#5099 - Boys V. Chaplin Hl - Conflict of Laws BCL

Boys v. Chaplin (HL)

Lord Wilberforce

The wrong, in respect of which this action was brought, negligence on a road in Malta, was actionable, in the sense that civil proceedings might be brought to recover damages, in England and in Malta, under the laws prevailing in each of those countries. I refer, for convenience, to the former as the lex fori and the latter as the lex delicti. Under the lex delicti, as found by the trial judge upon the basis of Article 1088 of the Maltese Civil Code, damages are limited to financial loss directly suffered, to expenditure necessarily incurred and (which did not arise in the present case) to wages actually lost, and proved future loss of earnings. But no compensation can be awarded, as it can under the lex fori, for pain and suffering as such. This appeal raises the question whether such monetary compensation can be recovered in an English action.

Actionable if committed in England – Choice of Law Rule

The first part of the rule - "actionable as a tort according to English law." I accept what I believe to be the orthodox judicial view that the first part of the rule is laying down, not a test of jurisdiction, but what we now call a rule of choice of law: is saying, in effect, that actions on foreign torts are brought in English courts in accordance with English law. I would be satisfied to rest this conclusion on the words of the rule itself "if done [committed] in England" which seem clear enough to exclude the "jurisdiction" theory…

It results from the foregoing that the current English law is correctly stated by Dicey and Morris, it being understood (a) that the substantive law to be applied is the lex fori, (b) that, as a condition, non-justifiability under the lex delecti is required.

Overruling Machado v. Fontes

In my opinion, in agreement with your Lordships and the Court of Appeal, Machado v. Fontes [1897] 2 Q.B. 231 ought to be overruled. The balance of judicial opinion is decidedly against it.

The broad principle should surely be that a person should not be permitted to claim in England in respect of a matter for which civil liability does not exist, or is excluded, under the law of the place where the wrong was committed.

“Double actionability” has to be satisfied even as regards heads of damages

The broad principle should surely be that a person should not be permitted to claim in England in respect of a matter for which civil liability does not exist, or is excluded, under the law of the place where the wrong was committed. This non-existence of exclusion may be for a variety of reasons and it would be unwise to attempt a generalisation relevant to the variety of possible wrongs. But in relation to claims for personal injuries one may say that provisions of the lex delicti, denying, or limiting, or qualifying recovery of damages because of some relationship of the defendant to the plaintiff, or in respect of some interest of the plaintiff (such as loss of consortium) or some head of damage (such as pain and suffering) should be given effect to. I can see no case for allowing one resident of Ontario to sue another in the English courts for damages sustained in Ontario as a passenger in the other's car, or one Maltese resident to sue another in the English courts for damages in respect of pain and suffering caused by an accident in Malta. I would, therefore, restate the basic rule of English law with regard to foreign torts as requiring actionability as a tort according to English law, subject to the condition that civil liability in respect of the relevant claim exists as between the actual parties under the law of the foreign country where the act was done.

Flexible exception

It remains for me to consider (and this is the crux of the present case) whether some qualification to this rule is required in certain individual cases. There are two conflicting pressures: the first in favour of certainty and simplicity in the law, the second in favour of flexibility in the interest of individual justice.

Given the general rule, as stated above, as one which will normally apply to foreign torts, I think that the necessary flexibility can be obtained from that principle which represents at least a common denominator of the United States decisions, namely, through segregation of the relevant issue and consideration whether, in relation to that issue, the relevant foreign rule ought, as a matter of policy or as Westlake said of science, 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, in the circumstances of the instant case, would serve any interest which the rule was devised to meet. This technique appears well adapted to meet cases where the lex delicti either limits or excludes damages for personal injury: it appears even necessary and inevitable. No purely mechanical rule can properly do justice to the great variety of cases where persons come together in a foreign jurisdiction for different purposes with different pre-existing relationships, from the background of different legal systems. It will not be invoked in every case or even, probably, in many cases. The general rule must apply unless clear and satisfying grounds are shown why it should be departed from and what solution, derived from what other rule, should be preferred. If one lesson emerges from the United States decisions it is that case to case decisions do not add up to a system of justice. Even within these limits this procedure may in some instances require a more searching analysis than is needed under the general rule. But unless this is done, or at least possible, we must come back to a system which is purely and simply mechanical.

Applying the flexible exception to facts

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 inquiry 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, negligence or otherwise, 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 circumstanced.

So segregated, the issue is whether one British subject, resident in the United Kingdom, should be prevented from recovering in accordance with English law, against another British subject, similarly situated, damages for pain and suffering which he cannot recover under the rule of the lex delicti. This issue must be stated, and examined, regardless of whether the injured person has or has not also a recoverable claim under a different heading (e.g., for expenses actually incurred) under that law. This Maltese law cannot simply be rejected on grounds of public policy or some general conception of justice…

The rule limiting damages is the creation of the law of Malta, a place where both plaintiff and defendant were temporarily stationed. 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. No argument has been suggested why an English court, if free to do so, should renounce its own rule. That rule ought, in my opinion, to apply.

Yet, unless the claim can be classified as procedure, there seems no basis on the traditional approach for denying the application of the Maltese law. I find the basis for doing so only in the reasons I have stated.

Lord Hodson

Summary of speeches in the Court of Appeal

The Master of the Rolls, upon the facts of the case to which I have made a brief reference, opined that the proper law of the tort was the law of England as being the place to which the parties had the most significant contact. Lord Upjohn, on the other hand, upheld the judgment on what may perhaps fairly be described as the more conventional ground that the judge's decision was soundly based on authority. Diplock L.J. (as he then was) in a powerful dissenting judgment, which is much relied upon by the appellant, concluded that the heads of damage recoverable are matters of substantive law which must be determined according to the lex loci delicti, that is to say, by the law of Malta, and would have allowed the appeal by reducing the award of damages to 53.

Overruling Machado v. Fontes – actionability means “civil actionability”

Governor Eyre's acts were justified by statute passed after they were committed and did not by virtue of the statute merit the appellation of innocence. In that case and in the earlier cases in which they appear in like context the words "not justifiable" must, I think, refer only to civil liability. That this may be the true view of the law is supported by the opinion of the High...