Harding v Wealands

On the 3 ^rd February 2003 Mr Harding was rendered a tetraplegic as a result of an accident in a vehicle being driven by Ms Wealands. The accident occurred in New South Wales and Ms Wealands is an Australian national. Proceedings were issued and served on Ms Wealands in England who at that time worked at 141 Castle Street Salisbury, on Wednesday 18 ^th September 2002. An application was made on behalf of Ms Wealands to stay the proceedings on the grounds that New South Wales was the more appropriate forum for the trial of the action. That application was dismissed on 10 ^th July 2003 by Master Foster. There was no appeal from that decision. On 11 ^th August 2003 Ms Wealands filed a defence denying liability and pleading that the applicable law governing both the issue of liability and that of damages was the law of New South Wales. In her defence reliance was placed on s.11 of the Private International Law (Miscellaneous Provisions) Act 1995, which, if it applied, made New South Wales the applicable law being the place where the alleged tort was committed. The defence further averred that, for the avoidance of doubt, New South Wales law was alleged to govern "all substantive issues including the assessment and/or recoverability of damages".

The defence at this stage put in issue liability and in the alternative relied upon a provision under the Motor Accidents Compensation Act 1999 (MACA) of New South Wales, which it was suggested disentitled Mr Harding from commencing court proceedings against the defendant, on the basis that the principal claims assessor had not issued a certificate in respect of the claim under s.92 of MACA. No more need be said about these aspects, since after the order of the trial of preliminary issues, to which I am about to refer, liability was admitted and reliance on s.92 was disavowed.

In addition, the defence pleaded seven matters in reliance on the provisions of MACA relating to quantification of damage. It pleaded:-

"Under the law of New South Wales and the Motor Accidents Compensation Act 1999 ("MACA") of New South Wales in particular . . .

5b) The maximum amount that may be awarded to the Claimant for non-economic loss is presently AUS309,000 (s.134 MACA)

5c) In assessing loss of earnings, the Court must disregard the amount by which the Claimant's net weekly earnings exceeded AUS2,500 (s.125 MACA) .

5d) There is no award for the first 5 days loss of earning capacity (s.124 MACA)

5e) No award may be made in respect of gratuitous care if such care does not exceed 6 hours a week and is for less than 6 months. (s.128 MACA) . Insofar as the gratuitous care provided exceeds this, the amount that can be recovered is limited to the sums set out in s.128 MACA.

5f) The discount rate in respect of future economic loss is prescribed at 5% (s.127 MACA) .

5g) No interest is payable on damages for gratuitous care or non-economic loss. Interest is only payable in respect of other heads of damages insofar as the conditions set out in s.137 MACA are satisfied and at the rate prescribed in that section for the time being.

5h) The Claimant must give credit for any payments made to or on behalf of the Claimant by an insurer in relation to a claim made by the claimant (s.130 MACA) ."

By order dated 31 ^st October 2003 Master Foster ordered the trial of three preliminary issues, two relating to liability, but the third relating to the question as to which was the applicable law to be applied in relation to the assessment of damages. The issues of liability were conceded on behalf of Ms Wealands and that left the third issue to be resolved.

The trial of that issue came on before Elias J, and he ruled on two bases that the applicable law was English law. First he ruled that although by s.11 of the 1995 Act in accordance with the general rule the law applicable to the alleged tort would be the law of New South Wales, under s.12 it was substantially more appropriate that the law of England should apply to the assessment of damages. In the alternative, if he were wrong about that, his decision was that, in relation to the provisions of MACA relied on in the defence, those provisions were procedural and not substantive. On that alternative basis he held that the English court would not in any event apply them. This is an appeal from that judgment.

Mr Howard Palmer QC, for Ms Wealands, attacks the judge's findings on both issues, as indeed he must if he is to succeed in establishing that at the trial on damages the provisions of MACA should be applied by the English court. Mr Charles Haddon Cave QC seeks to uphold the judge's judgment on both points. As regards the judge's finding that English law was substantially the more appropriate law, pursuant to an indication given by Clarke LJ, who gave permission to appeal, he seeks to confine the role of an appellate court. He submits that the appellate court should be cautious before interfering with the assessment of a judge on this issue. In relation to the judge's conclusion that in any event the issues raised by MACA were procedural rather than substantive, Mr Haddon-Cave submits that the matter has been resolved in his favour by the Court of Appeal decision in Roerig v Valiant Trawlers Ltd [2002] EWCA Civ 21. That is a decision of the Court of Appeal post the 1995 Act, which Mr Haddon-Cave submits applies what might be termed the traditional view as to the dividing line between procedural and substantive, and Mr Haddon-Cave submits that we are bound by that decision.

The 1995 Act

It is convenient to set out the key provisions of the 1995 Act:-

" 9 Purpose of Part III

(2) The characterisation for the purposes of private international law of issues arising in a claim as issues relating to tort or delict is a matter for the courts of the forum.

(4) The applicable law shall be used for determining the issues arising in a claim, including in particular the question whether an actionable tort or delict has occurred.

(5) The applicable law to be used for determining the issues arising in a claim shall exclude any choice of law rules forming part of the law of the country or countries concerned.

(6) For the avoidance of doubt (and without prejudice to the operation of section 14 below) this Part applies in relation to events occurring in the forum as it applies in relation to events occurring in any other country.

10 Abolition of certain common law rules

The rules of the common law, in so far as they-

(a) require actionability under both the law of the forum and the law of another country for the purpose of determining whether a tort or delict is actionable; or

(b) allow (as an exception from the rules falling within paragraph (a) above) for the law of a single country to be applied for the purpose of determining the issues, arising in the case in question,

are hereby abolished so far as they apply to any claim in tort or delict which is not excluded from the operation of this Part by section 13 below.

11 Choice of applicable law: the general rule

(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.

(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being-

a. for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury.

b. for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and

c. in any other case, the law of the country in which the most significant element or elements of those events occurred.

(3) In this section "personal injury" includes disease or any impairment of physical or mental condition.

12 Choice of applicable law: displacement of general rule

(1) If it appears, in all the circumstances, from a comparison of-

a. the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and

b. the significance of any factors connecting the tort or delict with another country,

that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.

(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.

14 Transitional provision and savings

(2) Nothing in this Part affects any rules of law (including rules of private international law) except those abolished by section 10 above.

(3) Without prejudice to the generality of subsection (2) above, nothing in this Part-

a. authorises the application of the law of a country...