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Harding V. Wealand Notes

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This is an extract of our Harding V. Wealand document, which we sell as part of our Conflict of Laws BCL Notes collection written by the top tier of Oxford students.

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HARDING V. WEALAND FACTS The accident happened on 3 February 2002 on a dirt track near Huskisson in New South Wales, when the defendant Ms Wealands lost control of the vehicle she was driving and it turned over. Negligence is admitted. The claimant Mr Harding, who was a passenger, was severely injured and is now tetraplegic. Mr Harding is English and Ms Wealands Australian. They had formed a relationship when Mr Harding visited Australia in March 2001 and in consequence Ms Wealands had come to England in June 2001 to live with Mr Harding. At the time of the accident they had gone together to Australia for a holiday and a visit to Ms Wealands's parents. The vehicle belonged to Ms Wealands and she was insured with an Australian insurance company. After the accident, Mr Harding and Ms Wealands returned to England. Australian legislation on quantification of damages: Chapter 5 of the Motor Accidents Compensation Act 1999 ("MACA"), which was in force at the time of the accident. Section 123 provides that "a court cannot award damages to a person in respect of a motor accident contrary to this Chapter". QUESTION Whether damages for personal injury caused by negligent driving in New South Wales should be calculated according to the applicable law selected in accordance with Part III of the Private International Law (Miscellaneous Provisions) Act 1995 ("Part III") or whether it is a question of procedure which falls to be determined in accordance with English law. HOLDING LORD HOFFMANN Common law distinction between substance and procedure In applying this distinction to actions in tort, the courts have distinguished between the kind of damage which constitutes an actionable injury and the assessment of compensation (ie damages) for the injury which has been held to be actionable. The identification of actionable damage is an integral part of the rules which determine liability. As I have previously had occasion to say, it makes no sense simply to say that someone is liable in tort. He must be liable for something and the rules which determine what he is liable for are inseparable from the rules which determine the conduct which gives rise to liability. Thus the rules which exclude damage from the scope of liability on the grounds that it does not fall within the ambit of the liability rule or does not have the prescribed causal connection with the wrongful act, or

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