation for the purposes of private international law of issues arising in a claim as issues relating to tort or delict is a matter for the courts of the forum (see Section 9(2)). This will be relevant again when considering issue 3 (procedural or substantive). The question is whether the issue in the instant case should be defined as damages generally, or that head of damage “dependency” or even more refined to the issue whether benefits should be deducted. In Chaplin v Boys the House of Lords wrestled with the question whether damages for pain and suffering which were irrecoverable under Maltese law, Malta being the country where the motor accident took place, but recoverable under English law, the law of the country of both parties, and of the forum, should be decided under English law or Maltese law. That points the way as it seems to me to defining and refining the issue in this case at least to that relating to recoverability of damages for loss of dependency. I would however limit the refinement of the issue to “loss of dependency” as opposed to further refining the issue as to whether “benefits should be deducted in assessing loss of dependency”. This may not be so important when considering this issue, but it is at this stage that there seems to me to be an overlap between issue 3 and issue 1. The question whether a head of damage is recoverable is clearly a matter of substantive law which could be decided by reference to a law other than the law of the forum. An issue of what should be deducted in calculating the damages under a specific head should be for the law of the forum. For reasons which I shall develop when considering issue 3, the deduction of benefits seems to me a matter of calculation and thus for the forum. Under Section 12 the law of the forum is not an option unless that law is also a law of a country with which the tort has significant connecting factors. Thus an issue which is for the law of the forum cannot be a relevant issue under Section 12. I accept that at this stage in the context of this case in any event that distinction may be unimportant.
(iii) The next task is to identify the factors that connect the tort with England and those that connect the tort with Holland. The factors that connect with England seem to me to be that the events occurred on a boat registered in England, and that the defendant is an English company. What then are the factors that connect with Holland? The deceased was a Dutchman, and his death would lead to damage being suffered by his dependants, who are Dutch, in Holland where they live. The incident occurred when the deceased was under the supervision of the Dutch Fishing Master albeit the skipper of the boat was English. In real terms the vessel was on a Dutch fishing expedition in that the boat set off from a Dutch port and would return with its catch to a Dutch port. The defendant was a subsidiary of a Dutch company, and the deceased was on board the trawler as an employee of a Dutch company also a member of the same Group.
(iv) What then is the significance of the Dutch factors when compared to the significance of the English factors which might make it substantially more appropriate for Dutch law to determine the loss of dependency issue? Mr Leonard submits that it is the fact that the deceased was Dutch, employed by a Dutch company paying Dutch taxes and making contributions to obtain Dutch security benefits, and the fact that the dependants will suffer their loss of dependency in Holland as Dutch citizens, which are the most significant factors. That, he submits, makes it logical to assess this aspect of the damages by Dutch law. But it seems to me that the logic of that argument leads almost inevitably to the consequence that where a claimant, injured in England, is a foreigner living and employed in that foreign country, any head of damage should be assessed in accordance with the law of his or her country. Indeed in one sense I suppose it could be said to be “appropriate” that that should be so since the injured party or the dependants thereof are likely to feel their loss only in that foreign country. But it seems to me that it was not intended that the general rule should be dislodged so easily. Where the defendant is English, and the tort took place in England, it cannot surely be said that it is substantially more appropriate for damages to be assessed by Dutch law simply because the claimant or the deceased is Dutch. One can entirely understand that if fortuitously two English persons are in a foreign country on holiday and one tortiously injures the other, the significant factors in favour of England being the place by reference to which the damages should be assessed may make it substantially more appropriate that damages should be assessed by English law. But say the position were that an English defendant under English principles relevant to assessment of damage would have to pay aggravated damages to a claimant, and would thus have to pay English plaintiffs such damages, why should a foreigner not be entitled to have such damages awarded in his or her favour simply because by the law of where they reside those damages would be unavailable?
(v) In my view the word “substantially” is the key word. The general rule is not to be dislodged easily. I thus think the judge was right in the view he formed that the defendants had failed in their attempt to do so.
Issue 3 Substantive or procedural
“It is clear that the ordinary rule in tort is that the law of the place where the action is being brought - the lex fori – is the law to be applied. To find an exception to that rule one has to find as issue, which is decided differently by the two jurisprudences, which is capable of being segregated and which can then be decided by an application of what, in effect by the back door, is the proper law of that issue. But before one can do that one has to have some substantial difference between the two systems of law. In this case (as I have demonstrated) the only possible candidate for segregation would be the rule in Libyan law that social security benefits are not deductible from an award of general damages. But that contention is not advanced by Mr Hartley Booth for the plaintiff (and properly so it seems to me), for that rule is, in my judgment, a rule for the quantification of damage and not a rule dealing with a head of damage. And if it is a rule dealing with the quantification of damage, then it is for the law of this country to prevail.”
“Even if I had not decided the section 12 point in the claimant’s favour, I would, unless persuaded that Spanish law did not recognise any head of damage recoverable by the claimant, have decided that quantification was purely procedural and should be carried out according to English law in any event.”
“It has also been said that whether social security benefits are deductible from an award of general damages is a rule for the quantification of damages and not a rule dealing with a head of damage. The question will, accordingly, be referred to English law.”
“On the other hand, questions such as whether loss of earning capacity or pain and suffering or (in fatal accident claims) solatium or loss of society are admissible heads of damage, all questions of remoteness of damage, the existence and extent of the claimant’s duty to mitigate damage, whether exemplary damages are recoverable, the existence and extent of financial ceilings on recoverable damages, and whether recovery can be had for any head of damage unknown to English law are questions of substantive law.”
“Statutory provisions limiting a defendant’s liability are prima facie substantive; but the true construction of the statute may negative this view. The proper classification of rules which limit the amount of damages recoverable was considered by the High Court of Australia in Stevens v Head, a case involving an action arising out of a road accident in New South Wales brought by the plaintiff in Queensland. One of the questions facing the court was whether or not a provision in the Motor Accidents Act 1988 of New South Wales which limited the amount of damages which could be recovered in respect of non-economic loss was a substantive rule to be applied as part of the lex causae. Although a minority took the view that a rule which imposes a ceiling on damages is substantive – because it is not directed to governing or regulating the mode or conduct of court proceedings – the majority held that the statutory provision in question was procedural as it did not touch the heads of liability in respect of which damages might be awarded, but simply related to the quantification of damages. In Caltex Singapore Pte Ltd. v BP Shipping Ltd Clarke J., while accepting that rules limiting liability are prima facie substantive, relied on Stevens v Head and held that section 272 of the Singapore Shipping Act 1970 (and the equivalent English provision), under which the defendant in a collision action has the right to limit liability, is not a substantive rule.
It may be questioned whether the approach adopted in these cases is either desirable in terms of policy or entirely consistent with the authorities. The primary purpose of classifying a rule as substantive or procedural is “to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of [the] parties.” From this perspective provisions or rules dealing with the measure of damages should not be seen as procedural in nature. Furthermore, a close reading of the leading authorities (in particular Boys v Chaplin) suggests that the scope of the choice of law rule that the quantification of damages is governed by the lex fori should be restricted to rules relating to the method whereby damages are assessed (e.g. the English rule that damages are assessed once and for all) and should not encompass rules which fix or limit the extent of the defendant’s liability.”
“In determining whether, by the lex loci, the relevant facts give rise to a civil liability of the kind which the plaintiff seeks to enforce, the courts of the forum distinguish between substantive and procedural laws. Procedure is governed exclusively by the laws of the forum, but the substantive laws of the place of the tort determine whether, by those laws, there exists a civil liability of the kind which the plaintiff seeks to enforce. In McKain, it was held that a South Australian law which imposed a limitation on the time within which to bring an action in the courts of that State for damages for a tort committed within that State but which did not extinguish the cause of action was not a substantive law which precluded the bringing of an action in the courts of New South Wales for damages for a tort committed in South Australia. The majority followed a line of authority which distinguished between a statute of limitation which does no more than cut off resort to the courts for the enforcement of a claim and a statute which extinguishes civil liability and destroys a cause of action. The former is classified as a procedural law, the latter as substantive.
A similar distinction has been drawn between a law which denies a remedy in respect of a particular head of damage in negligence (a substantive law) and a law which affects the quantification of damages in respect of a particular head of damage (a procedural law). That distinction was drawn by a majority in Chaplin v Boys and by Brennan J and Dawson J in Breavington v Godleman, followed in Perrett v Robinson. In McKain, the Chief Justice accepted that “the question of what heads of damage are recoverable is now treated as a substantive issue” and that a matter concerning quantification of damage, “on traditional analysis, has been treated as a procedural consideration.” But his Honour’s preferred view was that the measure of damages for personal injury is a question of substantive law, as he held in Breavington v Godleman. We are respectfully unable to accept that view.”
Issue 2- Contract
(1) Except as provided under subsection (5) below, an agreement in writing shall be made between each person employed as a seaman in a United Kingdom ship and the persons employing him and shall be signed both by him and by or on behalf of them.
(2) The agreements made under this section with the several persons employed in a ship shall be contained in one document (in this Part referred to as a crew agreement) except that in such cases as the Secretary of State may approve –
(a) the agreements to be made under this section with the persons employed in a ship may be contained in more than one crew agreement; and
(b) one crew agreement may relate to more than one ship.
(3) The provisions and form of a crew agreement must be of a kind approved by the Secretary of State; and different provisions and forms may be so approved for different circumstances.
(4) Subject to the following provisions of this section, a crew agreement shall be carried in the ship to which it relates whenever the ship goes to sea.
(5) The Secretary of State may make regulations providing for exemptions from the requirements of this section –
(a) with respect to such descriptions of ship as may be specified in the regulations or with respect to voyages in such areas or such description of voyages as may be so specified; or
(b) with respect to such descriptions of seamen as may be specified in the regulations;
and the Secretary of State may grant other exemptions from those requirements (whether with respect to particular seamen or with respect to seamen employed by a specified person or in a specified ship or in the ships of a specified person) in cases where the Secretary of State is satisfied that the seamen to be employed otherwise than under a crew agreement will be adequately protected.
(6) Where, but for an exemption granted by the Secretary of State, a crew agreement would be required to be carried in a ship or a crew agreement carried in the ship would be required to contain an agreement with a person employed in a ship, the ship shall carry such document evidencing the exemption as the Secretary of State may direct.
(7) this section to carry a crew agreement to comply with the requirement by carrying a copy thereof, certified in such manner as may be provided by the regulations.
(8) the requirements of this section the master or the person employing the crew shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale, and the ship, if in the United Kingdom, may be detained.”
Appeal procedure point
“Appropriate Appeal Court
The rules governing the appropriate appeal court are set out in the Access to Justice Act 1999 (Destination of Appeals) Order 2000. The rules on appeal as set out at CPR 52 PD 2A.1-2A.4 (White Book, Autumn 2001 edition, Vol.1, pages 995-996) simply rehearse the rules set out in this Order.
This claim has been allocated to the multi-track, (see Order of 9 September 2000) accordingly Article 4 of the Order (52 PD – 2A.2) applies. This provides that an appeal shall lie to the Court of Appeal where the decision to be appealed is a final decision.
Article 1(2)(c) (52 PD – 2A.3) provides that “final decision” means:
A decision of a court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the court decided the issues before it.
In addition, by Article 1(3), (52 PD – 2A.4) a decision of a court shall be treated as a final decision where it:
(a) is made at the conclusion of part of a hearing or trial which has been split into parts; and
(b) would, if made at the conclusion of that hearing or trial, be a final decision under paragraph 2(c).”
“A final decision includes the assessment of damages or any other final decision where it is “made at the conclusion of part of a hearing or trial which has been split up into parts and would, if made at the conclusion of that hearing or trial, be a final decision:” article 1(3) of the Order of 2000; it does not include a decision only on costs. This means that if a judge makes a final decision on any aspect of a claim, such as limitation, or on part of a claim which has been directed to be heard separately, this is a final decision within the meaning of this provision.”
“A broad common sense test should be applied, asking whether (if not tried separately) the issue would have formed a substantive part of the final trial. Judged by that test, this judgment was plainly final; even though it did not give the plaintiff a money judgment and would not, even if in the airline’s favour, have ended the action.”
Lord Justice Sedley:
Lord Justice Simon Brown: