Harding v Wealands
| Jurisdiction | England & Wales |
| Judge | Waller,Arden L JJ,Sir William Aldous |
| Judgment Date | 17 December 2004 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 2004 |
Court of Appeal (Civil Division).
Waller and Arden L JJ and Sir William Aldous.
Howard Palmer QC and Mr Charles Dougherty (instructed by Kennedys) for the appellant.
Charles Haddon-Cave QC and Michael McParland (instructed by Stewarts) for the respondent.
The following cases were referred to in the judgments:
Assicurazioni Generali SpA v Arab Insurance GroupUNK [2002] EWCA Civ 1642; [2003] 2 CLC 242; [2003] 1 WLR 577.
Base Metal Trading Ltd v ShamurinUNK [2004] EWCA Civ 1316; [2004] 2 CLC 916.
Biogen Inc v Medeva plcUNK [1997] RPC1 45.
Boys v ChaplinELR [1968] 2 QB 1; [1971] AC 356 (HL).
Caltex Singapore Pte Ltd v BP Shipping LtdUNK [1996] 1 Ll Rep 286.
Cope v DohertyENR (1858) 4 K & J 367; 70 ER 154; (1858) 2 De G & J 614; 44 ER 1127 (CA).
Don v LippmannENR (1837) Cl & Fin 1; 7 ER 303.
Edmunds v SimmondsWLR [2001] 1 WLR 1003.
Huber v SteinerENR (1835) 2 Bing (NC) 202; 132 ER 80.
John Pfeiffer Pty Ltd v RogersonUNK (2000) 203 CLR 503.
Konamaneni v Rolls Royce Industrial Power (India) LtdUNK [2002] 1 All ER 979.
Kuwait Oil Tanker Co SAK v Al-Bader (No. 3)UNK [2000] 2 All ER (Comm) 271.
Norowzian v Arks Ltd (No. 2)UNK [2000] FSR 363.
Phillips v EyreELR (1870) LR 6 QB 1.
Regie National des Usines Renault v ZhangUNK (2002) 187 ALR 1.
Roerig v Valiant Trawlers LtdUNK [2002] EWCA Civ 21; [2002] CLC 629; [2002] 1 WLR 2304.
Stevens v HeadUNK (1992) 176 CLR 433.
Tolofson v Jensen [1994] 3 CR 1022.
Conflict of laws — Tort — Applicable law — Quantification of damages — Personal injury claim following road traffic accident in Australia — General rule that law of New South Wales as place where tort occurred — Not more appropriate that English law should govern quantification of damages — Quantification of damages matter of substantive not procedural law and restrictions in New South Wales statute applied to claim — Private International Law (Miscellaneous Provisions) Act 1995, s. 11, 12.
This was an appeal by the defendant (W) from the decision ([2004] EWHC 1957 (QB))that the law applicable to the quantification of damages in a personal injury claim was English law.
The claimant (H) was rendered a tetraplegic as a result of an accident in a vehicle being driven by his girlfriend W. The accident occurred in New South Wales and W was an Australian national. Proceedings were issued and served in England on W who at that time was working in Salisbury.
W admitted liability but pleaded that the applicable law was the law of New South Wales under s.11 of the Private International Law (Miscellaneous Provisions) Act 1995 as the law of the place where the alleged tort was committed, and in relation to the quantification of damages W argued that the New South Wales Motor Accidents Compensation Act 1999 (MACA) applied and restricted the amounts that could be awarded for non-economic loss, loss of earnings, loss of earning capacity, gratuitous care and interest, prescribed a discount rate of five per cent in respect of future economic loss, and required the claimant to give credit for any insurance recoveries.
As a preliminary issue the judge ruled that the applicable law was English law. 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. If that was wrong he held that, in relation to the provisions of MACA relied on in the defence, those provisions were procedural and not substantive and on that basis the English court would not in any event apply them.
Held, allowing the appeal (by a majority):
1. By s.11 of the 1995 Act the general rule would have established the law of New South Wales as the applicable law relating to all issues, that being the law where the events constituting the tort in this case occurred. What s.12 required was first an identification of the issue in relation to which it might be suggested that the general rule should not be applicable. The issue in this case was quantum. The next task was to identify the factors that connected the tort with England and those that connected the tort with New South Wales. That identification was of factors that connected the tort with the respective countries, not the issue or issues with the respective countries. The judge erred in holding that W's link with England and H was more significant than the Australian connection. W was an Australian citizen driving her car in New South Wales where the accident occurred and where she was insured. Where the general law, by virtue of s.11 being the law where the tort occurred, was also the national law of one of the parties, it was difficult to envisage circumstances that would render it substantially more appropriate that any issue could be tried by reference to some other law.
2. (Waller LJ dissenting) The restrictions on damages imposed by MACA were rules of substantive law and not rules of procedure and so they applied even in proceedings brought in England since the applicable law was that of New South Wales. (Roerig v Valiant Trawlers LtdWLR[2002] 1 WLR 2304 not followed.)
Waller LJ:
1. On 3 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 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 July 2003 by Master Foster. There was no appeal from that decision. On 11 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”.
2. 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.
3. 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…
(5)(b) The maximum amount that may be awarded to the Claimant for non-economic loss is presently AUS$309,000 (s. 134 MACA)
(5)(c) In assessing loss of earnings, the Court must disregard the amount by which the Claimant's net weekly earnings exceeded AUS$2,500 (s. 125 MACA).
(5)(d) There is no award for the first 5 days loss of earning capacity (s. 124 MACA)
(5)(e) 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.
(5)(f) The discount rate in respect of future economic loss is prescribed at 5% (s. 127 MACA).
(5)(g) 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.
(5)(h) 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).”
4. By order dated 31 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.
5. 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.
6. 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...
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