Lloyd's Maritime and Commercial Law Quarterly
COMMERCIAL TORTS CHOICE OF LAW PROVISIONS
Alan Reed*
The choice of law rules are those by which English courts decide what system of law shall apply in a case having a foreign element. The choice of law process in the field of tort has been said to raise, “one of the most vexed questions in the conflict of laws”.1
This is especially true in the commercial field, where the place of a tort may be either hard to locate or a matter of chance. The traditional basis for discussion of such rules is still based around the paradigmatic scenario of the motoring accident and even the Law Commissions in their recent Report on this subject took this common situation as their basis.2
It was indeed a motor accident that was in issue before the High Court of Australia in the important recent case of Stevens v. Head.3
Yet, even such a relatively straightforward tort has caused substantive uncertainty and confusion in approach throughout courts in Australia, England and the United States. Fundamentally, these problems are even more manifest in the commercial area, as this article will demonstrate.
1. A unitary choice of law rule on the foundations of motoring accidents
In Stevens a New Zealand woman was injured when she was struck by a motor vehicle on a pedestrian crossing in New South Wales (the locus delicti). She obtained judgment in Queensland; the trial judge had assessed her damages according to the lex fori and not the lex loci delicti. But it was held on appeal that the Queensland court should have applied the law of New South Wales, specifically the (N.S.W.) Motor Accidents Act 1988, s.79, which, inter alia, states that no damages shall be awarded for non-economic loss (pain and suffering/loss of amenity) unless the person’s ability to lead a normal life is significantly impaired by the injuries suffered in the accident, and restricts the maximum amount to be awarded for non-economic loss to $180,000.
The High Court of Australia was thus faced with the issue of determining the choice of law rule applicable to torts committed within Australia. In Breavington v. Godleman
4 a majority of the court had rejected the notion that the different states
* Lecturer in Law, University of Leeds. I would like to thank Adrian Briggs for his advice and encouragement in the preparation of this article.
1. Boys v. Chaplin [1968] 2 Q.B.1, per Lord Denning, M.R. It presupposes there is a choice of law rule for all torts.
2. Private International Law: Choice of Law in Tort and Delict (1990), Law Com. No. 193, Scot. Law Com. No. 129.
3. (1993) 112 A.L.R. 7.
4. (1988) 169 C.L.R. 41 (H.C.A.); see Briggs (1989) 105 L.Q.R. 359.
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