conflict of laws. tort. still a "troubled area"

Editorial Committee of the Cambridge Law Journal

Conflict of Laws. Tort. Still a "Troubled Area"Author(s): David PearlSource: The Cambridge Law Journal, Vol. 27, No. 2 (Nov., 1969), pp. 201-204Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505316 .

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202 The Cambridge Law Journal [1969]

justifiable by the law of the place where it was done "

(pp. 28, 29). Lord Pearson (p. 351) and Lord Donovan (p. 335) read the word "

justifiable "

in the second arm of Willes J.'s rule as implying that

the act ought not to be excused or innocent by the lex loci. They therefore accept the much criticised case of Machado v. Fontes as

falling within the Phillips v. Eyre formula. If the act is innocent in, or otherwise excused by, the lex loci, then the plaintiff will fail. If

the contrary is the case, then the plaintiff will succeed under the law of the lex fori if such success is warranted by that law. This will be

the result notwithstanding the fact that the plaintiff would have had

no civil claim allowable by the lex loci (Machado v. Fontes) or had

no claim under a particular head of damages such as pain and

suffering (as in this case itself). In the view of Lord Pearson and

Lord Donovan, the first of Willes J.'s conditions grants the predomi- nant role to the substantive law of the lex fori. This view had been

accepted by Milmo J. at first instance, and by Lord Upjohn in the

Court of Appeal. In contrast, Lord Guest, on this aspect of the case

" accepts the

position that to justify an action in England for a tort committed

abroad, the conduct must be actionable by English law and by the laws of the country in which the conduct occurred" (p. 334).

Although Lord Guest does not explicitly state his views on Machado

v. Fontes, such an interpretation of the Phillips v. Eyre formula

implies that Machado v. Fontes has been overmled. Lord Guest,

therefore, moves towards the stand taken by Diplock LJ. in the Court of Appeal.

Both Lord Hodson and Lord Wilberforce reject the "

not wrong- ful" interpretation of

" justifiable

" provided by Machado v. Fontes.

They do not go, however, as far as Lord Guest or Diplock LJ. in the advancement of the lex loci. Lord Wilberforce, with whom Lord Hodson agrees, restates the Phillips v. Eyre rule to require

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 (p. 341).

The head of damages for pain and suffering is classified by all the

members of the House of Lords with the exception of Lord Guest

as a separate jus actionis. An application of the inflexible Phillips v.

Eyre formula to the facts of this case, therefore, would have forced

Lord Hodson and Lord Wilberforce to apply the more restrictive rules

for damages under Maltese law. The formula, if applied in all its

strictness, is to be understood according to Lord Wilberforce, Lord

Hodson, and Lord Guest as a rule of the highest denominator which



204 The Cambridge Imw Journal [1969]

the litigation, the ends of justice are likely to be achieved . . .

(at p, 332).

If both of the parties, or even if the defendant alone, be resident in

Malta, then Lord Hodson would apply the general rule. Lord Pearson

sees the legal rules in a different pattera but, nevertheless, he would

be prepared to apply the rule of the natural forum in a case where

forum shopping was blatant. Lord Guest and Lord Donovan are

less flexible than their colleagues and, together with Lord Upjohn and Diplock LJ. from the Court of Appeal, they refuse to accept a

malleable Phillips v. Eyre rule.

The present writer welcomes the flexible approach adopted by the

majority. He has reservations, however, over the advisability of the

choice of the lex fori in this case. Connecting factors such as nation-

ality, domicile or residence produce uncertainty when applied in the

context of tort claims. We have reverted to the fine old days of the

Barbarians when Bishop Agobardus could say that it often happened that five men each with a different law may be found walking or sitting

together. (See Savigny, History of Roman Law in the Middle Ages, Cathcart's translation, Vol. 1. c. 3, pp. 99-104; Story, Conflict of Imws, 8th ed. (Boston 1883), p. 3, footnote 3 at p. 4.) As a result of the

House of Lords decision in Boys v. Chaplin9 an English traveller

abroad has to take into account not only the laws of the road, but also

the laws of the domicile and the nationality of every person with whom

he may possibly be in collidon. The writer confidently expects a

spate of litigation on this subject in order to work out the answers to

the innumerable possibilities opened up by the House of Lords

decision.

David Pearl.



conflict of laws. tort. still a "troubled area"

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