[HOUSE OF LORDS]

AND

[ON APPEAL FROM BOYS v. CHAPLIN]

Conflict of Laws - Tort - Damages - Assessment of - Heads of damages - Accident between British residents abroad - Basis of assessment provided by local law - Whether heads of damage to be assessed according to English or local law - Whether "proper law of the tort" applicable.

The respondent sustained serious injuries in a road accident in Malta caused by the admitted negligence of the appellant. Both parties were normally resident in England but stationed in Malta at the relevant date as part of H.M. Armed Forces there. The respondent brought an action in England, the only issue being whether the damages were to be assessed according to the law of Malta, where he could have sued the appellant but would have recovered only special damages, agreed to be £53, and, in addition certain (as distinct from problematical) future financial loss, or by the law of England, under which he could also recover general damages for pain, suffering, loss of amenities and problematical future financial loss. The trial judge awarded the respondent general damages of £2,250 and the £53 special damages. The Court of Appeal by a majority, affirmed that decision.

On appeal:-

Held, dismissing the appeal, that the respondent bringing his action in England could recover damages assessed according to the law of England, not merely as to quantum, but also as to the heads of damage, since

(per Lord Hodson) although, in general, in an action for a personal injury the lex loci delicti determined the rights and liabilities of the parties, where with respect to the particular issue some other state had a more significant relationship with the occurrence and the parties the local law of that state would be applied and, accordingly English law was applicable here because even though the occurrence took place in Malta that was overshadowed by the identity and circumstances of the parties, British subjects temporarily resident in Malta (post, 380A-C, 390G - 391B);

(per Lord Guest) to justify an action in England for a tort committed abroad the conduct must be actionable by English law and by the lex loci delicti and both these conditions were satisfied here and, albeit questions affecting heads of damages were for the lex loci delicti, compensation for pain and suffering was not a head of damage apart from patrimonial loss but was merely an element in the quantification of the total compensation which was a question for the lex fori (post, pp. 381E -382H);

(per Lord Donovan) an English court was competent to entertain the action under the rule in Phillips v. Eyre (infra) and

once it had done so it was right that it should award its own remedies (post, p. 383H);

(per Lord Wilberforce) albeit Maltese law was prima facie applicable here the issue of the recovery of damages for pain and suffering required to be separated 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 the parties so circumstanced; and that there was nothing to suggest in the local rule limiting damages that the Maltese state had any interest in applying this rule to persons resident abroad, or in denying the application of the English rule to these parties (post, p. 392B-C, E-F);

(per Lord Pearson) damages for pain and suffering was a question of substantive law and that English substantive law was applicable, being the lex fori (post, pp. 394G - 395B, 406D).

Phillips v. Eyre (1870) L.R. 6 Q.B. 1 applied.

Machado v. Fontes [1897] 2 Q.B. 231, C.A. overruled.

Scott v. Seymour (Lord) (1862) 1 H. & C. 219; Koop v. Bebb (1951) 84 C.L.R. 629 (Australia); McLean v. Pettigrew [1945] 2 D.L.R. 65 (Canada) and Richards v. United States (1962) 82 S.Ct. 585 (U.S.A.) considered.

Per Lord Wilberforce. I would 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. Given the general rule the necessary flexibility can be obtained through segregation of the relevant issue and consideration whether, in relation to that issue, the relevant rule ought as a matter of policy 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 (post, pp. 389F-G, 391E-G).

Observations on the necessity for discouraging "Forum-shopping (post, pp. 378B-D, 383F-G, 389A-B, 406A-C).

Decision of the Court of Appeal [1968] 2 Q.B. 1; [1968] 2 W.L.R. 328; [1968] 1 All E.R. 283, C.A. affirmed.

The following cases are referred to in their Lordships' opinions:

Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. (1965) 114 C.L.R. 20; [1966] A.L.R. 423 (Australia).

Assunzione, The [1954] P. 150; [1954] 2 W.L.R. 234; [1954] 1 All E.R. 278, C.A.

Babcock v. Jackson [1963] 2 Lloyd's Rep. 286 (U.S.A.).

Blad's case (1673) 3 Swan. 603.

Blad v. Bamfield (1674) 3 Swan. 604.

Canadian National Steamships Co. v. Watson [1939] 1 D.L.R. 273 (Canada).

Canadian Pacific Railway Co. v. Parent [1917] A.C. 195, P.C.

Carr v. Fracis Times & Co. [1902] A.C. 176, H.L.(E.).

Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co. (1883) 10 Q.B.D. 521, C.A.

Dobree v. Napier (1836) 2 Bing.N.C. 781.

Don v. Lippmann (1837) 5 Cl. & Fin. 1, H.L.(E.).

Dym v. Gordon (1965) 262 N.Y.S. 2d 463 (U.S.A.).

Griffith v. United Air Lines (1964) 203 A. 2d 796 (U.S.A.).

Guinness v. Miller (1923) 291 Fed. 769 (U.S.A.).

Halley, The (1868) L.R. 2 P.C. 193, P.C.

Hooper v. Gumm (1867) 2 Ch.App. 282.

Huber v. Steiner (1835) 2 Bing.N.C. 202.

James M'Gee, The (1924) 300 Fed. 93 (U.S.A.).

Kilberg, Admr. v. Northeast Airlines, Inc. [1961] 2 Lloyd's Rep. 406 (U.S.A.).

Koop v. Bebb (1951) 84 C.L.R. 629 (Australia).

Livesley v. Horst [1925] 1 D.L.R. 159 (Canada).

M. Moxham, The (1876) 1 P.D. 107, C.A.

M'Elroy v. M'Allister, 1949 S.C. 110.

Machado v. Fontes [1897] 2 Q.B. 231, C.A.

Mackinnon v. Iberia Shipping Co., 1955 S.C. 20.

McLean v. Pettigrew [1945] 2 D.L.R. 65 (Canada).

McMillan v. Canadian Northern Railway Co. [1923] A.C. 120, P.C.

Miller v. Miller (1968) 290 N.Y.S. 2d 734.

Morris and Stulback v. Angel (1956) 5 D.L.R. (2d) 30 (Canada).

Mostyn v. Fabrigas (1774) 1 Cowp. 161.

Naftalin v. London, Midland and Scottish Railway Co., 1933 S.C. 259.

O'Connor v. Wray [1930] 2 D.L.R. 899 (Canada).

Phillips v. Eyre (1870) L.R. 6 Q.B. 1.

Reg. v. Lesley (1860) Bell C.C. 220.

Richards v. United States (1962) 82 S.Ct. 585 (U.S.A.).

Scott v. Seymour (Lord) (1862) 1 H. & C. 219.

Slater v. Mexican National Railroad Co. (1904) 194 U.S. 120 (U.S.A.).

Story v. Stratford Mill Building Co. (1913) 11 D.L.R. 49 (Canada).

Varawa v. Howard Smith & Co. Ltd. (No. 2) [1910] V.L.R. 509 (Australia).

Walpole v. Canadian Northern Railway Co. [1923] A.C. 113, P.C.

Western Union v. Brown (1914) 234 U.S. 542 (U.S.A.).

The following additional cases were cited in argument:

Australian Consolidated Press Ltd. v. Uren [1969] 1 A.C. 590; [1967] 3 W.L.R. 1338; [1967] 3 All E.R. 523, P.C.

Baschet v. London Illustrated Standard Co. [1900] 1 Ch. 73.

Cope v. Doherty (1858) 4 K. & J. 367.

D'Almeida Araujo Lda. v. Sir Frederick Becker & Co. Ltd. [1953] 2 Q.B. 329; [1953] 3 W.L.R. 57; [1953] 2 All E.R. 288.

Ekins v. East India Co. (1717) 1 P.Wms. 395.

Freund v. Spencer (1965) 260 N.Y.S. 2d 149.

Hansen v. Dixon (1906) 23 T.L.R. 56.

Heath v. Zellmer, 151 N.W. 2d 664 (U.S.A.).

Howells v. Wilson (1936) 69 Q.R.K.B. 32 (Canada).

Kendrick v. Burnett (1897) 25 R.(Ct. of Sess.) 82.

Kohnke v. Karger [1951] 2 K.B. 670; [1951] 2 All E.R. 179.

Li Lian Tan v. Durham [1966] S.A.S.R. 143 (Australia).

Merchants National Bank and Trust Co. of Fargo v. United States Government (1967) 272 Fed.Sup. 409 (U.S.A.).

N.V. Handel My. J. Smits Import-Export v. English Exporters (London) Ltd. [1955] 2 Lloyd's Rep. 69.

Rayment v. Rayment and Stuart [1910] P. 271.

Watson v. Winget Ltd., 1960 S.C. 92, H.L.(Sc.).

Watts v. Pioneer Corn Co. Inc. (1965) 342 F. 2d 617 (U.S.A.).

Wilcox v. Wilcox (1965) 133 N.W. 2d 408 (U.S.A.).

APPEAL from the Court of Appeal.

This was an appeal from an order of the Court of Appeal (Lord Denning M.R. and Lord Upjohn; Diplock L.J. dissenting) dated December 6, 1967, dismissing an appeal by the appellant, Richard Meredith McNair Chaplin, from a judgment of Milmo J. entered on March 22, 1967, whereby it was adjudged that the respondent, David Malcom Boys, recovered from the appellant £2,303 and costs of the respondent's claim.

The issue raised by the appeal was: where an action is brought in England in respect of a tort committed abroad what law is to be applied in determining the heads or measure of damage to be awarded to the plaintiff?

The respondent was injured in a road accident in Malta on October 6, 1963, caused by the admitted negligence of the appellant. Both the respondent and the appellant were normally resident in England, and were at the time of the accident serving in H.M. Armed Forces stationed in Malta, the respondent with the Royal Air Force and the appellant with the Royal Navy.

As a result of the accident the respondent sustained serious injuries and sued for damages. Under the Maltese Civil Code, damages for personal injuries recoverable by a plaintiff were strictly limited and were, broadly speaking, confined to what English courts would treat as special damages. That figure was agreed at £53. Under English law substantial damages would have been awarded for the injuries sustained. The medical evidence was agreed, and, apart from the actual amount of the damages, the issue to be determined was whether damages fell to be assessed under the law of Malta, or that of England.

Milmo J. in a reserved judgment [1968] 2 Q.B. 1, considering himself bound by Machado v. Fontes [1897] 2 Q.B. 231, which in his view was correctly decided, held that in an action founded on tort, the respondent was entitled to recover from the appellant the same damages as he would have recovered if the tort had been committed in England even where the lex loci delicti provided a basis for the assessment of damages, and awarded him £2,250 general and £53 agreed special damages, a total of £2,303.

On appeal, the Court of Appeal, by a majority, affirmed that decision but on different grounds.

H. Tudor Evans Q.C., Derek Hyamson and John Dyson for the appellant.

The sole question at the trial was whether the issue of damages was to be assessed according to the law of England or Malta. In other words in relation to a tort are damages recoverable according to the lex fori or the lex loci delicti?

Reliance is placed on the following submissions:

1. An analysis of the English authorities shows that the lex loci applies in the case of a tort committed abroad in respect of all matters of substantive law, apart from procedure, which includes quantification.

2. Apart from authority the lex loci ought to be the rule in such circumstances. There is a certainty of law by application of the lex loci. The

lex fori permits or may permit an unjust choice of forum and, in fact, where there are mixed nationalities, it may create injustice inter partes.

3. The concept of the proper law of the tort is unknown in English law. It has only recently emerged in the United States of America in a limited class of case, namely - (i) those involving aeroplane accidents where the place of the crash is entirely fortuitous, and (ii) those involving accidents on land where, by the law of the place, there is an exclusion by statute of liability to gratuitous passengers. Even in these two classes of case there has been much dissension among the American judges and considerable dispute as to the factors to be taken into account.

The first question here is what did Phillips v. Eyre decide? The report at first instance, L.R. 4 Q.B. 225, is a clear statement that the lex loci applies and a rejection of the proposition that there is a vested right to sue here. On appeal, L.R. 6 Q.B. 1, 27, Willes J. was not only dealing with the argument concerning extra-territoriality, but was also declaring that in matters of substantive law the count only concerns itself with the place where the wrong was committed. The opening words of the first rule at p. 28 are concerned, not with the problem of choice of law, but whether the English court can entertain the suit in question. Thus it will not entertain a local action, that is, one which is specifically local. For example, trespass to land.

The distinction between local and transitory actions does not go to the question which law the court will apply when the case comes to be heard, but with the question whether the count will entertain the suit at all: see per Diplock L.J. [1968] 2 Q.B. 1, 38 C-F. The nature and intrinsic being of the action is derived from the place where it is born. The citation of The Halley (1868) L.R. 2 P.C. 193 after the promulgation of the first rule is in the context that the lex fori applies.

The language of the second condition in Phillips v. Eyre, L.R. 6 Q.B. 1 is very much in line with what had to be decided in that case: see perDiplock L.J. [1968] 2 Q.B. 1, 39, namely, that the lex loci applies.

Scott v. Seymour (1862) 1 H. & C. 219 is not of much assistance in the solution of the present problem. If Phillips v. Eyre does not hold that the lex loci applies, there was no authority at the time of its decision clearly pointing to the lex fori as the alternative.

The decision in Machado v. Fontes [1897] 2 Q.B. 231 was wrong. It conflicts with other English authorities in seeking to require actionability by English law and merely non-justifiability by the place of the foreign wrong.

If it is authority for the proposition that the lex fori is applicable, there is no English authority that supports it.

In The M. Moxham (1876) 1 P.D. 107, 111, Mellish L.J. interprets actionability, according to the rule in Phillips v. Eyre, as requiring the act in question to be wrongful by the law of the country where it was committed and also wrongful by the law of England. At the date of Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Company (1883) 10 Q.B.D. 521 the law of delict in the conflict of laws wás in its infancy and it is difficult to determine the actual decision in that case.

Machado v. Fontes [1897] 2 Q.B. 231 was referred to in Carr v. Fracis Times & Co. [1902] A.C. 176 and Canadian Pacific Railway Co. v. Parent [1917] A.C. 196. Machado v. Fontes was wrongly decided.

There have been a number of Canadian cases on the present question and in most of them Machado v. Fontes has been followed. This has usually been in circumstances where there was a "guest" statute: Story v. Stratford Mill Building Co. (1913) 11 D.L.R. 49; Canadian National Steamships Co. v. Watson [1939] 1 D.L.R. 273; McLean v. Pettigrew [1945] 2 D.L.R. 65; Morris and Stulback v. Angel (1956) 5 D.L.R. (2d) 30.

Damages. Where the lex loci delicti does not recognise certain acts or grounds of damage, is that a matter of substantive law, or is it merely a difference of approach to the question of damages? Is it procedural to be dealt with by the lexi fori? The distinction is that questions of principle are matters of substantive law where the lex loci applies. The word "damages" has two aspects: (1) partly procedural - mere quantification or assessment, see, for example, Kohnke v. Karger [1951] 2 K.B. 670; (2) heads of damage, see Diplock L.J. [1968] 2 Q.B. 1, 42. For example, in England where there is a fatality there can be a claim for loss of dependency, but not of solatium. These are questions of substantive law.

The distinction is between damage land damages. Reliance is placed on Dicey and Morris, Conflict of Laws, 8th ed. (1967), pp. 943, 944, 1092. Cheshire, Private International Law, 7th ed. (1965) p. 602, follows Dicey. Ekins v. East India Co. (1717) 1 P.Wms. 395 is of no relevance here. Cope v. Doherty (1858) 4 K. & J. 367 was principally a decision under the Merchant Shipping Acts. A statutory provision that limits liability is a matter of substantive law. Further, the lex loci applies to the substance of the proceedings, the lex fori having no application whatsoever.

D'Almeida Araujo Lda. v. Sir Frederick Becker & Co. Ltd. [1953] 2 Q.B. 329 establishes that questions of remoteness of damage are logically matters of substantive law and governed by the proper law of the contract. Applying that principle by analogy here, the law of the place of the wrong is paramount and governs. In N.V. Handel My. J. Smits Import-Export v. English Exporters (London) Ltd. [1955] 2 Lloyd's Rep. 69, McNair J. stated that he had difficulty in accepting the principle of the D'Almeida case. The reasoning of Pilcher J. in D'Almeida is clear and should be followed.

In the present case, Maltese law refuses to recognise certain heads of damage. It is difficult to find a greater difference than the difference between English law and Maltese law on the subject-matter of the present case. Thus if here there was no economic loss at all, there would have been no actionability in the lex loci. Reliance is placed on the observations of Diplock L.J. [1968] 2 Q.B. 1, 39C-41A.

It is the law of Scotland that the lex loci prevails. In a line of Scottish decisions beginning with Kendrick v. Burnett (1897) 25 R.(Ct. of Sess.) 82 it has been held that the lex loci is to be applied in Scottish courts.

Naftalin v. London, Midland and Scottish Railway Co. 1933 S.C. 259 was a claim for solatium in Scotland in respect of an accident in England. It was held that the rights of the parties had to be determined in accordance with the law of England as the lex loci.

In M'Elroy v. M'Allister, 1949 S.C. 110 a court of seven judges approved the decision in Naftalin and held, on a claim for solatium arising out of an accident which had occurred in England, that the rights of the parties fell to be determined in accordance with the lex loci.

Lord Denning M.R. and Diplock L.J. were correct in holding that there was a distinction between the head or measure of damage, on the one hand, and the mere quantification, on the other, and Diplock L.J. was right in holding that the heads or measure of damage were for the lex loci. In Scotland, the law is that such a distinction exists and that the law to be applied is the lex loci.

Cheshire, Private International Law, 7th ed. (1965) 240 in a footnote on Phillips v. Eyre, L.R. 6 Q.B. 1 states that in many European countries the rule is that the lex loci delicti applies. These countries may well have limiting factors and this might encourage a plaintiff to seek redress in England. This might well occasion injustice to a defendant. A defendant in a foreign country expects his conduct to be governed by the lex loci and not by that of some other country of whose laws he may know nothing. Logically the lex loci should apply where there is a conflict between English law and foreign law for that is what the parties expect. The alternative might produce an advantage to la particular plaintiff and therefore the lex loci should apply.

Leonard Caplan Q.C., John Cope and Vasant Kothari for the respondent.

This appeal raises a much vexed problem of the conflict of laws. Nothing that has been stated in this House in previous cases has been anything but obiter dicta and mainly take the form of repeating the language of Willes J. in Phillips v. Eyre, L.R. 6 Q.B. 1, or repeating the language in Machado v. Fontes [1897] 2 Q.B. 231, which purported to be based on Phillips v. Eyre where the precise point now before the House was not in issue. The question in issue here is concerned with a territory that is almost completely fresh.

The major questions that arise are: (1) If a plaintiff sues a defendant in tort in England in respect of some matter arising abroad, is it a prerequisite of a cause of action in all cases that that which arose abroad should have been actionable at the suit of the plaintiff against the defendant in the country where it occurred? (2) The determinant question: in the case of such an action brought in England, to what extent, if at all, are the rules which regulate the amount of damages which will be awarded to a plaintiff under the lex loci to be applied in our courts?

There are three possible answers to (1): (i) actionability by the lex loci delicti is not an essential condition; (ii) actionability by the lex loci is always essential; (iii) actionability by the lex loci sometimes is and sometimes is not an essential condition according to the circumstances.

(i) The sheet anchor in support of any argument for that answer is Machado v. Fontes [1897] 2 Q.B. 231 not so much in the decision itself, but in the way that the judgments were framed in that case.

In Machado v. Fontes [1897] 2 Q.B. 231, the language used by the Lords Justices may not be the correct interpretation of the opening words of the proposition stated by Willes J. in Phillips v. Eyre, L.R. 6 Q.B. 1, 28 for the words "general rule" have in them a measure of ambiguity. "General" has two meanings: (a) "of or pertaining to all," so that a general denial in pleading is a denial of everything; (b) "As a general rule" covers that which is usual but is not invariable. But in Machado v. Fontes the words "as a general rule" are taken in the sense of invariability. This is shown also in Rayment v. Rayment and Stuart [1910] P. 271. It is

perhaps because Machado v. Fontes treated the language of Willes J. as laying down an invariable rule that Machado v. Fontes itself was treated with some reserve by the Privy Council in Canadian Pacific Railway Co. v. Parent [1917] A.C. 195, 205.

The Supreme Court of Canada and the state courts of Canada have always understood Phillips v. Eyre as interpreted in Machado v. Fontes and have used the words of Willes J. to reach a just result where the application of the lex loci would not do so: see Morris and Stulback v. Angel (1956) 5 D.L.R. (2d) 30 and McLean v. Pettigrew [1945] 2 D.L.R. 65.

The advantage of stating that actionability by the lex loci is not an absolute essential is that it gives a simple rule and one easy to apply, in that it avoids consideration of the foreign law beyond merely establishing that the act was either civilly or criminally wrongful, and it is a rule that is invariable so that it is not encumbered with exceptions. But its disadvantages are that it is an inflexible rule and makes no differentiation as to the circumstances and may lead to unjust or unsatisfactory results.

(ii) This answer receives its affirmative support from two sources: (a) Phillips v. Eyre, L.R. 6 Q.B. 1 if it is given a meaning which it is not usually understood to bear, namely the meaning attributed to it by Diplock L.J. below. All the courts have attached hitherto the meaning to the second rule that it refers to actionability or criminality by the lex fori. (b) The Scottish cases which have finally come down on the side of what may be called a watered-down version of the vested rights theory.

The basis of Diplock L.J.'s reasoning is fivefold: (a) That the passage in question, particularly the second condition, is one of narrow application related to the particular facts of the case. (b) What had hitherto been considered to be a significant change of language from "actionable" to "justifiable" is of minor significance. (c) The change of language from "wrong" to "action" in the second condition is a change of major significance. (d) The language used elsewhere by Willes J. is consistent only with the meaning given by Diplock L.J. to the disputed passage. (e) Willes J.'s formulation shows that the first condition was a jurisdiction condition, and that the second condition was a choice of law condition.

(a) This is answered by the opening words "as a general rule," showing something of more than narrow application, whichever of the two meanings is given.

(b) The significance of this change cannot be minimised and the change is used to make clear what it has been understood to mean. If the second condition had been tantamount to a requirement of actionability there would not have been this change of language. If Willes J. had intended to state what Diplock L.J. said he must have done, all that was necessary was to formulate the rule so as to read that the act must be actionable and be not justifiable. The second condition of Phillips v. Eyre has been given a meaning by Diplock L.J. which is almost confined to the facts of the case, which involved a retrospective statute. "Justifiable" does not in that passage have such a restricted meaning. The word "justifiable" has a different meaning in a case, precisely akin to the present, where no retrospective statute was involved, namely Scott v. Seymour, 1 H. & C. 219. "Justifiable" in Phillips v. Eyre comes from the decision in Scott v. Seymour, in which Willes J. was a member of the court. To give such a

meaning to "justifiable" would not be consistent with its being, as stated, a general rule.

(c) This over-emphasises the change of language, from "wrong" to "act", for the cases cited in Phillips v. Eyre are not cited for the narrow proposition, but for the wide proposition that the conduct in question having taken place abroad there was no liability civil or criminal.

There are two simpler explanations for the use of the word "act" than that given by Diplock L.J. (a) The word "act" was a natural one to use as that covering civil or criminal liability, because it was the word used in the Jamaican statute and was used precisely in that sense: see L.R. 6 Q.B. 1, 4. (b) It was adopted for stylistic reasons, for the word "wrong" there would seem to lead to a contradiction.

(d) This at first sight seems a much more formidable foundation for Diplock L.J.'s reasoning. But the word "wrong" is only used in the disputed passage and the preceding passage, and if Diplock L.J. is right, Willes J. would have expressed the second rule more tersely, namely by stating "must be a wrong in the place where it was done."

Further, the disputed passage was only reiterating in slightly different language a passage from Westlake's International Law, sect. 240, p. 224, cited in Scott v. Seymour, 1 H. & C. 219, at p. 232. Read in that sense it is not inimical to the respondent's argument here. The legal character and consequences of the act in the forum must depend upon the jurisprudence of the country where it was done.

Diplock L.J. also relied on Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q.B.D. 521, but it is to be observed that in any event what was said in that case by Brett L.J. was obiter and Lindley and Baggallay L.JJ. did not advert to it, and the formulation of Brett L.J. has never been accepted in any subsequent case which it would doubtless have been if correct, since it is precise and unequivocal in its terms, whilst Willes J.'s formulation has been accepted many times subsequently. There was no suggestion in the Chartered Mercantile Bank case that the conduct had to be criminal abroad: see also The M. Moxham, 1 P.D. 107, which supports the respondent's contention that the language would not have been used if there had to be actionability by the lex loci.

(e) It is perfectly plain that there is no such dichotomy. This is shown by the fact that The Halley, L.R. 2 P.C. 193 was cited in support of the first rule and that being so it cannot be purely a jurisdiction rule. So in truth the second rule cannot be categorised as a choice of law rule, but that the constituent of cause of action in England is that the conduct complained of abroad must also be wrongful in England. The question whether the a action of the defendant is innocent or otherwise is decided by the lex loci. That is what The M. Moxham, 1 P.D. 107 decided. The Halley, L.R. 2 P.C. 193 was the converse of this because, whilst it was alleged it was the act of the defendant, it was not his act at all according to the lex fori.

The second ground of support is the Scottish cases, which have accepted the watered-down version of the vested rights theory, namely, it is a vested right in tort because where it was done it was an actionable wrong. The Scottish cases do not lead to a just result: see M'Elroy v. M'Allister 1949 S.C. 110.

Fifty years ago, the proposition that actionability by the lex loci was essential would have the good support of the decision of the United States Supreme Court in Slater v. Mexican National Railroad Co. (1904) 194 U.S. 120, but this doctrine has been long abandoned for it leads to injustice and has been found wanting.

The advantage of the second answer is that it provides a rule that is simple and invariable in its application, so as not to be encumbered with exceptions. Unlike the first answer, however, it would compel consideration of the foreign law in each case in relation to the cause of action. Further, the foreign law would have to be pleaded by the plaintiff. The disadvantage is it is inflexible, and because of its inflexibility it may produce results which are thought to be unjust where the litigants are domiciled in the country of the forum and, indeed, it has been shown to be in reported cases.

In the present case, it is necessary to take cognisance of changed conditions in the modern world. Thus in 1968 some 460,000 motor vehicles crossed the Channel. It is on unattractive proposition that where the driver and passenger of a motor car are English and he car goes into a telegraph pole somewhere on the Continent, the passenger's rights are limited by the local law as determined by which side of a frontier the telegraph pole was situated. The same consideration applies where there is an accident abroad between two cars driven by English drivers. Where both parties are domiciliaries of the court of the forum, the court of the forum is not interested in the application of any other law than that of the lex fori. Further, it is necessary to take into account changes in other branches of the law: see Watson v. Winget, 1960 S.C. 92.

Australian cases:

In the latest decisions in the Australian courts, the Supreme Court of Australia has adopted an attitude of complete neutrality. This is because the Australian courts are not really affected because there are few fundamental differences between the legal systems of the various states. But in Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. (1965) 114 C.L.R. 20, at p. 42, Windeyer J.'s statement is a completely correct statement of the law on the present question. Dr. Martin Wolff's statement cited by Windeyer J. is completely correct and shows the "orbit" in which this branch of the law operates. If the question be asked, what is the fundamental theory of this question, there are two possible alternatives: 1. The theory is that when such an action is brought it is an enforcement of a right which is actionable in and by the law of the country where the conduct occurred. If this be correct, it accords with the vested rights theory. 2. In bringing such an action here one is enforcing a right of action conferred by English law by which there may be a special defence, where the act complained of was justifiable, innocent or unquestionable by the law of the foreign country. If 2 be correct, then the lex loci delicti is only relevant for the purpose of ascertaining whether the act was justifiable, innocent or unquestionable.

The second alternative gives the correct theory and is supported by the great case of Mostyn v. Fabrigas (1774) 1 Cowp. 161, for it shows that the justification or innocence of the act comes in as a matter of defence

Lord Mansfield's judgment supports the fundamental theory that for all purposes the tort is to be treated as though the tort was committed in England, save that if the foreign law, the local law, gives a defence that may be raised in the proceedings. If this be correct, then this is an end to the first possible answer, 1. Both answers 1 and 2 impose some form of strait-jacket of inflexibility.

It should not be thought that all academic writers are in favour of the vested rights theory. Professor Gutteridge in 6 Cambridge Law Review, p. 20, supports Machado v. Fontes [1897] 2 Q.B. 231 and deals with Professor Cheshire's criticism of it. See also a remarkable article by Professor Lorenzen, "Tort liability in the conflict of laws," in 47 Law Quarterly Review, 483, who supports Machado v. Fontes as consonant with the fundamental theory of the conflict of laws, although the learned author would prefer a more flexible system.

(iii) This, it is submitted, is the correct answer. It has the obvious merit of flexibility. There are different means whereby the flexibility may be achieved; thus the choice of law might be by use of the concept of the proper law of the tort, as developed in the United States of America. Alternatively it might be achieved through Phillips v. Eyre L.R. 6 Q.B. 1 as properly understood; and as so understood there would be a large measure of harmony between the law on this topic on both sides of the Atlantic. Either approach would produce a result in favour of the respondent.

The proper interpretation of the words "as a general rule" in Phillips v. Eyre leads to the interpretation of that case which this House is invited to apply: viz., that it lays down a prima facie rule, not to be displaced save in compelling circumstances but a rule of almost invariable application when, as is usually the case, the litigation is between persons ordinarily resident or domiciled in the country of the forum; but when the litigants are not both citizens of the forum the usual rule is displaced. It is to be observed that in Scott v. Seymour 1 H. & C. 219 the five judges canvassed tentatively all three possible answers put forward in the present case. The views of Wightman J., from which Willes J. did not dissent, are not discordant with the concept of the proper law of the tort; and the "general rule" in Phillips v. Eyre would, in the circumstances in which it fell to be applied, produce the same result as would the proper law of the tort; and the proper law of the tort could be directly applied in any situation which was not governed by the "general rule."

American cases:

These fall into two groups: (a) The proper law of the tort in relation to actionability. (b) The proper law of the tort in relation to limitation of liability, for example, damages.

The phrase "proper law of the tort" seems to be of English origin: see Morris, 12 Modern Law Review, p. 252. For examples of the American cases see Babcock v. Jackson [1963] 2 Lloyd's Rep. 286; Wilcox v. Wilcox (1965) 133 N.W. 2d 408 and Freund v. Spencer (1965) 260 N.Y.S. 2d 149.

The general position now reached in the United States is such that the following four points can be adduced as representing the current view:

1. The obligation or vested rights doctrine that makes actionability by the lex loci essential is reprehended as being neither theoretically sound nor productive of just results. 2. Whether actionability by the lex loci is required in a given case depends upon the relevance of the lex loci and the circumstances of the case as compared with the relevance of other factors. 3. Among the other factors to be considered are the normal residence and domicile of the parties, and where such normal residence and domicile of all parties are in the country of the forum, this is a factor of great, if not overwhelming, weight of the application of the law of the forum. 4. When there is actionability by the lex fori, but none by the lex loci, where the conduct is merely delictal, the lex fori is prima facie to be applied unless there are compelling reasons on the facts of the case for doing otherwise.

For the American cases on damages see Kilberg Admr. v. Northeast Airlines, Inc. [1961] 2 Lloyd's Rep. 406; Griffith v. United Air Lines (1964) 203 A. 2d 796; Watts v. Pioneer Corn Co. Inc. (1965) 342 F. 2d 617 and Miller v. Miller (1968) 290 N.Y.S. 2d 734.

In the last few years in the United States of America, with only one exception, the doctrine of the proper law of the tort has been applied in every case where it could be applied. There are 10 guidelines which either consciously or unconsciously can be seen to be operating in the American cases. Those guidelines are to be found in an article by Professor Willis Rees as part of an argument in his book Law and Comity Problems under the head "Conflict of Laws and the second Restatement 1963," p. 681 and this article is adopted as part of the argument. In brief, prima facie a court applies its own rules unless there are good reasons for doing otherwise. In considering whether there are good reasons for doing otherwise, a very strong factor to the contrary is whether the persons before the court are residents of the country of the forum.

To summarise the argument so far: 1. The rule that there is no cause of action in tort in this country in respect of a matter arising abroad unless it is actionable where it happened has not been part of English law hitherto and, if it has, it should not remain so. Such a rule would be a watered-down version of the vested rights doctrine, and the full-blooded version of the doctrine would involve the English courts enforcing the foreign cause of action, even if the conduct in question was not actionable if it had not occurred in England. The full-blooded version was explicitly rejected by the first condition in Phillips v. Eyre, L.R. 6 Q.B. 1.

2. Unless the Phillips v. Eyre conditions are to be read as Diplock L.J. held, there is no authority in English law for the watered-down vested rights doctrine. For the reasons given the meaning attributed by Diplock L.J. to the second condition in Phillips v. Eyre is incorrect. If, however, the two conditions mean what he suggests, then in that case in regard to the correctness of Phillips v. Eyre, the second condition should be overruled and should be overruled by this House in light of modern conditions and developments in other aspects of the law of negligence here, in particular the Donoghue v. Stevenson [1932] A.C. 562 line of cases, and in light of the fact that experience shows that it would produce unsatisfactory results. This is exemplified by the American, Scottish and Canadian cases.

3. The watered-down vested rights doctrine has become part of the law

of Scotland as declared, but its working, as seen for example in M'Elroy v. M'Allister, 1949 S.C. 110 has produced anomalous and unsatisfactory results. The doctrine is not part of the law of Canada, either in the common law provinces or in the French province, and if it had been the courts would have been compelled to anomalous and unsatisfactory results in the cases cited. The vested rights doctrine was formerly part of the common law of the United States, but prolonged and extensive experience of its working there in a multiplicity of circumstances has led to its rejection. It would, therefore, be unfortunate if the House, untrammelled by authority, were to declare as part of the law of England what has been found to be wanting in modern times in other jurisdictions.

4. To say that the vested rights doctrine in any form should be no part of the common law of England on this topic makes it necessary to formulate what the law is, or should be. Actionability by the lex loci is never, or alternatively is only sometimes, a requirement of actionability here.

5. The authority for saying that it is never a requirement of actionability here is to be found in the famous passage in Phillips v. Eyre, L.R. 6 Q.B. 1 if one treats the opening words as meaning "as an invariable rule" as it appears to have been so understood in Machado v. Fontes [1897] 2 Q.B. 231. The authority for stating that it is only sometimes a requirement is to be found in the same passage, if one treats the opening words as meaning "as a usual rule" as Lord Denning M.R. so treated it, and the respondent so contends. The first reading gives a simple rule which is easy in the application, but which is inflexible and the consequence of which is that it may produce anomalous results where both or one of the litigants are domiciled in the place of delict. The second reading gives a greater flexibility, but preserves the simple rule, easy in application in those circumstances which may be considered to be the usual ones in which the litigants are persons ordinarily resident in this country.

The first reading states the law as it appears to have appealed to Blackburn J. in Scott v. Seymour, 1 H. & C. 219. The second reading states the law as it appears to have appealed to Wightman and Willes JJ. in that case.

6. If the House be free to lay down the law on this topic for the first time and does not feel inclined to express the law in some such terms as it has been expressed in the United States, but nonetheless considers that some degree of flexibility is required, this can be achieved by adopting the second reading of Phillips v. Eyre cited above. If this be done, the practical consequences will be to produce decisions in the majority of cases identical with those reached by the American approach.

7. The reason for this identity of result will be that if the usual rule pursuant to the Phillips v. Eyre formulation is the rule applicable when both litigants are ordinarily resident here so that in those circumstances actionability by the foreign law is not essential but only conduct in the foreign country which is unjustifiable, then this is precisely the result which would follow also by application of the American law as it has been developed by the guidelines, because by the doctrine of the American proper law of the tort, where both litigants are ordinarily residents of the forum, the forum considers that it is its own law that should be applied when it conflicts with that of any other country or state.

8. For the purposes of this appeal, it matters not to the respondent whether the House adopts the first or second reading so long as the House construes the second condition in Phillips v. Eyre as either actionability, or criminality by the lex loci. For this suffices ko satisfy the condition.

9. In Phillips v. Eyre the first condition is expressed in the affirmative and the second condition is in the negative. If, however, the House takes the view that the change from the affirmative to the negative means merely that the second condition was not satisfied if the conduct complained of was valid by the lex loci when the action was brought, either because by that law it was originally so, or was retrospectively so, then it follows that the second condition contains no affirmative statement, and therefore no statement that actionability by the lex loci is always essential. If this be the true meaning then the matter comes before the House wholly devoid of authority and there are only the dicta in Scott v. Seymour in which three of the judges either specifically or by implication put forward the view that actionability by the lex loci was not an invariable requirement. That view accords with what are glimpses of the underlying basic theory of tortious actions in this country in respect of torts committed abroad which is to be found in Mostyn v. Fabrigas, 1 Cowp. 161 namely, that in such circumstances the English courts are enforcing the English law of torts with a special defence in respect of conduct which is innocent in the place where it occurred, rather than that the English courts are enforcing the foreign country's law of torts. If Phillips v. Eyre has not authoritatively stated the law to be so, then the law should be so stated now.

The second major question (2), is already answered if the answer to (1) is that actionability by the lex delicti is not essential to actionability here; for any damages rules of the lex delicti, if fortuitously the conduct were actionable by that law, would logically be of no concern to the English courts. But if actionability by the lex delicti is essential then there are three feasible answers: (i) The rules of the lex fori with regard to damages govern exclusively. (ii) In regard to some aspects the forum law prevails where it differs from English law. (iii) In some cases the English law, in some cases the foreign law, will prevail in relation to identical aspects.

(i) There is a good deal of authority to support this view. For example, Hansen v. Dixon (1906) 23 T.L.R. 56, and Kohnke v. Kurger [1951] 2 K.B. 670. Baschet v. London Illustrated Standard Co. [1900] 1 Ch. 73 illustrates the impossibility of running two systems of law together. This is well illustrated by the present case, for a Maltese can only recover pecuniary loss actually sustained or certain bo be sustained in the future. This is part of the English head of general damages, but under this head English law also recognises the likelihood of future loss, but the Maltese courts do not recognise this in terms of money. But English law has no procedure for a plaintiff coming back again to the court to recover further damages that arise as a consequence of the original tort. It follows, therefore that if the action be governed by Maltese law, under which such further damages can be awarded, the English court could not even give the plaintiff that justice that he would have obtained under Maltese law. This exemplifies the reason why all matters of damages are for the law of the forum. The absence of a consensual element in tort is a reason for not applying the contract cases, for example, D'Almeida [1953] 2 Q.B. 329

referred to by Diplock L.J. That matters of damages are exclusively for the lex fori is supported by the Scottish authorities: Kendrick v. Burnett (1897) 25 R. 82; M'Elroy v. M'Allister, 1949 S.C. 110 and Mackinnon v. Iberia Shipping Co., 1955 S.C. 20.

(ii) This answer derives support simply from the judgment of Diplock L.J. below. In practical terms, if this were the law, it would mean that in every case of an act of tort committed abroad and sued for here, it would be necessary to make a detailed examination of the law of the foreign country in relation to damages. It is to be remembered that the life of the law is not based on logic, but upon experience: per Holmes J. How uncertain is the line between what is substantival and what is adjectival is shown by the American cases.

(iii) This variable approach is associated with the idea that the court should endeavour to tailor-make the decision to the facts of the particular case. Suppose there was a motor car accident in a country where there were restrictions on the damages recoverable, but the action in respect of the accident was brought before the court of another country where there was no such restriction. If both parties in the proceedings were normally resident in the court of the forum, the court in those circumstances might well think there was no reason to depart from the lex fori, but if both parties were resident in the country where the accident occurred, the court of the forum might well apply the lex loci.

The basis for the English rules relating to damages is that these rules accord with English ideas of fairness and recoverability. The rules in regard to damages in this country are all based fundamentally on what is considered to be fair. Why, therefore, should an English court apply a foreign law's ideas of what is fair as between litigants who are both residents of this country? The observations of Heffernan J. in Heath v. Zellmer, 151 N.W. 2d 664, 676, are adopted.

What underlies the policy of Maltese law in refusing to allow a plaintiff io recover damages for pain and suffering? It may be that it is considered impossible to equate pain and suffering with monetary compensation or that it puts an impossible task upon the Maltese judges. Has English law any interest in enforcing the policy of a foreign law as against the policies of English law? There is no interest in the present case where both litigants are resident in England. It may be that the Maltese rule is out of harmony with the general consensus of judicial thought as regards awarding damages for pain and suffering.

Tudor Evans Q.C. in reply. The present case displays in its most naked form the distinction between damages and damage.

As to (i), Story's case (1913) 11 D.L.R. 49 shows that Machado v. Fontes has not been accepted uncritically in the Canadian cases. With respect to Machado v. Fontes [1897] 2 Q.B. 231 and non-actionability in the lex fori, that case may achieve substantially unjust results. As to (ii) the appellant concedes that the Scottish cases cited so decide but it is said that Phillips v. Eyre, L.R. 6 Q.B. 1 does not support them. Where the word "wrong" is used in expounding the rule, civil liability is plainly meant. (iii) As to the dicta in Phillips v. Eyre, L.R. 6 Q.B. 1, 28 it is, of course, perfectly true that the passage begins with the words "as a general rule." This means "generally speaking." But it does not connote that

Willes J. had specific exceptions in mind he was not formulating a choice of law rule there. It is fanciful to suppose that the concept of the proper law of the tort can be spelled out of Phillips v. Eyre and, indeed, that it is derived from Mostyn v. Fabrigas, 1 Cowp. 161; the concept is an academic concept.

As to the proper law of the tort the obvious criticism is that it is vague and uncertain in its application. The observation of Lord Upjohn [1968] 2 Q.B. 1, 32C is adopted for the object of the law is certainty, albeit this leads to inflexibility. Further, so far as can be seen from the cases cited, its application is of a very limited character. It is applied where there is a guest-host relationship and in aeroplane cases. It is a limited, tentative, vague and uncertain doctrine which has validity in the circumstances that pertain in the U.S.A. Its disadvantages are enormous. It is exceedingly difficult in more complex cases. This is shown by íthe considerable judicial disagreement as to the factors to be taken into account in determining the proper law: see the dissenting judgment of Bell C.J. in Griffith v. United Airlines (1964) 203 A. 2d 796, 809-810. Dym v. Gordon (1965) 262 N.Y.S. 2d 463 highlights the difficulty in applying the doctrines of the proper law of the tort.

Assuming that the doctrine of the proper law is applicable here, to which law do the facts point? The injury occurred in Malta where both parties were serving as members of the British armed forces. Why does the second Restatement select as the proper law in such circumstances as the present the place where the injury occurred? Doubtless it is because the parties are presumed to abide by the law of the place where they are, the place where the conduct occurred, which here, was also Malta. The only factor that militates against Maltese law being applicable is the domicile of the parties. But it is not necessary for the appellant to rely upon any such doctrine here. The House is being asked to formulate a principle in advance of knowing how it would work out in practice.

Damage: There is an obvious and significant difference between damages and damage in this case. The respondent has equated all the consequences of a wrongful act and stated that they are remedial and therefore to be governed by English law. If it be correct that actionability in both fori is a necessary factor, one approach here is that in one sense the conduct complained of is actionable in Malta because it is wrongful according to Maltese law, but in another sense it is not actionable there because damages are not recoverable for the injury suffered. There is a difference in the principle of the approach to damages between English and Maltese law. This is a question of substance. Maltese law having denied the plaintiff this type of damage, by enforcing English law in that situation the House would be enforcing the lex fori and denying the lex loci any place. There is no difficulty in drawing a distinction between the type of damage which is recoverable and a type that is not.

A "remedy" is a matter of proceeding by which a legal right is established as distinguished from the law which defines the right. The question in the present case is the extent to which the right is involved. In Malta, if there has been no economic damage at all, but only personal injury, there is no right infringed. One has to distinguish between the remedy as the mere machinery for enforcing the right and "remedy" in the broadest sense as

the right itself. Thus when the statute of limitations extinguishes the right it is a matter of substantive law, but where it extinguishes the remedy, it is a matter of adjectival law. [Reference was made to Dicey and Morris, Conflict of Laws rule 158, p. 943.]

Baschet v. London Illustrated Standard Co. [1900] 1 Ch. 73 is capable of different interpretations, but in any event it concerned the breach of a duty in England. This explains the use of the remedy of injunction. It is plainly distinguishable from the present case, for where there is a difference of quantification of the damages, that is governed by English law, but whereas, here, it is a question of categories of damage, that is a matter for Maltese law. Rules as to remoteness of damage illustrate the difference between remedy and right.

As to the questions that have been raised of the difficulty that under English law a plaintiff cannot bring subsequent proceedings arising out of the same suit, the answer as that the plaintiff chooses his forum and if the forum he chooses has disadvantages, that cannot be a factor in determining the rule applicable to cases of this kind.

In Hansen v. Dixon, 23 T.L.R. 56, at 57 the quotation from Lord Brougham cannot be taken as deciding that remedies of the lex fori are applicable albeit they infringe the right granted by the foreign law.

As to whether a plaintiff should be entitled to improve his rights by choice of forum, that is not an academic point for it may well affect the defendant. Suppose the plaintiff brings a claim against a European company which has an office in England, also principal offices of business in several continental countries, and the plaintiff finds that he has less remedies in the country where the wrong was committed than he would have if he sued here, he should not be allowed to improve his position by suing in England.

If there be mixed nationalities the respondent's rule would not apply and one is left with the concept of the proper law of the tort. But it is of primary importance that there should be certainty, and to establish this in matters of substance the lex loci delicti should apply.

Caplan Q.C. in rejoinder. Dym v. Cordon, 262 N.Y.S. 2d 463 was concerned primarily with what law the facts of the case were most significantly connected. It was contended that this decision illustrates the difficulty of ascertaining the proper law of the tort but the same criticism would apply to ascertaining the proper law of the contract. English law, however, has not shrunk from evolving the doctrine of the proper law of the contract.

Merchants National Bank and Trust Co. of Fargo v. United States Government (1967) 272 Fed.Sup. 409 is illustrative of the fact that the proper law doctrine is not confined to guest-host statutes or air crash cases. Most of the American cases which have been cited are after the ninth draft of the Restatement (Second) Conflict of Laws. The reason why the place of suit is left out of the list therein is that given by Professor Willis Rees in Law and Comity Problems and not for the reason given by Diplock L.J.

Their Lordships took time for consideration.

June 25, 1969. LORD HODSON. My Lords, this case, as the Master of the Rolls pointed out, throws up one of the most vexed questions in the conflict of laws: when a wrong is committed abroad and the injured party sues in England what law is to be applied?

The respondent, plaintiff in the action, was injured in a road accident in Malta caused by the admitted negligence of the appellant, defendant in the action. The respondent sustained serious injuries and sued for damages.

Under the Maltese law he could recover only financial loss directly suffered, expenses incurred and lost wages together with a sum for ascertained future loss of wages with a right to make a further application to the court if and when anticipated loss became actual. He could recover no damages in respect of the injury itself for pain, suffering and loss of amenities. In the result the trial judge awarded £53 special damages which would have been recoverable under Maltese law and £2,250 general damages for those injuries which would not be recoverable under Maltese law.

Both parties were serving in the forces of this country on October 6, 1963, when the motor cycle on the back of which the respondent was riding was run into by a car driven by the appellant. They are now both back in this country; the respondent was in hospital for many months owing to his injuries and was eventually discharged from the Royal Air Force. It is said that he is unlikely to suffer loss of earnings in the future as a result of his accident.

The learned judge took the view that he was bound by authority, to which I must refer, to apply the law of England as the lex fori and to award damages accordingly. In the Court of Appeal the Master of the Rolls was in favour of dismissing the appeal, reaching the same result as the trial judge by a different route. He held that the proper law of the tort should be applied not only in order to ascertain whether there is a cause of action but also to settle the measure as well as the heads of damage recoverable. He referred to Babcock v. Jackson, a decision of the New York Court of Appeal reported in England [1963] 2 Lloyd's Rep. 286. There the plaintiff, a gratuitous passenger in the defendant's motor car, was injured in an accident which occurred in ontario when the parties who were New York residents were on a weekend trip to Canada. The trip began in New York State where the car was licensed, insured and usually garaged. An Ontario statute absolves drivers from liability towards gratuitous passengers, whereas New York law contains no similar provision. The plaintiff sued successfully in New York for the negligence of the defendant and Fuld J. expressing the view of the majority of the court said, at p. 287:

"The question presented is simply drawn. Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?

In accepting the latter alternative the learned judge (at p. 289) followed

the view expressed in the second edition of the Conflict of Laws Restatement, sect. 379 (1):

"The local law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort."

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.

No difficulty arises in settling the place of the wrong which occurred entirely in Malta. As to the choice of law the generally accepted rule in this country is set out in Dicey and Morris, Conflict of Laws, 8th ed. (1967), at p. 919, as follows:

"Rule 158. - An act done in a foreign country is a tort and actionable as such, in England, only if it is both

(1) actionable as a tort, according to English law, or in other words, is an act which, if done in England, would be a tort; and

(2) not justifiable, according to the law of the foreign country where it was done."

Clause (1) of this rule was clearly stated in The Halley (1868) L.R. 2 P.C. 193, an Admiralty case in which a suit was brought against a British ship and her owners on account of a collision in Belgian waters. The defence was that the ship was under the control of a compulsory pilot so that both vessel and owners were relieved of responsibility. The plaintiffs replied that under Belgian law the owners were liable notwithstanding that the ship was being navigated at the time by a compulsory pilot. At first instance the plaintiff succeeded on the ground that the governing law was that of the place where the collision occurred. This decision was reversed by the Judicial Committee of the Privy Council which, in a judgment delivered by Selwyn L.J., declared the law as follows, at p. 204:

"... it is, in their Lordships' opinion, alike contrary to principle and to authority to hold, that an English court of justice will enforce a foreign municipal law, and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed."

It is to be noticed that there is no direct reference to public policy as such in this judgment.

Clause (2) of the rule has occasioned difficulty owing to the use of the words "not justifiable." "Justification" according to the lex loci delicti is to be found in the opinion of Lord Nottingham in Blad's case (1673) 3 Swan. 603. A century later in the leading case of Mostyn v. Fabrigas

(1774) 1 Cowp. 161, 175, Lord Mansfield said: "whatever is a justification in the place where the thing is done, ought to be a justification where the cause is tried."

Dicey's rule is collected from the judgment delivered by Willes J. in Phillips v. Eyre (1870) L.R. 6 Q.B. 1 in the Exchequer Chamber, consisting of Kelly C.B., Martin, Channell, Pigott and Cleasby BB., Willes and Brett JJ. The action complained of false imprisonment and other injuries to the plaintiff inflicted in Jamaica by the defendant who was governor of the island. The defendant relied upon an act of indemnity passed by the legislature of Jamaica as in effect a subsequent justification of his actions.

"A right of action," said Willes J. at p. 28, "whether it arise from contract governed by the law of the place or wrong, is equally the creature of the law of the place and subordinate thereto ... the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law."

At the bottom of the same page the judgment continues:

"As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England";

for this proposition The Halley, L.R. 2 P.C. 193 is cited, and the judgment proceeds:

"Secondly, the act must not have been justifiable by the law of the place where it was done."

For this proposition Blad's case, 3 Swan. 603, among others, is cited.

The appellant's argument gains support from the passage I have read in which it is declared that the civil liability arising out of a wrong derives its birth from the law of the place and its character is determined by that law. Willes J. was not, however, concerned with choice of law but only whether the courts of this country should entertain the action.

The judgment does not declare, as Lord Upjohn pointed out in the Court of Appeal, that the tortious act must be determined by the lex loci delicti. That would be to adopt what is called "the obligation" theory formerly accepted in the United States of America and sponsored by Holmes J., of the Supreme Court of the United States. In Slater v. Mexican National Railroad Co. (1904) 194 U.S. 120, 126, he said:

"The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation ... and may be enforced wherever the person may be found. ... But as the only source of this obligation is the law of the place of the act, it follows that the law determines not merely the existence of the obligation, ... but equally determines its extent."

Again in Western Union v. Brown (1914) 234 U.S. 542, 547 Holmes J. said:

"... when a person recovers in one jurisdiction for a tort committed in another he does so on the ground of an obligation incurred at the

place of the tort that accompanies the person of the defendant elsewhere, and that is not only the ground but the measure of the maximum recovery."

As Diplock L.J. pointed out, the courts have of recent years in a number of states of the United States departed from the lex loci in favour of another law which has been described as "the proper law of the tort" or facetiously as "the law of the garage" (see Babcock v. Jackson [1963] 2 Lloyd's Rep. 286, to which I have referred).

In opposition to the obligation theory another distinguished American judge, Judge Learned Hand, said in Guinness v. Miller (1923) 291 Fed. 769, 770 (District Court, S.D. New York):

"When a court takes cognizance of a tort committed elsewhere, it is indeed sometimes said that it enforces the obligation arising under the law where the tort arises. ... However, no court can enforce any law but that of its own sovereign, and, when a suitor comes to a jurisdiction foreign to the place of the tort, he can only invoke an obligation recognised by that sovereign. A foreign sovereign under civilised law imposes an obligation of its own as nearly homologous as possible to that arising in the place where the tort occurs."

In the next year the same judge, in the case of The James M'Gee (1924) 300 Fed. 93, 96 (District Court, S.D. New York) said:

"In the very nature of things, courts can enforce no obligations which are created elsewhere; when dealing with such obligations, they merely recognise them as the original of the copies which they themselves enforce."

I come to the much criticised decision of Machado v. Fontes [1897] 2 Q.B. 231, a decision of the Court of Appeal upon an interlocutory matter. This case was doubted by the Privy Council in Canadian Pacific Railway Co. v. Parent [1917] A.C. 195. It has been followed in Canada, rejected by the High Court of Australia in Koop v. Bebb (1951) 84 C.L.R. 629 and not accepted in Scotland. The case concerned two men, one of whom sued the other in England for a libel in the Portuguese language published in Brazil on the footing that the libel was actionable in England although it appeared that in Brazil it was not actionable civilly but only punishable as a crime. Lopes L.J. [1897] 2 Q.B. 231, 233 equated "not justifiable" in Willes J.'s judgment with "wrongful" and "justifiable" with "innocent." Rigby L.J., at p. 234, drew attention to the change from "actionable" in the first branch of the rule to "justifiable" in the second. He equated "justifiable" with "authorised or innocent or excusable."

As Professor Cheshire pointed out in his Private International Law7th ed. (1965), p. 248:

"It seems reasonably clear that the word 'justifiable' was used by Willes J. to emphasise the established and obvious rule that what is a good defence in the locus delicti must be equally good in a foreign forum. His mind was addressed solely to 'the civil liability arising out of the wrong,' and there is nothing in his remarks to show that he

contemplated the possibility of a successful action in England in respect of an act that is civilly, though not criminally, innocent in the locus delicti."

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 Court of Australia given in Koop v. Bebb, 84 C.L.R. 629, referred to above. Contrast also Varawa v. Howard Smith & Co. Ltd. (No. 2) [1910] V.L.R. 509, a decision of the Supreme Court of Victoria where (per Cussens J., at p. 526) Machado v. Fontes [1897] 2 Q.B. 231 was dissented from and held not to be supported by Phillips v. Eyre, L.R. 6 Q.B. 1. If the decision in Machado v. Fontes could be supported on the ground that actionability is not essential the respondent must succeed but, in my opinion, that decision is wrong and should be overruled.

To put Machado v. Fontes on one side is not, however, to dispose of this case. There is no doubt that an actionable wrong by Maltese law was committed in Malta when the respondent sustained his injuries and that subject to the difference in the laws of the two countries a wrong is actionable here. Prima facie the conditions set forth in the judgment of the Court of Exchequer Chamber in Phillips v. Eyre are fulfilled, but it is proper to remember that the conditions were introduced by the words "as a general rule" which I do not read as equivalent to "as an invariable rule." One gets some assistance from a case earlier than Phillips v. Eyre where Willes J. was also a member of the court. This is Scott v. Seymour (Lord) (1862) 1 H. & C. 219. Lord Seymour had assaulted Mr. Scott in Naples and Mr. Scott sued Lord Seymour in England for damages. This action was, it is said, not available in Naples where only criminal proceedings lay. The case was decided on a special ground, but Wightman J. in the course of his judgment said, at p. 235:

"... whatever might be the case as between two Neapolitan subjects, or between a Neapolitan and an Englishman, I find no authority for holding that, even if the Neapolitan law gives no remedy for an assault and battery, however violent and unprovoked, by recovery of damages, that therefore a British subject is deprived of his right to damages given by the English law against another British subject."

Willes J. said, at p. 236: "I am far from saying that I differ from any part of the judgment of my brother Wightman."

This is an indication that at this point of time Willes J. was content to adopt a flexible attitude to the position which he subsequently incorporated in the passage beginning with the words "As a general rule."

The American cases have shown that in recent years, particularly in instances arising from accidents occurring in motor car journeys or in aeroplanes on trans-continental trips where the place of the accident is likely to be fortuitous, an attempt has been made to arrive at a solution described as "the proper law of the tort." This has led to uncertain results and has not been fully developed in the United States. The analogy of the proper law of the contract is not useful since the parties to a contract

usually have the opportunity of choosing the law to which they seek to submit. Choice of law rules here bring certainty, predictability and uniformity of result. These features are absent in tort. No doubt if the proper law of the tort were to be adopted as the solution of those cases which arise from transitory torts, it is not easy to improve on the test chosen by the Master of the Rolls from the American Restatement,namely, the place with which the parties had the most significant connection.

The respondent did not seek to argue that the American theory of the proper law of the tort should be adopted but he submitted, and I think submitted rightly, that the words "As a general rule" should be interpreted so as to leave some latitude in cases where it would be against public policy to admit or to exclude claims. I am conscious that to resort to public policy is to mount an "unruly horse." It appears to me, however, to be in the interests of public policy to discourage "forum shopping" expeditions by the inhabitants of other countries. As Lord Cooper said in M'Elroy v. M'Allister, 1949 S.C. 110, 135:

"Pursuers should not be encouraged to improve their position vis-à-vis of their opponents by invoking some secondary forum in order to exact compensation for a type of loss which the primary forum would not regard as meriting reparation."

It is necessary to permit some flexibility in applying the language of Willes J. in Phillips v. Eyre, L.R. 6 Q.B. 1, which is to be applied as "a general rule" and not invariably. I reach this conclusion not without reluctance since rules of law should be defined and adhered to as closely as possible lest they lose themselves in a field of judicial discretion where no secure foothold is to be found by litigants or their advisers. The search for justice in the individual case must often clash with fixed legal principles especially perhaps when choice of law is concerned.

So far as the instant case is concerned, there is no ground of public policy for rejecting the respondent's claim. The parties appear to have been British nationals resident in this country but temporarily in Malta on service at the time of the occurrence.

The substantial ground for rejecting the claim is that when Machado v. Fontes [1897] 2 Q.B. 231 is out of the way and "innocence" by the local law no longer leaves the way clear for the application of the lex fori, one must look and see exactly what is the wrongful act sued upon which is actionable in the foreign country and also here.

The nature of a plaintiff's remedy is a matter of procedure to be determined by the lex fori. This includes the quantification of damages, but the question arises whether or not the English remedy sought and obtained by the judgment here fits in with the right as fixed by the foreign, that is the Maltese, law. It is argued that to award damages on the English principle is to make the right sought to be enforced a different right from that given by the lex loci delicti and that questions such as whether loss of earning capacity or pain and suffering are admissible heads of damage are questions of substantive law distinct from mere quantification which is purely a procedural matter.

The distinction between substance and procedure was clearly stated by

Tindal C.J. in Huber v. Steiner (1835) 2 Bing.N.C. 202 and by Lord Brougham in Don v. Lippmann (1837) 5 Cl. & Fin. 1, 13. The latter said:

"The law on this point is well settled in this country, where this distinction is properly taken, that whatever relates to the remedy to be enforced, must be determined by the lex fori, the law of the country to the tribunals of which the appeal is made."

If it were clear that there existed in Malta in this case civil liability for the wrong done there would be no obstacle in the respondent's way, for in principle a person should in such circumstances be permitted to claim in this country for the wrong committed in Malta. This is to state the general rule as generally accepted which takes no account of circumstances peculiar to the parties on the occurrence. The existence of the relevant civil liability is, however, not clear in this case. I was at first attracted by the submission that some liability under Maltese law being established, the remedy under Maltese law of compensation for actual loss of earnings and the remedy of damages in respect of the injury itself for pain and suffering could be merged. If this were done both heads of damage could be treated as if they related solely to the remedy and not to the substantive law involved, thus avoiding the difficulty presented by the distinction between substantive law and procedure. I am now, however, persuaded that questions such as whether loss of earning capacity or pain and suffering are admissible heads of damage must be questions of substantive law. The law relating to damages is partly procedural and partly substantive, the actual quantification under the relevant heads being procedural only. This view is supported by authority. The Supreme Court of Canada in Livesley v. Horst [1925] 1 D.L.R. 159 held that the question what kind of loss actually resulting from a breach of contract is actionable is a question of law. The court, at p. 161, cited and relied upon a passage from the judgment of Turner L.J. in Hooper v. Gumm (1867) 2 Ch.App. 282, 289, which reads:

"... where rights are acquired under the laws of foreign states, the law of this country recognises and gives effect to those rights, unless it is contrary to the law and policy of this country to do so."

This statement excludes procedure, for the party invoking English law must take procedure as he finds it.

Here I think the question of right to damages for pain and suffering is a substantive right and the respondent would fail if that which I have described as the general rule of principle were applied. That would be a just result if both parties were Maltese residents or even if the defendant were a Maltese resident.

In a case such as the present the result is, if not plainly unjust, at least not to be regarded as satisfactory. The parties had no connection with Malta except by reason of their service which was of a temporary nature and the interest of justice in such a case where civil liability exists in the foreign country though not exactly corresponding to the civil liability in this country requires some qualification of the general rule. The observations of Wightman J. in Scott v. Seymour (Lord), 1 H. & C. 219, 235, lend support to this view, as the Master of the Rolls pointed out.

Likewise there is no apparent justification for one Maltese subject suing another in this country for damages in respect of pain and suffering where the wrong took place in Malta. That would be a bare-faced example of "forum shopping."

In personal injury cases it is not necessarily true that by entering a country you submit yourself to the special laws of that country.

I would for myself, therefore, adopt the American Law Institute Restatement (Second) Conflict of Laws (Proposed official draft May 1, 1968) set out in the speech which has been prepared by my noble and learned friend Lord Wilberforce. If controlling effect is given to the law of the jurisdiction which because of its relationship with the occurrence and the parties has the greater concern with the specific issue raised in the litigation, the ends of justice are likely to be achieved although, as the American authorities show, there is a difficult task presented for decision of the courts, and uncertainty has led to dissenting judgments in the appellate courts.

I would accordingly, in agreement with the Master of the Rolls, treat the law of England as applicable since even though the occurrence took place in Malta this was overshadowed by the identity and circumstances of the parties, British subjects temporarily serving in Malta.

It is to be expected that a court will favour its own policies over those of other states and be inclined to give its own rules a wider application than it will give to those of other states (see Willis L. M. Reese (of Columbia University) Conflict of Laws Restatement (Second)). This tendency is convenient. To insist on the choice of the law of the place where the wrong was committed has an attraction and leads to certainty but in modern conditions of speedy and frequent travel between countries the place of the wrong may be and often is determined by accidental circumstances, as in this case where the parties were but temporarily carrying out their service in Malta. Furthermore, difficulty and inconvenience is involved in many cases in ascertaining the details of the relevant foreign law.

On the facts of this case, giving the rule, as I understand it, which is propounded in Phillips v. Eyre, L.R. 6 Q.B. 1, a flexible interpretation, I would dismiss the appeal.

LORD GUEST. My Lords, a collision took place in Malta between two vehicles in which the respondent was injured by the admittedly negligent driving of the appellant. The respondent raised an action in the High Court against the appellant in which he claimed, as a result of the negligence of the appellant, damages for pain and suffering caused by his injuries, for out-of-pocket expenses and for prospective loss of earnings due to his incapacity. The trial judge awarded damages amounting to £2,301 to which he was entitled for these items of damage.

According to the law of Malta the respondent could only have received his expenses and his money loss which would have amounted to £53. He would have received nothing for his pain and suffering and loss of amenities and future problematical financial loss.

The question, therefore, which sharply arises is whether the damages

are to be ascertained by the lex loci delicti, Maltese law or by the lex fori, English law.

Milmo J. and the Court of Appeal by a majority (Lord Denning M.R. and Lord Upjohn, Diplock L.J. dissenting) have awarded the respondent damages according to the lex fori. The trial judge followed the case of Machado v. Fontes ([1897] 2 Q.B. 231) (as he felt himself bound to do) and held that the lex fori applied. The majority in the Court of Appeal affirmed his decision but on different grounds: Lord Denning held that Machado v. Fontes was not binding on the Court of Appeal and should be overruled but he held that "the proper law of the tort" should be applied to the question of damages and that in the circumstances this was the law of England. Lord Upjohn held that the lex fori should be applied. He declined to accept the principle of "the proper law of the tort." Diplock L.J. dissented on the ground that the English court in assessing the heads of damage must apply the law of the place where the tort was committed. He would have been in favour of awarding only £53 in name of damages. Like Lord Upjohn he would not have been in favour of applying "the proper law of the tort."

Before I deal with the main question, I should say that I would not, in any event, be in favour of applying "the proper law of the tort" whatever that law might be. The principle of "the proper law of the tort" has only been recently introduced into certain states of the United States of America due to the differing state laws in that country. It has never been part of the law of England. It produces uncertainty and for the reasons given by both Lord Upjohn and Diplock L.J. I would not be in favour of its introduction here.

I propose to decide this case upon a very narrow ground. The difficulties arising from the decision of Phillips v. Eyre, L.R. 6 Q.B. 1 have already been referred to by my noble and learned friends. I prefer to leave these questions to those of your Lordships who are more familiar with this aspect of English law. I am content to accept the position that to justify an action in England for a tort committed abroad the conduct must be actionable by English law and by the laws of the country in which the conduct occurred, the lex loci delicti. Both these conditions are satisfied in this case as the negligent driving of the appellant was actionable both by the law of England and by the law of Malta. This line of reasoning would be in accord with the principles of the Scottish decision of Naftalin v. London Midland and Scottish Railway Co., 1933 S.C. 259 and M'Elroy v. M'Allister 1949 S.C. 110. And nothing which I have to say hereafter is intended to throw any doubt on these cases which I think were rightly decided.

Assuming that the conduct was actionable in Malta, what law is to be applied to the ascertainment of the damages? Is it to be the substantive law, the law of Malta, or is it to be the procedural law which is the lex fori? In Don v. Lippmann 5 Cl. & Fin. 1, 13 Lord Brougham said that whatever relates to the remedy to be enforced must be determined by the lex fori. There would appear to be a distinction between questions affecting heads of damages which are for the lex loci delicti and quantification of damages which is for the lex fori. This is well illustrated in Dicey and Morris, Conflict of Laws, 8th ed., p. 944, where the kind of damage is a matter of

substantive law and the method of compensating the plaintiff for his loss which is for the lex fori (ibid. p. 1092). Cheshire on Private International Law, 7th ed., p. 602, is to the same effect.

It may be difficult in certain cases to say on which side of the borderline any particular claim of damages should fall. An analogy was said to exist with the Scots cases dealing with solatium. In M'Elroy v. M'Allister, 1949 S.C. 110 affirming Naftalin v. London Midland and Scottish Railway Co., 1933 S.C. 259 a court of seven judges held that where an accident happened in England the rights of parties had to be decided in accordance with the law of England. The law of England gives no right to solatium in respect of the death of a near relative, as Scots law does, and that accordingly as solatium was excluded by the lex loci delicti it would not be admitted by the lex fori. The basis of this decision was that the right to claim solatium was a substantive right distinct and separate from the right to claim in respect of patrimonial loss. The Lord Justice-Clerk (Thomson) expresses it thus:

"Solatium is not recognised by the lex delicti. It can be defended as a relevant ground of claim only if it can be regarded as an element to be considered in measuring damages. If it could be so regarded it would fall within the scope of the lex fori as being a matter of remedy and not of substantive right. Looking to the nature of solatium as it has been expounded in a series of authorities, I find it impossible to regard it otherwise than as a separate right peculiar to the law of Scotland. The argument to the contrary can be supported only by placing on the word 'remedy' a meaning wider than it can bear consistently with the accepted principles of private international law."

By analogy it was said that damages for pain and suffering being excluded by the law of Malta, this was a substantive right which was for the lex loci delicti and damages on this account could not be awarded by the court of the forum. It is true that in Scots law the Latin term solatium is used without distinction both to indicate a claim for compensation for the grief and suffering sustained by the death of a near relative and also for the pain and suffering occasioned to an injured party. But in my view the term solatium may connote different rights. Solatium properly so called denotes a separate right of action given only to near relatives whereas solatium for pain and suffering of an injured party - a term not known apparently to English law - connotes an element in the ascertainment of damages for the injuries suffered by a plaintiff. These consist of various elements, solatium for the pain and suffering, out-of-pocket expenses, actual loss of wages and future problematical patrimonial loss due to loss of earning capacity. These elements comprise the head of damage due to an injured person by English law. It would not be correct, in my view, to talk of compensation for pain and suffering as a head of damage apart from patrimonial loss. It is merely an element in the quantification of the total compensation. This distinction was adverted to by Lord Sorn in Mackinnon v. Iberia Shipping Co., 1955 S.C. 20, 37:

"In reaching the above conclusion it has been assumed that a claim

for solatium is a separate right of action and that its relevance, therefore, must depend upon the actionability of such a claim under the foreign law. It was in fact so decided in Naftalin v. L. M. S. Railway Co. and M'Elroy v. M'Allister, but in both of these cases the claim for solatium was put forward in that peculiar action by which our law allows a person to sue for compensation in respect of the death of a near relative, whereas in the present case the claim is comprised in an ordinary action of damages. I am not saying that this difference affords a good ground of distinction, and merely mention the point in order to say that we were not asked to consider it, the pursuer not having disputed the applicability of these two decisions to the present case."

With respect, I am inclined to agree with Lord Sorn that the claim for solatium for pain and suffering is "comprised" in the ordinary action of damages for injuries.

Although differing from some of the reasoning in the majority of the Court of Appeal, I would dismiss the appeal.

LORD DONOVAN. My Lords, I need not repeat the facts, I am content with the rule enunciated by Willes J. in Phillips v. Eyre (1870) L.R. 6 Q.B. 1 and would leave it alone. In particular I would not substitute "actionable" for "not justifiable." I think the latter expression was deliberately chosen; and it makes for justice. For example, if the present respondent had suffered only pain and suffering in Malta, it would have allowed him to bring an action for damages here which he could not have brought in Malta. And I think this would have been right.

If "actionable" be substituted for "not justifiable" a reason has to be found for allowing such damages in the present case. The one which has found favour with some of your Lordships is, I think, that while "double actionability" ought to be the rule, yet departures may be made from it in individual cases where this appears to be justified by the circumstances. This introduces a new element of uncertainty into the law which I would prefer to exclude.

So far as Machado v. Fontes [1897] 2 Q.B. 231 is concerned we do not need to alter the rule laid down by Willes J. It is enough to say that the case in question, while within the rule, was an abuse of it; and that considerations of public policy would justify a court here in rejecting any such future case of blatant "forum shopping." I may say I am assuming that the parties were Brazilian though the report does not say so.

I do not think we should adopt any such doctrine as "the proper law of the tort" with all its uncertainties. There is no need here for such a doctrine - at least while we remain a United Kingdom. Nor would I take the first step towards it in the name of flexibility. I would dismiss the present appeal on the ground that an English court was competent to entertain the action under the rule in Phillips v. Eyre and that once it had done so it was right that it should award its own remedies. In short I entirely agree with the judgment of my noble and learned friend, Lord Upjohn, in the court below.

LORD WILBERFORCE. My Lords, 1. 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.

Both parties to the action are British subjects normally resident in England and their presence in Malta at the time of the accident was of a temporary character under engagements in the British forces.

In the forefront of the appeal it is necessary to consider what is the basis of an action brought in England in respect of a foreign tort: to what extent (if any) the lex delicti enters into it. If it does, further questions arise, whether the awarding of damages generally is within the exclusive authority of the lex fori, whether any distinction is to be made between the quantification of damages and the definition of the heads of recoverable damages, and if so whether, as to the latter, the lex delicti should be held to govern. I state these questions provisionally in classical form and language and in terms which suggest that they can be answered through the formulation of definite rules of law. But I shall have to consider whether after formulation of any general rules as is possible, it is necessary to admit some flexibility in their operation, in order to decide such a case as the present.

2. The existing English law. Apart from any revision which this House may be entitled, and think opportune, to make, I have no doubt that this is as stated in Dicey and Morris, Conflict of Laws, 8th ed. (1967), Rule 158, adopting with minor verbal adaptations the "general rule" laid down by the Court of Exchequer Chamber in Phillips v. Eyre, L.R. 6 Q.B. 1. This is as follows:

"An act done in a foreign country is a tort and actionable as such in England, only if it is both

(1) actionable as a tort, according to English law, or in other words, is an act which, if done in England, would be a tort; and

(2) not justifiable, according to the law of the foreign country where it was done."

I am aware that different interpretations have been placed by writers of authority upon the central passage in the judgment of Willes J. in which the general rule is contained (L.R. 6 Q.B. 1, 28, 29). Like many judgments given at a time when the relevant part of the law was in course of formation, it is not without its ambiguities, or, as a century of experience perhaps permits us to say, its contradictions. And if it were now necessary to advance the law by reinterpretation, it would be quite legitimate to extract new meanings from words and sentences used. Two of the judgments

in the Court of Appeal have done just this, reaching in the process opposite conclusions. I do not embark on this adventure for two reasons: first, because of the variety of interpretation offered us by learned writers no one of which can claim overwhelming support; secondly, and more importantly, because, on the critical points, I do not think there is any doubt what the rule as stated has come to be accepted to mean in those courts which apply the common law. And it is with this judicially accepted meaning and its applications that we are now concerned.

(a) 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 but, since the point is important, I give some citations to support it.

"It is true that in many cases the courts of England inquire into and act upon the law of foreign countries, as in the case of a contract entered into in a foreign country, where, by express reference, or by necessary implication, the foreign law is incorporated with the contract, and proof and consideration of the foreign law therefore become necessary to the construction of the contract itself. And as in the case of a collision on an ordinary road in a foreign country, where the rule of the road in force at the place of collision may be a necessary ingredient in the determination of the question by whose fault or negligence the alleged tort was committed. But in these and similar cases the English court admits the proof of the foreign law as part of the circumstances attending the execution of the contract, or as one of the facts upon which the existence of the tort, or the right to damages, may depend, and it then applies and enforces its own law so far as it is applicable to the case thus established; but it is, in their Lordships' opinion, alike contrary to principle and to authority to hold, that an English court of justice will enforce a foreign municipal law, and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed."

While recognising the relevance for some purposes of the foreign law (an important point to which I shall return) the judgment states explicitly that it is basically the lex fori which is applied and enforced. On this precise point, indeed, it reversed the decision in the Admiralty Court of Sir R. Phillimore, who in a learned judgment, quoting extensively from civilians and United States authorities, had concluded in favour of the lex loci delicti, as the law of the place where the obligatio ex delicto had arisen. The rejection by the Privy Council of this doctrine, which later received life from the authority of Holmes J. (Slater v. Mexican National Railroad Co., 194 U.S. 120) and which in turn is being discarded by modern U.S. decisions (see below) though lamented by some English writers has, until now, been regarded as decisive for English law. (See, in agreement with this, Koop v. Bebb, 84 C.L.R. 629, 643, per Dixon, Williams, Fullagar and Kitto JJ.) It can hardly be restored now by anything less than a revolution in thought.

"English law as the lex fori enforces an obligation of its own creation in respect of an act done in another country which would be a tort if done in England, but refrains from doing so unless the act has a particular character according to the lex loci actus."

Koop v. Bebb, 84 C.L.R. 629, 644, per Dixon, Williams, Fullagar and Kitto JJ.

Again in Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [1966] A.L.R. 423, 437, 438 Windeyer J. specifically considered the suggestion of academic writers that the first rule was not a choice of law rule but a rule of jurisdiction and held that, as a matter of authority, the suggestion could not be supported. That it was a rule of substantive law he said was shown both by The Halley (L.R. 2 P.C. 193) and by Koop v. Bebb. I find nothing in the other judgments in this case which is contrary to this view, and much which supports it. Indeed, the actual decision, namely, that the old common law rule of contributory negligence which operated in the forum (New South Wales) but not in the locus delicti must be given effect to, seems to require acceptance of the view that the substantive law to be applied, as a matter of choice, should be the law of forum.

Province the provisions of the Quebec law [sc. lex delicti], but of enforcing the law of this province [sc. lex fori] in respect of a wrong committed in Quebec which is not justifiable by the law of that Province").

I am of opinion, therefore, that, as regards the first part of this rule, actionability as a tort under and in accordance with English law is required.

(b) The second part of the rule - "not justifiable according to the lex loci delicti." There can hardly be any doubt that when this formulation was made in Phillips v. Eyre, L.R. 6 Q.B. 1, it was intended to cover the justification by act of indemnity which had occurred in Jamaica - the word "justification" is derived from or at least found in Mostyn v. Fabrigas in a similar context (see particularly 1 Cowp. 161, 175). It might have been better for English law if the rule had continued to be so understood. But Machado v. Fontes [1897] 2 Q.B. 231 gave the authority of the then Court of Appeal to the proposition that "not justifiable" included not only "actionable" but "liable to criminal penalty," or, putting it another way, that "justifiable" means "innocent." Until the decision of the Court of Appeal in the present case this was undoubtedly still the law. And it was accepted as such with varying degrees of reluctance in courts in Australia and Canada (see Koop v. Bebb (84 C.L.R. 629); Varawa v. Howard Smith & Co. Ltd. (No.2) [1910] V.L.R. 509; McLean v. Pettigrew [1945] 2 D.L.R. 65). In the Court of Appeal two members thought it should be overruled.

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.

3. Is this a satisfactory rule? We need not hesitate to ask the question. Although Phillips v. Eyre, L.R. 6 Q.B. 1, is just a century old, and has some more ancient roots, the reported cases in which it has been considered or even applied are not numerous. The rule was stated as well settled by Lord Macnaghten in Carr v. Fracis Times & Co. [1902] A.C. 176, 182, but the issue in that case turned upon the second part of the rule and the first did not arise for discussion. As Kitto J. said in Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [1966] A.L.R. 423, 431 the first part of the rule was open to review, and I deal first with that.

It may be admitted that it bears a parochial appearance: that it rests on no secure doctrinal principle: that outside the world of the English-speaking common law it is hardly to be found. But can any better general rule be devised, or is the existing rule, with perhaps some adjustment, the best suited to our system?

There have, in the past, been powerful advocates for the lex delicti: if a simple universal test is needed, it is perhaps the most logical, the one with most doctrinal appeal. A tort takes place in France: if action is not brought before the courts in France, let other courts decide as the French courts would. This has obvious attraction. But there are two disadvantages. To adopt the lex delicti as the substantive law would require proof of a foreign law, an objection which should not be exaggerated

since in practice it could be met by suitable pleadings and with the aid of a presumption that foreign law coincides with that of the forum. But the intrusion of this foreign element would complicate the task of the adviser, who would at least have to consider, to a greater extent than the present rule compels him to, the possible relevance of a foreign law to his client's case. The second disadvantage arises from the character of the majority of foreign torts. These are mainly in respect of personal injuries sustained by persons travelling away from the place of their residence. In many cases, the place where the wrong occurred is fortuitous: with the speed of travel increasingly so. To fix the liability of two or more persons according to a locality with which they may have no more connection than a temporary, accidental and perhaps unintended presence, may lead to an unjust result. Moreover, the more emphasis there is laid upon the locus delicti, the more oppressive may become the question (and research has shown how perplexing this can be) what the locus, in a particular case, is. It is difficulties of this character as well as injustices produced by a rigid and logical adherence to the lex delicti (see for a striking example Slater v. Mexican National Railroad Co. (194 U.S. 120)) which have driven the courts in the United States of America to abandon the lex delicti as a universal solvent, and to qualify it by means of a principle of "contacts" or "interests." But if this kind of qualification is to be admissible, it may equally well be added to our existing rule. Before considering whether this should be done, I examine the second part of the Phillips v. Eyre proposition.

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. It was powerfully attacked in the Court of Session by Lord Justice-Clerk Thompson (M'Elroy v. M'Allister, 1949 S.C. 110, 118).

In Koop v. Bebb, 84 C.L.R. 629 it was discussed by the High Court of Australia. After referring to a reasoned criticism of it by Cussen J. in the Supreme Court of Victoria (Varawa v. Howard Smith & Co. Ltd. (No. 2) [1910] V.L.R. 509) the judgment of Dixon, Williams, Fullagar and Kitto JJ. contains this passage (84 C.L.R. 629, 643):

"It seems clear that the last word has not been said on the subject, and it may be the true view that an act done in another country should be held to be an actionable wrong in Victoria if, first, it was of such a character that it would have been actionable if it had been committed in Victoria, and, secondly, it was such as to give rise to a civil liability by the law of the place where it was done."

In Canada the decision has been followed and found useful in certain cases where courts in one province have sought to escape from the con-sequences of an Ontario statute (and analogous U.S.A. legislation) depriving passengers (guests) of remedies against their drivers (hosts). The Privy Council, on Canadian appeals, has left it open.

For reasons I shall explain, I do not think that any principle established by this case is needed in order to resolve the difficulties of guest-host relationship - indeed, it only does so with a certain strain (see McLean v. Pettigrew [1945] 2 D.L.R. 65 where the "criminality" of the act in Ontario

was relied on though in fact the defendant had been acquitted). On principle the decision for or against it must rest on a balance between the illogicality referred to by Lord Thompson, together with the inducement the case offers to "forum shopping," on the one hand, against, on the other, a debatable advantage in allowing a national of the forum to sue there for torts committed by another such national abroad, if these are not actionable but criminal under the lex loci. This balance I find is decidedly against the authority of the decision.

But I do not think it is sufficient to rest here. For we should still be left with the test of "non-justifiability" according to the lex delicti. I have no objection to the concept of "non-justifiability" as the basis for the decision in Phillips v. Eyre, L.R. 6 Q.B. 1: to say that Governor Eyre could not be sued in England after his actions in Jamaica had been justified by an Act of Indemnity was sound enough. But I do not think that we need any longer confine ourselves within this phrase. Assuming that, as the basic rule, we continue to require actionability by the lex fori, subject to some condition as to what the lex delicti requires, we should, in my opinion, allow a greater and more intelligible force to the lex delicti than is included in the concept of unjustifiability as normally understood.

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.

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. Developments in the United States of America have reflected this conflict: I now consider them.

The contact or interests principle. The process which has evolved is to segregate the relevant issue, which may be one only of those arising, and to consider in relation to that issue as it arises in the actual suit between the actual parties what rule of law, i.e., the rule of which state or jurisdiction, ought to be applied. This method has mainly though not exclusively been

used in relation to personal injury cases, whether air or motor car accidents and, as to the latter, mainly in relation to statutes excluding or limiting the liability of drivers of vehicles. Like other doctrines, including that of the "proper law of the tort," it may represent a development from English seed. Professor Westlake's Private International Law, 7th ed. (Bentwich) (1925), p. 281, contains this:

"The truth is that by entering a country or acting in it you submit yourself to its special laws only so far as science selects them as the rule of decision in each case. Or more truly still, you give to its special laws the opportunity of working on you to that extent. The operation of the law depends on the conditions, and where the conditions exist the law operates as well on its born subjects as on those who have brought themselves under it."

The germ of the doctrine may lie here but has only developed in recent United States cases towards passengers or generally. Those I have found of most interest are Kilberg, Admr. v. Northeast Airlines, Inc. [1961] 2 Lloyd's Rep. 406; Babcock v. Jackson [1963] 2 Lloyd's Rep. 286 (law of the place which had most dominant contacts with matter in dispute); Griffith v. United Air Lines (1964) 203 A. 2d 796 (the strict lex loci delicti rule should be abandoned in favour of a more flexible rule which permits analysis of the policies or interests underlying the particular issue before the court); Dym v. Gordon (1965) 262 N.Y.S. 2d 463; Miller v. Miller (1968) 290 N.Y.S. 2d 734. Interesting and suggestive as are the judgments in these cases, I forbear from detailed citation since they are, at the present stage, approximative to the definition of a rule.

A reference to Babcock v. Jackson [1963] 2 Lloyd's Rep. 286 may sufficiently illustrate. There the plaintiff was a passenger in a car owned and driven by the defendant, both parties being resident in New York (I disregard the "garage" factor by which the case has unfortunately come to be labelled). The accident occurred in ontario, Canada, during a weekend trip: the Highway Traffic Act, 1960, of ontario excluded any liability of driver to passenger, but the law of New York (lex fori) did not. The plaintiff was allowed to recover. The basic law, as accepted in New York, as elsewhere in the United States of America, was the lex delicti, which, for the reasons I have given, ought not to become the basic law in England, but the judgment of the court established a principle equally applicable whatever the basic law might be.

"Justice, fairness and 'the best practical result' ... may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation" (p. 289).

The general tendency is stated in the American Law Institute Restatement (Second) Conflict of Laws (proposed official draft, May 1, 1968).^* This states as the general principle that rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state,

* In the Court of Appeal and in argument references were made to an earlier draft of 1964.

which, as to that issue, has the most significant relationship to the occurrence and the parties, and that separate rules apply to different kinds of torts. The importance of the respective contacts is to be evaluated according to their relevant importance with respect to the particular issue, the nature of the tort, and the purposes of the tort rules involved (see s. 6, 145). In an action for a personal injury the local law of the state where the injury occurred (the basic rule in the United States of America) determines the rights and liabilities of the parties, unless with respect to the particular issue (emphasis supplied) some other state has a more significant relationship with the occurrence and the parties, in which event the local law of the other state will be applied (see p. 146).

This formulation has what is very necessary under a system of judge-made law, the benefit of hard testing in concrete applications. The criticism is easy to make that, more even than the doctrine of the proper law of the contract (cf. The Assunzione [1954] P. 150) where the search is often one of great perplexity, the task of tracing the relevant contacts, and of weighing them, qualitatively, against each other, complicates the task of the courts and leads to uncertainty and dissent: see particularly the powerful dissents in Griffith, 203 A. 2d 796, 807 of Bell C.J., and in Miller, 290 N.Y.S. 2d 734, 743 of Breitel J.

There is force in this and for this reason I am not willing to go so far as the more extreme version of the respondent's argument would have us do and to adopt, in place of the existing rule, one based solely on "contacts" or "centre of gravity" which has not been adopted even in the more favourable climate of the United States. There must remain great virtue in a general well-understood rule covering the majority of normal cases provided that it can be made flexible enough to take account of the varying interests and considerations of policy which may arise when one or more foreign elements are present.

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.

I find in this approach the solution to the present case. 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. For it is one thing to say or presume that domestic rule is a just rule, but quite another, in a case where a foreign element is involved, to reject a foreign rule on any such general ground. The foreign rule must be evaluated in its application.

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, ir free to do so, should renounce its own rule. That rule ought, in my opinion, to apply.

It may be that this appeal can be decided, quasi-mechanically, by the accepted distinction between substance and procedure, between solatium as a jus actionis and solatium as an ingredient in general damages. I have no wish to depreciate the use of these familiar tools. In skilful hands they can be powerful and effective, though I must add that in some applications, particularly in Scottish cases, they have led to results which give me no satisfaction. But I suspect that in the ultimate and difficult choice which has to be made between regarding damages for pain and suffering as a separate cause of action and so governed by the lex delicti, or treating them as merely part of general damages to calculate which is the prerogative of the lex fori, two alternatives which are surely closely balanced in this case, a not insubstantial makeweight, perhaps unconscious in its use, is to be found in a policy preference for the adopted solution (cf. Kilberg, Admr. v. Northeast Airlines, Inc. [1961] 2 Lloyd's Rep. 406, 409: "It is open to us ... particularly in view of our own strong public

policy as to death action damages, to treat the measure of damages ... as being a procedural or remedial question controlled by our own state policies": per Desmond C.J.). I note indeed that a purely legal analysis in the Court of Appeal led Lord Upjohn to one answer, Diplock L.J. to another. So I prefer to be explicit about it. There certainly seems to be some artifice in regarding a man's right to recover damages for pain and suffering as a matter of procedure. To do so, at any rate, goes well beyond the principle which I entirely accept, that matters of assessment or quantification, including no doubt the manner in which provision is made for future or prospective losses, are for the lex fori to determine.

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. For those reasons I would dismiss the appeal.

LORD PEARSON. My Lords, both the plaintiff, who is the respondent in this appeal, and the defendant, who is the appellant, were at all material times normally resident in England but were at the time of the accident serving in the British armed forces stationed in Malta, the plaintiff with the Royal Air Force and the defendant with the Royal Navy. The accident was a road accident in Malta, and was due to the defendant's negligence, and caused serious injuries to the plaintiff. But the plaintiff's economic loss was small because he continued to receive his full pay until he was discharged from the Royal Air Force in consequence of his injuries and then he obtained more remunerative employment in civil life. His action against the defendant for damages for negligence was brought in the English courts.

The learned judge decided that English law was applicable and that the plaintiff should recover £53 as special damages and £2,250 as general damages. There is no dispute as to the figures or as to the plaintiff's right to recover the sum of £53 as special damages. The question at issue in this appeal is whether the plaintiff is entitled to recover the general damages, which are attributable to pain and suffering (including loss of amenities of life). If the question is to be decided according to English law he is so entitled: if according to Maltese law he is not entitled.

The learned judge's findings as to the Maltese law were as follows, [1968] 2 Q.B. 1, 5:

"I am satisfied that all a plaintiff is entitled to recover under the law of Malta is (i) actual financial loss directly suffered, (ii) expenses which he has been compelled to incur, (iii) the amount of wages he has actually lost, (iv) a sum in respect of future loss of wages which he can actually prove will occur. He cannot recover anything in respect of pain and suffering in itself and as distinct from its economic effect upon him. In a case in Malta, where there is evidence of a possible future incapacity arising from the injury, the court will make provision in its order to enable the plaintiff, in the event of such incapacity materialising, to come back and recover in respect of it, but, as long as it is potential only, the plaintiff can recover nothing for it."

The Maltese law thus differs from English law in a very important respect. The Maltese law gives to the plaintiff a right of action for what is in effect only reimbursement or indemnity or compensation for pecuniary expense or loss. The English law gives to the plaintiff a right of action for damages for all the relevant consequences of the accident to the plaintiff, including pain and suffering as well as pecuniary expense or loss. The figures in this case show that the practical difference may be very great. Moreover, there might be a case in which there was no pecuniary expense or loss, but only pain and suffering. In such a case presumably the plaintiff would have no cause of action by Maltese law. It is to be assumed, in the absence of evidence to the contrary, that in Malta as in England a cause of action for negligence is not complete unless some actionable damage - damage in respect of which damages are recoverable - can be alleged and proved.

English law is the lex fori. The lex fori must regulate procedure, because the court can only use its own procedure, having no power to adopt alien procedures. To some extent, at any rate, the lex fori must regulate remedies, because the court can only give its own remedies. having no power to give alien remedies. For instance, the English court could not make provision in its order to enable the plaintiff, in the event of a possible future incapacity materialising, to come back and recover in respect of it. That is alien procedure or an alien remedy and outside he powers of an English court. On the other hand, an English court may sometimes be able to give in respect of a tort committed in a foreign country a remedy which the courts of that country would be unable to give. For instance, the foreign courts might have no power to grant an injunction or to make an order for specific performance or for an account of profits.

If the difference between the English law and the Maltese law could be regarded only as a difference of procedural (or adjectival or non-substantive) law, there would be an easy solution of the problem in this appeal. On that basis the nature and extent of the remedy would be matters of procedural law regulated by the lex fori, which is English, and the proper remedy for the plaintiff in this case according to English law would be that he should recover damages for all the relevant consequences of the accident, including pain and suffering as well as pecuniary expense and loss, and the amount of such damages would be £2,303, the sum awarded by the learned judge.

But I am not convinced that the difference between the English law and the Maltese law can reasonably be regarded as only a difference of procedural law. There is a radical difference in the cause of action, the right of action, the jus actionis. A claim to be reimbursed or indemnified or compensated for actual economic loss is substantially different in character from a claim for damages for all the relevant consequences of the accident to the plaintiff, including pain and suffering. If an accident caused no economic loss, but only pain and suffering, there would be a cause of action according to English law, but not according to Maltese law. Surely that must be a matter of substantive law. Then if the validity of a claim for damages for pain and suffering is a matter of substantive law when that is the only claim, is it not a matter of substantive law

equally when such a claim happens to be associated with a claim in respect of actual economic loss? I do not think there is any exact and authoritative definition of the boundary between substantive law and procedural (or adjectival or non-substantive) law, and the boundary remains to be settled by further decisions in particular cases. In the present case I think it would be artificial and incorrect to treat the difference between the English law and the Maltese law, which materially affects the determination of the rights and liabilities of the parties, as a matter only of procedural law.

Taking that view, I have to go on to consider the question whether the substantive law to be applied is English or Maltese or both. A choice of law is involved and, as it has to be made by the English court in which the action is brought, it must be governed by the principles of English law for making such a choice.

What, then, is the substantive law applicable in this case? Is it the law of England, or the law of Malta, or some combination of both? It is necessary to consider the authorities. The leading authority is a passage in the judgment of the Court of Exchequer Chamber, delivered by Willes J. in Phillips v. Eyre, L.R. 6 Q.B. 1. But earlier authorities are of some assistance as leading up to it.

In Mostyn v. Fabrigas, 1 Cowp. 161 it was decided by Lord Mansfield that an action of trespass and false imprisonment lay in England by a Minorquin against a former Governor of Minorca for such injury committed by him in Minorca. Venue in an English county was given by a fiction, the plaintiff alleging in his declaration that the defendant made an assault upon him "at Minorca, to wit, in the parish of St. Mary le Bow, in the Ward of Cheap." This was explained in the judgment at p. 179:

"... where the action is substantially such a one as the court can hold plea of, as the mode of trial is by jury, and as the jury must be called together by process directed to the sheriff of the county; matter of form is added to the fiction, to say it is in that county, and then the whole of the enquiry is, whether it is an action that ought to be maintained. But can it be doubted, that actions may be maintained here, not only upon contracts, which follow the persons, but for injuries done by subject to subject; especially for injuries where the whole that is prayed is a reparation in damages, or satisfaction to be made by process against the person or his effects, within the jurisdiction of the court?"

That passage seems to contemplate a normal English trial between British subjects according to English law as well as English procedure. The part which may be played by the lex loci delicti appears from another passage (at p. 175):

"And in Way v. Yally, 6 Mod. 195 Justice Powell says, that an action of false imprisonment has been brought here against a governor of Jamaica, for an imprisonment there, and the laws of the country were given in evidence. The governor of Jamaica in that case never thought that he was not amenable. He defended himself, and possibly showed, by the laws of the country, an act of the assembly which justified that imprisonment, and the court received it as they ought to

do. For whatever is a justification in the place where the thing is done, ought to be a justification where the cause is tried."

Another point of interest in the judgment is that it refers (at p. 181) to actual or hypothetical cases of wrongs done by one British subject to another in places (e.g. upon the coast of Nova Scotia or among the Esquimaux Indians on the coast of Labrador) where there were in 1774 no regular courts of justice and there would be a failure of justice unless an action could be brought in England. In such cases there would be a civil wrong done according to English law; by the lex loci delicti there would he no justification and no civil cause of action; the plaintiff would be suing on a civil cause of action given by English law.

Scott v. Seymour (Lord), 1 H. & C. 219 can be taken briefly as not giving much assistance. But the language used by Wightman J. in stating his alternative ground (not generally adopted by the other members of the court) is of interest. He said, at p. 234:

"... I am not aware of any rule of law which would disable a British subject from maintaining an action in this country for damages against another British subject for an assault and battery committed by him in a foreign country, merely because no damages for such trespasses were recoverable by the law of the foreign country, and without any allegation that such trespasses were lawful or justifiable in that country."

Willes J. was one of the members of the court, and, while expressing no concluded opinion on Wightman J.'s alternative ground, he said, at p. 236: "I am far from saying that I differ from any part of the judgment of my brother Wightman."

The case of The Halley, L.R. 2 P.C. 193 was decided by the Judicial Committee of the Privy Council in 1868. There was an action in England in respect of a collision in Belgian waters, alleged to have been caused by negligent navigation of the defendants' ship. The defendants pleaded that they were not liable because their ship was being navigated by a pilot whom they were compelled by the Belgian law to employ. The plaintiffs replied that by the Belgian law the defendants were responsible for negligent navigation of the pilot even though they were compelled to employ him. In the judgment of the Board, delivered by Selwyn L.J., there is this passage at pp. 203-204:

"It is true that in many cases the courts of England inquire into and act upon the law of foreign countries, as in the case of a contract entered into in a foreign country, where, by express reference, or by necessary implication, the foreign law is incorporated with the contract, and proof and consideration of the foreign law therefore become necessary to the construction of the contract itself. And as in the case of a collision on an ordinary road in a foreign country, where the rule of the road in force at the place of collision may be a necessary ingredient in the determination of the question by whose fault or negligence the alleged tort was committed. But in these and similar cases the English court admits the proof of the foreign law as part of the circumstances attending the execution of the contract, or as one of

the facts upon which the existence of the tort, or the right to damages, may depend, and it then applies and enforces its own law so far as it is applicable to the case thus established; but it is, in their Lordships' opinion, alike contrary to principle and to authority to hold, that an English court of justice will enforce a foreign municipal law, and will give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed."

Accordingly, the relevant part of the plaintiff's reply was rejected. The passage quoted seems to me important as showing clearly that even in an action for a tort committed abroad the English court is administering English law and enforcing a cause of action which must be valid according to English law, and is not enforcing a foreign cause of action according to foreign law. As appears from other cases, the foreign law, proved by evidence as a matter of fact, may come in as a secondary factor providing a defence to the cause of action.

The next case, Phillips v. Eyre, L.R. 6 Q.B. 1, is the leading authority. The Court of Exchequer Chamber was composed of Kelly C.B., Martin, Channell, Pigott and Cleasby BB., Willes and Brett JJ. The defendant as Governor of Jamaica had imprisoned the plaintiff, but afterwards an Act of Indemnity was passed by the Jamaican legislature. The judgment, delivered by Willes J., was largely concerned with examining the validity of the Act of Indemnity which was upheld. The principal passages of his judgment relevant to the present question come on pp. 28-29. The earlier passage is this:

"The last objection to the plea of the colonial Act was of a more technical character; that assuming the colonial Act to be valid in Jamaica and a defence there, it could not have the extra-territorial effect of taking away the right of action in an English court. This objection is founded upon a misconception of the true character of a civil or legal obligation and the corresponding right of action. The obligation is the principal to which a right of action in whatever court is only an accessory, and such accessory, according to the maxim of law, follows the principal, and must stand or fall therewith. ... A right of action, whether it arise from contract governed by the law of the place or wrong, is equally the creature of the law of the place and subordinate thereto. ... the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law. Therefore, an act committed abroad, if valid and unquestionable by the law of the place, cannot, so far as civil liability is concerned, be drawn in question elsewhere unless by force of some distinct exceptional legislation, superadding a liability other than and besides that incident to the act itself. ...

The later passage is this:

"As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England. ... Secondly, the

act must not have been justifiable by the law of the place where it was done."

In support of the first condition he cited The Halley, L.R. 2 P.C. 193. In support of the second condition he cited Blad v. Bamfield, 3 Swan. 604, Dobree v. Napier (1836) 2 Bing.N.C. 781 and Reg. v. Lesley (1860) Bell C.C. 220. These latter were all cases of acts of seizure or assault or imprisonment, which would prima facie be wrongful but were justified by command of the Sovereign or otherwise by authority from the government of the territory in which the act was committed.

I find some difficulty in reconciling the earlier passage with the later passage, but I think that when taken together they show that the applicable law, the substantive law determining liability or non-liability, is a combination of the lex fori and the lex loci delicti (which was conveniently called by Willes J. "the law of the place"). The act must take its character of wrongfulness from the law of the place: it must not be justifiable under the law of the place: if it is "valid and unquestionable by the law of the place, it cannot, so far as civil liability is concerned, be drawn in question elsewhere." But Willes J. does not say that the wrongful act has to be actionable, or to give a cause of action for damages according to the law of the place. The actionability is by the lex fori: "the wrong must be of such a character that it would have been actionable if committed in England." The second condition has to be read in the light of what has gone before. The act referred to is one which is wrongful according to the law of the place in which it is committed. But there is no requirement that it must be actionable by the law of that place as well as by the law of England: double actionability is not required. The requirement is that the act must not be justifiable by the law of the place. The reason for that must be that a person could not fairly be held liable in damages for doing something which in the place where it was done was either originally lawful or made lawful by retrospective legislation. Willes J.'s statement of the conditions which have to be fulfilled (which may be called "the Willes formula") shows that in such a case the substantive law of England plays the dominant role, determining the cause of action, whereas the law of the place in which the act was committed plays a subordinate role, in that it may provide a justification for the act and so defeat the cause of action but it does not in itself determine the cause of action.

The M. Moxham (1876) 1 P.D. 107 is a case of a rather special character. The action was for damages in respect of injury done by an English ship to a pier in Spain owned by an English company. The parties had agreed that the liability, if any, of the owners of the ship should be determined in the English courts but (as James L.J. understood their agreement) in accordance with the Spanish law. James L.J. said, atp. 111:

"It is settled that if by the law of the foreign country the act is lawful, or is excusable, or even if it has been legitimized by a subsequent Act of the legislature, then this court will take into consideration that state of the law; that is to say, if by the law of the foreign country a particular person is justified, or is excused, or has been

justified or excused for the thing done, he will not be answerable here."

Mellish L.J. said, at p. 111:

"Now, the law respecting personal injuries and respecting wrongs to personal property appears to me to be perfectly settled that no action can be maintained in the courts of this country on account of a wrongful act either to a person or to personal property, committed within the jurisdiction of a foreign country, unless the act is wrongful by the law of the country where it is committed and also wrongful by the law of this country. The cases of The Halley, L.R. 2 P.C. 193 and Phillips v. Eyre, L.R. 6 Q.B. 1, together with the other cases in conformity with them, seem to be conclusive on the subject."

Baggallay J.A. said, at p. 115:

"The principles seem to be laid down very clearly and distinctly in the case of Phillips v. Eyre."

and then he cited the Willes formula. The judgments in this case of The M. Moxham, 1 P.D. 107 seem to me to be consistent with, and to afford some support for, the interpretation which I have given of the Willes formula.

On the other hand, in Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co. (1883) 10 Q.B.D. 521, 536, 537, Brett L.J. said, when referring to the case of The M. Moxham:

"In that case, whatever the cause of action was, it arose entirely in Spain, and the action was an action in tort, and the well-known rule applies that for any tort committed in a foreign country within its own exclusive jurisdiction an action of tort cannot be maintained in this country unless the cause of action would be a cause of action in that country, and also would be a cause of action in this country."

That dictum seems to me to be inconsistent with the Willes formula because it would substitute actionability by the foreign law for wrongfulness by the foreign law, but the Willes formula has been accepted in other cases.

Machado v. Fontes [1897] 2 Q.B. 231 raised directly, in an interlocutory appeal heard by two Lords Justices, the question whether the act committed abroad, if it was to found an action in England, had to be actionable by the law of the place in which the act was committed or merely wrongful by that law. There was a plea to the effect that the alleged libel published in Brazil was not actionable by the law of Brazil. The plea did not say that the publication was not wrongful by the law of Brazil: thus criminal liability was not excluded. The court, Lopes L.J. and Rigby L.J., applying the Willes formula and relying also on the judgments in The M. Moxham, 1 P.D. 107, held that the plea was insufficient, because it did not allege that the publication of the libel was an innocent act in Brazil. That was a decision that the act committed abroad, if it was to found an action in England, had to be merely wrongful, not necessarily actionable, by the law of the foreign country. In my opinion, this decision involved a correct interpretation of the Willes

formula. The cause of action for the libel was determined by English law, but the defendant would have a defence if he could show that the act complained of was "justifiable" by the law of the place in which it was committed. It would not be "justifiable" by that law, if it was a crime by that law. A criminal act would be even less justifiable than a tortious act. There may be an objection to the decision on a different ground, namely, that it may have been permitting a person whose natural forum was a Brazilian court to gain advantages by by-passing his natural forum and suing in the English court. That is a matter which I will consider at a later stage.

In Carr v. Fracis Times & Co. [1902] A.C. 176, 182, Lord Macnaghten set out the Willes formula and described it as "... well settled by a series of authorities (of which the latest is the case of Phillips v. Eyre, in the Exchequer Chamber)."

In Canadian Pacific Railway Co. v. Parent [1917] A.C. 195, 205, Viscount Haldane raised a doubt as to whether "all the language used by the English Court of Appeal in the judgments in Machado v. Fontes [1897] 2 Q.B. 231 was sufficiently precise" but he did not depart from the decision in that case.

In Walpole v. Canadian Northern Railway Co. [1923] A.C. 113, 119, Viscount Cave set out the Willes formula as "well-known," and said:

"It is unnecessary for the purposes of this appeal to consider the precise meaning of the term 'justifiable,' as used by Willes J.; but, at all events, it must have reference to legal justification, and an act or neglect which is neither actionable nor punishable cannot be said to be otherwise than justifiable within the meaning of the rule."

In McMillan v. Canadian Northern Railway Co. [1923] A.C. 120, 123, 124, Viscount Cave set out the Willes formula and described it as "well-established."

The English authorities show that the Willes formula has been accepted; that the first of his conditions gives the predominant role to the English substantive law; and that the second of his conditions does not require actionability by the law of the place where the act was committed, but only that the act should not be justifiable, i.e. not excused or innocent by that law. That is the orthodox and established rule, and it has been maintained for a great many years. On the other hand, it has met with some unfavourable criticism both in this country and in Australia, and it is open to your Lordships to set aside or amend the rule by overruling Machado v. Fontes [1897] 2 Q.B. 231 and not following The Halley, L.R. 2 P.C. 193. But I do not think there could be any good ground for doing so unless either the rule was wrong from the beginning or it has become out of date by reason of changes in legal, social or economic conditions.

I am not persuaded that the rule was wrong from the beginning. It has certain advantages and certain disadvantages. The main advantages are, first, that it has a high degree of certainty and, secondly, that it enables an English court to give judgment according to its own ideas of justice. In The Halley it would then have seemed unjust to the English court to hold the defendants liable for the fault of a pilot whom

they were compelled by the local law to engage and put in charge of their ship. In the present case it would have seemed unjust to an English court to award to the plaintiff only £53 as damages for serious injuries. Another advantage is that if one Englishman wrongfully injures another in a primitive country or unsettled territory where there is no law of torts, the English courts can give redress. This would be a factor of some importance in 1774, when Mostyn v. Fabrigas, 1 Cowp. 161 was decided, and even in 1870 when Phillips v. Eyre, L.R. 6 Q.B. 1 was decided, though with the rapid spread of civilisation it has much less importance now. The principal disadvantage of the rule is that it might lead to what has been described in American cases as "forum-shopping," i.e., a plaintiff by-passing his natural forum and bringing his action in some alien forum which would give him relief or benefits which would not be available to him in his natural forum. I will revert to this danger of "forum-shopping" at a later stage.

If the rule is to be set aside or amended, what should be put in its place or how should it be amended? There may be many suggestions, but I think the principal ones are:

(a) That the substantive law of the place where the act is committed should be given the predominant role so as to determine the cause of action, and the substantive law of the forum, the English court, should apply only to the extent of the court refusing to enforce the cause of action if it is repugnant to some rule of English public policy.

(b) That damages should be recoverable for a wrongful act committed out of England only if it is actionable both by the law of England and by the law of the country in which the act was committed;

(c) That a flexible rule, which has been referred to as "the proper law of the tort," should be substituted.

In considering whether the English rule has been wrong from the beginning or has become out of date, and whether it should now be superseded by or converted into one of these suggested rules, it is helpful to have regard to the opinions and experience of courts in other common law countries. For the sake of brevity I will be highly selective.

In the Australian cases the decision in Machado v. Fontes [1897] 2 Q.B. 231 has been discussed and doubted, but the question whether it should be followed or not has been kept open; the Willes formula has been repeatedly cited as authoritative; and the priority of the lex fori in deter mining the cause of action has been clearly stated. In the judgment of Dixon, Williams, Fullager and Kitto JJ. in the High Court of Australia in Koop v. Bebb, 84 C.L.R. 629, 643, 644 there is this passage referring to Machado v. Fontes:

"It seems clear that the last word has not been said on the subject, and it may be the true view that an act done in another country should be held to be an actionable wrong in Victoria if, first, it was of such a character that it would have been actionable if it had been committed in Victoria, and, secondly, it was such as to give rise to a civil liability by the law of the place where it was done. Such a rule would appear

to be consonant with all the English decisions before Machado v. Fontes [1897] 2 Q.B. 231 and with the later Privy Council decisions. It may be added that, however the rule should be stated, courts applying the English rules of private international law do not accept the theory propounded by Holmes J. in Slater v. Mexican National Railroad Co., (1904) 194 U.S. 120 (see also New York Central Railroad Co. v. Chisholm (1925) 268 U.S. 29, 32), when he said:- 'The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation, an obligatio, which, like other obligations, follows the person, and may be enforced wherever the person may be found. ... But as the only source of this obligation is the law of the place of the act, it follows that that law determines not merely the existence of the obligation, ... but equally determines its extent.' English law as the lex fori enforces an obligation of its own creation in respect of an act done in another country which would be a tort if done in England, but refrains from doing so unless the act has a particular character according to the lex loci actus. Uncertainty exists only as to what that character must be. There is no necessity to express a concluded opinion upon the controversy which surrounds Machado v. Fontes."

In another case in the High Court of Australia, Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [1966] A.L.R. 423, the action was brought in New South Wales in respect of an accident which occurred in the Australian Capital Territory. The accident was due to negligence on the part of the defendant and some contributory negligence on the part of the plaintiff. By the law of the Capital Territory contributory negligence was only a ground for reduction of damages, but by the law of New South Wales it would be a complete defence to the plaintiff's action. It was held in effect that the first condition of the Willes formula applied, and, as the defendant's act was in the circumstances not actionable according to the law of New South Wales, the lex fori, the plaintiff's action failed.

In Canada the rule of English law, which is embodied in the Willes formula as interpreted in Machado v. Fontes [1897] 2 Q.B. 231, has been authoritatively adopted and applied. In Canadian National Steamships Co. Ltd. v. Watson [1938] S.C.R. 11, 13, 14, Duff C.J., delivering the judgment of himself and Crockett, Kerwin and Hudson JJ., said:

"It is now settled that, in an action brought in the province of Quebec for damages in respect of personal injuries due to a tortious act committed outside that province, the plaintiff's right to recover rests upon the fulfilment of two conditions. These conditions are stated in the following passage in the judgment of Lord Macnaghten in Carr v. Fracis Times & Co. [1902] A.C. 176, 182:

'In the first place, the wrong must be of such a character that it would have been actionable if committed in England; and, secondly, the act must not have been justifiable by the law of the place where it was committed.'

"'Justifiable' here refers to legal justification; and an act or neglect which is neither actionable nor punishable cannot be said to be otherwise

than 'justifiable' within the meaning of the rule (Walpole v. Canadian Northern Railway [1923] A.C. 113, 119). That this rule prevails in Quebec results from O'Connor v. Wray [1930] S.C.R. 231.

"It is essential that the plaintiff prove an act or default actionable by the law of Quebec. While it is also part of his case to establish that the tort charged is non-justifiable by the lex loci delicti in the sense mentioned, he is entitled to pray in aid a presumption which is a presumption of law, viz., that the general law of the place where the alleged wrongful act occurred is the same as the law of Quebec. Where a defendant relies upon some difference between the law of the locality and the law of the forum the onus is upon him to prove it."

The rule as stated in that passage of the judgment of Duff C.J. was applied in another case in the Supreme Court of Canada, namely, McLean v. Pettigrew [1945] 2 D.L.R. 65 at pp. 76-79. In that case the plaintiff, who was domiciled in the Province of Quebec, accepted an invitation by the defendant, also domiciled in Quebec, to make a trip to Ottawa as a gratuitous passenger in the defendant's automobile. There was an accident in Ontario as a result of negligent driving by the defendant which amounted to such lack of "due care and attention" as was punishable under an Act of Ontario. As the plaintiff was a gratuitous passenger she was by the law of Ontario not entitled to recover damages from the defendant in a civil action, but she would be so entitled by the law of Quebec. Thus, the question arose in that case, as in Machado v. Fontes [1897] 2 Q.B. 231, whether the plaintiff could succeed in an action of tort in respect of an act committed abroad, when the act was actionable according to the lex fori and punishable, but not actionable, according to the lex loci delicti. It was held in that case (McLean v. Pettigrew) as in Machado v. Fontes that the plaintiff could succeed in such an action.

Similarly, in the case of Morris and Stulback v. Angel (1956) 5 D.L.R. (2d) 30 the plaintiffs were gratuitous passengers in the defendant's car and were injured in an accident which occurred in the State of Washington. The defendant's conduct was actionable according to the law of British Columbia, where the parties were domiciled and the action was brought, but was only punishable and not actionable according to the law of the State of Washington. The decision was given in favour of the plaintiffs, following the decision of the Supreme Court of Canada in McLean v. Pettigrew (supra).

There have been cited a number of recent decisions of American courts. These show that, whereas formerly a rule giving preference to the lex loci delicti had been applied in the great majority of states, the rule has been found unsatisfactory in modern conditions, and the courts of many states have adopted a more flexible rule which often, though not always, has resulted in the lex fori being applied.

In Kilberg, Admr. v. Northeast Airlines, Inc. reported in England in [1961] 2 Lloyd's Rep. 406, Desmond Ch.J., giving the leading judgment in the New York Court of Appeals, said at p. 408:

"Modern conditions make it unjust and anomalous to subject the travelling citizen of this State to the varying laws of other States through and over which they move. The number of States limiting

death case damages has become smaller over the years, but there are still 14 of them. ... An air traveller from New York may in a flight of a few hours' duration pass through several of those commonwealths. His plane may meet with disaster in a State he never intended to cross, but into which the plane has flown because of bad weather or other unexpected developments, or an airplane's catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State's people against unfair and anachronistic treatment of the lawsuits which result from these disasters."

Recognition of the tendency of state courts to adopt a more flexible rule was expressed in the Supreme Court of the United States in Richards v. United States (1962) 32 S.Ct. 585, 592, 593 by Warren C.J.:

"The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties. ... Recently there has been a tendency on the part of some States to depart from the general conflicts rule in order to take into account the interests of the State having significant contact with the parties to the litigation. ... Should the States continue this rejection of the older rule in those situations where its application might appear inappropriate or inequitable, the flexibility inherent in our interpretation" [of a Federal Statute] "will also be more in step with that judicial approach. ..."

In Babcock v. Jackson, reported in England in [1963] 2 Lloyd's Rep. 286, Fuld J., delivering a judgment in which the majority of his colleagues in the New York Court of Appeals concurred, expounded and applied the new doctrine. At pp. 287-288 he referred to the traditional rule giving preference to the lex loci delicti, and said, at p. 288:

"... despite the advantages of certainty, ease of application and predictability which it affords ... there has in recent years been increasing criticism of the traditional rule by commentators and a judicial trend towards its abandonment or modification."

He said, at p. 289:

"The 'centre of gravity' or 'grouping of contacts' doctrine adopted by this court in conflicts cases involving contracts impresses us as likewise affording the appropriate approach for accommodating the competing interests in tort cases with multi-State contacts. Justice, fairness and 'the best practical result' ... may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation .... the relative importance of the relationships or contacts of the respective jurisdictions is to be evaluated in the light of 'the issues, the character of the tort and the relevant purposes of the tort rules involved.'"

At p. 291 he said:

"In conclusion, then, there is no reason why all issues arising out of a tort claim must be resolved by reference to the law of the same jurisdiction. Where the issue involves standards of conduct, it is more than likely that it is the law of the place of the tort which will be controlling, but the disposition of other issues must turn, as does the issue of the standard of conduct itself, on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented."

A case illustrating the uncertainty which may arise in the application of the new flexible rule is Dym v. Gordon, 262 N.Y.S. 2d 463 in which four members of the court held that on the facts of that case the law of Colorado was to be applied, but three members of the court, dissenting, held that the law of New York should be applied.

I come back to the three suggestions mentioned above for some new rule to displace or modify the orthodox and established English rule based on the Willes formula:

(a) The traditional American rule giving preference to the lex loci delicti has been shown by the opinions and experience of the American courts to have become out of date. With the modern ease and frequency of travel across frontiers (not only by air and not only in the United States) the place of the accident may be quite fortuitous and the law of that place may have no substantial connection with the parties or the issues in the action. It would be strange if the English courts now adopted a rule which the courts of many states of the United States have felt compelled to discard by reason of its unsuitability to modern conditions.

(b) It has been suggested - and there is some support for this suggestion in the Scottish and the Australian cases - that damages should be recoverable for a wrongful act committed out of England only if it is actionable both by the law of England and by the law of the place in which the act was committed. That involves a duplication of causes of action and is likely to place an unfair burden on the plaintiff in some cases. He has the worst of both laws. Also it would in some cases prevent the English court from giving judgment in accordance with its own ideas of justice. Suppose that in the present case there was no pecuniary expense or loss at all. By the law of Malta the plaintiff would have no cause of action in a Maltese court and therefore under the suggested rule his action in the English court would have to be dismissed in spite of his serious injuries and pain and suffering. If I am right in thinking that the question whether damages for pain and suffering are recoverable is a question of substantive law, the suggested rule would bar the plaintiff's claim for such damages even if it was associated with a claim for pecuniary loss.

(c) The new American flexible rule or flexible approach, with its full degree of flexibility, seems - at present at any rate, when the doctrine is of recent origin and further development may be expected - to be lacking in certainty and likely to create or prolong litigation. Nevertheless, it may help the English courts to deal with the danger of "forum-shopping" which is inherent in the English rule.

The English rule, giving a predominant role to the lex fori in accordance with the Willes formula as interpreted in Machado v. Fontes [1897] 2 Q.B. 231, is well established. It has advantages of certainty and ease of application. It enables the English courts to give judgment according to their own ideas of justice. I see no sufficient reason for discarding or modifying this established rule for the normal case in which the action is appropriately brought in the English courts. There is, however, the danger of "forum-shopping," of which the case of Machado v. Fontes may be an illustration. A plaintiff, who would naturally and appropriately be suing the defendant in the courts of some other country, may seek to take advantage of the English rule by suing in the English courts because their law is more favourable to him. In such a case it may be desirable as a matter of public policy for the English courts, for the purpose of discouraging "forum-shopping," to apply the law of the natural forum. That is a possible, and I would think desirable, qualification of the established rule: it would prevent a repetition of what may have happened in Machado v. Fontes. But it is not a necessary part of the decision in the present case, in which it cannot be said that it was inappropriate for the plaintiff to bring his action in the English courts.

In my opinion, it was right for the learned judge at the trial to apply the English substantive law, being the lex fori, in accordance with the established rule, and, as the majority of the Court of Appeal have affirmed his decision, I would dismiss the appeal.

Finally, I wish to add this. There ought to be a general rule so as to limit the flexibility and consequent uncertainty of the choice of the substantive law to be applied. But whatever rule may be adopted as the general rule some exception will be required in the interests of justice. If the general rule is that the substantive law is the law of the forum, an exception will be required in order to discourage "forum-shopping." On the other hand, if the general rule is that the alleged wrongful act must be actionable by the law of the place where it was committed or that it must be actionable both by that law and by the law of the forum, an exception will be required to enable the plaintiff in a case such as the present case to succeed in his claim for adequate damages.

Solicitors: Gascoin & Co.; Roche, Son & Neale for Buss, Cheale & Co., Tunbridge Wells, Kent.

J. A. G.