Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: The claimant’s appeal was allowed. The Australian laws limiting the sums recoverable were procedural in nature and not substantive, and therefore the claimant was able to sue here. In a parliamentary debate on the Act, reassurance was given: ‘that the provision would prevent damages being awarded by reference to the law and standards of other countries. The particular problem raised by Lord Howie related to the high level of damages in the United States which he was anxious should not be replicated here. But it would be equally unacceptable if, say, United Kingdom courts had to award damages according to a statutory scale which, while adequate in another country because of the relatively low cost of services etc there, would be wholly inadequate in this country, having regard to the cost of the corresponding items here. As Parliament was assured by the Lord Chancellor, section 14(3)(b) guards against such eventualities. The interpretation advocated by the defendant would undermine the basis on which Parliament legislated. ‘
Lord Rodger of Earlsferry: ‘Parliament did not enact a comprehensive scheme and a number of exceptions. It simply provided that the law chosen in accordance with sections 11 and 12 is to be used to determine certain issues, while the law of the forum is to continue to be used to determine others. The matters where the United Kingdom courts are to continue to use the law of the forum are spelled out in section 14(3). In particular, Parliament has decided not to authorise an English court to use anything other than English law to determine ‘questions of procedure’. This policy may be criticised as being liable to encourage forum shopping or on some other ground, but it is the policy of the legislature and, as such, it is entitled to exactly the same weight and respect as the policy in section 9(4) that certain other issues are to be determined by the law chosen in accordance with sections 11 and 12.’
Lord Bingham of Cornhill, Lord Woolf, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell
Times 06-Jul-2006, [2006] UKHL 32, [2006] 3 WLR 83, [2006] 2 CLC 193, [2006] RTR 35, [2006] 4 All ER 1
Bailii
Private International Law (Miscellaneous Provisions) Act 1995, Damages (Personal Injury) Order 2001 (SI 2001/No 2001)
England and Wales
Citing:
At First Instance – Harding v Wealands QBD 27-May-2004
The claimant had been injured in a traffic accident in Australia. The parties lived together in England, but the driver was insured by an Australian company. He sought to sue here to avoid a limitation on damages imposed by Australian law. The issue . .
Appeal from – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Huber v Steiner 1835
An action was brought in 1835 on a French promissory note made in 1813 and payable in 1817. The defendant pleaded that by French law an action upon the note was prescribed.
Held: On its true construction, French law did not extinguish the debt . .
Cited – Phillips v Eyre CEC 1870
The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been . .
Cited – Red Sea Insurance Co Ltd v Bouygues SA and Others PC 21-Jul-1994
Lex loci delicti (the law of the jurisdiction in which the act complained of took place) can exceptionally be used when the lex fori (the jurisdiction formally assigned) gives no remedy. In the case of a claim under a foreign tort, the double . .
Cited – Robinson v Bland 1760
The plaintiff brought an action on a bill of exchange given in Paris in payment of gaming debts. By English law the debt was unenforceable but the plaintiff alleged that in France the debt could be enforced in a Court of Honour.
Held: Wilmot . .
Cited – Don v Lippmann HL 1837
An action was brought in Scotland in 1829 on two French bills of exchange accepted in 1810.
Held: The defendant was able to rely on the Scottish 6 year period of prescription because: ‘Whatever relates to the remedy to be enforced, must be . .
Cited – De la Vega v Vianna 1830
The plaintiff, a Spaniard, had the Portuguese defendant, arrested in England for non-payment of a debt contracted in Portugal. The defendant claimed to be released on the ground that in Portugal imprisonment for debt had been abolished in 1774.
Applied – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Cope v Doherty 1858
Owners of an American ship which had collided with and sunk another American ship applied to limit their liability pursuant to section 504 of the Merchant Shipping Act 1854.
Held: The section did not apply to collisions between foreigners. . .
Cited – Cope v Doherty CA 2-Jan-1858
Turner LJ: ‘An attempt was made on the part of the appellants to bring this case within Don v Lippman and cases of that class, but I think those cases have no bearing upon the point. This is a question of liability, and not of procedure.’ . .
Cited – Allan J Panozza and Co Pty Ltd v Allied Interstate (Qld) Pty Ltd 1976
(New South Wales) A statutory limitation on damages deemed to be incorporated into a contract of carriage is ‘an express limitation upon the substantive liabilities.’ . .
Cited – Seismic Shipping Inc and Another v Total E and P UK Plc ‘The Western Regent’ CA 29-Jul-2005
. .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Adams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
Cited – Caltex Singapore Pte Ltd v BP Shipping Ltd 1996
A provision of Singapore law giving a ship-owner the right to limit his liability for damage resulting from a collision in Singapore was procedural, or at least not substantive. The limitation in question did not qualify the right of the claimants . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Cited – Machado v Fontes CA 1897
The court held that the double actionability test could be relaxed to the extent that it was sufficient if the act was wrongful in the country where it was committed, even though any damage would not have been actionable in civil proceedings there. . .
Cited – Mitchell v McCulloch 1976
. .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Tolofson v Jensen 1994
Canlii (Supreme Court of Canada) Conflict of laws – Torts – Traffic accident – Injured parties not resident in province where accident occurred – Actions instituted in home provinces of injured parties – Whether . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Stevens v Head 18-Mar-1993
(High Court of Australia) The court considered a claim for damages arising out of a motor accident in New South Wales, where the claim had been brought in the courts of Queensland. The questions arose as to whether or not a provision in the Motor . .
Cited by:
Cited – Cooley v Ramsey QBD 1-Feb-2008
The claimant sought damages after being severely injured in a road traffic accident in Australia caused by the defendant. The defendant denied that the court had jurisdiction to permit service out of the jurisdiction. The claimant said that the . .
Cited – Knight v Axa Assurances QBD 24-Jul-2009
knight_axaQBD2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Cited – Cox v Ergo Versicherung Ag and Another QBD 28-Oct-2011
The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 . .
Cited – Moreno v The Motor Insurers’ Bureau SC 3-Aug-2016
The claimant had been severely injured when hit by a car in Greece. The car’s driver was uninsured. The Court was now asked whether the scope of her claim to damages was to be determined in accordance with English or Greek law. The implementation of . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.242979