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BOYS V. CHAPLIN FACTS David Boys is a young Englishman whose home is at Surbiton. When he was 16 he joined up in the Royal Air Force on a 12 years' engagement. On October 6, 1963, when he was 22, he was stationed in Malta on his duties as a technician in the Royal Air Force. His friend, Charles Ducat, who was also stationed in Malta, gave him a ride on the pillion of his motor-cycle. They were run into by a motor car driven by Richard Chaplin. He was serving in the Royal Naval Air Squadron and was also stationed in Malta at the time. David Boys was badly injured. He had a fractured skull and was unconscious for three days. The right side of his face was crushed. He was taken to the Royal Naval Hospital in Malta. He was there for about six weeks. Then he was brought back to England on September 19, 1963, and taken to the Royal Air Force Hospital at Wroughton in Wiltshire. He was there for over six months, until April 7, 1964. Then he was an out-patient for two months. Eventually on June 5, 1964, owing to his injuries, he was discharged from the Royal Air Force. He is wholly and permanently deaf in one ear and his sense of balance has been substantially impaired. The right side of his face is partially paralysed and he suffers much from headaches. Nevertheless, he is able to do good work. Soon after his discharge he found employment as an electronics engineer at a good wage: and it is unlikely that he will suffer any loss of earnings in the future on account of this accident. So the only question is: What damages should be awarded?
Now the question arises: What is the law to be applied in the assessment of damages? According to the law of England, David Boys should be compensated, not only for his expenses and money loss, but also for his pain and suffering and loss of amenities of life. The figure would be PS2,303. But, according to the law of Malta (as found by the judge), David Boys should only receive his expenses and his money loss, and nothing whatever for his pain and suffering and loss of amenities. The figure would be
PS53. QUESTION When a wrong is committed abroad, and the injured party seeks redress in England, what is the law to be applied?
HOLDING LORD DENNING Proper Law of Tort - the Concept
I am of opinion that we should apply the proper law of the tort, that is, the law of the country with which the parties and the act done have the most significant connection and once we have decided which is the correct law to apply, I think that law should be applied, not only to ascertaining whether there is a cause of action, but also to ascertaining the heads of damage that are recoverable and also the measure of damages: for these are matters of substantive law. They are quite distinct from the mere quantification of damages, which is a matter of procedure for the lex fori. Philip v. Eyre: "the civil liability arising out of a wrong derives its birth from the law of the place, and its character" (i.e., whether it is valid or not) "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." "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." Once those two conditions are fulfilled, the English courts determine the actionability of the wrong according to the law of England, and determine also the heads of damages and the measure of them by English law. Machado v. Fontes: concerning a libel committed in Brazil - The first condition was fulfilled because the libel was of such a character that it would have been actionable if committed in England. The second condition was fulfilled because it was not justified by the law of Brazil, seeing that it was not an innocent act there but might be made the subject of criminal proceedings. Machado v. Fontes was wrongly decided I think the court was in error in applying the two conditions so literally. They treated them as if they were contained in a statute. But if there was ever to be a case where an exception should be made to the "general rule", it was Machado v. Fontes. Those two gentlemen were, I suppose, Brazilian citizens. Their names suggest it. The libel was in Brazil: and I suppose in Portuguese. It was an entirely Brazilian affair. If the plaintiff could not recover damages in Brazil, he ought not to be allowed to recover damages in England. It was a mere accident that Fontes happened to come here and thus be served with a writ here. Suppose that Fontes had not come to England but had gone to Portugal, to France, or anywhere else. Can it really be supposed that Machado could follow Fontes all over the world and choose the
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