Boys v Chaplin

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD UPJOHN,LORD JUSTICE DIPLOCK
Judgment Date06 December 1967
Judgment citation (vLex)[1967] EWCA Civ J1206-2
Date06 December 1967
CourtCourt of Appeal (Civil Division)

[1967] EWCA Civ J1206-2

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From Mr Justice Milmo

Before

The Master of the Rolls (Lord Denning)

Lord Upjohn and

Lord Justice Diplock

Boys
Plaintiff
Respondent
and
Chaplin
Defendant
Appellant

MR H. TUDOR EVANS, Q.C. and MR DEREK HYAMSON (instructed by Messrs Gascoin &. Co.) appeared as Counsel for the Appellant.

MR LEONARD CAPLIN, Q.C, MR JOHN COPE and MR V. KATHRIE (instructed by Messrs Roche, Son & Neale, Agents for Messrs Buss, Cheale & Co., Tunbridge Wells) appeared as Counsel for the Respondent.

THE MASTER OF THE ROLLS
1

David Boys is a young Englishman whose home is at Surbiton. When he was 16 he joined up in the Royal Air Force on a twelve years' engagement. On the 6th October, 1963, when he was 22, he was stationed in Malta on his duties as a technician in the Royal Air Force. His friend, Charles Ducat, who was also stationed in Malta, gave him a ride on the pillion of his motor-cycle. They were run into by a motor car driven by Richard Chaplin. He was serving in the Royal Naval Air Squadron and was also stationed in Malta at the time. David Boys was badly injured. He had a fractured skull and was unconscious for three days. The right side of his face was crushed. He was taken to the Royal Naval Hospital in Malta. He was there for about six weeks. Then he was brought back to England on the 19th September, 1963, and taken to the Royal Air Force Hospital at Wroughton in Wiltshire. He was there for over six months, until the 7th April, 1964. Then he was an out-patient for two months. Eventually on the 5th June, 1964, owing to his injuries, he was discharged from the Royal Air Force. He is wholly and permanently deaf in one ear and his sense of balance has been substantially impaired. The right side of his face is partially paralysed and he suffers much from headaches. Nevertheless, he is able to do good work. Soon after his discharge he found employment as an electronics engineer at a good wage: and it is unlikely that he will suffer any loss of earnings in the future on account of this accident.

2

The driver of the car, Richard Chaplin, is also back in England. He is stationed at Culrose in Cornwall. In August 1965 David Boys was given legal aid to sue Richard Chaplin and he issued a writ claiming damages. At first Chaplin denied negligence, but later it was admitted. So the only question is: What damages should be awarded? We were told that both vehicles are fully insured against liability for damages, whatever sum is awarded, being both insured with the same Insurance Company, an English Company.

3

Now the question arises: What is the law to be applied in the assessment of damages? According to the law of England, David Boys should be compensated, not only for his expenses and money loss, but also for his pain and suffering and loss of amenities of life. The figure would be £2,303. But, according to the law of Malta (as found by the Judge), David Boys should only receive his expenses and his money loss, and nothing whatever for his pain and suffering and loss of amenities. The figure would be £53.

4

The Judge held that the damages should be assessed according to the law of England, and he awarded the plaintiff £2,303. The defendant appeals to this Court, claiming that the matter is governed by the law of Malta and that the plaintiff should recover only £53.

5

The case throws up one of the most vexed questions in the conflict of laws: When a wrong is committed abroad, and the injured party seeks redress in England, what is the law to be applied? The cases on the subject are legion. So are the writers. The trend of the authorities is to this effect: In England, in general and subject to certain conditions, the Courts apply the law of the place of trial ( Lex fori). Canada does the same. In Scotland, and at one time in the United States of America, the Courts applied the law of the place where the wrong was committed ( lex loci delicti). In recent cases in the United States, the Courts have applied the law of the place which has the most significant contacts with the matter in dispute (the proper law of the tort, lex propria delicti).

6

After considering the authorities, I am of opinion that we should apply the proper law of the tort, that is, the law of the country with which the parties and the act done have the most significant connection. And once we have decided which is the correct law to apply, I think that law should be applied, not only to ascertaining whether there is a cause of action, but also to ascertaining the heads of damage that are recoverableand also the measure of damages' for these are matters of substantive law. They are quite distinct from the mere quantification of damages, which is a matter of procedure for the lex fori.

7

I will show how the English authorities can be fitted in so as to achieve this result.

9

The leading case in England is Phillips v. Eyre (1870) 6 Queen's Bench, p. 1, a decision of the Court of Exchequer Chamber consisting of seven Judges. It is of high authority. It must be read in the light of the facts. In 1865 there was an insurrection in Jamaica. The Governor, Edward Eyre, proclaimed martial law and called out the forces to suppress it. Phillips was arrested in his house, handcuffed, put on board a ship and taken away. After the insurrection was suppressed, the Legislative Council of Jamaica passed an Act of Indemnity saving Governor Eyre from any liability for what was done in-repressing the revolt. Governor Eyre returned to England. Phillips also returned and brought an action in these Courts for assault and false imprisonment. Governor Eyre pleaded that the Act of Indemnity was an answer to the action and his plea was held good. Much of the argument was taken up with a discussion as to whether the Act of Indemnity was valid. It was held to be valid. Next, the plaintiff said that, even if it was valid and a defence in Jamaica, it could not have extra-territorial effect and take away the right of action in England. This argument was rejected on the short and simple ground that validity was to be determined by the law of Jamaica: and as the conduct of Governor Eyre could not be questioned in Jamaica, it could not be questioned here. Mr Justice Willes at page 28 laid down the law in these words: "The civil liability arising out of a wrong derives its birth from the law of the place, and its character" (i.e. whether it is valid or not) "is determined by that law. Therefore, an act committed abroad, if validand unquestionable by the law of the place, cannot, so far as civil liability is concerned, be drawn in question elsewhere". That principle was quite sufficient to determine Phillips v. Eyre. After stating it, Mr Justice Willes went on to formulate two conditions which he said must, as a general rule, be fulfilled in order to found a suit in England for a wrong committed abroad. "First, the wrong must be of such a character that it would have been actionable if committed in England…. Secondly, the act must not have been justifiable by the law of the place where it was done".

10

Once those two conditions are fulfilled, the English Courts determine the actionability of the wrong according to the law of England, and determine also the heads of damages and the measure of them by English law. Those two conditions have long been treated as good law. Lord Macnaghten in the House of Lords accepted them as correct, see Carr v. Fracis Times & Co., (1902) Appeal Cases at p. 182. So have the Supreme Court of Canada, see Canadian National Railways v. Watson, (1939) Supreme Court Reports, pp. 11, 13. Mellean v. Pettigrew, (1945)Supreme Court Reports, p. 62. But those conditions are not of universal application. Mr Justice Willes was careful to say that "as a general rule" those two conditions must be fulfilled. Like every general rule, it is subject to exceptions. To some of these I now turn.

12

The actual decision in Machado v. Fontes, (1897) 2 Queen's Bench, p. 231, was on a point of pleading. It would appear that the defendant Fontes published in Brazil a pamphlet that was libellous of the plaintiff Machado. One would think that the natural place for the plaintiff to sue for the libelwas in Brazil, the place where the libel was published. But the plaintiff did not sue in Brazil. and for a very good reason. He could not recover any damages in Brazil. So he sued in England. I suppose that by this time the defendant Fontes wasin England and was served here. At first the defendant Fontes only denied the libel. But afterwards he sought to amend his plea by saying that the publication was net actionable in civil proceedings in Brazil (though it might be made the subject of criminal proceedings), or, alternatively, that general damages were not recoverable in Brazil. The Court, consisting of Lord Justice Lopes and Lord Justice Rigby, held that the plea was absolutely bad and ought to be struck out. If the plea were allowed, it would mean that a commission would have to go to Brazil to inquire into Brazilian law. "That", said Lord Justice Lopes, "would be a great waste of time and money". So the case fell to be determined, both as to actionability and as to heads of damage, according to English law (the lex fori)and not by the law of Brazil (the lex loci delicti).

13

In coming to this conclusion, the Lords Justices took the two conditions stated by Justice Willes in Phillips v. Lyre and held that they were fulfilled. The first condition was fulfilled because the libel was of such a character that it would have been actionable if committed in England. The second condition was fulfilled because it was not justified by the law of Brazil, seeing that it was not an innocent act there but might be made the subject of criminal proceedings.

14

I think the Court was in error in applying the two...

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    • Canada
    • University of British Columbia Law Review Vol. 54 No. 1, September 2021
    • 10 September 2021
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