Harding v Wealands
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ELIAS |
| Judgment Date | 27 May 2004 |
| Neutral Citation | [2004] EWHC 1957 (QB) |
| Court | Queen's Bench Division |
| Docket Number | 03/TLQ/1316 |
| Date | 27 May 2004 |
[2004] EWHC 1957 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Elias
03/TLQ/1316
MR M MCPARLAND (instructed by Stewarts, London WC2) appeared on behalf of the CLAIMANT
MR H PALMER QC (instructed by Kennedys, London EC1) appeared on behalf of the DEFENDANT
Thursday, 27th May 2004
The defendant is an Australian national. The claimant was her partner. Prior to the accident, which has given rise to this litigation, they had been living together at the claimant's flat in England for some eight months having met in Australia some three months earlier.
The defendant had given up her job in Australia to live with the claimant, she obtained a working visa which entitled her to work in England for two years. They did not marry but they were in a settled relationship. The defendant had described herself as being at the time the claimant's "de facto" wife.
They went on holiday together to Australia, partly to visit the defendant's family. On 3 rd February 2003, the defendant was driving her vehicle, a four-wheel drive motorcar, along a dirt road near Huskisson in New South Wales. She was insured with a local insurance company. The claimant was sitting in the front passenger seat. The defendant had tried to engage the four-wheel drive on her vehicle but was unable to do so. The dirt road was wet and muddy and there were potholes scarring the surface of the road. The defendant lost control of the vehicle and it rolled onto its roof. Unfortunately the claimant was very seriously injured as a consequence of this accident; he suffered devastating spinal injuries and is now tetraplegic.
Following the accident he returned to this country where he was kept in hospital for over two years. He is now back in the community but requires 24-hour care. He will never work again. Sadly his relationship with the defendant has also come to an end.
The claimant commenced proceedings for damages in negligence in September 2002. By an order dated 30 th October 2003, certain preliminary issues were ordered to be tried. Two of these have now been resolved, one as the result of the defendant admitting liability. They did so without any admission as to which law was to determine that question.
The matter which I now have to decide is whether the law of England or New South Wales governs certain issues of quantum. The matter is one of considerable significance to the claimant. The law in New South Wales imposes various limitations on the damages which can be recovered in personal injury claims.
Seven such restrictions all deriving from the Motor Accidents Compensation Act 1999 have been identified in this case and each of them was pleaded in the defence. Essentially they are as follows:
(1) The maximum amount that may be awarded to the claimant for non-economic loss is presently Australian $309,000 (section 134).
(2) In assessing loss of earnings, the court must disregard the amount by which the claimant's net weekly earnings exceed Australian $2,500 (section 125). This amount is indexed to C section 146.
(3) There is no award for the first five days' loss of earning capacity (section 124).
(4) No award may be made in respect of gratuitous care if such care does not exceed six hours a week and is for less than six months (section 128).
Insofar as the gratuitous care exceeds this amount, the amount that can be recovered is limited to certain sums identified in section 128:
"(5) The discount rate in respect of future economic loss is prescribed at 5 per cent or as stipulated in regulations (section 127)."
No regulations have as yet been enacted:
"(6) No interest is payable on damages for gratuitous care or non-economic loss (section 137)." [Quotation unchecked]
That provision also specifies that interest in respect of other heads of damage is only payable insofar as conditions set in section 137 are satisfied. These conditions impose certain procedural steps which the parties are required to take:
"(7) The claimant must give credit to any payments made to or on behalf of the claimant by amongst others an insurer in relation to a claim made by the claimant (section 130)." [Quotation unchecked]
The first two of these limitations can be considered as imposing different forms of a cap on damages. The third and fourth exclude damages altogether for particular identified losses. The other three are separate and independent rules of a different nature. Section 5 of the Act sets out the objects of the legislation. One of them is to "keep premiums affordable".
Two of these provisions in particular will adversely affect the claimant, namely the limitation on damages for non-economic loss, essentially equivalent to the damages for pain and suffering and the discount rate fixed at 5 per cent. That is double the current rate applicable in England.
Mr McParland, counsel for the claimant, has calculated that the application of these principles will lead to a reduction in the region of 30 per cent of the damages payable if English law is applied. That is not an agreed figure and was a calculation made for illustrative purposes only, but I accept that it does in broad terms give an indication of the likely impact of these rules.
The claimant submits that these provisions are inapplicable and that the law of England should apply for three distinct reasons. The first is that English law ought to be applied in respect of all aspects of the quantification of damages pursuant to section 12 of the International Law ( Miscellaneous Provisions) Act 1995. The second is that even if the law of New South Wales would otherwise be considered appropriate, all issues of quantification of damage are matters of procedure and as such they must be determined in accordance with the lex fori. It is well established that it is the law of the forum that determines all procedural matters.
Finally, it is submitted that even if otherwise applicable, these provisions at least ought not to be applied since it would be contrary to English public policy to give effect to them. It is alleged that it is an important principle of public policy that a claimant in a personal injury claim should be entitled to recover full compensation for the damage suffered, and that the court should refuse to give effect to any laws which defeat the application of that principle and leave the claimant insufficiently compensated. More specifically, it is said that the high discount rate and the offsetting of the benefits of an insurance policy are particularly offensive to English notions of public policy.
The relevant legislation
The common law rule of double actionability originally established in Phillips v Eyre [1870] LR 6 QB 1 was abolished by section 10 of the Private International ( Miscellaneous Provisions) Act 1996. That rule had required that to be actionable in tort in this country, the accident abroad had to satisfy both limbs of a dual test. It had to be actionable both in England and similarly actionable in the law of the country where it occurred. In its place the Act has laid down new rules for determining the choice of law to be applied when the court is faced with claims in tort committed abroad.
Section 11 establishes what is termed the general rule to be applied when choosing the appropriate law in tort claims. It is as follows:
"(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 these 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 deaths resulting from personal injury, the law of the country where the individual was when he sustained the injury.
(3) In the section 'personal injury' includes disease or any impairment of physical or mental conditions."
It is not in dispute that under the general rule the applicable law in this case is the law of New South Wales; that is where the accident occurred and also where the injury was sustained. However, the general rule can be overridden in circumstances identified in section 12, which is as follows:
"(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 issues (as the case may be) is the law of that other country.
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."
The claimant submits that however one categorises the issue or issues to be determined, a consideration of the relevant factors here requires that all relevant issues of quantum should be determined in accordance with English law.
Section 14(3) is also material it provides:
"Without prejudice to the generality of subsection (2) above, nothing in this Part:
(a) authorises the application of the law of a country outside the...
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