Boys V. Chaplin Hl Notes

Boys v. Chaplin (HL)

Lord Wilberforce

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.

Actionable if committed in England – Choice of Law Rule

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…

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.

Overruling Machado v. Fontes

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.

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.

“Double actionability” has to be satisfied even as regards heads of damages

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.

Flexible exception

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.

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.

Applying the flexible exception to facts

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...

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