UKSC 22
On appeal from:  EWCA Civ 854
Cox (Appellant) v Ergo Versicherung AG (formerly known as Victoria) (Respondent)
Lord Neuberger, President
JUDGMENT GIVEN ON
2 April 2014
Heard on 20 and 21 January 2014
Alexander Layton QC
Marie Louise Kinsler
Henry Morton Jack
(Instructed by Leigh Day & Co)
Hugh Mercer QC
(Instructed by DWF Fishburns)
LORD SUMPTION (with whom Lord Neuberger, Lord Toulson and Lord Hodge agree)
German and English law
"If the person killed, at the time of the injury, stood in a relationship to a third party on the basis of which he was obliged or might become obliged by operation of law to provide maintenance for that person and if the third party has as a result of the death been deprived of his right to maintenance, then the person liable in damages must give the third party damages by payment of an annuity to the extent that the person killed would have been obliged to provide maintenance for the presumed duration of his life."
"Right of action for wrongful act causing death
(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 such action shall be for the benefit of the dependants of the person ('the deceased') whose death has been so caused."
For this purpose a "dependant" means someone falling within the categories defined in section 1(3), including the widow (or widower) of the deceased (section 1(3)(a)), a civil partner (section 1(3)(aa)), or a person who for at least two years before the death had been living with the deceased in the same household as the deceased's spouse or civil partner (section 1(3)(b)).
"3. Assessment of damages.
(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 account the re-marriage of the widow or her prospects of re-marriage."
4. 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."
(1) Damages awarded to a widow under the BGB will take account of any legal right to maintenance by virtue of a subsequent remarriage or a subsequent non-marital relationship following the birth of a child. Section 3(3) of the Fatal Accidents Act expressly excludes remarriage or the prospect of remarriage as a relevant consideration in English law.
(2) Section 844 of the BGB confers no right to a solatium for bereavement. Under section 823 of the BGB the widow may in principle be entitled to compensation for her own pain and suffering, but this would require proof of suffering going beyond normal grief and amounting to a psychological disturbance comparable to physical injury.
Choice of law: the legal framework
Procedure or substance?
"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."
This reflected the test previously stated by the majority of the House of Lords in Boys v Chaplin  AC 356.
"Section 122(1) of MACA explains that Chapter 5 applies to, and in respect of, 'an award of damages' relating to death or injury in motor accidents. Section 123 provides that: 'A court cannot award damages to a person in respect of a motor accident contrary to this Chapter.' While, of course, it may be necessary to look beneath the surface of a statutory provision to ascertain its nature, the legislature is here signalling that the provisions in Chapter 5 are directed to what a New South Wales court can award by way of damages. In other words, prima facie at least, they are concerned, not with the scope of the defendant's liability for the victim's injuries as such, but with the remedy which the courts of New South Wales can give to compensate for those injuries. For purposes of private international law, prima facie they are procedural in nature."
Overriding effect of English law
"Nothing in this Part... 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... would conflict with principles of public policy."
Section 14(4) provides:
"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."
"Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair?"
Duncombe v Secretary of State for Children, Schools and Families (No 2)  ICR 1312, did not concern an extra-territorial enclave of the United Kingdom. The employees were teachers employed by the Secretary of State to work in European schools abroad. But the Supreme Court treated the result in Lawson v Serco Ltd as illustrative of a broader principle that employment abroad might exceptionally have
"such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal." (Baroness Hale at para 16).
In Ravat v Halliburton Manufacturing and Services Ltd  ICR 389, the employment tribunal was held to have jurisdiction to determine a claim under section 94 by an employee based in Scotland but employed for periods of 28 days at a time at oil installations in Libya. The Supreme Court, treated the result in Lawson v Serco Ltd as an example of the same broader principle. Lord Hope expressed it as follows, at para 27:
"the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule."
Like the cases about maritime torts, these cases turn on the choice of law, not on the extra-territorial effect of the Employment Rights Act.
The relevant substantive law
The Fatal Accidents Act 1976 (The "FAA")
"…. once a substantive period of limitation of the lex causae had expired, no action could be maintained even though a procedural period of limitation imposed by the lex fori had not yet expired: in such a case there was simply no right left to be enforced."
Such problems can of course be expected to, and do arise, only very infrequently.
Overriding effect of English law and mandatory law