Harding v Wealands
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD WOOLF,LORD HOFFMANN,LORD RODGER OF EARLSFERRY,LORD CARSWELL |
| Judgment Date | 05 July 2006 |
| Neutral Citation | [2006] UKHL 32 |
| Date | 05 July 2006 |
| Court | House of Lords |
[2006] UKHL 32
Appellate Committee
Lord Bingham of Cornhill
Lord Woolf
Lord Hoffmann
Lord Rodger of Earlsferry
Lord Carswell
HOUSE OF LORDS
Appellants:
Charles Haddon-Cave QC
Michael McParland
(Instructed by Stewarts)
Respondents:
Howard Palmer QC
Charles Dougherty
(Instructed by Kennedys)
My Lords,
I am in full agreement with the opinions of my noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry, which I have had the advantage of reading in draft. For the reasons which they give, I also would allow the appeal and restore the order of Elias J.
My Lords,
I am able to confine my opinion to a single issue because I agree with the opinions of Lord Hoffmann and Lord Rodger of Earlsferry which I have read in draft.
I have also had the advantage of reading the opinion of Lord Carswell in draft. While Lord Carswell agrees with Lord Hoffmann's and Lord Rodger's "reasons" and "conclusions", he does so subject to "one slight qualification" (paragraph 79).
Lord Carswell makes his qualification because of his understanding of what is the natural meaning of the word "procedure" (paragraph 83). As to this, Lord Carswell is in agreement with the judgments of Arden LJ and Sir William Aldous in the Court of Appeal. Arden LJ accepted that "damages are not naturally regarded as procedure" (paragraph 58) and Sir William suggests that the natural meaning of "procedure" is "the mode or rules used to govern and regulate the conduct of the court's proceedings" (paragraph 86). Lord Carswell adds, however, that in the field of private international law the word "procedure" has a "special meaning" which is wider than that which might be regarded as "natural".
Lord Carswell, having adopted this approach to the natural meaning of procedure, treats the "special meaning" as justifying reliance on Pepper v Hart [1993] AC 593 to resolve the significant issue of construction at the heart of this appeal.
I am in agreement with Lord Carswell that, if it is necessary to rely on Pepper v Hart to decide the meaning of "procedure" in section 14(3) (b) of the Private International Law (Miscellaneous Provisions) Act 1995, the evidence of what was said in Parliament by the then Lord Chancellor conclusively resolves this issue in the Appellant's favour. Lord Carswell rightly points out that this is an outstanding example of a case where the evidence as to what was said during the passage of the legislation through the Parliamentary process makes it abundantly clear that it was the intention of Parliament by enacting section 14(3)(b) that the law of this country and not that of New South Wales is to be applied by the courts of this jurisdiction to the calculation of the Appellant's damages. This is despite the fact that the Appellant's accident occurred and his injuries were caused as the result of negligence of the Respondent in New South Wales.
However, I unfortunately differ from Lord Carswell as to his reasoning for relying on Pepper v Hart. The word "procedure" is frequently used in contrast to "substance" in order to distinguish between questions of procedural law and substantive law. Thus, unsurprisingly it is used together with the word "practice" in this context in section 1 and Schedule 1 of the Civil Procedure Act 1997 to identify the scope of the Civil Procedure Rules. The scope of the language is wide enough to encompass the contents of a civil procedure code which deals with evidence and remedies.
In determining the meaning of the word "procedure" the context in which the word is being used is of the greatest significance. In section 14(3) (b) "procedure" is used in conjunction with "rules of evidence, pleading or practice". In that context it is natural to regard the assessment of damages as being a matter of procedure rather than substance.
The fact that the present context is one in the field of conflicts of law does not mean that "procedure" is being used in a special sense rather than in the sense in which you would expect it to be used having regard to the context in which it appears. It makes good practical sense to draw a distinction between the treatment of questions of procedure and questions of substance; the former to be dealt, as you would expect in accordance with the procedure normally applied by the court in which the proceedings are brought.
This does not however mean that a cap on the amount of damages is obviously a question of procedure rather than a question of substance and if I had been left in doubt as to the correct answer I would certainly have been prepared to apply Pepper v Hart.
The limits on the amount of damages on which the Respondent seeks to rely are contained in the Motor Accidents Compensation Act 1999 of New South Wales. That Act contains in Chapters 3, 4, 5 and 6 a detailed statutory procedural code containing the machinery for recovering compensation for motor accident injuries, including the way damages are to be assessed. The code is clearly one that has provisions which it would be very difficult, if not impossible, to apply in proceedings brought in this country, even though they may be capable of being applied in other parts of Australia. To have different parts of that code dealt with by different systems of law would not be an attractive result and in some cases this would produce an impractical result. (See for example s.132 which requires, in the case of a dispute over non economic loss, for the degree of impairment to be assessed by a medical assessor in New South Wales.) The greater part of the code is clearly procedural and those parts which could be arguably regarded as substantive should be treated as being procedural as well.
For these reasons, as well as those given by Lord Hoffmann and Lord Rodger, I would allow this appeal and restore the judgment of Elias J.
My Lords,
The issue is whether damages for personal injury caused by negligent driving in New South Wales should be calculated according to the applicable law selected in accordance with Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (hereafter "Part III") or whether it is a question of procedure which falls to be determined in accordance with English law. The Court of Appeal, by a majority (Arden LJ and Sir William Aldous, Waller LJ dissenting) held that it should be determined in accordance with the applicable law, which they decided was the law of New South Wales. In my opinion the dissenting opinion of Waller LJ was correct and the question is one of procedure governed by the law of the forum. I also agree with the speech to be delivered by my noble and learned friend Lord Rodger of Earlsferry, which I have had the advantage of reading in draft.
The accident happened on 3 February 2002 on a dirt track near Huskisson in New South Wales, when the respondent Ms Wealand lost control of the vehicle she was driving and it turned over. Negligence is admitted. The appellant Mr Harding, who was a passenger, was severely injured and is now tetraplegic. Mr Harding is English and Ms Wealand Australian. They had formed a relationship when Mr Harding visited Australia in March 2001 and in consequence Ms Wealand had come to England in June 2001 to live with Mr Harding. At the time of the accident they had gone together to Australia for a holiday and a visit to Ms Wealand's parents. The vehicle belonged to Ms Wealand and she was insured with an Australian insurance company. After the accident, Mr Harding and Ms Wealand returned to England.
The action was tried by Elias J, who applied English law to the assessment of damages for two reasons. First, because the assessment of damages was a matter of procedure governed by the lex fori and secondly, because even if it was a matter of substantive law, it was in this case "substantially more appropriate" to apply English law: see section 12 of Part III. The Court of Appeal, as I have said, allowed the appeal on the first point by a majority and allowed it unanimously on the second. I shall first address the question of substance and procedure.
Personal injury caused by negligence is an actionable wrong in Australian common law. In New South Wales, common law liability for transport accidents was briefly abolished by the Transport Accidents Compensation Act 1987 (NSW) and a statutory scheme of compensation substituted but the Motor Accidents Act 1988 (NSW) repealed the 1987 Act and section 6 reinstated the common law:
"The law relating to a right to or a claim for damages or compensation or any other benefit (pecuniary or non-pecuniary) against any person for or in respect of the death of or bodily injury to a person caused by or arising out of a transport accident…shall be as if the [1987 Act] had not been passed and the common law and the enacted law (except that Act) shall have effect accordingly."
The 1988 Act did however contain detailed provisions concerning awards of damages for injuries suffered in motor accidents. These have been replaced by Chapter 5 of the Motor Accidents Compensation Act 1999 (hereafter "MACA"), which was in force at the time of the accident. Section 123 provides that "a court cannot award damages to a person in respect of a motor accident contrary to this Chapter." The provisions of Chapter 5 which would have been relevant to an award of damages by a court in New South Wales are:
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(a) The maximum recoverable for non-economic loss (pain and suffering, loss of amenities of life, loss of expectation of life, disfigurement) is A$309,000 subject to indexation (section 134);
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(b) In assessing loss of earnings, an excess of net weekly earnings over A$2500 must be disregarded...
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