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Choice of law in tort: a justice-based approach

Published online by Cambridge University Press:  02 January 2018

A. J. E. Jaffey*
University of Exeter


The English choice of law rules for tort cannot be stated with any certainty. The most likely version, as a result of Chplin v Boys, is a double actionability rule, with provision for a proper law or ‘interests’ approach in exceptional cases, but if that is the law there is little cause for satisfaction. The purpose of this article is to consider what shape any future reform ofthe law in this area should take, confining the discussion, however, for reasons of space, to torts wholly committed within a single country.

Research Article
Copyright © Society of Legal Scholars 1982

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1. [1971] AC 356.

2. It cannot be held to have introduced double actionability without such an exception, because then the decision in the case itself is wrong (assuming, as a majority thought, that the issue of the kind of loss was substantive). Desperation may lead one to ignore the fact that a majority were against an exception.

3. J.A. Clarence Smith, ‘Torts and the Conflict of Laws’, (1957) 20 MLR 447, at p. 455; Morris, The Conflict of Laws (2nd edn, 1980). p. 514; Morse, Torts in Private International Law (1978), p. 225.

4. Of course a number of purposes of guest statutes, other than the protection of the parties themselves, have been suggested in the cases. The alleged public purposes of tort rules will be dealt with below.

5. Hence conflicts cannot so easily be dismissed as ‘false’ as is sometimes suggested. Nor should the choice between the lex fori and a foreign law normally depend on the interpretation of the substantive rule of the forum in the light of its policy, as contended by the late Professor Ehrenzweig.

6. ‘It seems indisputably clear that a jurisdiction may be said to be “concerned” with a specific issue, if that term is to have any meaningful content, only when its governmental interests and policies enter into the making of a particular decision’. Fuld J in Dym v Gordon 209 NE 2d 792, at p. 798.

7. E.g. Bray v Cox 333 NYS 2d 783.

8. Morris, The Conflict of Laws, p. 270, n.66; (1977) 26 ICLQ 710, n.24.

9. This would be clear in a case which involved a choice between the rule of country X, requiring negligence, and a rule of strict liability of country Y. It obviously could not be contended that country X had an interest in its rule being applied based on the purpose of ensuring that doctors are paid by accident victims and that such victims should not become a charge on the public purse: that purpose would be better served by applying country Y's rule in a case where the defendant had not been negligent.

10. This comes within Cavers's first principle of preference: The Choice-of-Law Process, (1965). p. 139; Fuld CJ in Tooker v Lopez 249 NE 2d 394 at p. 404; Morse, op. cit., p. 288; McGregor, ‘The International Accident Problem’, (1970) 33 MLR 1, at pp. 15–16. The principle is occasionally ignored, e.g. the French case cited by Morse, op. cit., p. 181, where a French defendant was sued in the French court by a Hungarian plaintiff in respect of a motor accident in Hungary. By Hungarian law the plaintiffs contributory negligence did not affect the defendant's strict liability. The French court refused to apply Hungarian law as being contrary to public policy. Article 12 of the Introductory Law to the German Civil Code conflicts with the principle in providing that no claim for an unlawful act committed outside Germany can be made against a German national which exceeds his liability under German law.

11. It is on the ground that the plaintiffs conduct will not have been motivated by any relevant expectation that Rheinstein, wrongly, dismisses the possibility of injustice to the plaintiff in not applying the law of his country when he suffers injury there: ‘The Place of Wrong’, (1944) 19 Tulane L Rev 4, at pp. 27–28.

12. 264 Oregon 454, 506 P 2d 494, Discussed by Hancock in ‘Policy Controlled State Interest Analysis in Choice of Law, Measure of Damages, Torts Cases’, [1977] 26 ICLQ 799, at pp. 815–819.

13. Loc. cit.

14. The principle cannot be maintained in cases where the defendant's act and the plaintiff's injury occur in different countries.

15. It seems that the courts usually do apply the lex loci in this situation; see, e.g., The Mary Moxham (1876) 1 PD 107; Neumeier v Kuehner 31 NY 2d 121, 286 NE 2d 454.

16. The argument against the lex fori on the grounds that it facilitates forum shopping has often been advanced, notably by Kahn-Freund, ‘Delictual Liability and the Conflict of Laws’ (1968) II Recueil des Cours, at pp. 59–60.

17. Of course a writ can be served in England on a non-resident defendant, or with leave, notice of a writ can be served on him abroad if he is domiciled in England, but such cases will rarely occur. Moreover the increased willingness of the courts to stay proceedings will make it less likely for a non-English defendant to be sued in England on a tort committed elsewhere: The Atlantic Star [1974] AC 436; Mac Shannon v Rockware Glass Ltd [1978] AC 795.

18. EEC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Arts. 2(1) and 3.

19. This comes within Cavers's second principle of preference: The Choice-of-Law Process (1965), p. 146; McGregor (1970) 33 MLR, at pp. 15-16. The principle was accepted in Cipolla v Shaposka 439 Pa 563, 267 A 2d 854, and Neumeir v Kuehner 286 NE 2d 454, at 457–458, and other well-known US cases consistent with it include Tramontana v S.A. Empresa 850 F 2d 468, Carey v Manson Construction Co 247 Oregon 274, 428 P 2d 898, Ciprari v Services Aereos Cruzeiro 245 F Supp 819. Phillips v Eyre (1870) LR6 QB 1 is in accordance with this principle, as would be any decision based on double actionability.

20. 290 NYS 2d 734, 22 NY 2d 12, 237 NE 2d 877.

21. 475 F 2d 438. See also Mackendrick v Newport News Shipbuilding & Dry Dock Co 59 Misc 2d 994,302 NYS 2d 124; Foster v Maldonado 315 F Supp 1179. Under the pre-Chaplin v Boys English law a defendant would be liable in such circumstances if his conduct was not justifiable in the Machado v Fontes sense. That case itself would be an example, if the defendant was Brazilian. The breach of the principle is perhaps less unjust where the defendant has done something wrong by his own law. For a recent Australian example where a defendant acting in his own country was subjected to a liability greater than under its own law, see Kolsky v Mayne Nickless [1970] 3 NSWR 511.

24. ‘Some Thoughts on the Proper Law of a Tort’ (1977) 26 ICLQ 932, at p. 950.

23. As in Hustado v Superior Court of Sacramento Country 11 Cal 3d 574, 522 P 2d 666.

24. Under the first branch of Phillips v Eyre, approved in Chaplin v Boys, the defendant who acted in his own country and is liable by his own law can of course rely on non-liability under English law. Even if the exception to the general rule can operate to exclude the lex fori, it is doubtful whether it would apply if the plaintiff did not belong to the same country as the defendant.

25. Kahn-Freund, ‘Delictual Liability and the Conflict of Laws’ (1968) II Recueil des Cows, at p. 64 ff., Cavers, op. cit., p. 303.

26. 16 NY 120, 209 NE 2d 792.

27. Cour de Cassation, Chambre Civil (1948) Dalloz 357; (1949) Sirey 1 21.

28. Kahn-Freund, loc. cit., p. 71, Cavers, op. cit., pp. 294–312.

29. Kahn-Freund, lac. cit., p. 80.

30. In La Van v Danyluk (1970) 75 WWR 500 the British Columbia Court reached such a result, by way of Machado v Fontes. An American example is Issendorf v Olson 194 NW 2d 750.

31. Kahn-Freund, loc. cit., pp. 92-93. 123–124. Cavers, (1970) II Recueil des Cours, at p. 160.

34. Kahn-Freund, loc. cit., p. 43; Rheinstein, ‘The Place of Wrong: A Study in the Method of Case Law’, (1944) 19 Tulane L Rev 4, at p. 17 ff. (but he seems to have principally in mind the defendant acting in his own country); Clarence Smith, ‘Torts and the Conflict of Laws’ (1957) 20 MLR 447, at pp. 459.463; McGregor, ‘The International Accident Problem’ (1970)33 MLR 1, at pp. 15–16, confines the argument to the case where one or other party lives in the country in question.

33. Kahn-Freund, loc. cit., pp. 43–44.

34. Business enterprises of course have other kinds of liability insurance, but it is suggested below that a business should be treated as belonging to the country where its relevant activity takes place.

35. See Webb and Auburn, ‘New Zealand Conflict of Laws - A Bird's Eye View’ (1977) 27 ICLQ971, at pp. 987–989. Of course the English plaintiff has the same problem in the more likely case of a New Zealand defendant, but the latter must be able to rely on his non-liability by his own law for an act in his own country.

36. See notes 29 and 30 above. Cases in which the parties’ law has been applied on the issue of liability in the absence of a relationship or insulated environment include those referred to in n.30 above, such guest statute cases as Tooker v Lopez 12 N Y 2d 569,249 NE 2d 394, and Victor v Sperry 163 Cal App 2d 518,329 P2d 728 (non-application of strict liability of Mexican lex loci in case between Californian plaintiff and defendant on grounds of public policy).

37. 67 Cal 2d 551, 423 P 2d 727.

38. It would even be possible to apply them together to the extent that they overlap, as for example with two different apportionment statutes, or two different statutes limiting damages for wrongful death, by applying the statute which would give the smaller amount.

39. What matters should be regarded as procedural will not be discussed here.

40. Also not considered here are direct actions against insurers, contractual defences to claims in tort, matters involving third parties, such as subrogation, assignment and contribution between tortfeasors.

41. Kahn-Freund, loc. cit., pp. 110-112; Dicey and Morris, The Conflict of Laws (10th ed, 1980), VOl. 2, pp. 959–960.

44. Kahn-Freund, loc. cit., pp. 112–113; Dicey and Morris, op. cit., p. 956.

43. Morse, op. cit., pp. 147, 163.

44. 41 Cal 2d 859, 264 P 2d 944.

45. Courts which depart from the lex loci where the tort is committed elsewhere are often less ready to do so when it is committed at home, e.g. Ke11 v Henderson 26 AD 2d 595, 270 NYS 2d 552; Bray v Cox 333 NYS 2d 783 (but not Arbuthnot v Allbright 316 NYS 2d 390); Conklin v Horner 38 Wis 2d 468,157 NW 2d 579. The only English case is Szalatney-Stacho v Fink [1974] KB1 in which, in view of Phillips u Eye, the application of English law was inevitable.

46. McGregor, (1970) 33 MLR, at p. 19.

47. Other public purposes than discouraging or encouraging conduct are often invoked, some of which have been dismissed as illusory at the beginning of this article. Others, if they are real, and can be regarded as public, e.g. in the case of guest statutes, the protection of insurance companies against collusive actions or ensuring that the claims of occupants of other cars are not diminished by the less worthy claims of a guest in the defendant's car, certainly cannot claim any greater weight than deterrence. The difference in the views expressed in the cases about the purposes of rules has of course led to formidable criticism of an interests approach.

48. Morse, op. cit., p. 299.

49. I.e. at the choice of law level. The comparative substantive justice of the domestic rules of different countries is not in issue for those who do not subscribe to a ‘better law’ approach. As there is no difference in principle between choosing the better rule and inventing an even better one, the ‘better law’ doctrine amounts to justice without law.

50. The contractual part of the original EEC Draft Convention on the Law Applicable to Contractual and Non-Contractual Obligations was later dealt with separately, and a Convention on the Law Applicable to Contractual Obligations is now open for signature. The Brussels Group is now continuing work on a convention for tort. See Law Comm No. 97 (1980). pp. 21–22 and Law Comm No. 107, (1981) p. 27.