Boys v Chaplin

This case, as the Master of the Rolls pointed cut, throws up one of the most vexed questions in the conflict of laws: when a wrong is committed abroad and the injured party sues in England what law is to be applied?

The Respondent, plaintiff in the action, was injured in a road accident in Malta caused by the admitted negligence of the Appellant, defendant in the action. The Respondent sustained serious injuries and sued for damages.

Under the Maltese law he could recover only financial loss directly suffered, expenses incurred and lost wages together with a sum for ascertained future loss of wages with a right to make a further application to the Court if and when anticipated loss became actual. He could recover no damages in respect of the injury itself for pain, suffering and loss of amenities. In the result the trial judge awarded £53 special damages which would have been recoverable under Maltese law and £2,250 general damages for those injuries which would not be recoverable under Maltese law.

Both parties were serving in the forces of this country on 6th October, 1963, when the motor cycle on the back of which the Respondent was riding was run into by a car driven by the Appellant. They are now both back in this country; the Respondent was in hospital for many months owing to his injuries and was eventually discharged from the Royal Air Force. It is said that he is unlikely to suffer loss of earnings in the future as a result of his accident.

The learned judge took the view that he was bound by authority, to which I must refer, to apply the law of England as the lex fori and to award damages accordingly. In the Court of Appeal the Master of the Rolls was in favour of dismissing the appeal, reaching the same result as the trial judge by a different route. He held that the proper law of the tort should be applied not only in order to ascertain whether there is a cause of action but also to settle the measure as well as the heads of damage recoverable. He referred to Babcock v. Jackson a decision of the New York Court of Appeal reported in England [1963] 2 Lloyds' Rep. 286. There the plaintiff, a gratuitous passenger in the defendant's motor car, was injured in an accident which occurred in Ontario when the parties who were New York residents were on a weekend trip to Canada. The trip began in New York State where the car was licensed, insured and usually garaged. An Ontario statute absolves drivers from liability towards gratuitous passengers, whereas New York law contains no similar provision. The plaintiff sued successfully in New York for the negligence of the defendant and Fuld J. expressing the view of the majority of the Court said:

"The question presented is simply drawn. Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?"

In accepting the latter alternative the learned judge followed the view expressed in the second edition of the Conflict of Laws Restatement, page 379:

"The local law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort."

The Master of the Rolls, upon the facts of the case to which I have made a brief reference, opined that the proper law of the tort was the law of England as being the place to which the parties had the most significant contact. Lord Upjohn, on the other hand, upheld the judgment on what may perhaps fairly be described as the more conventioned ground that the judge's decision was soundly based on authority. Diplock L.J. (as he then was) in a powerful dissenting judgment, which is much relied upon by the Appellant, concluded that the heads of damage recoverable are matters of substantive law which must be determined according to the lex loci delicti, that is to say, by the law of Malta, and would have allowed the appeal by reducing the award of damages to £53.

No difficulty arises in settling the place of the wrong which occurred entirely in Malta. As to the choice of law the generally accepted rule in this country is set out in the 8th edition of Professor Dicey and Morris' Conflict of Laws at page 919 as follows:

"An act done in a foreign country is a tort and actionable as such, in England, only if it is both�

(1) actionable as a tort, according to English law, or in other words is an act which, if done in England, would be a tort; and

(2) not justifiable according to the law of the foreign country where it was done."

Clause (1) of this rule was clearly stated in The "Halley" L.R. 2 P.C. 193, an Admiralty case in which a suit was brought against a British ship and her owners on account of a collision in Belgian waters. The defence was that the ship was under the control of a compulsory pilot so that both vessel and owners were relieved of responsibility. The plaintiffs replied that under Belgian law the owners were liable notwithstanding that the ship was being navigated at the time by a compulsory pilot. At first instance the plaintiff succeeded on the ground that the governing law was that of the place where the collision occurred. This decision was reversed by the Judicial Committee of the Privy Council which, in a judgment delivered by Selwyn L.J., declared the law as follows:

"It is, in their Lordships' opinion, alike contrary to principle and to authority to hold, that an English Court of Justice will enforce a foreign municipal law, and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed."

It is to be noticed that there is no direct reference to public policy as such in this judgment.

Clause (2) of the rule has occasioned difficulty owing to the use of the words "not justifiable". "Justification" according to the lex loci delicti is to be found in the opinion of Lord Nottingham in Blad's case 1673 3 Swan. 603. A century later in the leading case of Mostyn and Fabrigas 1774 Cowp 161 Lord Mansfield has said:

"Whatever is a justification in the place where the thing is done ought to be a justification where the case is tried".

Dicey's rule is collected from the judgment delivered by Willes J. in Phillips v. Eyre L.R. 6 Q.B. 1 in the Exchequer Chamber, consisting of Kelly C.B., Martin, Channell, Pigott and Cleasby B.B., Willes and Brett JJ. The action complained of false imprisonment and other injuries to the plaintiff inflicted in Jamaica by the defendant who was governor of the Island. The defendant relied upon an act of indemnity passed by the legislature of Jamaica as in effect a subsequent justification of his actions. "A right of action," said Willes J. at page 28, "whether it arise from contract governed by the law of the place or wrong, is equally the creature of the law of the place and subordinate thereto � the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law." At the bottom of the same page the judgment continues:

"As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if...