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Juenger, Friedrich K --- "Tort Choice of Law in a Federal System" [1997] SydLawRw 27; (1997) 19(4) Sydney Law Review 529

Tort Choice of Law in a Federal System

FRIEDRICH K JUENGER[*]

1. Introduction

In Thompson v Hill/Clark v Fowler[1] the New South Wales Court of Appeal dealt with the choice of law implications of two inter-state traffic accidents. According to the statement of agreed facts[2] submitted in Thompson,[3] a New South Wales pedestrian sued a Victorian driver who had injured him in the State of Victoria. The Victorian Transport Accident Act 1986 bars the recovery of common law tort damages[4] unless the Victorian Transport Accident Commission, an agency established by the Act, determines (a) the victims degree of impairment, and (b) that the injury is serious.[5] The plaintiff in Clark had obtained a certificate to this effect from the Commission; the plaintiff in Thompson had not. The issues the parties agreed should be referred to the New South Wales Court of Appeal[6] centred on the question whether the pertinent provisions of the Victorian statute were substantive or procedural for choice of law purposes.

Although differing on details, the Justices agreed that the Victorian statute applied, thus sealing the fate of the plaintiffs who had hoped to recover common law tort damages.[7] Justice Kirby, then President of the New South Wales Court of Appeal, was of the opinion that the full faith and credit clause of Section 118 of the Australian Constitution is pertinent to choice of law. Acknowledging that this proposition has so far found support primarily in High Court dissents,[8] he expressed his hope that Australias highest bench would eventually share his views that, because of constitutional constraints, courts enjoy less freedom to choose the applicable law in interstate situations than in international cases. Justice Kirby condemned the practice of allowing forum-shopping plaintiffs to undermine the jurisdiction of local legislatures and their power[9] and hoped that the High Court will take an early opportunity to reconsider its opinion of Section 118.[10] Precluded by precedent from premising his judgment on the Constitution, and loath to overrule the courts own recent decision in Chisholm v Pasminco Metals- BHAS Pty Ltd,[11] which had held a sister-state limitation provision to be procedural, Justice Kirby nevertheless gave controlling effect to the Victorian Transport Accident Act. In support of his decision he cited Wilson v Nattrass,[12] a Victorian case which, applying the principle laid down in Phillips v Eyre[13] that the forum will grant recovery for a tort committed abroad only if the remedy sought passes muster under both the lex fori and the lex loci delicti, refused to grant common law relief for an out-of-state accident. The Victorian court had reasoned that forum law did not authorise such relief for injuries suffered in South Australia because the Victorian Act had extinguished the right to recover common law damages. The Acts abolition of that remedy being clearly substantive, Justice Kirby argued, the New South Wales Court of Appeal should defer to the construction given by a Full Court of a State to the legislation of its own State Parliament.[14]

Justice Clarke, unlike President Kirby, did not commit himself to the view that Section 118 of the Constitution is relevant to interstate conflicts cases. He did, however, agree that Section 93 of the Victorian Act must be classified as substantive rather than procedural. In his opinion, this provision differed from those of section 79 of the Motor Accidents Act 1988 (NSW), which the High Court, in Stevens v Head,[15] had held to be procedural.[16] Since Stevens could be distinguished on the ground that it dealt with the quantification of damages rather than the existence of a cause of action, he reasoned that it was appropriate to apply the lex loci delicti to bar the plaintiffs tort recovery. Concurring, Justice Cole who did not address the constitutional point as well classified the pertinent provisions of the Victorian Act as substantive, stating that the construction of a Victorian statute by the States highest court should be followed unless it is plainly wrong.[17]

2. Significance

Thompson v Hill, a decision prompted by a hum-drum motor vehicle accident, raises several fundamental issues. The case was decided against the backdrop of three High Court precedents on which the New South Wales Court of Appeal Justices expressed opinions that are difficult to reconcile with the views held by the majority of the highest court. Hence the case indicates that Australian interstate tort choice of law remains unsettled and unstable, and it can be expected that the subject will occupy the upper rung of the judiciary again in the near future. Justice Kirby was elevated, shortly after the decision in Thompson v Hill, to the High Court, so that the views he uttered when he was still President of the New South Wales Court of Appeal may well have an effect on the evolution of the Australian conflict of laws.

Choice of law reform is long overdue in Australia, a country still burdened by Phillips v Eyre, a most unfortunate English precedent. Though that case no longer controls in its home country,[18] Australia has continued to follow it,[19] and the difficulties it causes in practice confirm the observation of an English author that the double actionability rule has proved troublesome in every jurisdiction to which it has migrated.[20] Apart from being unfair, the rule in Phillips v Eyre is unclear.[21] In essence it amounts to an alternative reference rule that privileges tortfeasors at the expense of victims whose claims are assessed by reference to the least favourable of two laws, the lex loci delicti and the lex fori. But how exactly the Australian variant of Phillips v Eyre operates is, to this day, open to doubt.[22] Specifically, it has long been a bone of contention whether the rules reference to the law of the place of injury is a choice of law precept, which determines the law to be applied, or a mere threshold rule that specifies the circumstances in which the forum can adjudicate a claim for recovery for injuries suffered abroad.[23]

Because of its obvious defects, the rule in Phillips v Eyre was legislated out of existence by the United Kingdom Parliament[24] and has come under attack in Australia.[25] At one point the High Court seemed ready to substitute, for the double-barrelled rule, the lex loci delicti principle.[26] That principle, with certain exceptions to render it more flexible, has also been espoused by the Australian Law Reform Commission.[27] But in subsequent cases a majority of High Court Justices gave Phillips v Eyre a new lease on life.[28] Currently, the principal manner of avoiding the harsh results that follow from relegating tort plaintiffs to the least favourable of two laws is the tactic to which the plaintiff resorted in Thompson v Hill. Courts and counsel have been able to remove its foreign-law prong by characterising those aspects of the lex loci delicti that bar or diminish tort recovery as procedural, a familiar conflict of laws ploy to invoke forum law instead of an unpalatable foreign rule of decision.[29] This leaves only the reference to the lex fori, which can be turned to a plaintiffs advantage by shopping for a forum with a favourable law.

3. Classification

In Thompson v Hill plaintiffs counsel could argue that the Victorian statute should not apply because portions of the New South Wales Motor Accidents Act, a similar statute, had been classified as procedural by a majority of High Court Justices in Stevens v Head.[30] To be sure, as Justice Clarke pointed out,[31] the precise issue before the New South Wales Court of Appeal in Thompson v Hill, namely, the accident states elimination of a common law remedy, differed from that posed by the New South Wales statute in Stevens, which in the main dealt with the quantification of damages. Nonetheless, one can readily empathise with then President Kirbys concern about drawing overly fine distinctions between various types of legislation and the difficulty he had in following the Stevens majoritys explanation of why the pertinent provisions of the Motor Accidents Act 1988 (NSW) should be classified as procedural.[32]

Quite surprising, however, is Justice Kirbys refusal to acknowledge that Chisholm, the New South Wales precedent, is distinguishable. That case dealt with sister state limitation rules, whose procedural classification accords with the traditional common law approach.[33] It may well be true that the distinction between extinguishing a right and merely barring a remedy by virtue of the passage of time amounts to an unconvincing exercise in legal sophistry (Ehrenzweig called the entire substance/procedure distinction an analytically meaningless dichotomy).[34] As applied to statutes of limitations, however, that distinction has a venerable history; in fact, in Australia its abolition required legislation.[35] The United States Supreme Court, not long ago, upheld the propriety of classifying limitation periods as procedural against constitutional challenge,[36] allowing the forum state to apply its own (longer) statute of limitations even with respect to causes of action with which it has no contacts. Application of the lex fori can also be justified on grounds of policy: because legal practitioners may be unfamiliar with foreign statutes of limitations and, given the opaque nature of choice of law, it is often unclear what law governs, a rule that mandates their application would be a fertile source of malpractice liability.

Yet more questionable than Justice Kirbys unwillingness to distinguish Chisholm is the courts reliance on the classification of the Victorian statutes provisions by the highest court of Victoria in Wilson v Nattras,[37] a case on which all of the New South Wales Court of Appeal Justices relied. The purpose for which the Victorian court called the domestic statute substantive rather than procedural was to bar a suit well founded under South Australian law. The decision to dishonour a sister state cause of action, however, differs from the decision that the New South Wales court had to make, namely, whether to recognise a sister state defence. In other words, the two courts classified the same statute for entirely different purposes.

Obviously, the classification of a particular rule as substantive or procedural may vary depending on the context in which it is made. Thus in Bournias v Atlantic Maritime Co Ltd[38] an American judge, wrestling with this question said, quoting a conflicts scholar:[39]

The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.[40]

In a similar vein, the majority opinion in McKain[41] quoted the following statement by Frankfurter J:

Matters of substance and matters of procedure are much talked about in the books as though they defined a great divide cutting across the whole domain of law. But, of course, substance and procedure are the same key words to very different problems. Neither substance nor procedure represents the same invariants. Each implies different variables depending upon the particular problem for which it is used. ... And the different problems are only distantly related at best, for the terms are in common use in connection with situations turning on such different considerations as those that are relevant to questions pertaining to ex post facto legislation, the impairment of the obligations of contract, the enforcement of federal rights in the State courts and the multitudinous phases of the conflict of laws.[42]

Hence, what a Victorian court has said about the nature of a local statute in the context of refusing to impose liability well founded under the law of a sister state cannot bind, ipso facto, a New South Wales court confronted with the question whether to enforce that Victorian enactment. From a doctrinal point of view, the forums classification of a foreign rule as substantive or procedural for conflict of laws purposes should not depend on what a foreign court has said about that rule. The forums objective in classifying is to decide whether or not to apply the foreign rule, a decision that, by its very nature, cannot be left to foreign law. This certainly has long been the position of the High Court[43] and other common law courts;[44] a sudden change of the settled principle that the lex fori rather than the lex causae controls classification would call for rather more explicit reasons than the New South Wales Justices have given us in Thompson v Hill.

4. The Constitution and Choice of Law

Even more important than the Courts reliance on a novel approach to classification is Justice Kirbys opinion that Section 118 of the Constitution should control interstate choice of law decisions. Reading the lengthy and disparate judgments rendered in the High Courts trilogy of conflicts cases, Breavington, McKain and Stevens, one cannot but empathise with the concern of state court Justices about the current condition of Australian tort choice of law. The proposed cure, however, seems worse than the disease. If the pertinent case law is indeed as bad as everyone seems to agree it is, one should think that the subject would commend itself to legislative correction. In fact, as already mentioned,[45] a Law Reform Commission proposal would abolish Phillips v Eyres Australian progeny, legislating the double-barrelled rule out of existence as its home country has done.[46] Why, then, should the High Court constitutionalise interstate conflicts law and thereby interfere with potential parliamentary reforms? Section 51xxv of the Constitution specifically authorises the Australian Parliament to legislate on full faith and credit. As Mason CJ argued in Breavington, that very provision makes it impossible to regard s118 as a special command that State laws should be recognised.[47]

Moreover, such High Court intervention would disregard the experience gathered in the full faith and credit clauses home country, which Mason CJ discussed, at some length, in Breavington.[48] The United States Supreme Court used to construe the clause to incorporate traditional choice of law rules, whose disregard would therefore amount to a constitutional violation.[49] The Court, however, changed its mind when it was confronted with conflicts problems that arose in the context of state workers compensation legislation.[50] These enactments did not make room for choice of law because the state boards (industrial commissions) administering them were believed to lack authority to apply any law other than the statute that created them. Thus, the only question was whether application of the lex fori to situations with foreign contacts violated constitutional tenets.[51] In other words, by their very nature, the state workers compensation acts proved to be resistant to the traditional multilateral choice of law rules; they compelled a unilateral approach.

To grant the mobile American labour force maximum recovery for employment-related injuries, the state industrial commissions applied domestic workers compensation acts broadly to interstate situations. When, objecting to this liberal practice, insurance carriers took the matter to the United States Supreme Court, the Court initially attempted to lay down a multilateral rule.[52] But it soon abandoned the idea of a constitutional choice of law. Instead, it established the principle that state workers compensation agencies can constitutionally apply the lex fori whenever the forum, by virtue of its contacts with the parties and the transaction, has an interest in the application of the policy underlying the local workers compensation legislation.[53] Subsequently, the Court also applied the notion of state interests to ordinary tort cases.[54]

The notion that a state is free to apply its own law whenever it has a legitimate interest in vindicating the policies underlying that law has since become the basis for a new unilateral conflicts approach, the so-called governmental interest analysis advocated by Brainerd Currie[55] and his followers, which has become the dominant choice of law doctrine in the United States.[56] The Supreme Court having proclaimed a states rights charter, American state courts soon used the freedom from constitutional constraints to opt for modern approaches in tort choice of law, especially the one propounded by Currie. Thus the clash of felt needs with legal logic resulted in a major upheaval, which in a majority of American states swept aside the traditional multilateral choice of law rules[57]

The American experience teaches that traditional conflicts rules can be a hindrance, rather than a help, in the satisfactory resolution of multistate problems. Specifically, the workers compensation cases posed the question whether uniformity should take precedence over the plight of injured multistate workers. By allowing victims a choice among fora (and thereby the applicable law), the United States Supreme Court encouraged forum shopping. Although that strategy is anathema to those weaned on the classical conflicts doctrine,[59] as a practical matter it had the distinct benefit of improving the legal position of interstate accident victims. Allowing them to select the forum that would grant the most generous award for work-related injuries (none of the American workers compensation acts can be faulted for being overly generous) the Supreme Court, condoning prior state practice, in effect promoted a substantive policy in favour of the fullest possible recovery. This policy proved to be sufficiently cogent to induce the Court even to permit, full faith and credit notwithstanding, a second workers compensation award for the difference of what the injured employee could have recovered in the more generous forum and that which he did recover in the state in which he petitioned first.[60]

In taking a position against constitutionalising Australian interstate choice of law, High Court Justices have called attention to the American experiments with full faith and credit. Thus, in Breavington Mason CJ, after discussing several US Supreme Court cases, concluded:

It is evident from this brief sketch of the authorities that the full faith and credit clause has not hampered the elaboration and application of the principles of private international law in the disposition of interstate conflicts problems in the United States. Indeed, the cases mark a retreat from the provisions of the
Constitution to the more flexible provisions of judge-made law.[61]

Similarly, Justice Dawson, questioning the wisdom of elevating the lex loci delicti to the rank of a constitutional tenet, noted that a rigid approach of that kind has been tried and found so wanting in the United States as to have led to its abandonment there.[62] Although the Canadian Supreme Court toyed with the idea of premising interprovincial choice of law on the constitution, it decided not to take that step.[63] The experience gathered in other common law federal systems ought to induce caution before embarking on the venture of constitutionalising Australian interstate conflicts law.

Yet another reason militates against applying constitutional tenets to the intra- Australian conflict of laws. The wisdom of developing a separate body of constitutional choice of law rules for interstate situations different from those applied in the international setting is open to doubt, given the fact that in other common law federations the same rules are used for both interstate and international conflicts.[64] Moreover, if the High Court were to opt for two sets of rules, it might cause difficulties in the adjudication of lawsuits that have both interstate and international aspects, as, for instance, in the case of injuries caused by a defective product designed abroad but manufactured in Australia. The liability of the foreign party and the local manufacturer could then depend on different laws, which would considerably complicate the adjudication of contribution and indemnity claims.

Dean Prossers much quoted characterisation of the conflict of laws as a dismal swamp[65] (Cardozo called it, more charitably, one of the most baffling subjects of legal science)[66] also suggests that it may not be desirable to saddle Australia with two different choice of law systems, one for domestic and one for international consumption, when judges find it difficult enough to cope with just one. Moreover, it is quite unnecessary to constitutionalise Australian choice of law. As a High Court Justice has pointed out, the Australian federal system differs from that of the United States because while on the one hand there is neither need nor room for the doctrine of Swift v Tyson, on the other hand the basal principle of Erie Railroad Co v Tompkins is contradicted.[67] Because Australia has preserved the idea of an all-pervasive common law, interstate conflicts can arise only when at least one of the competing laws is statutory in nature. In consequence, intra- Australian tort choice of law problems are fairly rare. Since the bulk of tort law is non-statutory, they arise primarily in litigation concerning car accidents and limitation periods. Not only does it seem excessive to train the big guns of constitutional review on such relatively minor problems, the High Court is free to reshape choice of law rules as it sees fit.

5. The lex loci delicti Rule

Quite apart from the problematic nature of the undertaking to constitutionalise choice of law, the rule the New South Wales Court of Appeal proffered for adoption is of questionable soundness. It is, of course, not enough to say that the Constitution mandates the application of sister state law; the High Court would have to say which law is entitled to full faith and credit. In making a choice among possible alternatives it may well be argued that an unadorned lex loci delicti rule is preferable to the two-pronged rule of Phillips v Eyre, which unreasonably favours tortfeasors over their victims. But, as noted earlier,[68] Phillips v Eyre no longer really controls in Australia: resorting to the expedient of calling statutory enactments at the place of accident procedural, courts have managed to clip off its second prong. Thus, in effect, the lex fori controls (ironically, this was the tort choice of law rule advocated by Savigny,[69] the founder of the multilateral doctrine). Indeed, the principal argument in favour of the lex loci delicti is not the hardship Phillips v Eyre inflicts on victims, but rather the forum-shopping opportunities it presents to plaintiffs.[70]

Yet, wherever it has been seriously put to the test, the place-of-wrong rule has been found wanting. This is certainly true in the United States, where the unpalatable results the rule produced provoked the so-called conflicts revolution.[71] Even before the rules wholesale abrogation,[72] American courts evaded its brunt by recourse to various and sundry escape devices. In the typical case, forum tort law clashed with some foreign statutum odiosum that unreasonably barred or curtailed recovery, such as a guest statute,[73] a statutory cap on damages for wrongful death[74] To justify applying the lex fori in a result-selective fashion, judges resorted to a variety of ploys, such as characterising the foreign rule as procedural,[76] classifying a tort cause of action as contractual,[77] invoking the renvoi doctrine[78] or holding that the foreign tort rule violated the forums public policy.[79]

In other countries as well, there is evidence that judges seek to escape the lex loci delicti rules bite by resorting to evasionary tactics. A French author, for instance, has noted that the relative frequency with which the Cour de Cassation used to reverse lower court judgments indicates that trial judges are reticent to apply the lex loci delicti.[80] Especially in litigation between French parties who were involved in foreign accidents, lower courts tended to apply French law by resorting to the same escape devices American judges used to employ, such as classifying tort liability as contractual or foreign limitation statutes as procedural. Others relied on the public policy reservation to avoid restrictions on recovery or short limitation periods. Sometimes French law was applied to foreign accidents simply because the parties failed to invoke the lex loci delicti.[81] In marked contrast to the highest French courts stubborn insistence on a dysfunctional rule, made bearable only because France has since ratified the less rigid Hague Convention on Traffic Accidents,[82] the House of Lords decided to recognise a flexible exception. Drawing inspiration from the Second Restatements most significant relationship[83] formula and from Babcock v Jackson,[84] the New York case that marked the beginning of the conflicts revolution in the American courts, in Boys v Chaplin[85] Lord Hodson and Lord Wilberforce eschewed the traditional escape devices. Instead they applied English tort law as the one having a more significant relationship[86] to assess the damages resulting from an accident of British servicemen in Malta, a jurisdiction that failed to provide recovery for pain and suffering.

A flexible exception of the kind since codified in the United Kingdom,[87] was discussed by several Justices in Breavington. Although such an escape hatch was approved by the Australian Law Reform Commission,[88] which noted that several European nations provide for it,[89] the High Court has not seen fit to make such a concession to material justice. Similarly, the Canadian Supreme Court, in Tolofson v Jensen/Lucas v Gagnon,[90] which overruled the Canadian progeny of Phillips v Eyre, opted for a pure lex loci delicti rule to govern inter-provincial traffic accidents. Brushing aside British and Canadian cases that would allow greater flexibility, Justice La Forest said:

From the general principle that a state has exclusive jurisdiction within its own territories and that other states must under principles of comity respect the exercise of its jurisdiction within its own territory, it seems axiomatic to me that, at least as a general rule, the law to be applied in torts is the law of the place where the activity occurred, ie, the lex loci delicti.[91]

In addition, he cited Breavington, emphasised the need to forestall forum shopping, and referred to the Canadian Constitution, although he was careful to note that his decision did not amount to a constitutional precedent.[92] In a brief concurring opinion, however, Major J distanced himself from laying down an absolute rule admitting of no exceptions.[93]

As these examples show, trial judges, who are close to the parties and the equities of actual cases, tend to be less enamored with a rigid tort choice of law rule than some supreme courts are. American case law and the French experience suggest, and the Canadian experience may ultimately bear this out, that the highest courts insistence on certainty and predictability is bound to clash with the lower courts desire to do justice in particular cases. Heavy-handed insistence on a particular approach, which sacrifices sound results to predictability, can cure the problem only at considerable cost to interstate justice. The reason why the lex loci delicti rule is unsatisfactory in practical application is not difficult to grasp: by relying on a rigid mechanism that is blind to substantive values, it is apt to import substandard foreign law on a large scale. To avoid the harsh results foreign rules that unreasonably bar or diminish tort recovery would produce, counsel are wont to resort to the traditional tools of conflicts lawyers: characterization, renvoi, the distinction between substance and procedure, and the public policy reservation.[94] Presumably, such palliatives which are necessary to assure a minimum of material justice would be improper in Australia should the High Court adopt a hard and fast choice of law rule, especially if it were to hold that the rule has a constitutional basis. This would not, of course, make the tension between predictability and material justice go away. Thompson v Hill demonstrates the unfairness the lex loci delicti rule can produce. In that case a Victorian statute was allowed to curtail the rights of a New South Wales domiciliary, who may have never set foot in Victoria before and was probably surprised to learn that the state had stripped him of the fundamental right to legal recourse for physical injuries he sustained while walking along minding his business. For all we know from the skimpy facts reported, the defendant may also have been from New South Wales. In fact, such a case has already occupied the High Court.[95] Can one assume that the Victorian legislature intended to regulate legal relationships between nonresidents with but a fleeting presence in the state? Should their rights and obligations hinge on Victorian law, one for which they bore no responsibility because they never were entitled to vote for the states legislature? Presumably, the Victorian statute was enacted to reduce the premiums Victorians pay for car insurance. Why can Victoria exact sacrifices from outsiders to benefit its residents? Why, indeed, should the state of Victoria be able to regulate what are, in essence, interstate cases?

Goryl v Greyhound Australia Pty Ltd[96] shows that these rhetorical questions are far from fanciful. To protect its residents against substandard treatment by other states specifically the Transport Accidents Compensation Act 1987 (NSW)97 Queensland added to its Motor Vehicles Insurance Act 1936 provisions allowing Queenslanders injured in other states to be fully compensated pursuant to Queensland law. The High Court held section 20 of the Queensland statute, which provided that non-residents of Queensland are relegated to the maximum amount recoverable under their home-state law, unconstitutional because of its discriminatory bent. Whatever one may think of this decision, especially the High Courts rejection of the argument that Queenslanders pay with their insurance premiums for the benefits recoverable,[98] it does illustrate the problem posed by state legislation (that of Queensland and that of New South Wales) designed to deal with interstate traffic accidents.

6. Doctrinal Implications

Quite apart from its propensity to yield unsatisfactory results, the lex loci delicti rule carries a heavy freight of obsolete dogma. In common law literature, it is considered to be an off-shoot of the vested rights doctrine, which has long been found wanting. The danger that acceptance of the rule would burden the Australian conflict of laws, at this late stage, with an unwelcome doctrinal import cannot be gainsaid. In Tolofson, the Canadian Supreme Court case which opted for the lex loci delicti rule, La Forest J considered it axiomatic[99] that the law of the place of wrong applies in tort cases. But that is true only if one shares the axiom underlying the vested rights theory that causes of action mysteriously vest or arise wherever the last act necessary to complete a tort occurs, and that only territorial, rather than personal, contacts count in the law of conflicts.[100] The High Court rejected this axiom in Koop v Bebb;[101] in Breavington several High Court Justices denounced it.[102] Should the discredited doctrine now be re-introduced into Australian jurisprudence?

Justice Gummow, in a recent article, has attempted to defend, and perhaps to resuscitate, the vested rights theory.[103] With all due respect, that dogma even though it may attract belated admirers in other parts of the globe[104] is beyond redemption. Long before Joseph Beale borrowed it from Dicey (who had borrowed it from Holland, who had borrowed it from Huber),[105] the vested rights theory had been demolished by Waechter and Savigny, who exposed its circular nature:[106] while choice of law rules are supposedly derived from it, to determine where rights vest, it is necessary to say in which legal system they vest, which requires a choice among the potentially applicable laws. At heart, the doctrine amounts to no more than a verbal expression of the instinctive preference for territorial over personal connecting factors and for perpetuating obsolete choice of law rules.

Even if it were possible to sever the lex loci delicti rule from its common law doctrinal foundation, its adoption might cause mischief to Australian conflict of laws principles beyond the field of tort choice of law. Counsel in Breavington pointed out that if Section 118 of the Constitution were read to require application of the lex loci delicti, that provision would change not only the choice of law rules for torts, but also those relating to status, property, negotiable instruments, contracts etc.[107] Even in the absence of constitutional compulsion, the introduction of a rigid rule for torts could inspire the adoption of similar rules, for example, the lex loci contractus, in other fields. The adoption of such outdated precepts would put Australia back many decades, more precisely to 1934, when the American Law Institute embarked on the doomed experiment of adopting the First Conflicts Restatement,108 which unsuccessfully attempted to saddle the United States with dysfunctional rules of this kind.

Finally, adoption of the lex loci delicti rule would seriously hamper Australian conflicts law reform, as it would preclude state courts and legislatures from experimenting with different, more progressive approaches to choice of law. Instead of simply relying on classification as an escape device, state court judges could, for instance, opt for flexible exceptions to the place of wrong principle or for an alternative reference rule that invokes the better or the more favourable law.109 The problem of pre-empting law reform by high-handed insistence on an obsolete dogma has already surfaced in Canada: in deciding Tolofson, the case that gave authoritative status to the lex loci delicti rule, La Forest J was troubled by the question of whether the common domicile rule laid down in article 312b(2) of the New Quebec Civil Code could survive the Supreme Courts law reform.[110]

7. Alternative Approaches

As is apparent, practically and doctrinally the lex loci delicti rule leaves much to be desired. Constitutionalising it would incorporate its deficiencies into Australias basic law. As noted earlier, such a drastic expedient is quite unnecessary because the High Court is free to adopt any choice of law rule it wishes. If it should be high time to do away with the double-actionability rule, the Court need not, at the same time, elevate the lex loci delicti and the obsolete dogma it represents to the rank of a constitutional principle, thereby inhibiting state and federal statutory improvements of Australian choice of law. But even without constitutionalising it, the adoption of that rule would bestow unwarranted prominence on a discredited conflicts methodology that elevates uniformity, an objective it has so far been unable to accomplish, over substantial justice, a value it deliberately disregards. At the same time, the High Court would sever interstate from international choice of law and preclude state courts, at least in interstate cases, from employing the escape devices that are necessary to achieve a modicum of justice under the traditional multilateral choice of law system.

The question remains, however, what rules the High Court ought to consider once it decides to overrule the Australian progeny of Phillips v Eyre. Comparative research shows that, in tort choice of law, legislative and judicial practice, as well as international conventions, reveal a distinct favor laesi.[111] Not only the United Kingdom and the United States, but other nations as well have warded off foreign statuta odiosa by using the familiar escape devices of characterisation and public policy, by substituting flexible connecting factors such as the closest connection for the rigid place of injury rule, and by adopting alternative reference rules. Before embarking on a course that inevitably produces unfair decisions, the Court would do well to ponder the experience gathered abroad.

To reiterate, the need for avoiding, in some way or other, the application of foreign law results from the prevalence of substandard tort rules that unreasonably bar or curtail recovery for traffic accidents and other mishaps. These either represent a lack of progress, as does, for instance, the former interspousal immunity and the rule that contributory negligence completely bars recovery, or deliberate tort law reform that is designed to keep insurance premiums low by allocating costs resulting from injuries to victims rather than tortfeasors. A peculiar problem is presented by limitation periods that, in interstate and international cases, are often allowed to run because counsel, who calendar their cases with a view to local statutes, are frequently unaware of what law applies and what its limitation periods are. These realities have shaped the High Courts case law. Breavington, as well as its companion case, Perret v Robinson,[112] dealt with the Northern Territories Motor Accidents (Compensation) Act 1979, which abolished common law damages for loss of earnings and earning capacity; in McKain the limitation period of the locus delicti had run; at issue in Stevens was the Motor Accidents Act 1988 (NSW), which curtailed recovery for non-economic loss.

Thompson v Hill is thus but one more in a series of cases in which plaintiffs sought to escape the brunt of a noxious foreign rule by adroit forum shopping. The same is true of the New South Wales Court of Appeals earlier decision in Chisholm, which dealt with the Limitations Act 1936 of South Australia, an obsolete piece of legislation that failed to provide for a discovery rule. The justification for such statuta odiosa is that to deprive tort victims of common law rights by caps on recovery, the elimination of certain categories of damages or short limitation periods (which may run before the victim is even aware of his claim) makes car insurance premiums affordable.[113] Whatever one may think of a statutory reverse Robin Hood policy that takes from the victims and rewards those responsible for mayhem on the roads, such schemes are justifiable only if potential victims receive some quid pro quo from them. Thus, it has been said that the Motor Accidents Act 1988 (NSW) (which exemplifies such legislative munificence) represented

a considered balance between the interests of motor accident victims, insurance companies and the premium-paying public . . . hammered out through democratic processes in the state legislature.[114]

However plausible this justification for the abolition of common law rights may seem to residents and policy-holders from New South Wales, New Zealanders and Queenslanders (not to mention helpless tourists from more distant shores) are bound to ask why they should pay for promises New South Wales solons made to their constituents for the purpose of winning a New South Wales election. In fact, as Goryl showed, the matter sufficiently preoccupied the legislature of a sister state to adopt legislation designed to protect its residents against the perceived unfairness of the New South Wales encroachment on the common law principle of full recovery. Generosity at the expense of outsiders, it seems, does not command universal praise. Nor do counsel deserve the deprecatory epithet forum shopping for their efforts to protect clients from such statutory monstrosities.

All this is not exactly new; since the Middle Ages conflicts scholars have pondered the phenomenon of odious statutes.[115] Legislation burdening nonresidents presents an open invitation to evasion, and a fair-minded court may well be disinclined to take a censorious attitude when it observes the forum shoppers evasive manoeuvres. In fact, much of our conflict of laws learning owes its existence to their far from nefarious activities. Apart from such private initiatives, courts and legislative drafters have had to deal with the problem of substandard foreign law. While the preferred Australian device to cope with foreign statuta odiosa has been to characterise them as procedural, the Australian Law Reform Commission like the House of Lords and, subsequently, the British Parliament opted for a flexible exception. A more straight-forward solution of the problem posed by statuta odiosa is the adoption of an alternative reference rule that either invokes the law most favourable to the victim or the qualitatively superior of the rules of decision that vie for application.[116]

Rules of this nature have been used in a variety of contexts. Some of them seek to uphold the validity of contracts, marriages and wills, others to protect tort victims. Nor are such precepts unknown here. Australia has ratified several Hague Conventions containing alternative reference rules, including the Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions, which contains an exceedingly broad array of connecting factors to protect wills against invalidity.[117] In fact, Phillips v Eyre laid down an alternative reference rule, albeit one that perversely favours tortfeasors. Justice Gummow has opined that such a rule is not only constitutionally unobjectionable, but would also alleviate the perceived evil of forum shopping.[118] By parity of reasoning, the same ought to be true of an alternative reference rule that favours the victim.

It would spell progress if Australian courts or legislatures were to adopt an alternative reference rule for tort choice of law instead of relying on traditional escape devices or the exercise of judicial discretion conferred by such flabby connecting factors as the closest connection. A reform along these lines certainly commends itself for international conflicts. The ever-increasing mobility of people and transactions is bound to bring to Australia, on the one hand, highly questionable and, on the other, more advanced foreign tort rules. With respect to intra-Australian conflicts, an alternative reference rule could achieve the twin goals of fairness and uniformity. Such a rule could counteract the application of legislative schemes that seek to reduce insurance premiums by the questionable expedient of depriving unsuspecting visitors of their common law rights. In this fashion, the stereotypical problem posed by the Australian tort conflicts cases would find a satisfactory resolution without the need for resorting to gimmickry and forum shopping. At the same time, an alternative reference rule would promote uniformity: wherever the consequences of a car accident should be litigated, the result would be the same. The rule would thus alleviate the concerns of judges and legal writers about the lack of decisional harmony in interstate cases, concerns held so strongly that they have prompted several High Court Justices to invoke constitutional tenets as a cure.[119] Domestic forum shopping would become largely unnecessary once the statuta odiosa that inspired this practice are defanged in this manner. Accordingly, there exists a fair and workable solution to the problem of interstate tort conflicts.

One may, however, question whether conflict of laws approaches offer the most appropriate cure for the perceived ills of intra-Australian accident litigation. Given the nations integrated economy and ... mobile population,[120] the common law rules of private international law provide a less than ideal means of resolving conflicts problems within Australia.[121] Indeed, recourse to the conflict of laws seems superfluous. In Australia, much of the field of private law has already been federalised.[122] In tort cases, statute of limitations issues are now governed by a uniform statute, the Choice of Law (Limitation Periods) Act. Given the fact that most counsel have intimate familiarity only with the forums limitations periods, this may not be a wise piece of legislation. It does, however, protect interstate accident victims up to a point by giving them a malpractice cause of action if a solicitor or barrister can be blamed for having failed to act in a timely fashion.[123] Thus, only a small residual number of issues remains. With respect to those, instead of revamping the Australian approach to choice of law, the High Court could address the root cause of conflicts: state legislation that complicates the resolution of interstate accidents. The problem such cases pose would be resolved if in interstate litigation normal tort rules, rather than state statutes, were to control.

The common law could apply to all tort cases in which either the parties are domiciled in different states, or in which parties who have a common domicile are involved in an out-of-state tort. It would make eminent sense to let interstate torts be governed by a uniform substantive law. By definition, in such cases states lack full legislative jurisdiction over all of the parties as well as the territory in which the tort occurs. Moreover, such marginal cases would not seriously upset the balance state legislatures may attempt to strike between the just compensation of tort victims and the level of insurance premiums potential tortfeasors are required to pay. The solution here proposed would allow courts to stay out of the dismal swamp[124] of conflicts law; at the same time it would make for far greater certainty, predictability and uniformity than any choice of law approach could possibly achieve. It would, finally, put the problem of interstate torts where it belongs, namely in the realm of federal rather than state competence. Of course, the feasibility of this solution ought to be more properly discussed by Australian constitutionalists rather than American conflicts teachers.



[*] Edward L Barrett, Jr, Professor of Law, University of California at Davis.
[1] (1995) 38 NSWLR 714.
[2] The cases were removed into the Court of Appeal pursuant to Supreme Court Rules 1970 (NSW) Pt 12, r2.
[3] According to the parties submission, it was common ground that most of the relevant facts in Clark v Fowler were identical. Above n1 at 719. The report fails to indicate the basis on which the trial court asserted jurisdiction.
[4] Transport Accident Act 1986 (Vic), s93(1).
[5] Id s93(2).
[6] As set forth in the report of the case, the issues were formulated as follows: (1) Is s93 of the Transport Accident Act 1986 (Vic) (hereinafter called the Act) substantive or procedural?; (2) Alternatively, are some of the provisions of s93 of the Act substantive, that is s93(1), (2), (3), (4), (7)(c), (10)?; (3) In respect of s93(2), as amended by s40 of the Transport Accident (General Amendment) Act 1994 (Vic): (a) Does it have the effect of making s93 the substantive law of Victoria? (b) If so, does it have that effect in the context of the choice of law rules applicable in New South Wales? (c) If the answers to (a) and (b) are in the affirmative, does it have retrospective effect in New South Wales? (4) Are the substantive rights of the parties governed by the law of the forum or alternatively the law of the place where the accident occurred, given that the proceedings are for the recovery of damages in respect of damage suffered by the plaintiff in New South Wales caused by a tort committed in Victoria? Above n1 at 733.
[7] The parties had agreed that the decision in Thompson would also determine the Clark case. The Court of Appeal only addressed the facts in Thompson.
[8] See Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 at 461 (Deane J), 464-67 (Gaudron J); McKain v R W Miller and Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 at 55 (Gaudron J); see also Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 at 93-100 (Wilson and Gaudron JJ concurring), 129-37 (Deane J concurring); Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 at 47-67 (Deane and Gaudron JJ concurring). In an article he published in an American journal, another High Court Justice also endorsed constitutional constraints on choice of law. See Gummow, W M C, Full Faith and Credit in Three Federations (1995) 46 SC LR 979.
[9] Above n1 at 717.
[10] Id at 718.
[11] Court of Appeal, 24 July 1995, unreported.
[12] (1995) 21 MVR 41.
[13] (1870) LR 6 QB 1.
[14] Above n1 at 731.
[15] Above n8.
[16] Section 79 of the Motor Accidents Act 1988 (NSW), which was construed by the High Court in Stevens v Head [1993] HCA 19; (1993) 176 CLR 433, is concerned with the awarding of damages for noneconomic loss where the injury was suffered in a motor accident occurring before midnight on 26 September 1995. Section 79A of the Act applies to the awarding of damages for noneconomic loss where the injury was suffered in a motor accident occurring after midnight on that date. The accidents in the two cases under review occurred before midnight on 26 September 1995.
[17] Above n1 at 744.
[18] See Private International Law (Miscellaneous Provisions) Act 1995, ss11, 12; see generally Morse, C G J, Torts in Private International Law: A New Statutory Framework, (1996) 45 ICLQ 888.
[19] See Stevens v Head, above n8; McKain v R W Miller & Co (South Australia) Pty Ltd, above n8.
[20] Morse, C G J, above n18 at 902, n106.
[21] See North, P M, and Fawcett, J J, Cheshire and Norths Private International Law (12th edn, 1992) at 538-46; Nygh, P E, Conflict of Laws in Australia (6th edn, 1995) at 342-44.
[22] See McKain, above n8 at 39.
[23] See Nygh, above n21 at 342-43.For recent cases dealing with this point see Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95 and Samulski v Swinborn (1996) Aust Torts Reports 813-89.
[24] See above n18.
[25] See Nygh, above n21 at 345-47.
[26] See Breavington, above n8.
[27] See ALRC Report No. 58, Choice of Law, pars 6.14, 6.27.
[28] See McKain, above n8 at 39; Stevens, above
[29] See eg, Leflar, R A, et al, American Conflicts Law (4th edn, 1986) at 260-61; Juenger, F K, Choice of Law and Multistate Justice (1993) at 73-74.
[30] Above n8 at 456-60.
[31] Above n1 at 739-40.
[32] Above n1 at 730.
[33] See Nygh, above n20 at 250.
[34] Ehrenzweig, A E, A Treatise on the Conflict of Laws (1962) at 331.
[35] See Choice of Law (Limitation Periods Act) 1993 (NSW) s5 and equivalent legislation in other states and territories.
[36] See Sun Oil Co v Wortman [1988] USSC 119; (1988) 486 US 717.
[37] (1994) 19 MVR 23.
[38] (2d Cir [1955] USCA2 92; 1955) 220 F2d 152.
[39] Cook, W W, Substance and Procedure in the Conflict of Laws (1933) 42 Yale LJ 333 at 337.
[40] Above n38 at 156.
[41] Above n8 at 40.
[42] Guaranty Trust Co v York [1945] USSC 134; (1945) 326 US 99 at 108.
[43] See Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 225 (Brennan J).
[44] See Nygh, above n21 at 224-26.
[45] Above n27.
[46] See above n18 and accompanying text.
[47] Breavington, above n8 at 79.
[48] Id at 81-82. See also Gummow, above n8 at 979-87, 1015-23.
[49] See John Hancock Life Ins Co v Yates, [1936] USSC 139; 299 US 178 (1936); see also New York Life Ins Co v Dodge[1918] USSC 75; , 246 US 357 (1918) (due process clause); cf Slater v Mexican Natl RR, [1904] USSC 100; 194 US 120 (1904).
[50] See Carrol v Lanza [1955] USSC 61; (1955) 349 US 408; Pacific Employers Ins Co v Industrial Accident Commn [1939] USSC 62; (1939) 306 US 493; Alaska Packers Assn v Industrial Accident Commn [1935] USSC 61; (1935) 294 US 532.
[51] See Juenger, above n29 at 93-94.
[52] See Bradford Electric Co v Clapper [1932] USSC 91; (1932) 286 US 145.
[53] See cases cited, above n50.
[54] See eg Allstate Ins Co v Hague [1981] USSC 37; (1981) 449 US 302; Nevada v Hall [1979] USSC 61; (1979) 440 US 410. Concerning the application of forum statutes of limitations see Sun Oil Co v Wortman, above n36.
[55] Currie, B, Selected Essays on the Conflict of Laws (1963); Gummow, above n8 at 1018-21.
[56] See generally Juenger, F K, above n29 at 981-03, 131-39.
[57] See id at 106-20; Juenger, F K, Whats Wrong with Forum Shopping (1994) 16 Syd LR, 7 9. For the latest American methodological map showing each states approach to tort choice of law see Symeonides, S, Choice of Law in American Courts in 1995: A Year in Review (1996) 44 Am J Comp L 181 at 195. See also the graphs and discussion id at 195-203.
[58] Restatement of Conflict of Laws (1934). Concerning the First Restatement see Juenger, F K, above n29 at 89-91.
[59] Concerning this practice compare Juenger, F K, Whats Wrong with Forum Shopping? (1994) 16 Syd LR with Opeskin, B, The Price of Forum Shopping: A Reply to Professor Juenger id at 14.
[60] See Thomas v Washington Gas Light Co [1980] USSC 141; (1980) 448 US 261.
[61] Breavington, above n8 at 82.
[62] Id at 151.
[63] See Jensen v Tolofson/Gagnon v Lucas (1995) 120 DLR (4th) 289.
[64] See eg, Castel, J-G, Canadian Conflict of Laws (3rd edn 1995 Supp.) 13; Tetley, W, New Developments in Private International Law: Tolofson v Jensen and Gagnon v Lucas (1996) 44 Am J Comp L 647, 651; Restatement (Second) of Conflict of Laws 10 (1971).
[65] Prosser, W, Interstate Publication (1953) 51 Mich L Rev 959, 971 at 971.
[66] Cardozo, B, The Paradoxes of Legal Science 67 (1928) at 202.
[67] Gummow J, above n8 at 990, quoting Dixon, O, Sources of Legal Authority in Jesting Pilate 198 at 202 (1965).
[68] See above at 6.
[69] See von Savigny, F C, System des Heutigen Römischen Rechts Vol 8 (1849) 278.
[70] See eg, Stevens, above n8 at 442, 452 (Mason CJ); Thompson v Hill, above n1 at 717 (Kirby, P) at 742 (Clarke, J); see also Juenger, above n59 at 1.
[71] See Juenger, above n29 at 146-8.
[72] See above nn55-58 and accompanying text; Juenger, above n57 at 8.
[73] See eg Clark v Clark (NH 1966) 222 A2d 205; Babcock v Jackson (NY 1963) 191 NE2d 279.
[74] See eg Reich v Purcell (Cal 1967) 432 P.2D 2d 727; Kilberg v Northeast Airlines, Inc (1961) 172 NE2d 526.
[75] See eg Balts v Balts (Minn 1966) 142 NW2d 66 (interspousal tort immunity); Wallis v Mrs. Smiths Pie Co (Ark 1977) 550 SW2d 453 (contributory versus comparative negligence).
[76] See eg Grant v McAuliffe (Cal 1953) 264 P2d 944 (foreign rule extinguishing cause of action upon tortfeasors death); Kilberg v Northeast Airlines, Inc, above n72 at 529 (foreign monetary limitation on wrongful death recovery).
[77] See eg Levy v Daniels U-Drive Auto Renting Co (Con 1928) 143 A 163; Dyke v Erie Ry (1871) 45 NY 113.
[78] See Haumschild v Continental Cas Co (Wis 1959) 95 NW2d 814, 821 (concurring opinion).
[79] See Kilberg, above n74 at 528 (alternative holding).
[80] Audit, B, Droit International Privé (1991) 614.
[81] Id at 614-15.
[82] See id at 615.
[83] Restatement (Second) of Conflict of Laws s145(1) (1971).
[84] (1963) 191 N.E.2d 279.
[85] [1971] AC 356. See also Red Sea Ins Co Ltd v Bouygues SA [1995] 1 AC 190 (PC).
[86] Id at 377-80, 390-92.
[87] See Private International Law (Miscellaneous Provisions) Act s12 (application of the substantially more appropriate law).
[88] See ALRC Report, above n27 pars 6.24-25.
[89] See id n44.
[90] Above n63.
[91] Id at 306.
[92] Id at 316-17.
[93] Id at 326.
[94] Gummow, above n8 at 1001. Regarding recourse to the classical multilateral conflicts systems general part to manipulate results see Juenger, above n29 at 73-82, 173-77.
[95] See Nalpantidis v Stark, Application for Special Leave, Transcript of Oral Argument, 14 August 1996 (unreported).
[96] Above n8.
[97] See id at 473 (Brennan J). As Dawson and Toohey JJ point out, the 1988 amendment to the Queensland Motor Vehicles Insurance Act seems to have been influenced by the Courts decision in Breavington, which embraced the lex loci delicti rule. See id at 483-84.
[98] See id at 468-70 (counsel for defendants), 470 (Attorney-General for Queensland).
[99] Above n63 at 305.
[100] On that doctrine, see Juenger, above n29 at 90-1; Nygh, above n21 at 21-22.
[101] (1951) 84 CLR 629, at 643-44.
[102] See above n8 at 72, 74 (Mason CJ), 90 (Wilson and Gaudron JJ), 144 (Dawson J), 160 (Toohey J); see also McKain, above n8 at 39 (Brennan, Dawson, Toohey, McHugh JJ).
[103] Above n8 at 1014-15. Gummow J seems to assume that the only methodological choice available is between the vested rights doctrine and Curries interest analysis. See id at 1018 23. If the prospects were indeed as bleak, one might well empathise with his preference. Concerning the defects of interest analysis, see Juenger, above n29 at 98-103, 131-39.
[104] For a seemingly favourable American view, see Dane, P, Vested Rights, Vestedness, and Choice of Law (1987) 96 Yale LJ 1191. While the author talks about vestedness, his is essentially a defense of multilateralism. His article has remained without resonance, but territorialist views similar to those of Beale have been expressed by Laycock, D, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law (1992) 92 Colum LR 249. This article as well has had no noticeable influence on the development of American conflicts doctrine.
[105] See Juenger, above n29 at 90.
[106] See id at 200, 274-75. A Canadian scholar, commentating on his Supreme Courts resuscitation of the doctrine in Tolofson remarked that a judgment written in 1994 that adopts so unequivocally the vested rights theory of conflicts is so unexpected that it is as if one encountered a practicing alchemist. Swan, J, Federalism and the Conflict of Laws: The Curious Position of the Supreme Court of Canada (1995) SC LR 923 at 948; see also Castel, JG, above n64 at 14.
[107] Above n8 at 60. See Tetley, above n64 at 658.
[108] Restatement of Conflict of Laws (1934).
[109] Concerning such approaches, see Juenger, above n29 at 195-98.
[110] See above n63 at 324; Tetley, above n64 at 666-67.
[111] See Juenger, above n29 at 176-81, 189, 202, 234.
[112] (1988) 168 CLR 172.
[113] Opeskin, above n59 at 23.
[114] Ibid.
[115] See Juenger, above n29 at 15.
[116] See id at 178, 183-84, 195-99.
[117] See id at 188, 196; Juenger, F K, Forum Shopping: A Rejoinder [1994] SydLawRw 3; (1994) 16 Syd LR 28.
[118] Gummow J, above n8 at 988-89.
[119] See above nn8-10 and accompanying text; see also Opeskin, above n59 at 16-17, 18, 27.
[120] Gummow J, above n8 at 1005.
[121] Breavington, above n8 at 70 (Mason CJ).
[122] See Nygh, above n21 at 8; Opeskin, above n59 at 20.
[123] See Juenger, above n118 at 31 n13.
[124] See above n65 and accompanying text.


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