#5180 - Boys V. Chaplin Ca - Conflict of Laws BCL

Boys v. Chaplin

Facts

David Boys is a young Englishman whose home is at Surbiton. When he was 16 he joined up in the Royal Air Force on a 12 years' engagement. On October 6, 1963, when he was 22, he was stationed in Malta on his duties as a technician in the Royal Air Force. His friend, Charles Ducat, who was also stationed in Malta, gave him a ride on the pillion of his motor-cycle. They were run into by a motor car driven by Richard Chaplin. He was serving in the Royal Naval Air Squadron and was also stationed in Malta at the time. David Boys was badly injured. He had a fractured skull and was unconscious for three days. The right side of his face was crushed. He was taken to the Royal Naval Hospital in Malta. He was there for about six weeks. Then he was brought back to England on September 19, 1963, and taken to the Royal Air Force Hospital at Wroughton in Wiltshire. He was there for over six months, until April 7, 1964. Then he was an out-patient for two months. Eventually on June 5, 1964, owing to his injuries, he was discharged from the Royal Air Force. He is wholly and permanently deaf in one ear and his sense of balance has been substantially impaired. The right side of his face is partially paralysed and he suffers much from headaches. Nevertheless, he is able to do good work. Soon after his discharge he found employment as an electronics engineer at a good wage: and it is unlikely that he will suffer any loss of earnings in the future on account of this accident.

So the only question is: What damages should be awarded?

Now the question arises: What is the law to be applied in the assessment of damages? According to the law of England, David Boys should be compensated, not only for his expenses and money loss, but also for his pain and suffering and loss of amenities of life. The figure would be 2,303. But, according to the law of Malta (as found by the judge), David Boys should only receive his expenses and his money loss, and nothing whatever for his pain and suffering and loss of amenities. The figure would be 53.

Question

When a wrong is committed abroad, and the injured party seeks redress in England, what is the law to be applied?

Holding

Lord Denning

Proper Law of Tort – the Concept

I am of opinion that we should apply the proper law of the tort, that is, the law of the country with which the parties and the act done have the most significant connection and once we have decided which is the correct law to apply, I think that law should be applied, not only to ascertaining whether there is a cause of action, but also to ascertaining the heads of damage that are recoverable and also the measure of damages: for these are matters of substantive law. They are quite distinct from the mere quantification of damages, which is a matter of procedure for the lex fori.

Philip v. Eyre: “the civil liability arising out of a wrong derives its birth from the law of the place, and its character” (i.e., whether it is valid or not) “is determined by that law. Therefore, an act committed abroad, if valid and unquestionable by the law of the place, cannot, so far as civil liability is concerned, be drawn in question elsewhere.”

“First, the wrong must be of such a character that it would have been actionable if committed in England. ... Secondly, the act must not have been justifiable by the law of the place where it was done.”

Once those two conditions are fulfilled, the English courts determine the actionability of the wrong according to the law of England, and determine also the heads of damages and the measure of them by English law.

Machado v. Fontes: concerning a libel committed in Brazil - The first condition was fulfilled because the libel was of such a character that it would have been actionable if committed in England. The second condition was fulfilled because it was not justified by the law of Brazil, seeing that it was not an innocent act there but might be made the subject of criminal proceedings.

Machado v. Fontes was wrongly decided

I think the court was in error in applying the two conditions so literally. They treated them as if they were contained in a statute. But if there was ever to be a case where an exception should be made to the "general rule", it was Machado v. Fontes. Those two gentlemen were, I suppose, Brazilian citizens. Their names suggest it. The libel was in Brazil: and I suppose in Portuguese. It was an entirely Brazilian affair. If the plaintiff could not recover damages in Brazil, he ought not to be allowed to recover damages in England. It was a mere accident that Fontes happened to come here and thus be served with a writ here. Suppose that Fontes had not come to England but had gone to Portugal, to France, or anywhere else. Can it really be supposed that Machado could follow Fontes all over the world and choose the forum that suited him best? It cannot be. If the libel was not actionable in Brazil, it should not be actionable in England.

Proper Law of Tort

In my opinion, therefore, Machado v. Fontes is not binding on this court. Test it in this way: Suppose that in the present case the parties involved in the accident had been all Maltese citizens, ordinarily resident in Malta. The injured man would naturally seek his remedy in the courts of Malta. The cause of action and the measure of damages would be governed by that law. Even if by some chance the injured man were able to bring an action in England - as he might do if the negligent driver came over to England on a visit and was served with a writ here - nevertheless, the rights of the parties would still be governed by the law of Malta. The English courts would apply the law of Malta. The plaintiff would not get a new head of damages by the mere chance that the defendant had happened to come to England. In such a case the reason why English courts apply the law of the place (lex loci delicti) is because it is the place with which the whole affair is most significantly connected. It is the proper law of the tort.

Application to facts – Proper law of the tort is English Law

These two young men were not Maltese citizens resident in Malta. They were two English servicemen stationed in Malta on duty. Does this make any difference? I think it does. It goes far to show that English law is the proper law of the tort. These two drivers were insured in England by an English company. The injured man was brought back for treatment in England, his native land. Quite naturally, he seeks his remedy in the courts of England: and he is enabled to bring his action here, not by any chance visit by the defendant: but as of right because the defendant is regularly here. It is the defendant's home too as well as the plaintiff's. Why should not the plaintiff bring his action here and have it determined by English law? I see no reason why he should not do so. He gets justice here in that he gets fair compensation. Whereas the law of Malta gives him less than fair compensation. The two conditions stated by Willes J. in Phillips v. Eyre are fulfilled. The first is fulfilled because the wrong done in Malta (negligent driving) was of such a character that it would have been actionable if committed in England. The second is fulfilled because the act was not justifiable by the law of Malta.

Seeing that the two conditions are fulfilled, why should we not apply the law of England to the whole case? We have to apply it so as to see whether the wrong was of such a character as to be actionable in England. We should also apply it so as to determine the measure of damage and heads of damage. I know that this means drawing a distinction between a collision in Malta between two Maltese and a collision between two English servicemen. But I am prepared to draw the distinction.

I am of the opinion that in these cases we should apply the law of the country with which the parties and the act done have the most significant connection. This has been called "the proper law of the tort." On the facts of this case, I think that England is the place with which the parties and the act done have the most significant connection. I think we should apply the law of England and award the plaintiff 2,303. I would dismiss this appeal.

Lord Upjohn

Philip v. Eyre does not lay down the law applicable

All this was directed to showing that the submission that the Indemnity Act could have no extra-territorial effect was without substance, for the governor's acts took their colour from the law of the place where the alleged wrong was committed; the character of the civil liability must be determined by that law. So that extra-territoriality had nothing to do with it; the governor's acts must be judged in the light of the fact that he was immune by the law of Jamaica. But the judge was very careful not to say that, that being so, the tortious act must be determined by the lex loci delicti.

That, however, is not the real point; that only goes to the question whether this court in that case misinterpreted what was said in Phillips v. Eyre. As a matter of plain English language, I should have thought it was clear that Willes J., while recognising that the lex loci delicti provided a fundamental condition to be satisfied, was being very careful to say that the tort did not have to be actionable by the lex loci delicti. As I have already pointed out, it would have been so simple to have said, had the court so intended, that foreign torts were, by the law of England, in an action in this country to be judged by the lex loci delicti and not by the law of England.

Law applicable once Philip v....