PI Brief Update

29 December 2007 - PI Practitioner

A claim for loss of dependency pursuant to the Fatal Accidents Act 1976 cannot be brought where the victim had brought and settled a claim for the personal injury which caused her death. Read v. Great Eastern Railway Co (1867-68) LR 3 QB 555 had been correctly decided.

The claimants were the dependents of a victim of clinical negligence, whose breast cancer the defendant had failed to diagnose correctly. During her life, the victim brought an action for damages against the defendant, and settled the claim. Pursuant to the decision in Read, Fatal Accidents Act damages could not be recovered where damages had already been awarded or agreed in the victim’s lifetime. (That case referred to the 1846 legislation, which the 1976 act consolidated.) The ECHR did not prevent the operation of this principle, and the claimants were not entitled to recover.

PRIVATE INTERNATIONAL LAW – S. 12 DISPLACEMENT
Dawson v. Broughton (County Court, 31/7/07)

The Private International Law (Miscellaneous Provisions) Act provides that, for a road traffic accident in France, French law will apply to substantive matters, but English law to matters of evidence and procedure. In France the law does not impose any reduction in damages for personal injury caused in part by a failure to wear a seat belt.

The claimant brought his claim in the English jurisdiction, but argued that French substantive law applied in relation to failure to wear a seat belt. The court found that the law relating to seat belts was substantive, and that prima facie the French rule applied. However, the court held that s. 12 of the Act, which gives the court a discretion to displace the general rule and apply the law of another country, was triggered. The parties had stronger connections with England than with France, and it was inherently inequitable for the claimant to submit to the English jurisdiction but seek to avoid the disadvantages to him of applying English law to the case. The court would apply English law to the point on that basis.