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RIBKA GIRSANG
12/326674/HK/18984
CASE SUMMARY OF HARDING VS. WEALANDS
YOGYAKARTA
2014
CASE SUMMARY
II. DECISION
ENGLISH COURT OF APPEAL
In answering this question, the English Court of Appeal considered two issues : (1) what was
the applicable substantive law in respect of the claim, and (2) whether the restrictions on damages
in the NSW Act were substantive or procedural. In respect of these issues, the trial judge (Elias J)
had found that English law was the applicable substantive law and that the restrictions in the NSW
Act were procedural.
The English Court of Appeal allowed the defendants appeal from the judgment of the trial
judge. The court held:
1.
In accordance with the general rule contained in s 11(1) of the Private International Law
(Miscellaneous Provisions) Act 1995 (UK), the applicable substantive law was the law of
New South Wales being the law of the country in which the events constituting the tort
occur[red]. Taking into account all the circumstances it was not substantially more
appropriate for the applicable substantive law to be the law of another country (s 12). (Per
Waller LJ, Arden LJ and Sir William Aldous agreeing.)
2. The restrictions on damages in the NSW Act were substantive and, for that reason,
applicable in the present case. (Per Arden LJ and Sir William Aldous, Waller LJ
disagreeing.)
With regard to the applicable substantive law, Waller LJ made the following observations ([2004]
EWCA Civ 1735 at [20]):
I simply cannot accept [contrary to the trial judge] a conclusion that the defendants link at
the material time with England and with Mr Harding was far more significant than her
Australian connection, or that the strongest factor favouring New South Wales was the fact
that Ms Wealands was insured there. I would fully understand, having regard to the settled
relationship, that Mr Harding and Ms Wealands were in, that if they had been on holiday in
France when this accident occurred England might have been found to be substantially more
appropriate and to have displaced French law. But where the general law, by virtue of s 11
being the law where the tort occurred, is also the national law of one of the parties, it will, I
suggest, be very difficult to envisage circumstances that will render it substantially more
appropriate that any issue could be tried by reference to some other law. In this case all that
the judge relied on was the parties settled relationship, but however settled that
relationship, Ms Wealands had left her car in New South Wales, was still a citizen of
Australia driving on a New South Wales driving licence, and the accident occurred in New
South Wales.
HOUSE OF LORDS
The House of Lords allowed the claimants appeal from the judgment of the English Court
of Appeal and restored the judgment of the trial judge in favour of the claimant. In reaching this
conclusion, the House of Lords found it unnecessary to decide whether, in accordance with the
Private International Law (Miscellaneous Provisions) Act 1995 (UK), New South Wales law or
English law was the applicable substantive law. The House of Lords held that, in any event, the
restrictions on damages in the NSW Act, being provisions concerned with the assessment or
quantification of damages, were procedural and, for that reason, inapplicable in the present case.
The principal judgments in the House of Lords were given by Lord Hoffmann and Lord
Rodger of Earlsferry who agreed with each other and with whom the other members of the House
of Lords (Lord Bingham of Cornhill, Lord Woolf and Lord Carswell) agreed. Lord Hoffmann and
Lord Rodger of Earlsferry reaffirmed as English private international law the traditional distinction
between substance and procedure in the context of damages: the assessment or quantification of
damages is a matter of procedure governed by the lex fori; the availability of particular heads or
kinds of damage, such as non-economic loss and pain and suffering, is a matter of substance
governed by the lex causae. As a matter of statutory interpretation, this traditional distinction had
been preserved in the Private International Law (Miscellaneous Provisions) Act 1995 (UK).
The House of Lords declined to follow the decision of the High Court of Australia in John
Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 where, in the context of a claim in the Australian
Capital Territory to recover damages for a tort committed in New South Wales, the High Court of
Australia abandoned the traditional distinction and held that all questions about the kinds of
damage, or amount of damages recoverable, are substantive issues. Lord Hoffmann referred with
approval to the earlier decision of the High Court of Australia in Stevens v Head (1993) 176 CLR
433 where the court had applied the traditional distinction in the context of an intranational tort
claim.
Lord Hoffmann
and Lord Rodger of Earlsferry also expressed the view that the
abandonment of the traditional distinction in John Pfeiffer Pty Ltd v Rogerson was said (by the High
Court of Australia) to be required by considerations of Australian federalism. Both Lord Hoffmann
and Lord Rodger of Earlsferry observed that the High Court of Australia in Regie Nationale des
Usines Renault SA v Zhang (2002) 187 ALR 1 had left open the question whether the traditional
distinction continues to apply in Australian private international law in the context of international
tort claims. In the words of Lord Rodger of Earlsferry referring to Zhang:
It remains to be seen whether the High Court will hold that all questions about the kind or
amount of damages are to be determined by the lex loci delicti in international cases.
IV. CONCLUSION
The parties in this case come from different nationalities. The lex patriae are United
Kingdom and Australia. The lex loci delicti is in Australia. The habitual residence of both parties
are also in New South Wales,Australia. In this case the English Court has the jurisdiction and the
English law is applicable.
The general rule is that the law of the country in which the accident happened (lex loci
delicti) will govern substantive matters ie. liability and the extent to which certain heads of damage
are recoverable. Assessment remains a matter for the lex fori.
The general rules can be displaced if it can be shown that it would be substantially more
appropriate to apply the law of another country, like Australia.
On appeal to the House of Lords, the High Courts decision was restored allowing the
assessment of Mr Hardings damages in accordance with English law. The HL does not appear to
have considered in what circumstances it would be substantially more appropriate to displace the
general rule.
The House of Lords reaffirmed that liability falls under the heading of substantive law but
rules on assessment of damages are to be regarded as procedural.
This was a case in which the applicable substantive law was the law of New South Wales
(Australia) where the accident occurred. The House of Lords had to decide what law to apply to
assessment of damages. The issue was highly significant to the injured party. The New South Wales
Motor Accidents Compensation Act 1999 placed a cap on damages for non-economic loss (ie pain
and suffering), loss of earnings and gratuitous care.
These rules are significantly less generous to claimants than the equivalent rules of English
law, perhaps to the tune of 35% or so in terms of the overall valuation of quantum in this case. The
House of Lords reaffirmed that these rules are procedural. Hence, because the damages is a
matter of procedure, it is governed by the lex fori. Thus, at the proceedings in England to recover
damages for a tort committed in New South Wales, the assessment or quantification of damages is
governed by English law.