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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 19 April 2015
Conflict of Laws in International Tort Cases:
The Need for Reform on Both Sides of the Tasman
Anthony Gray*
i. INTRODUCTION
The issue of which law to apply to resolve a tort case comprising elements
from more than one jurisdiction is not an easy one to decide.
Many different
approaches have been tried and discarded by the courts. Some approaches provide
for a general rule but include a flexible
exception. Others provide for a
completely flexible test. This article traces the Australian courts’
latest attempts to deal
with the matter, and documents recent developments in
England, Canada and New Zealand. Reference is made to the vast North American
jurisprudence in this area, in particular interest analysis, to suggest the way
forward for Australian and New Zealand courts in
this area, with a view to
maintaining some flexibility in approach, while applying the law of the place of
the wrong as the primary
test. The author commends the High Court of
Australia’s (belated) rejection of the double actionability test and
suggests that
New Zealand might also consider rejecting that approach. However,
it is submitted the Australian High Court should adopt a flexible
exception, as
have the courts in other countries, including New Zealand and Canada.
The Australian High Court in Regie National des Usines Renault SA v
Zhang1 (Renault) and John Pfeiffer Pty Limited v
Rogerson2 (Pfeiffer), after alluding to dissatisfaction
with its previous double actionability approach
in
* Dr Anthony Gray, Head of Department, Law, University of Southern Queensland. Thanks to an anonymous reviewer for helpful comments on an earlier draft.
1 [2002] HCA 10; (2002) 210 CLR 491.
2 [2000] HCA 36; (2000) 203 CLR 503.
this area,3 decided upon an apparently simple choice of law rule
in tort for both international and interstate Australian choice of law
conflicts.
The court decided that, generally, the law of the place of the wrong
should be applied as the choice of law rule. This was the choice
that eventually
commended itself to the majority. The court noted this approach reflects
community expectations as to the law to
be applied,4 and was in most
cases easy to apply. Citizens understood that if they went to another
jurisdiction, they would be subject to the rules
and regulations of that
jurisdiction. Liability would generally be fixed and certain.5 Under
this approach, liability was fixed by reference to
geography,
3 As to which, refer to Peter Nygh ‘The Miraculous Raising of Lazarus: McKain v Miller and Co (South Australia) Pty Ltd’ (1992) 22 UWestAustraliaLR 386, 394; Michael Pryles
‘Of Limitations and Torts and the Logic of Courts’ [1992] MelbULawRw 8; (1992) 18 MelbourneULR 676; Michael
Pryles ‘The Law Applicable to Interstate Torts: Farewell to Phillips v Eyre?’ (1989) 63
AustralianLJ 158,181; Brian Opeskin ‘Conflict of Laws and the Quantification of Damages in Tort’ (1992) 14 SydneyLR 340; Australian Law Reform Commission Choice of Law (1992) No 58, 10.13, 10.41; Anthony Gray ‘Conflict of Laws – Heading in the Wrong Direction?’ (1994) 24 Queensland Law Society Journal 357. Much of the jurisprudence in this area has been influenced, at least until recently, by the so-called rule in Phillips v Eyre (1870) 6 LR QB 1, 28-29 that in order to bring an action in one country for a wrong committed abroad,
‘the wrong must be of such a character that it would have been actionable if committed in (the country where the action was brought) ... secondly the act must not have been justifiable by the law of the place where it was done’. This single comment has had a remarkable influence on choice of law rules for torts conflicts throughout the common law world.
4 Pfeiffer, supra n 2 at 540. At least one legal philosopher would agree – since Locke thought that citizens agreed to bind themselves to the law of the jurisdiction they lived in by their presence within the jurisdiction, he would logically agree that if a citizen traveled to another jurisdiction, they would be deemed to have agreed to submit themselves to the laws of that jurisdiction by virtue of their presence: John Locke Second Treatise of Government (1690)
119.
5 Ibid, 539; similar reasoning appears in the decision of the Supreme Court of Canada in Tolofson v Jensen [1994] 3 SCR 1022, 1050-1051. However the New York Court of Appeals in Babcock v Jackson (1963) 12 NY2d 473, 191 NE2d 279, 281 commented that ‘despite the advantages of certainty, ease of application and predictability which it affords, there has in recent years been increasing criticism of the traditional rule (ie law of the place of the wrong) by commentators and a judicial trend towards its abandonment or modification
... (because) the theory ignores the interest which jurisdictions other than
that where the tort occurred may have in the resolution
of particular
issues’.
making it easier to promote laws that gave a favourable outcome.6
The rule was simple to apply and led to certain results.7 The
court noted however, that in some cases, it may be difficult to ascertain the
‘place of the wrong’.8
The author has previously argued against the double actionability rule on the
basis that giving primacy to the law of the forum only
encourages forum
shopping. It is hard to justify today, if ever it were justifiable, why the
forum law should have to recognize the
action in order for it to proceed in the
jurisdiction. There is no general reason why a forum court cannot apply the
substantive
law of another country, except perhaps in the very unusual case
where the foreign law is offensive to public policy.9 Why should
forum law be applied, in cases where all or most of the links (or connective
factors) are with the place of the wrong?
As a result, the author would
generally commend the High Court’s recent moves towards adopting the law
of the place of the
wrong as the general rule to be applied. This move is
consistent with moves in the United Kingdom and Canada. The law of New Zealand
is being increasingly isolated worldwide in its adherence to the Phillips v
Eyre approach.
ii. THE FLEXIBLE EXCEPTION AND QUESTIONS OF PUBLIC POLICY
In judgments and/or legislation in other countries, different approaches have
been taken to the question of a so-called flexible exception
to the general
rule, as well as the content of the general rule. In the United Kingdom, some
members of the House of Lords, having
accepted the general rule was as Willes J
said in Phillips v Eyre,10 considered a so-called flexible
exception to the rule. Referring to similar provisions in the Second American
Restatement supporting such an approach, Lord Wilberforce
declared
6 Pfeiffer, supra n 2 at 539.
7 This decision was confirmed by the High Court in Dow Jones and Company Inc v Gutnick
(2002) 210 CLR 575.
8 Pfeiffer, supra n 2 at 538; a recent example is Dow Jones, involving an action for defamation brought by a Victorian resident in a Victorian court in respect of material uploaded in the United States. The High Court found that Victoria, being the place of publication, was the place of the wrong in this case, but that every place in which the material was published and in which the plaintiff’s reputation suffered as a result was also a place of the wrong. As a result, the plaintiff could bring suit in each jurisdiction in which his reputation had been affected by the defamatory statements; cf Cuccioli v Jekyll and Hyde Neue Metropol Bremen Theater Produktion GMBH and Co (2001) 150 FSupp 2d 566, involving the unauthorized use of the plaintiff’s likeness to promote a CD advertised on a website created and maintained in Germany, although accessible in the United States. The court found the wrong had occurred in Germany.
9 The High Court in Pfeiffer gave many reasons for its abandonment of the double actionability approach.
10 Phillips, supra n 3 at 28-29.
I think that the necessary flexibility can be obtained through segregation of
the relevant issue and consideration whether, in relation
to that issue, the
foreign rule ought as a matter of policy ... to be applied. For this purpose, it
is necessary to identify the
policy of the rule, to inquire to what situations,
with what contacts, it was intended to apply; whether not to apply it ... would
serve any interest the rule was devised to meet.11
Although not all Lords agreed with such a formulation, it was later
unanimously adopted by the Privy Council in Red Sea Insurance Co Ltd v
Bouygues SA12. Later codification of United Kingdom law in this
area also recognized that a flexible exception applies to the general
rule.13
This has also been the case in Canada, where the Supreme Court reconsidered
the issue in Tolofson v Jensen.14 While favouring the
inflexible application of the law of the place of the wrong in that case, La
Forest J took a different view of
international torts conflicts:
Because a rigid rule on the international level could give rise to injustice,
in certain circumstances, I am not averse to retaining
discretion in the court
to apply our own law to deal with such circumstances.
Similarly, recent cases in New Zealand have allowed a flexible exception to
apply, where one country has the most significant relationship
with the
occurrence and the parties. In that case, the law of that country is to be
applied. For example, in Baxter v RMC Group PLC,15 the court
found that although prima facie the law of New Zealand would be applied to
resolve the case, the facts called for the application
of British law, given
that the wrong/s had occurred in Great Britain. New Zealand also continues to
apply the Phillips v Eyre rule, on the basis of double actionability. If
both limbs are satisfied, the law of the forum is the prima facie rule to be
applied
in that country.16
11 Chaplin v Boys [1971] AC 356, 391; to like effect Lord Hodson (378) and Lord Pearson
(406)
12 [1995] AC 190, 206; confirmed more recently in Kuwait Airways Corporation v Iraq Airways
Company and Others [2002] UKHL 19.
13 Private International Law (Miscellaneous Provisions) Act 1995 s12 (the legislation also changes the general rule away from double actionability to the primacy of the law of the place of the wrong).
14 [1994] SCR 1022; see generally Unifund Assurance Co v Insurance Corp of British Columbia
[2003] 2 SCR 63 and Wong v Wei (1999) 65 BCLR (3d) 222.
15 [2003] 1 NZLR 304; see also Kunzang v Gershwin Hotel (High Court, Auckland, 19/9/2000) and Starlink Navigation Ltd v The Ship ‘Seven Pioneer’ (2001) 16 PRNZ 55 where the court applied the double actionability approach.
16 The emphasis on the law of the forum as the choice of law after
applying the Phillips test as a double actionability rule is
reminiscent of the
High Court’s decisions in Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629 and
McKain v Miller (1992).
One also refers to the American Law Institute’s Second
Restatement, which avoids a presumption in favour of either law, but instead
requires application of whatever law has the most significant relationship
to
the occurrence and the parties. Various factors are listed to be taken into
account, including the place where the injury occurred,
the place where the
conduct causing the injury occurred, the residence and nationality of the
parties, and the place where the relationship
between the parties, if any, is
centred. Relevant policies of the forum and other interested States are also
relevant.17
The flexible exception has also appealed to former members of the High Court
of Australia. For example in Breavington v Godleman18
and other cases, adoption of the law of the place of the wrong as the
primary rule has been accompanied for some judges by what may
be termed a
‘flexible exception’, as it was described in Chaplin v Boys
per Lord Wilberforce.19 This exception might apply where the
place of the wrong is in some sense fortuitous.20
However, in Pfeiffer the court rejected a flexible exception, at least in cases
involving intra-Australian torts. Their conclusion was that:
[A]dopting any flexible rule or exception to a universal rule would require
the closest attention to identifying what criteria are
to be used to make the
choice of law. Describing the flexible rule in terms such as “real and
substantial” or “most
significant” connection with the
jurisdiction will not give sufficient guidance to courts, to parties, or to
those like insurers
who must order their affairs on the basis of predictions
about the future application of the rule. What emerges very clearly from
the
United States experience in those States where the proper law of the tort theory
has been adopted is that it has led to very
great uncertainty. That can only
increase the cost to parties, insurers and society at
large.21
17 s6, s145.
18 [1988] HCA 40; (1988) 169 CLR 41.
19 Interestingly, a flexible exception was also applied by State Courts, for example Warren v Warren [1972] QdR 386. Matthews J applied Queensland law to litigation relating to a car accident that happened in New South Wales. Both parties were Queensland resident – the judge allowed the claim although they would have been statute barred in New South Wales, holding there was flexibility in the Phillips rule. A similar result occurred in Corcoran v Corcoran [1974] VicRp 22; [1974] VR 164, allowing one Victorian resident to sue another Victorian resident in relation to an accident occurring in New South Wales.
20 Chaplin, supra n 11 at 389, per Lord Wilberforce: ‘to fix the liability of two or more persons according to a locality with which they may have no more connection than a temporary accidental and perhaps unintended presence may lead to an unjust result’, accepted in Breavington by Mason CJ at page 76 and Toohey J at page 162. It has also been applied to justify the exclusive application of the law of the place of the wrong: Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190.
21 Pfeiffer, supra n 2 at 538.
The court reconsidered the issue of the flexible exception, in relation to
international torts, in the Renault case. Given the strenuous reasoning
above for rejecting any flexibility in respect of intra-national torts, one
might have expected
the court to take the same approach as it took in
Pfeiffer, rejecting (entirely) the so-called exception for the reasons
above. The court did not do so. The court certainly made it clear that
the
choice of law rule was to be the law of the place of the wrong, without any
resort to a flexible exception:
The submission ... is that the reasoning and conclusion in Pfeiffer that the
substantive law for the determination of rights and liabilities
in respect of
intra-Australian torts is the (law of the place of the wrong) should be extended
to foreign torts, despite the absence
of the significant factor of federal
considerations, and that this should be without the addition of any
“flexible exception”.
[sic] That submission should be
accepted.22
However, after considering the Canadian Supreme Court’s Tolofson
decision taking a similar approach, the court added the following
comment:
Questions which might be caught up in the application of a “flexible
exception” to a choice of law rule fixing upon the
(law of the place of
the wrong) in practice may often be subsumed in the issues presented on a stay
application, including one based
on public policy grounds.23
Kirby J preferred to reserve the question whether there was a flexible
exception in relation to international torts, but held the
exception did exist.
He referred to the majority’s linking of public policy arguments with
the
22 Renault, supra n 1 at 520.
23 Ibid, 519. This approach has been discarded in the United Kingdom. Writing in 1989 (i.e. pre-legislative reform in the United Kingdom) of a case brought in a United Kingdom court involving elements of a tort committed both in that jurisdiction and New York, Fentiman made the comments: ‘[The decision] ... confirms the suspicion that substantive tortious conflicts will seldom arise in England because such disputes can be disposed of at the jurisdictional stage. First, the case emphasizes how the likely substantive outcome of a dispute can govern questions of jurisdiction, turning as it did on the plaintiffs’ need to establish a good arguable case against the defendants. Second, it confirms the tendency to regard the courts of the place where a tort is (substantially) committed as the forum conveniens ... The theoretical importance of this tendency is that it casts further doubt on the scope of the forum conveniens doctrine generally’: Richard Fentiman ‘Torts – Jurisdiction or Choice of Law?’ [1989] CambridgeLJ 191, 193.
This approach was abandoned six years later when the United Kingdom
Parliament passed the Private International Law (Miscellaneous Provisions)
Act 1995, which provided for the primary of the law of the place of the
wrong (where the most significant elements of the facts constituting
the tort
occurred or the law of the place of injury in cases of personal injury), subject
to a flexible exception where it would
be “substantially more
appropriate” for the issues to be resolved by another law (emphasis
added, and note the provision does not state that the exception will apply where
it is substantially more appropriate for
the issues to be resolved by another
court, as the questions are, although related, distinct).
flexible exception, but noted that Chaplin v Boys, where the
exception was applied by some judges, was not a case where public policy could
have been raised as an argument.24
The approach in the joint judgment suggests that the court sees the role of
the flexible exception as relating more to jurisdiction,
rather than the choice
of law to be applied to resolve the dispute. However, this approach was
specifically rejected by Toohey J
in Breavington.25 Moreover,
when it was originally conceived in Chaplin v Boys, the ‘flexible
exception’ was used as part of the process of deciding which law to be
applied, i.e. it was a choice of
law rule, and not a matter only of
jurisdiction. If the parties had a merely incidental connection with the place
of the wrong, its
law was not applied on policy grounds. Lord
Wilberforce’s double actionability test in Chaplin26 was
subject to a flexible exception based on ‘an account of the varying
interests and considerations of policy which may arise
when one or more foreign
elements are present.’27 The Supreme Court of Canada itself
applies the flexible test not merely to questions of jurisdiction, but to the
choice of law question,28 as do the New Zealand
courts.29
If, contrary to the experience in all other common law jurisdictions, the
High Court of Australia continues in future to view public
policy arguments as
going to jurisdiction only, it should clarify in what circumstances it would
permit a stay of proceedings based
on public policy grounds. The High Court in
Renault mentioned the inherent jurisdiction of a court to stay
proceedings brought
24 Renault, supra n 1 at 535.
25 Supra n 18 at 171. ‘The argument on behalf of the appellant that if the forum chosen by him is not the natural or appropriate forum, his action may be stayed, is not sufficient. The question is not one of forum non conveniens; it is more deeply rooted than that.’
26 Supra n 11 at 391. This approach has been adopted at common law by the Privy Council in Red Sea and by the House of Lords in Kuwait Airways Corporation v Iraqi Airways Company [2002] UKHL 19.
27 This is also the sense in which the ‘proper law’ exception is used in the Private International Law (Miscellaneous Provisions) Act 1995 (UK), as a question going to the choice of law rather than jurisdiction.
28 Unifund Assurance Co v Insurance Corp of British Columbia [2003] 2 SCR 63.
29 The law is as stated by O’Regan J in Baxter v RMC Group PLC [2003] 1 NZLR 304,
318:
(a) a tort is actionable in New Zealand only if it is actionable both in New Zealand and England. If this rule (the double actionability rule) is satisfied, then the substantive law to be applied is the law of New Zealand;
(b) However, if one country has the most significant relationship with the occurrence and
with the parties, the substantive law of that country is to be
applied.
before it for various reasons, including that the forum is ‘inappropriate’.30
This has been interpreted narrowly in Australia to mean if continuation of
the proceedings in that court would be oppressive, in the
sense of
‘seriously and unfairly burdensome, prejudicial or damaging, or vexatious,
in the sense of productive of serious and
unjustified trouble or
harassment.’31 The ends of justice were paramount. One relevant
factor was whether the substantive law of the forum was the law of the cause (ie
in this context, the law of the place of the wrong). Another was the presence of
connecting factors between the plaintiff or the
defendant, and the forum
jurisdiction.
So, with respect, arguably the precise scope of the flexible exception in
relation to conflict of laws in tort is unclear.32 The High Court
has said it does not apply to intra-Australian torts. In relation to
international torts, the Court says it does not
apply to the choice of law
decision, but relates to arguments about jurisdiction. Given that this is not
how the exception was conceived
by Lord Wilberforce in Chaplin v Boys,
how it is now written in British legislation, or in the United States where it
has been tied into the debate about the proper law
of the tort (i.e. in relation
to a decision about choice of law not jurisdiction), nor how it is
applied in New Zealand, there is little support for this approach, other than
dicta in one Canadian Supreme
Court decision. This of itself does not mean it is
incorrect, but it is suggested the High Court should elaborate on the reasons
for its approach, acknowledge its departure from the United States and English
jurisprudence in the area, and explain precisely how,
as it has suggested,
‘public policy’ is relevant to questions of jurisdiction.
iii. WHERE THE PLACE OF THE WRONG IS FORTUITOUS OR INCIDENTAL
Adapting the facts of Chaplin v Boys, assume that two Australian
soldiers were involved in a collision while driving in Malta. Both soldiers had
been stationed there temporarily.
Assume the law in Malta regarding
personal
30 The High Court’s approach on forum questions has not escaped criticism from the experts.
See for example Peter Nygh and Martin Davies Conflict of Laws in Australia 7th Ed (2002)
129, criticizing the Voth decision as out of step with other countries in the Commonwealth, encouraging of forum shopping, and internally inconsistent.
31 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538.
32 Others might suggest that the High Court in Pfeiffer and
Renault have unequivocally precluded any exception in relation to the
choice of tort law, though acknowledging the flexibility of courts in
application of forum non conveniens. The Court did reject application of
a flexible exception. This author argues the position remains open because of
the High Court’s
comment in Renault, supra n 1 at 519 that
“questions which might be caught up in the application of a
‘flexible exception’ to a choice
of law rule fixing upon the lex
loci delicti in practice may often be subsumed in the issues presented on a
stay application, including one based on public policy grounds.”
The
author believes this statement is an important one, in that the High Court
recognizes its power to invoke public policy considerations
as a basis for
declining to exercise jurisdiction.
injuries remains materially different from the law in Australia. If an action
were brought in an Australian court in respect of the
accident, what is the
Australian court to do? Should it:
(a) hear the action and apply the now-accepted general rule that the law of
the place of the wrong (here Malta) should apply, or
(b) decline to hear the action because an Australian court is a
‘clearly inappropriate forum’ (as we have seen, the Court
has said
one relevant factor here is which substantive law is to be applied – here
it would be Maltese. If the parties are
Australian citizens, it is difficult to
say that an Australian court is ‘clearly inappropriate’), or
(c) hear the action, but discard the now-accepted general rule that the law
of the place of the wrong should apply, on the basis of
public policy arguments
that Australia has a closer connection with the parties, so Australian law
should apply.33
Based on what the High Court said in Renault, the third possibility
could be discarded. The Court did not see the flexible exception as relating to
the question of choice of
law. Given that the ‘clearly inappropriate
forum’ test is such a difficult one to satisfy, one would think it likely
that the first possibility would be the most likely outcome.
How does the High Court’s
‘public-policy-in-the-context-of-jurisdiction’ test apply here, if
at all? Is this the
kind of case where an Australian court might, on the grounds
of public policy, refuse to hear the action because an Australian court
is a
clearly inappropriate forum?34 It has been noted that this is a very
difficult test to satisfy, so arguably not, at least according to participants
in the joint
judgment in Renault. The position of Kirby J is more
equivocal. He considered the arguments in favour of and against a flexible
exception, concluding
that he would rather leave the question whether to
recognize a
33 This approach would apparently be supported by the decisions of Lord Wilberforce in
Chaplin, Mason CJ in Breavington, and the United States decision of Babcock v Jackson.
34 Canadian scholars are skeptical. In “Back to the Future! Is the New Rigid Choice of Law
Rule for Interprovincial Torts Constitutionallly Mandated?” (1995) 33 OsgoodeHallLJ
35, 69 Jacqueline Castel asks: ‘Can the doctrine of forum non
conveniens really play a significant role as a substitute for
actionability by
the law of the forum or publicy policy if the forum is the most appropriate
forum or the natural forum? Consider
the case where the cause of action created
by the law of the place of the wrong is not known to the forum but both parties
are resident
or domiciled in the forum. In such a case the court cannot declare
itself forum non conveniens. It must take jurisdiction and apply
the law of the
place of the wrong to the exclusion of the law of the forum ... Only where the
forum is not connected with the action,
that is, not the appropriate
jurisdiction based on all relevant factors, could it declare itself forum non
conveniens.’
flexible exception “where the law of the foreign jurisdiction is
such as to justify an Australian court’s declining to recognize or enforce
the
law of that place” (emphasis added). He reiterated:
The general rule is that stated in Pfeiffer. In international torts, there is
an exception to the application of that general rule.
That exception may be
invoked by reference to public policy considerations that would make the
enforcement by the forum of the law
of the place of the wrong contrary to the
public policy of the forum.35
In commenting on the majority’s opinion that questions of public policy
would often in practice be subsumed on questions of
forum non conveniens,
he said this ‘need not be so.’ He referred to the situation in
Chaplin v Boys as one case, where the flexible exception applied and the
law of the place of the wrong did not apply. This was not because application
of
Maltese law was contrary to public policy. These comments by Kirby J suggest
that his Honour would consider arguments about public
policy as going to the
choice of law (as Lord Wilberforce did in Chaplin), rather than a
question of jurisdiction only. It is acknowledged, however, that Kirby J
expressly reserves the question for a future
time.
To further support Kirby J’s observations, consider how the High Court
would handle the facts of Kuwait Airways Corporation (KAC) v Iraqi Airways
Company (IAC),36 with some variations. The actual facts involved
the confiscation by an Iraq government of property owned by KAC in Kuwait. The
government
eventually gave them to IAC. KAC sought the return of their aircraft,
suing for the tort of conversion. If we assumed that KAC was
an Iraq-based
company, all of the links involve Iraq – the place of the wrong and the
place of residence of both parties, so
this would not created many
difficulties.
However, assume that KAC was actually based in Australia, so there was a
substantive link between Australia and the matter. Would
the High Court now
still be able to decline to hear the matter on the basis of forum non
conveniens? How would the majority apply its test?
Questions which might be caught up in the application of a “flexible
exception” to a choice of law rule fixing upon the
(law of the place of
the wrong) in practice may often be subsumed in the issues presented on a stay
application, including one based
on public policy grounds
35 Renault, supra n 1 at 535. Another discussion of policy issues occurs in J J Fawcett, ‘Policy
Considerations in Tort Choice of Law’ [1984] ModernLR 650.
It is submitted that in order to apply this test to avoid the application of
Iraqi law (which would justify the confiscation) the
High Court would have to
strain the ‘clearly inappropriate forum’ test to try to argue that
Australia had no connection
to and thus should not hear the matter. But this
doesn’t really solve the problem – surely the correct result is that
while we have no problem in an Australian court hearing the matter, the
Australian court should decline to apply Iraqi law on the
basis of public
policy. (This is in fact the result achieved by the House of Lords in applying
the flexible exception to the facts.)
It is submitted the High Court of
Australia would find it very difficult to come up with the same result by
applying the awkward
test is postulated in the Regie case, and this is
reason for the court to re-think its opposition to a flexible exception
choice of law rule.
The question of the use of policy then is debatable, and it is submitted,
with respect, that the court needs to clarify its use of
‘public
policy’.37 Again, it is acknowledged that the majority of the
High Court in Renault indicated support of the then Canadian line that
public policy is relevant only to questions of jurisdiction. However, given the
Canadian
courts’ since-expanded use of policy considerations to include
choice of law, given policy as used in the United Kingdom has
been somewhat
broader, the view of some High Court judges (at different times, Toohey, Mason
and Kirby JJ) that policy is relevant
to choice of law questions, and the
turbulent history of this area of the law, it is
considered
37 For the High Court’s difficulties with policy issues recently in
the context of recovery for personal injury, see for
example Gala v
Preston [1991] HCA 18; (1991) 172 CLR 243; Perre v Apand Pty Ltd [1999] HCA 36; (1999)
198 CLR 180 and Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131. A
detailed study of this jurisprudence is beyond the scope of this paper, but they
are included as an example of differences among
the Court as to the use of
policy in deciding negligence cases. Most recently, Callinan J in
Cattanach, at page 209, called for judges to be explicit if they were
deciding negligence claims based on policy, rather than explain decisions
on
other grounds.
possible that a future High Court may consider policy arguments in relation
to the choice of law question, rather than merely jurisdiction.
Of the current
members, at least Kirby J would apparently support this
expansion.38
The situation where the place of the wrong has little or no connection with
the parties other than the fact that the incident occurred
there, is the
Achilles Heel of an inflexible application of the law of the place of the wrong.
Not surprisingly, it was the raison d’etre for the flexible
exception recognized by Lord Wilberforce in Boys:
The tort here was committed in Malta; it is actionable in this country. But
the law of Malta denies recovery of damages for pain and
suffering. Prima facie
English law should do the same: if the parties were both Maltese residents it
ought surely to do so; if the
defendant were a Maltese resident the same result
might follow. But in a case such as the present, where neither party is a
Maltese
resident or citizen, further enquiry is needed rather than an automatic
application of the rule. The issue, whether this head of
damage should be
allowed, requires to be segregated from the rest of the case ... related to the
parties involved and their circumstances,
and tested in relation to the policy
of the local rule and of its application to these parties ... So segregated, the
issue is whether
one British subject, resident in the United Kingdom, should be
prevented from recovering ... against another British subject ...
damages for
pain and suffering which he cannot recover under the rule of the lex
delicti.. Nothing suggests that the Maltese state has any interest in
applying this rule to persons resident outside it, or in denying the application
of the English rule to these parties.39
Surely, the general rule needs to be applied with some flexibility to deal
with the issue whether the place of the wrong has no interest
in its law being
applied to the matter in dispute. The need for such flexibility has been
recognized in the United Kingdom, United
States, New Zealand and Canada. It is
ridiculous
38 Discussion of the distinction between substance and procedure is considered to be beyond the scope of this paper. However, one should note that policy considerations have also been considered relevant in making this distinction. For example, New York courts have classified statutes prohibiting recovery for wrongful death as procedural, and refused to apply them to suits brought in New York based on an accident occurring in a state with legislation barring suits for wrongful death. This was because ‘for our courts to be limited by the Massachusetts damage ceiling (at least to our own (residents)) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law:’ Kilberg v Northeast Airlines Inc (1961) 9 NY2d 34, 172 NE2d 526; Miller v Miller (1968)
22 NY2d 12 and Tooker v Lopez (1969) 24 NY2d 569. Based on its comments in Renault, it seems the High Court might agree with this reasoning and apply it in an appropriate case. On the other hand, if it continues to follow the Canadian line in this area, the Canadian court in Tolofson held that the limitation period of the law of the place of the wrong should not be rejected by the forum court on the basis of differing policy approaches to limitation questions.
39 Chaplin v Boys [1971] AC 356, 392.
for an Australian court to attempt to deny the need for such flexibility in
the light of its recognition elsewhere. Such an approach
might also ask whether
the purpose behind the relevant rules would be furthered by their application in
the particular case. Various
formulations of the suggested exception will now be
considered.
iv. FLEXIBILITY - OTHER APPROACHES
At the outset one should note that a variety of other approaches have been
taken to resolve these difficult issues. There is not as
much consistency in the
use of terms, including the use of the terms ‘policy’, ‘proper
law’, ‘interest
analysis’, as one would like. Policy is used
in different ways, sometimes as an exception to the general choice of law rule,
sometimes in determining what the governing law should be in the first place.
Sometimes interest analysis is seen as a distinct approach
in itself, sometimes
it is said to have been combined with a proper law approach.40 Though
there may be some relation and overlap between the two, for the purposes of this
article (and for the purposes of conceptualizing
the law in this area) the
author thinks it better to discuss them separately.
Proper Law of the Tort41
It is worth bearing in mind two points in this context:
(a) that the original American Restatement in the area of conflict of
laws called for the strict application of the law of the place of the wrong,
only to be later replaced
by the revised Restatement which calls for an
interest-weighing approach; and
40 An example of the latter is contained in the Australian Law Reform Commission’s Choice of Law Report (1992) para 6.65. It recommended that ‘in interstate torts, the court take into account the purpose and object of laws in deciding whether to replace the lex loci with the place of greater connection.’ Nygh also conflates interest analysis with proper law thus:
‘The proper law of the tort approach employed in the United States depends upon interest analysis, rather than jurisdiction selecting choice of law rules.’ Peter Nygh and Martin Davies Conflict of Laws in Australia 7th Ed. (2002) 428-29. Lord Wilberforce in Chaplin v Boys also related the two, as did Mason CJ in Breavington v Godleman.
41 Morris, J H C ‘The Proper Law of the Tort’ (1951) 64 HarvLR
881.
(b) the weighing of different interests accords with the accepted approach
(including in Australia) of dealing with conflict issues
in relation to
contracts,42 thus providing a harmonized approach in the two areas of
law. As James noted in relation to the Pfeiffer case, ‘it is
unfortunate that the outcome of his case may have been different had it been
framed in contract’.43
As indicated, The American Restatement 2d, Conflict of Laws,44
embraces the theory of the ‘proper law of the tort’, or the
tort law of the place with the closest connection with the
parties (s145).
Section 145(2) of the Restatement specifies that the following are
relevant in relation to tort choice of law questions:
(i) the place where the injury occurred;
(ii) the place where the conduct causing the injury occurred;
(iii) the domicil, residence, nationality, place of incorporation and place
of business of the parties; and
(iv) the place where the relationship, if any, between the parties is
centered.
42 Merwin Pastoral Co Ltd v Moolpa Pastoral Co Pty Ltd [1933] HCA 31; (1933) 48 CLR 565; Rothwells Ltd (In Liq) v Connell (1993) 119 ALR 538. See Lawrence Collins, ‘Interaction Between Contract and Tort in the Conflict of Laws’ (1967) 16 Int’l&CompLQ 103. Brainerd Currie used some contracts examples to demonstrate interest analysis, e.g., the classic case of Milliken v Pratt (1878) 125 Mass 374, involving a conflict between a Massachusetts law denying contractual capacity to married women, and the contrary Maine law, in an action by a Maine creditor against a Massachusetts married woman. Currie saw this as involving a conflict between the policy of Maine law to protect the security of transactions and its intended beneficiaries to be resident Maine creditors, and the policy of Massachusetts, involving subordinating the policy of protecting the security of transactions to that of protecting married women against economic exploitation: Currie, Selected Essays on the Conflict of Laws (1963) 85.
43 Elizabeth James ‘John Pfeiffer Pty Ltd v Rogerson: The Certainty of Federal Choice of Law
Rules for Intranational Torts: Limitations, Implications and a Few Complications’ [2001]
23 SydneyLR 145, 163. The development of interest analysis has also been connected with legal realism theory: see Michael Green ‘Legal Realism, Lex Fori and the Choice of Law Revolution’ (1995) 104 YaleLJ 967; per Catherine Walsh ‘Territoriality and Choice of Law in the Supreme Court of Canada: Applications in Product Liability Claims’ (1997)
76 Canadian Bar Review 91, 99 ‘Legal realism is widely acknowledged to be the impetus behind ... a result-oriented jurisprudence under which the advancement of local policies and local concepts of justice guides choice of law adjudication in the same way as it does other categories of domestic adjudication.’
44 American Law Institute, Restatement (Second) of Conflict of Laws (1971), an approach referred to with approval by Lord Wilberforce in Chaplin v Boys [1971] AC 356, 391-
392.
The Restatement provides that the above ‘contacts’ are to be
evaluated according to their relative importance with respect
to the particular
case.45
The court in Pfeiffer in rejecting the proper law approach, noted that
usually, when applying the test, the law of the forum had been adopted.46
There is some analogy with the concept of the proper law of the tort, and
the application of the so-called flexible exception, in
that some judges who
apply the flexible exception approach apply the law of the place of the wrong as
the primary rule, subject to
an exception where another place is more closely
connected with the parties and the events.47
However, issue may be taken with the High Court’s (very brief) review
of the state of the United States authorities, and the
conclusion drawn in the
joint judgment in Pfeiffer that there is some trend back towards the
application of the place of the wrong rather than the proper law. The proper law
of the
tort remains the predominant rule used in the United States.48
The New York Court of Appeals decision of Babcock v Jackson, in
which a balancing of interests proper law approach was taken, has never been
overruled in that State.49 A recent (1998) survey named only 11 of
the United States as those applying a strict rule of the law of the place of the
wrong. United
States commentators have viewed the position in the United States
as follows:
As the century draws to a close, the traditional theory in tort (favouring
the place of the wrong) ... finds itself in a very precarious
state. This
assessment is based not simply on the relatively low number of states that still
adhere to
45 The first version of the Restatement favoured the law of the place of the wrong as the sole rule to be applied. The court noted in Pfeiffer that the proper law approach had recently been criticized in the literature, and referred to suggestions the approach was inherently subjective rather than logical. A critique of the approach is found in Adrian Briggs ‘Choice of Law in Tort and Delict’ (1995) Lloyd’s Maritime and Commercial Law Quarterly 519.
46 Pfeiffer, supra n 2 at 538.
47 Lord Wilberforce in Chaplin, Mason CJ in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, and the United States Supreme Court decision in Babcock v Jackson (1963) 240 NYS
2d 742; this issue will be considered in more detail later in the article. Lord Wilberforce pointed out in Chaplin that the Second American Restatement formulation ‘has what is very necessary under a system of judge made law, the benefit of hard testing in concrete applications.’ Chaplin, supra n 44 at 391.
48 Kirby J in Renault conceded this point, referring to States of the United States: ‘Some jurisdictions that previously adhered to applying the law of the place of the wrong have tended more recently towards introducing greater flexibility in the rules ... a judicial revolution (has) resulted in the widespread abandonment of the rule of the place of the wrong.’ Supra n 2 at 536 (often after legislation had been introduced, and not without its own difficulties). The United Kingdom’s Private International Law (Miscellaneous Provisions) Act 1995 allows for a proper law exception to be invoked, whenever it would be ‘substantially more appropriate’ for the issue/s to be resolved by another law.
49 The approach commended itself to Mason CJ in Breavington, supra
n 18 at 76.
that theory, but also on the shallowness of their commitment to it. Although
the degree of commitment varies from state to state,
it is fair to say that very
few of these states are philosophically committed to the traditional theory ...
in some of these states,
the (law of the place of the wrong) rules remain in
place only because the highest court of the particular state has yet to
encounter
the “right case” for seriously considering their
abandonment.50
One Australian author has concluded that ‘clearly, the High Court has
misconceived any revival of support for the lex loci in the United
States’.51
The United Kingdom’s torts choice of law legislation, the Private International Law (Miscellaneous Provisions) Act 1995, also may require an evaluation of connecting factors. However, this is in a different way – where a primary rule is subject to displacement based on connecting factors, rather than in the Restatement, where the connecting factors comprise the general rule. Its primary rule, that the law of the place of the wrong governs substantive issues, is subject to the application of another country’s law instead if, having considered the significance of the factors that connect a tort with the country in which it was committed, and the country factors that connect a tort with the other country, ‘it is substantially more appropriate for the applicable law to be the law of that other country’ for the purposes of determining the issues.52
The Australian Law Reform Commission proposed a similar approach be adopted
in Australia, and specifically rejected a proper law approach
as the general
choice of law rule.53
50 Symeon Symeonides ‘Choice of Law in the American Courts in 1998’ [1999] 47 AmJCompL
328, 345; see generally Symeon Symeonides ‘Choice of Law in the American Courts in
2001’ (2002) 50 AmJCompL 1, 61 (Ten states continue to apply the law of the place of the wrong approach, with two of these applying a policy exception to avoid it in 2001.), Symeon Symeonides ‘Choice of Law in the American Courts in 1996: Tenth Annual Survey’ (1997)
45 AmJCompL 447. A leading authority on American choice of law, Weintraub, confirmed swift acceptance of the influential role of policy and interest analysis since cases in the
1950s and 60s: Russell Weintraub Commentary on the Conflict of Laws 3rd ed, (1986) 315-
316. The 1991 Supplement (66) confirms ‘The courts of thirty-five states ... have displaced the place of wrong rule as the sole choice of law rule for torts’. One Australian author has concluded that ‘clearly, the High Court has misconceived any revival of support for the lex loci in the United States’: Elizabeth James ‘John Pfeiffer Pty Ltd v Rogerson: The Certainty of Federal Choice of Law Rules for Intranational Torts: Limitations, Implications and a Few Complications’ [2001] 23 SydneyLR 145, 158.
51 Elizabeth James ‘John Pfeiffer Pty Ltd v Rogerson: The Certainty of Federal Choice of Law
Rules for Intranational Torts: Limitations, Implications and a Few Complications’ [2001]
23 SydneyLR 145, 158.
52 Section 12(2); the Privy Council had concluded in Red Sea Insurance Co v Bouygues SA [1995] 1 AC 190, 206 that ‘the law of England recognizes that a particular issue between the parties to litigation may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and with the parties.’
53 Australian Law Reform Commission Choice of Law (1992) No 58,
Choice of Law Bill, clause 6(8).
New Zealand favours double actionability leading to the law of New Zealand as
the substantive law of the forum to be applied subject
to an exception if
another country has the more significant relationship with the parties. However,
one wonders whether this is purely
an adoption of the British approach, or a
real commitment to double
actionability.54
54 Baxter v RMC Group PLC (2003) NZLR 304, 318; in Richards and Others v McLean and Others [1973] 1 NZLR 521, the judge seemed, with respect, reluctant to apply the law of the forum as the substantive law – Mahon J noted that ‘the application of English law as the dominant substantive law might not in many cases be objectionable having regard to the greater interest which the foreign country might have in the commission of the tort and its consequences’ at 524, but was ‘obliged to say that the first condition in Phillips v Eyre (requiring actionability according to the law of the forum) was on the balance of authority a choice of law rule and not a rule of jurisdiction’ at 525. The judge did not say that he agreed with the approach; nor did he refer to much by way of support for the position. See also Nicky Richardson ‘Double Actionability and the Choice of Law’ (2002) HongKongLJ
491.
Interest Analysis 55
Some in the United States have suggested that interest analysis may assist in
the resolution of conflict of law issues in tort.56 Though not immune
from criticism,57 including in particular Brilmayer,58 it
is submitted that Australian
55 A leading American authority on choice of law rules, Russell Weintraub, wrote in his Commentary on the Conflict of Laws 3rd Ed (1986) 315-316, that there had been a swift acceptance of the influential role of policy and interest analysis since the landmark decision in Schmidt v Driscoll Hotel (1957) 82 NW 2d 365. In that case, the court applied Minnesota law to an accident that took place in the State of Wisconsin. Minnesota law allowed a person injured as a result of the intoxication of another to sue for compensation the person who caused the intoxication, in this case the owners of a hotel in Minnesota. Wisconsin law did not recognize such an action. The parties involved were both residents of Minnesota, the defendant was licensed there, and was served alcohol there. The court found that Minnesota law applied, with Minnesota having an interest in admonishing a liquor dealer whose violation of its statutes was the cause of injuries to a local resident, and in providing for a remedy for the injured person. See also Robert Leflar, American Conflicts Law 3rd Ed (1977) 195, setting out a number of choice-influencing factors, including predictability of results, maintenance of interstate and international order, simplification of the judicial task, advancement of the forum’s governmental interests, and application of the ‘better rule of law’ as factors influencing choice of law.
56 Pioneering work on interest analysis is found in Brainerd Currie Selected Essays on the Conflict of Laws (1963) and Currie, B ‘Survival of Actions: Adjudication Versus Automation in the Conflict of Laws’ (1957-58) 10 StanfordLR 205. For more recent writing on interest analysis, see Harold Korn ‘The Choice of Law Revolution: A Critique’ (1983)
83 ColumbiaLR 772, Russell Weintraub ‘An Approach to Choice of Law That Focuses on Consequences’ (1993) 56 AlbertaLR 701; Lawrence Kramer, L ‘Rethinking Choice of Law’ (1980) 80 ColumbiaLR 277 and Russell Weintraub ‘A Proposed Choice of Law Standard for International Products Liability’ (1990) 16 BrookingJInt’lL 225.
57 See, e.g., Carter, P B. That author argues that interest analysis proceeds upon a ‘fundamental misconception concerning the ultimate purpose of civil litigation. That purpose is to do justice between the parties before the court.’ It may be arguable in response that a fundamental purpose of tort law, including choice of law rules in tort, is efficient loss distribution. See Fleming, J in Law of Torts 9th Ed (1998) which refers to a variety of purposes tort law serves, including deterrence, compensation and loss distribution. At page 12 the learned author refers to a ‘growing trend towards loss distribution’. See also Richard Posner, The Economic Analysis of Law 3rd Ed (1986); William Landes and Richard Posner The Economic Structure of Tort Law (1987), and Australian Law Reform Commission Choice of Law (1992) para 6.13 ‘The rule [double actionability] is out of touch with modern trends in tort law which are more concerned with the distribution of loss and risk than the allocation of responsibility’. Some commentators suggest a stronger limit be placed on the application of forum law than interest analysis would allow. See, e.g., Simson, G J ‘State Autonomy in Choice of Law: A Suggested Approach’ (1978) 52 SoCalLR 61; Silberman, L ‘Can the State of Minnesota Bind the Nation?: Federal Choice of Law Constraints After Allstate Insurance Co v Hague’ (1981) 10 HofstraLR 103.
58 Lea Brilmayer ‘Interest Analysis and the Myth of Legislative Intent’ (1980) 78 MichLR
392, 398, 407 criticizing interest analysis (at least by Currie) as
pro-resident, pro-forum and pro-recovery and leading to unpredictable
results.
She implies interest analysis does not genuinely seek to reflect the wishes or
interests of legislatures.
courts may find interest analysis to be of assistance in this area in future years.59
There is no support for interest analysis in Australian case law, although
the Australian Law Reform Commission supported considering
the purpose or object
of laws in applying the choice of law rules, which is considered to be similar
to interest analysis.60 The Australian High Court made a cursory and
arguably misleading reference to interest analysis in its Pfeiffer
decision.61
A clear example of interest analysis occurred in the New York Court of
Appeals decision in Babcock v Jackson, 62 to which reference
has already been made. The case involved two New York residents, one driving the
other to Canada for the weekend.
While in Canada, the driver of the vehicle lost
control and the car crashed. The vehicle was registered and insured in New York,
and was garaged there. Both parties resided in New York, and their journey
commenced, and would have ended, there. In other words,
the location of the
accident was merely fortuitous, similar to the situation before the House of
Lords in Chaplin v Boys, and before the High Court in Pfeiffer.
Ontario law would bar the action, New York law would allow it to be
heard.
The court noted the general rule that the question would be governed by the
law of the place of the wrong, and outlined the chief
advantages of the rule as
they saw them, namely certainty, predictability, and ease of application, as the
High Court did in Pfeiffer. However, they noted the rule would sometimes
lead to unfair results.
The court cited the Kilberg case, involving a New York resident being
killed in a plane crash in Massachusetts. Massachusetts law contained a ceiling
on the damages
claimable by the deceased’s family. In refusing to apply
the Massachusetts ceiling, the New York court explained that the random
chance
that the event occurred in Massachusetts did not give that State a controlling
interest or concern in the amount of tort recovery,
due to New York’s
competing interest in providing full compensation for its residents or users of
transportation facilities
originating in New York. The deceased had bought her
ticket from the defendant in New York, and the trip originated
there.63
59 Mason CJ referred to the debate in Breavington supra n 18 at 82.
60 Choice of Law (1992) para 6.65 ‘It is recommended that in interstate torts, the court take into account the purpose and object of laws in deciding whether to replace the lex loci with the place of greater connection’.
61 Pfeiffer, supra n 2 at 537. The Court stated only that ‘interest analysis has been doubted’ citing curiously as support for the proposition a case commonly referred to as an example of an interest analysis approach (Alaska Packers) and then the work of Brainerd Currie, also an advocate of the approach.
62 (1963) 12 NY2d 473, 191 NE2d 279.
63 Kilberg v Northeast Airlines Inc (1961) 172 NE2d 526,
527-528.
Turning its mind to this case, the court adopted a similar interest-weighing
approach, in deciding whether to apply New York or Ontarian
law.64 It
found New York’s concern in the matter was unquestionably the greater and
more direct, and the interest of Ontario at best
minimal. New York was the home
of the driver and passenger, the place where the car was kept and insured, and
where the journey began
and was designed to end. Ontario’s only connection
was the ‘purely adventitious circumstance’ that the accident
occurred there. Ontario had no conceivable interest in denying such a remedy in
a suit between New York litigants for injuries suffered
in Ontario because of
conduct tortious under Ontario law. Their law was designed to prevent fraudulent
insurance claims. There was
no reason to depart from the New York policy of
requiring a tortfeasor to compensate a person they have injured by their
negligence.65
As well as currently being absent from Australian law, there is little
reference to interest analysis being applied, at least explicitly,
in the
Canadian or New Zealand case law.66 It is submitted, with respect,
that the jurisprudence of both countries would benefit from a consideration of
such factors, at least
in some cases.67
v. CONDUCT REGULATION AND LOSS DISTRIBUTION
United States courts have recognized that different choice of law rules can
apply to different issues put before the court for consideration.
Specifically,
they have recognized a distinction between what is known as
‘conduct
64 The approach taken is similar to that of the Second Restatement, which was in draft form at the time of the decision. For an excellent account of the important impact the Babcock decision has had on American jurisprudence, see Harold Korn ‘The Choice of Law Revolution – A Critique’ (1983) 83 ColumbiaLR 772.
65 However, the result would be different if one of the parties resided in the law of the place of the wrong. This was confirmed in Neumeier v Kuehner (1972) 286 NE 2d 454, 456 where the wife of a Canadian resident sued after her husband was killed while a passenger in a car driven by a New York resident in Canada. The court applied Canadian law to the issue, noting that although New York has a deep interest in protecting its own residents, even when they are traveling interstate, it has no legitimate interest in ignoring the public policy of a foreign jurisdiction, Ontario in this case, and in protecting the plaintiff passenger living and injured there from legislation obviously addressed to a resident traveling in a vehicle within its borders.
66 ‘There is no indication that the policies underlying the substantive laws of potentially interested states were examined, nor were the factual contacts weighed.’ Elsabe Schoeman,
‘Tort Choice of Law in New Zealand: Recommendations for Reform’ [2004] New Zealand
Law Review 537.
67 Schoeman suggests that in the New Zealand context, interest analysis
might be particularly useful where it is impossible to
determine the proper law
of the tort objectively on the basis of a centre of gravity approach –
‘in such cases it will
be necessary to determine which jurisdiction has
the greater interest in the application of its law on the basis of the policy or
policies underlying the law.’ Ibid, 560.
regulation’ and ‘loss distribution’. Different rules apply
to these categories. Conduct regulation tends to be governed
by the law of the
place of the wrong, either with or without resort to interest analysis.
Nevertheless, interest analysis would be
readily applied to conduct regulation.
A jurisdiction has a clear and strong interest in regulating conduct within its
territory.
It would be very difficult for another jurisdiction to claim it has a
stronger interest in regulating conduct within another jurisdiction,
than the
jurisdiction itself would have. As the court in Babcock v Jackson said,
‘where the defendant’s exercise of due care in the operation of his
vehicle is in issue, the jurisdiction in which
the allegedly wrongful conduct
occurred will usually have a predominant, if not exclusive, concern ... (because
of) that jurisdiction’s
interest in regulating conduct within its borders
... it would be almost unthinkable to seek the applicable rule in the law of
some
other place.’68
So recently in Matson by Kehoe v Anctil,69 the issue was
whether the parents of a child injured in a Vermont car accident were guilty of
contributory negligence. At the time
of the accident, the plaintiff’s
mother was holding the child in her lap in the front passenger seat. The
question of contributory
negligence would be answered differently according to
which law applied, the defendant being from Quebec. The court applied the law
of
the place of the wrong, Vermont, to the issue. The conclusion was that
‘because both the conduct and the injury occurred
in Vermont ... [that
state] ... had a strong and obvious interest in regulating the conduct of
persons within its territory and in
providing redress for injuries that occurred
there.’70
Loss distribution is seen as something to which interest analysis (together,
in some cases, with a proper law approach) is applied.
Given that conduct
regulation and loss distribution are decided by different rules, different law
can apply to them. This is why
in the 1997 Matson case the law of Vermont
applied to the question of contributory negligence, but in the 1998 Matson
case when the issue arose as to whether the defendant truck driver was an
independent contractor or the agent of another defendant,
the court viewed this
as a loss
70 Ibid, 1035. Similarly in Pittman v Maldania Inc (2001) WL
1221704, the defendant operated a water ski rental office on the Delaware side
of that State’s border with Maryland.
The law of both states provided it
was unlawful to rent skis to a person under 16, but the law of Delaware (only)
also required that
the person renting to produce a valid driver’s licence.
The plaintiff, aged 14, obtained skis after misrepresenting his age.
He was
injured while riding the skis in Maryland. The court found the law of the place
of the wrong (in this case Delaware, where
the skis were hired) should apply.
The Delaware law reflected a ‘clear policy against renting skis to people
who are unable
to produce a valid driver’s licence ... [as] part of a
comprehensive statute on boating safety ... [and] a state statute regulating
conduct should be enforced throughout the State.’
distribution issue and applied Quebec law to the question. Quebec law had the
greater interest in and closer connection with the issue
because the truck
driver and the corporation were both from that
jurisdiction.71
So for example in Babcock v Jackson itself, the court found that the
law of the forum should apply to the questions of liability because that
jurisdiction had a closer
interest in the issue than the alternative place of
the wrong. The policy underlying the law of the place of the wrong would not
be
disturbed, the court found, if the law of the forum governed liability
compensation issues.
While Babcock v Jackson dealt with a situation where the court applied
interest analysis to find that the law of the forum governed compensation
issues, the
court can also apply interest analysis to find that the law of the
place of the wrong governs these issues. A good example of this
situation is
Myers v Langlois.72 There both of the relevant parties lived
in a jurisdiction (Quebec) barring the plaintiff’s action. The accident
occurred in
a state (Vermont) allowing the plaintiff’s action. The action
was brought in a Vermont court. That court concluded that the
law of Quebec
should apply, based on interest analysis. As the judges said:
Since the choice of law issue presented relates to allocation of post-event
losses, not regulation of conduct, the goals of Vermont’s
system would not
be realized by permitting the actions to go forward here. Quebec has
demonstrated strong policy concerns by enacting
a comprehensive automobile
insurance act that provides no-fault compensation and allocates loss between
Quebec residents. We therefore
conclude that Quebec’s significant interest
in maintaining its no- fault insurance scheme outweigh the parties’
contacts
with Vermont.73
It should be pointed out the writer is not aware of any reference to the
distinction between conduct regulation and loss distribution
in any of the
Australian, New Zealand or British conflicts jurisprudence.74
However, the joint judgment in Renault contains the interesting
aspect that the judges expressly reserved the question whether questions on
kind, and quantification of,
damage should be governed by the law of the place
of the wrong.75 This is interesting because the High Court has
confirmed in cases such as Stevens
71 Matson v Anctil (1998) 7 FSupp2d 423.
73 Ibid, 132.
74 However in Boys, some of the judges saw no difficulty with segregating issues, and applying different laws to them – for example, Lord Wilberforce ‘This issue, whether this head of damage should be allowed, requires to be segregated from the rest of the case ... and tested in relation to the policy of the local rule and of its application to these parties so circumstanced.’ Ibid, 389.
75 Supra n 1 at 520.
v Head76 that it views questions as to the heads of damage
that may be recoverable as a matter of substance that should, according to the
general
rule adopted by the High Court in Pfeiffer and Renault, be
resolved according to the law of the place of the wrong. Yet the High Court in
Renault leaves open the question of which law
to apply. This leaves open the
possibility that in future cases, the High Court might adopt the distinction, in
applying its conflict
of law rules in torts cases, between issues of conduct
regulation and loss distribution. In particular, it might confirm that the
law
of the place of the wrong should apply to questions of conduct regulation, but
the issue of loss distribution might need a more
flexible approach.
This distinction between conduct regulation and loss distribution makes
strong analytical sense to the writer. There is no warrant
for departing from
the law of the place of the wrong regarding issues of conduct regulation. That
jurisdiction has a right to regulate
conduct that occurs within its boundaries.
The rule meets the reasonable expectation of the parties that if they enter
another jurisdiction,
their conduct is subject to regulation by the government
of that jurisdiction. The rule is simple to apply, certain, and unlikely
to lead
to anomalies.
Compared with the issue of conduct regulation, loss distribution is more
difficult. No general answer can be provided as to the correct
approach, given
the multitude of possibilities that may present themselves. However, in the
simplest case where both parties are
resident in one country/jurisdiction (A)
and are involved in an accident in country B, it is surely true to say that
country B has
no real interest in determining the issue of the respective
liabilities of the parties. The policy of that country’s liability
laws
will not be thwarted if A’s laws are applied to resolve the liability
issues, in the case where both parties to the litigation
are from that country.
This situation is common in conflicts cases, including the facts raised in
Chaplin, Pfeiffer and Babcock.
As James suggested, in reference to the Pfeiffer decision, the court should have considered whether ‘the New South Wales legislature had any real interest in the application of its workplace scheme to an ACT employer’s liability.’77
Similarly, one could ask whether Malta had any interest in the application of
its compensation laws to decide liability between British
residents (the
Chaplin situation), or whether the province of Ontario had any interest
in the application of its compensation laws to decide liability between
New York
residents (the Babcock situation).
76 [1993] HCA 19; (1992) 176 CLR 433.
77 Elizabeth James ‘John Pfeiffer Pty Ltd v Rogerson: The Certainty of Federal Choice of Law
Rules for Intranational Torts: Limitations, Implications and a Few Complications’ [2001]
23 SydneyLR 145, 159.
One might make the same comment in relation to the recent decision in
Union Shipping New Zealand Ltd v Morgan.78 There the
plaintiff, a New Zealand resident working for a shipping company incorporated in
New Zealand, was injured while the ship
was unloading coal in a New South Wales
port. He sued his employer at common law. New Zealand had a no-fault
compensation scheme
that would have prevented him bringing a common law action
in that country. The New South Wales Court of Appeal found that New South
Wales
law applied to the action. Again, one might ask the question whether New South
Wales had any interest in applying its tort
law (allowing a common law action)
to the claim, based as it was against a New Zealand employer, who had
contributed to a compensation
scheme for employees in that country.79
Is it anomalous that had the plaintiff been unloading the coal in New
Zealand, or in non-Australian territorial waters, his claim
may not have been
able to be brought?
It is submitted that the rule decided upon by the High Court in Pfeiffer
(confirmed in Renault), while having the advantage of simplicity and
certainty, cannot address this situation in an acceptable way – where the
law
of the place of the wrong is in a sense fortuitous, and the parties have no
other connection with this place other than that fact.
This problem applies both
in relation to international torts, and in torts involving more than one
Australian jurisdiction.
Other possibilities may present themselves. It may be that one of the parties
may live in the jurisdiction where the accident occurred,
with the other living
in the forum jurisdiction. Some United States courts would solve this problem by
applying an interest analysis
to the question of loss distribution. The High
Court would apparently apply the law of the place of the wrong, inflexibly if
dealing
with an interstate conflict. The result would be more interesting if it
were dealing with an international conflict. It outlined
in Renault that
in such cases the law of the place of the wrong would continue to apply. It may
adopt an exception based on public policy considerations.
But what of the High
Court’s reservations in Renault on the distinction it agreed to it
Pfeiffer between matters of substance and matters of procedure, and
particularly its
78 [2002] NSWCA 124; [2002] 54 NSWLR 690.
79 It is submitted a correct application of interest analysis to this
factual scenario would find New South Wales had no interest
in the litigation.
With respect, it is not to the point to conclude, as Heydon JA did in Union
Shipping, that ‘it cannot be said that New South Wales, whose citizens
were receiving the coal, had no concern with the presence of
the vessel.’
Ibid, 731. If this was a purported application of interest analysis, it is
submitted with respect not to be an
accurate one. His Honour went on to say that
‘it is difficult to see how anything in the nature of an onerous or
disruptive
burden would be created by applying New South Wales law.’ Ibid.
With respect, this is not an accepted test for deciding on
questions of
choice of law.
comments that it reserves the question whether issues regarding
quantification of damages is in fact a matter for the place of the
wrong, in
relation to international cases?80
Is this far from the approach of the United States which reserves the issue
of loss distribution to the place with the closer connection
with the parties,
involving questions of policy? It was suggested earlier that the High Court in
Renault may have been indicating it would apply questions of policy in
its classification of issues, including quantification of damages,
as either
substantive or procedural.
The matter must remain for the moment one of conjecture only, but it is quite
conceivable given the Court’s comments in Renault that one day, it
may (as a matter of policy) determine issues of quantification of damages, in
relation to an action brought in Australia
based on a tort committed overseas,
according to the law of the forum (Australia). The policy reason for this may be
that the foreign
jurisdiction does not recognize heads of damage that Australian
law does (the situation in Chaplin), together with (or as an alternative)
the argument that deciding issues of loss distribution by the law of the forum
(Australian
law) does not, as a matter of international comity, interfere with
the sovereignty, public policy or interest of the foreign jurisdiction
in the
matter at hand. If the Court were to take this step, it would be justified in
doing so by referring to the United States distinction
between conduct
regulation and loss distribution.
vi. CONCLUSION
It is submitted that the Australian High Court has generally taken a very
positive step recently in stating the law of the place of
the wrong as the only
law to be applied in relation to torts involving more than one state, and as (at
least) the primary law to
be applied in relation to international torts.
The author prefers this approach to the continuing adherence to the double
actionability rule evident in the New Zealand law. There
is surely no
justification for continuing to require that the law of the forum provide
recovery in the matter, a la Phillips v Eyre. It is submitted to be an
anachronistic rule, overturned by legislation or case law in most jurisdictions.
New Zealand is one of
the few to continue to adhere to it. Of course, that fact
alone is not grounds for it to be overturned, but when many other countries
recognize the previous
80 Compare the approach of the Supreme Court of California in Tucci v
Club Mediterranee SA (2001) 107 Cal Rptr 2d 401, where the court applied the
law of the place of the wrong, the Dominican Republic, to determine what
remedies were available to
the plaintiff, rather than the law of the
forum.
law is no longer desirable, if it ever was, it surely justifies a rethink.
The Phillips approach may be based on an overly-parochial approach to
questions of choice of law, a disdain for legal systems other than the one
the
judge belongs to, or a difficulty in obtaining the substantive law of other
countries. Surely, none of these justifications can
withstand serious scrutiny
now.
However, in future the High Court may need to consider increasing flexibility
in the application of its choice of law rules, as at
least Kirby J on the
current bench has conceded. Just as New Zealand has become isolated in its
adherence to double actionability,
Australia has become isolated in its
rejection of a flexible exception to choice of law questions. It is an isolation
which surely
cannot continue. The article has pointed out that facts like those
in Kuwait Airways would strain the High Court’s newly-adopted test
and hopefully make it reconsider its antipathy towards a flexible
exception.
There is a rich North American jurisprudence in relation to questions of
policy (albeit in a different context), including the possibility
of answering
different questions that may arise in a conflicts case by applying different
laws, and interest analysis to weigh up
competing interests in particular cases.
Such an approach also commended itself to the British legislators.
The author has concluded against creating any exception to choice of law
rules based only on ‘policy’. As has been seen,
the concept is
fraught with uncertainty. It has been used in different ways by different
courts. The record of the High Court in
various fields in applying the concept
of ‘policy’ has not been an envious one, creating uncertainty, and
perhaps masking
views and considerations that are not always expressed clearly.
The author would prefer a more explicit and transparent solution.
The conclusion reached by the writer is that matters of conduct regulation
should be regulated by the law of the place of the wrong,
without exception.
This rule should apply both in interstate and international torts cases. This
result is generally consistent with
the High Court’s stated preference in
Pfeiffer for rules in this area to be as simple as possible, consistent,
and certain. It meets legitimate expectations that a person who is
present
within a jurisdiction submits to that jurisdiction’s conduct regulation
rules. That jurisdiction has a strong interest
in developing and enforcing
conduct standards that apply to all within its borders.
However, it is concluded that the question of loss distribution is a more
vexed one. There is much to be said for the argument that
the law of the place
of the wrong should not apply to this issue in the case where that
country’s government (and/or law) has
no interest in the allocation of
responsibility between the parties. This may be because the parties do not
reside in that
jurisdiction, have no interest in it, and where the policy intent of that
country’s relevant laws would not be thwarted by their
non-application to
the loss allocation decision in the case at hand.81 It is conceded
here that it may be a difficult matter of evidence to determine in all cases the
policy intent of the relevant legislatures.
However, this should at least be a
genuine exercise, and not a sham to justify applying the law of the forum, to
take into account
Brilmayer’s forum-bias concerns with interest
analysis.
As a result, it is suggested that where the issue is one of loss
distribution, the court should not automatically apply the law of
the place of
the wrong to resolve the issue (current Australian position), nor generally
apply the law of the forum (current New
Zealand position). Perhaps this could be
the starting point, or initial presumption, as currently occurs in New Zealand.
The question
should be answered by considering interest analysis, and whether
the policy intent of each of the relevant legislatures in the tort
field would
be thwarted if their law did not apply to resolve the issue. This change to the
current Australian position could be
achieved through development by the courts,
but perhaps the preferable approach is to legislate the exception to clarify the
issue,
as the United Kingdom did. The legislation could clarify the general rule
subject to displacement, precisely which considerations
were relevant in
applying the interest analysis approach to loss distribution, and what kind of
evidence might be appropriate to
determine the issue. This is seen as preferable
to a vague judicially crafted exception based on ‘policy’.
It is also suggested that New Zealand should abandon its double actionability
test, in favour of primacy being given to the law of
the place of the wrong,
subject to an exception in the area of loss distribution, along the lines
(broadly) of the position in the
United Kingdom, but allowing for a different
approach to the issues of conduct regulation (inflexible) and loss distribution
(flexible).
Thus the author contends that an Australian court and New Zealand
court should adopt similar positions on this difficult
issue.
81 This is acknowledged as a hybrid of interest analysis and proper law approach, an approach certainly not without support in the literature, see supra n 58.
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