Noticias

Coris News October 2006 - highlighted case - Harding v Wealands

CHOICE OF LAW RULES - HARDING -V- WEALANDS
FURTHER GUIDANCE FROM THE HOUSE OF LORDS

Choice of Law Rules for torts committed abroad but actionable in this jurisdiction have long caused difficulties. In order to address this issue, the Law Commission and Scottish Law Commission set up a joint working party in 1979 out of which was born Part III of The Private International Law (Miscellaneous Provisions) Act 1995 which came into force on 1 May 1996.
By Section 11(1) this provides a general rule that "the applicable law is the law of the country in which the event constituting the tort or delict in question occur." For personal injury cases this is further defined as the country "where the individual was when he sustained the injury." Section 12(1) provides an exception when the general rule may be displaced, where it is "substantially more appropriate" to apply the law of another country.
However even in cases where the general rule is to apply, distinctions remain to be drawn between those matters which are to be considered as substantive and those issues more properly procedural in nature and which remain to be considered under the law of the forum.
Since their introduction these provisions have been the subject of judicial interpretation. The first reported case under the Act - Edmunds -v- Simmonds involved two English friends who had taken a holiday in Spain. The Claimant, Miss Edmunds, suffered catastrophic injuries whilst travelling as a passenger in a hire car driven by Miss Simmonds. It was held in this case that it was substantially more appropriate to apply English law to the entire case, thereby displacing the general rule. In the circumstances there was no need to consider further distinctions between substantive and procedural issues and the question of caps on certain heads of damage under Spanish law became irrelevant.
The case of Harding -v- Wealands brought into question again the issue of caps on damages. Here again the claim arose out of a road traffic accident, this time in Australia, which took place on 3 February 2002. Mr Harding was rendered tetraplegic whilst travelling as a passenger in the vehicle owned by Miss Wealands. She is an Australian national and the couple had travelled together from this country for a holiday and had been using Miss Wealands' Australian registered car. Following the accident, both returned to continue living in this country. No other vehicle was involved and liability was not at issue.
As a matter of New South Wales law, claims arising out of such road traffic accidents are governed by the Motor Accidents Compensation Act 1999 (MACA) which, amongst other matters, places a maximum sum recoverable on non-economic loss, caps the amount of damages recoverable for loss of earnings and limits the levels of award which can be made for gratuitous care. It further prescribes the discount rate applicable to the calculation of future economic loss. It was common ground that if these various provisions were to be applied in this country, damages would be some 30% less than under normal English principles.
At first instance it was held that the assessment of damages was a matter of procedure governed by English law but also, as in Edmunds, that it was in any event substantially more appropriate to apply English law.
This decision was reversed on both counts by the Court of Appeal but the House of Lords has now overturned that ruling, deciding that the MACA was entirely procedural in nature. This view was significantly influenced by the decision in Stevens -v- Head, a decision itself of the High Court of Australia.
If the Australian domestic analysis of the MACA was highly significant in determining the nature of that statutory provision, it seems possible also to detect at least two other themes from the Harding judgment. Firstly, one can identify what might be referred to as a pragmatic approach adopted by the House of Lords. In the opinion of Lord Woolf "it would be very difficult, if not impossible, to apply (the MACA) in proceedings brought in this country."

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