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 be displaced. Roerig implied a bright line between matters of assessment and heads of damages. Applying Boys v Chapman there was no such clear line. Though the 1995 Act may have abolished the common law rule of double actionability, at the same time it intended to vary the common law so far as quantification and assessment of damages was concerned. The meaning of substance and procedure for the purposes of section 14 of the 1995 Act must be sought in the context of the 1995 Act. (Majority) The judge had been wrong to apply English law in preference to the restrictions on damages which would apply under the New South Wales Act.
Lady Justice Arden: ‘In the context of section 14, a principled approach requires the court to start from the position that it has already decided that the proper law of the tort is not the law of the forum, ie that some other law applies to the tort, either because it is the lex loci delicti or because it is substantially more appropriate than the lex loci delicti. On this basis, a reference to the law of the forum must be the exception, and it must be justified by some imperative which, relative to the imperative of applying the proper law, has priority.’ There is ‘a guiding principle’ that: ‘Once the court has decided that the law of New South Wales is the proper law of the tort, it is logical, so far as possible, to apply the law of New South Wales throughout.’

Lord Justice Waller Lady Justice Arden Sir William Aldous
[2004] EWCA Civ 1735, Times 05-Jan-2005, [2005] 1 WLR 1539
Private International Law (Miscellaneous Provisions) Act 1995 11
England and Wales
Appeal fromHarding 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 . .
CitedRoerig 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 . .
CitedBoys v Chaplin HL 1969
The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta would have denied certain elements of damages which would be available in this jurisdiction.
Held: Liability in respect of the road accident in . .
CitedEdmunds v Simmonds QBD 4-Oct-2000
The claimant suffered damages in a road traffic accident in Spain caused by the respondent. A Spanish court would have allowed much lower damages. Such damages should normally be assessed in accordance with the law of the country where the accident . .
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
CitedBiogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
CitedMehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
CitedStevens 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 . .
CitedCope 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. . .
CitedCope 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.’ . .
CitedJohn Pfeiffer Pty Limited v Rogerson 16-Apr-1999
(High Court of Australia) The double actionability rule should be discarded with regard to claims brought in an Australian court in respect of a civil wrong arising out of acts or omissions that occurred wholly within one or more of the law areas of . .
CitedPhillips 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 . .
CitedBase Metal Trading Ltd v Shamurin CA 14-Oct-2004
The claimant sought damages from what were said to be speculative trades carried out by the defendant whilst working in Russia. The claims were in both equity and in tort. He was a director of the company which was incorporated in Guernsey.
CitedKonamameni v Rolls Royce Industrial Power (India) Ltd 2002
The entitlement to bring a derivative action in the English courts is governed by the law of the place of incorporation of the company in question. . .
CitedCaltex 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 by:
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Appeal fromHarding v Wealands HL 5-Jul-2006
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: . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Jurisdiction

Updated: 16 December 2021; Ref: scu.220346