THE INTERNATIONAL ACCIDENT PROBLEM
| Date | 01 January 1970 |
| Published date | 01 January 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01248.x |
| Author | Harvey McGregor |
THE
MODERN LAW REVIEW
Volume
33
January
1970
No.
1
THE INTERNATIONAL ACCIDEINT
PROBLEM
IT
had
to
happen one day:
it
is only surprising that
it
has taken
so
long. While courts in Australia and Canada, throughout the
U.S.A.
and Continental Europe, and even-to come nearest home-
Scotland, have all had
to
struggle with law suits arising out of
the ever-increasing road and air accidents which display an abun-
dance of reference points-accident in one country and action in
another, residence, domicile and nationality
of
the
dramatis
per-
sonae
variously dispersed between both
or
erupting into a third-
the English scene has remained remaxkably quiescent; not even
courts of
first
instance have been troubled. But, at last, many
of
the controversial ingredients have appeared in a mix which
has reached the House
of
Lords, and we have now, in
Boys
v.
Chaplin,'
a decision of the highest court in the land
on
the state
of
English law in this immensely difficult matter.
The ingredients were these.
A
road accident in Malta; plaintiff
and defendant both normally resident in England; a damages
action in England; damages for pain and suffering allowed by
English law but not by Maltese.
In
more factual detail,. a car,
through the negligence of its driver, the defendant, came into
collision with a motor-scooter thereby injuring its pillion-passenger,
the plaintiff, who brought a claim for damages in the English
courts after he and the defendant had returned
to
England. Both
were British servicemen with their homes in England but stationed
*
This article owes much
to
the kindness and learning of Professor
Ott~
Kahn-
Freund who has discussed the whole range of the problem with me, has sug-
gested wise improvements
to
my initisl draft, and has put material at my
dispoml,
in
particular the manuscript of his fine, indeed definitive, lectures
on
Delictual Liability and the Conflict
of
Laws delivered at the Academy of
International Law at The Hague in July
1968
and
now
published
in
the
Recueil
des
Cours
1968,
11.
The result has been to allow me
to
tell a more
complete story than my
far
from encyclopedic knowledge of the relevant foreign
materials would have permitted and thereby
to
give
up port
in
greater depth
to arguments which
I
had already formulated and to conclusions at which
I
had dready arrived.
Boys).
1
[1969]
3
W.L.R.
322;
[1969] 2 All E.R.
1085
(sub
nom.
Choplin
V.
See also Lazar,
"
Phillips
V.
Eyre
Revisited
"
(1969)
32
M.L.R.
638.
VOL.
33
1
1
1
2
“HE
MODERN
LAW
REVIEW
VOL.
33
in Malta at the time of the accident, and the defendant’s car was
insured by an English insurance company. The House of Lords,
affirming
the lower courts, applied English law
so
.as to allow the
plaintiff to recover for his pain and suffering.
Tort liability
in
the conflict of laws is a latter-day problem.
Modern social conditions have given to the topic a prominence
formerly denied to
it,
and tort today is responding to the growth
of international travel in much the same way as, in an earlier
age, contract responded to the growth
of
international trade.
This prominence is likely not only to remain but
to
increase in the
years
to
come, and
it
is therefore of vita1 importance that old
concepts should be re-examined
in
the new setting. Already the
issues have cascaded over the North American continent, where the
substantial litigation that has been generated over the past decades
reflects the mobility of the American and Canadian populations
and the multitude of jurisdictions within each country. However,
English legal practitioners also,
I
am aware, have today
to
deal
not infrequently with clients involved
in
international accidents,
and English courts cannot afford any longer
to
ignore this area
of modern legal thought.
It
is time
to
catch up with the inter-
national scene.
The transport accident with international incidents is not the
only tort problem posed by the international age: probably all
the major tort areas are implicated.
The
communications ex-
plosion exposes a man
to
the risk of having his reputation sullied
and his privacy invaded
on
a global basis. World markets for
goods have given
a
conflicts dimension
to
products liability: the
snail can
no
longer be contained
in
a
purely Scottish bottle.
Economic torts in this country have hardly come
of
age in the
domestic sphere before they are
on
the verge of being propelled
by the internationalisation of business structures into finding
a
new maturity. But the international-and the interstate-accident
is still the
most
pressing problem, and
it
is
to
a consideration of
this problem that this article is
confined.
Accordingly, while
much of the argument applies
to
torts
generally,
it
should be
remembered that the solutions suggested for the international
accident may not always be appropriate for all other forms of civil
wrongdoing.
What justifications can be put forward
for
applying English
law
in
the circumstances
of
Boys
v.
Chaplin?
There are three.
The court could apply English
law
on
the
ground
that the issue
of
tort liability, including the measure of damages, is governed by
the
lex
fori
which defers to the
lex loci delicti
only
to
the extent of
imposing
no
liability in tort where the
lex
loci
delicti
would impose
no
liability whatever, whether civil
or
criminal;
on
the ground
that, whatever the law governing the substance of tort liability,
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