Editorial Committee of the Cambridge Law Journal

Tort in the Conflict of LawsAuthor(s): David PearlSource: The Cambridge Law Journal, Vol. 26, No. 2 (Nov., 1968), pp. 219-223Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505239 .

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Case and Comment Case and Comment 219 219

accepted by Sir Jocelyn Simon P. in Roherts v. Roberts [1965] 1 W.L.R. 560, and has received the approval of the Law Commission (Published Working Paper No. 9, §§ 73, 7;4)1. It is a Inatter of surprise and pgadox, therefore, t> find that only a few wereks after the decision in Re Goodwin, when, as has been seen, a Chancery judge adopted the interpretation which had cornmended itself to the Divorce Division, a judge of thal: I)ivision, in Re Alarker-Thzomas [1968] 3 All E.R. 17, has now forsaken this interpretation and decided instead to apply the other! In this case Latey J., on bemg asked to construe section 26, expressly adopted the Re S;.tyler testw unaware no doubt of its recent rejection in Re Gaodwin, vehich had not by then been reported. But what is strange is that his judgment makes no mention of Re Bellman or Roberts v. Roberts, and it must therefore be assumed that unfortunately his attention was not called to these authorities either. Notwithstanding this recent codusion, it is fairly evident that xn the course of one generation a definite change has occurred in the judicial attitude towards the statutory power to alter a peri,>n's will. Perhaps one should not feel surerised that at first the courts felt constrained to place a narrow construction on an Act which shattered a prmciple of English law that stretehed back to the fourteenth century. As Professor S J. Bailey has observed, the Act was In some respects " a revolutionary enactment; . * . and even its, title . . . is enough to make a property lawyer shudder" (Wills, 6th ed., p. 8,8). But it is thought that fewer today would seek to defend unlimited freedom of testatlon; and it is to be noticed that the principle of interference has now been extended still further in a few .important respects by the Family Provision Act 1966.

The question now anses of the direction in which the la^v is likely to develop next. Are we moving towards reserved shares for spouses (and possibly children)? Or would the problem better le solved by establishing some form of deferred community of ownership by spouses along Scanclinavian Iines? A study is currently being made by the Law Comssion of this very question and no doubt soIne stimulating proposals will result. J. C. L.

TORT IN THE CONFtICr OF LAWS THE only matters not in disputo in the recent decision of the Court of Appeal in Boyn v. Chuplin [19681 2 Q.B. 1 were the facts. The parties were Brltish servicemen stationed in Malta, where they were involved in a motor collision. The plaintiff suiferecl physical

accepted by Sir Jocelyn Simon P. in Roherts v. Roberts [1965] 1 W.L.R. 560, and has received the approval of the Law Commission (Published Working Paper No. 9, §§ 73, 7;4)1. It is a Inatter of surprise and pgadox, therefore, t> find that only a few wereks after the decision in Re Goodwin, when, as has been seen, a Chancery judge adopted the interpretation which had cornmended itself to the Divorce Division, a judge of thal: I)ivision, in Re Alarker-Thzomas [1968] 3 All E.R. 17, has now forsaken this interpretation and decided instead to apply the other! In this case Latey J., on bemg asked to construe section 26, expressly adopted the Re S;.tyler testw unaware no doubt of its recent rejection in Re Gaodwin, vehich had not by then been reported. But what is strange is that his judgment makes no mention of Re Bellman or Roberts v. Roberts, and it must therefore be assumed that unfortunately his attention was not called to these authorities either. Notwithstanding this recent codusion, it is fairly evident that xn the course of one generation a definite change has occurred in the judicial attitude towards the statutory power to alter a peri,>n's will. Perhaps one should not feel surerised that at first the courts felt constrained to place a narrow construction on an Act which shattered a prmciple of English law that stretehed back to the fourteenth century. As Professor S J. Bailey has observed, the Act was In some respects " a revolutionary enactment; . * . and even its, title . . . is enough to make a property lawyer shudder" (Wills, 6th ed., p. 8,8). But it is thought that fewer today would seek to defend unlimited freedom of testatlon; and it is to be noticed that the principle of interference has now been extended still further in a few .important respects by the Family Provision Act 1966.

The question now anses of the direction in which the la^v is likely to develop next. Are we moving towards reserved shares for spouses (and possibly children)? Or would the problem better le solved by establishing some form of deferred community of ownership by spouses along Scanclinavian Iines? A study is currently being made by the Law Comssion of this very question and no doubt soIne stimulating proposals will result. J. C. L.

TORT IN THE CONFtICr OF LAWS THE only matters not in disputo in the recent decision of the Court of Appeal in Boyn v. Chuplin [19681 2 Q.B. 1 were the facts. The parties were Brltish servicemen stationed in Malta, where they were involved in a motor collision. The plaintiff suiferecl physical

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220 The Cambridge Lcnv Journal [1968]

injury, but did not incur any substantial pecuniary loss. At first instance, Milmo J. had applied Machado v. Fontes [18971 2 Q.B. 231 in awarding the plaintiff both damages for pain and suffering (£2,250) and special damages for pecuniary loss (£53) notwithstanding that only the special damages were recoverable in Maltese law, the lex loci delicti. Two issues were argued before the Court of Appeal. (1} What was the choice of law? (2) Would the law chosen be applied to every question before the court, or could a distinction be drawn between substance and procedure, thereby releasing procedural matters for the lex fori? Lord Upjohn applied the lex fori, and saw no reason to distin- guish between substance and procedure. Diplock L.J. applied the lex loci, and Lord Denning M.R. purported to apply the proper law of the tort. DipIock L.J. and Lord Dennmg saw ample reason for a demarcation between substance and procedure. The combina- tion of Lord Denning's proper law with Lord UpJohn's lex fori was enough to ensure the dismissal of the appeal. (1) The traditional principle to be applied in foreign tort cases is lald down, as a general ruIe, in Phillips v. Eyre (1870} L.R. 6 Q.B 1 at pp. 28, 29. 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" (per Willes J.). But does the principle provide English courts with a choice of law rule? It is submitted that even when the court answers both heads of the Phillips v. Eyre rule in the

affirmative, it is still left with the problem of deciding which law to apply. Phillips v. Eyre provides a rule alcin to English Iaws of jurisdiciion: nothing more. (See, e.g., Childres (1961-62) 40 Texas Lov Review 336 at p. 342; Spence (1949) 27 Can.B.R. 660 at p. 666.} In Machado v. Fontes preference was given to the lex fori in a case where the law of England was applied to a civil action for libel which would have been unsuccessful under the lex loci delicti (Brazil). Under that law, general damages were not recoverable, not least because the libel gave rise only to cnminal prooeedings. Falconbridge, Essays on the Corqflict of Laws, 1st ed., p. 17; 2nd ed., p. 819, also relegates the lex loci to a position of suberdination, when he writes:

It must be supposed that the act, in fact done abroad, has been done in the country of the forum, so that the situation becomes hypothetiQlly a purely domestic situation to which the domestic rules of the law of the forum are applicable.

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C.L.J. Case and Comment 221

Such reasoning would appear to be behind the so far inchoate

datum theory (see Ehrenzweig, Private Internationsl Law (1967)

pp. 83-85 169173). Out of the three judges of the Court of Appeal,

only Lord Upjohn applied the lex fori:

If, therefore, the test is to be read in its ordin;lry sense, I for my part cannot see how the lex loci delicti can be applicable, for if the only test of actionability is actiollability as

if the tort were committed in this country, then the rules of

English law must surely follow not only m relation to pro- cedure but also in respect of all substantive law, once n()n- justifiability by the place of the delict is established; I can see no other principle of law that can be applicable.

The alternative to the lex fori would be to apply the lex loci

delicti. Yntema, in a book review of Falconbridge (1949) 27 Can.

B.R. at p. 116, suggests that all matters of substance must be

decided by the law which " gives birth to the wrong." The lex forz

is relegated to a " threshold " requirement concerned only with

jurisdiction. Diplock L.J. expressed himself in much the same

language: This first condition [i.e., referring to actionability in England]

states wllat is strictly a rule of junsdiction comparalule to that whereby English courts decline jurisdiction over actions relating to foreign land to which Willes J. also refers in the (;ame pclSS-

age. It is a rule of public policy that our courts do not hear and detene liability for acts of a kind which are not regarded as giving rise to liability in tort in England, notw;ithstanding that such acts give rise to civil liability under a foreign system of law and oouId be the subject of a foreign judgulent WtUCl2 would be recognised here.

The second condition [i.e., justifiable by the lex Ic>cll is c)f a rather different character. It does not express >hat today wouId be called a rule of " jurisdiction"; but a rule atuout choice

of lawe

The lex loci and the lex fori .tre both supported by deisions ;and

dicta of judges, as well as academic opinion, and it would apEear

that an historical analysis (as indeed an examination of the subject

in its social context) does not suggest for us a choice between the

two possibilities. It is submittecl that an indiscriminate application

of the lex fori encourages " forum shopping," the most seriou; of

indictments. On the other hand the application of the lex loci can

produce fortuitous and often unfortunate results. If a New Yorker

purchases an aeroplane tloket in New York for a flight to Washing-

ton D.C. and the aeroplane crashes in flight through the negligence

of the pilot with the structure falling in Maryland, could one justly

suggest that the law of Marylancl governs actions in tort brought by

the dependants of the victims?

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222 The Cambridge Law JournaZ [1968]

It is, therefore, heartening to see Lord Denning M.R. breaking

away from the traditional approach, and applying the is law of the

country with which the parties and the act done have the most

significut connection'9: the proper law of the tort.

Lord Denning applies English law as the proper law. It is suS

mitted, however, that the links connecting the proper law with

England-British servicemen on duty abroad, both drivers insured by

English insurance companies, and the plaintiff seeking hospital treat-

ment in England are all unimportant in comparison with the

connecting factor between the proper law and Malta: the locus.

In a case such as the present, the proper law of the tort should

be the lex loci on the sple ground that when foreigners drive on

strange roads, they are impliedly bound by the criminal and the civil

laws as well as the administrative regulations of the lex IcJci unless

a special contractual relationship such as carrier and passenger can

be imposed by another legal system. (See Babcock v. lackson, 12

N.Y. 2d 473; [1963] 2 Lloyd's Rep. 286, and Long v. Pan American

Airways Inc. (l966) 213 N.E. 2d 796.) No such contractual

relationship can be implied in the present case.

(2) Cases such as Leroux v. Brown (1852) 12 C.B. 801 and

Re Co/?n [1945] Ch. 5 appear to establish that, whilst substantive

questions are deteed according to the lex causae, procedural

matters are governed by the lex fori. In the area of foreign torts,

as elsewhere, the difficult problem is demarcation. If, together with

Lord Upjohn, we were to believe that the lex fori governed the suS

stantive issues of a foreign tort, we should be relieved of such an

exacting task. Basing the substantive issues on the concept of the

proper Iaw (Lord Deg M.R.) or, for that matter, on the lex loci

(Diplock L. ), we are forced to investigate the question.

There are, in effect, three separato points that deserve mention.

First, it is necessary to decide by which law the distinction between

substance and procedure is to be made. As a general rule it is suS

mitted that such a question, involving as it does a secondary

classification, ought to be govemed by the lex causse (sx, e.g., Re

Cohn). Secondly, if a procedural rule of the lex fori were to tres-

pass on the substantive rule of the lex cuusae, which law would

take priority? It is thought that only in the most exceptional

public policy situation ought the lex fori to be aIlowed precedence.

Thirdly, if the lex causae is not pleaded as the law governing the

demarcation between substance and procedure, are there any guide-

lines laid down by English law? Only the last point arose for

discussion in this case, and both Lerd Denning M.R. and Dip

lock L.J. drew a distinction between remoteness (a question of subX

stance) and quantification (procedure). The lex causae governs the

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C.L.J. C.L.J. Case anc{ Comment Case anc{ Comment 223 223

question ss For what damage is the defendant liable? " T}le lex fori is confined to the issue "How much compensation is available to

the defendant for damage caused which is not too remote according

to the lex causae? " Such a solution once again protects the English

courts from the "forum shopper." The present writer is in agreement with the conclusion!. although

not the reasoning, of the dissenting judgment of Diplock L.J..

[U]nder Maltese law physical injuries sustained by the plain-

tiff as a result of the defendant's act in Malta do not give

rise to any civil liability. In my view the (laInages of £2,:!50

awarded under this head are; not recoverable but only the £53

for which the defendant incurred civil liability under the law

of Malta.

It is, however, obvious that the Enal word has yet to be said

in relation to both of the problems presented. It is to be hoped

that the House of Lords, where an appl on behalf of the defendant

is pending, will feel able to meet squarely the probIems presenteds

and provide us with an authoritative solution for this troubled a.rea

of the conflict of laws. DAVID PEARL.

LEGAL EFFECr OF STRIKE NarICE

THE Court of Appeal (Lord Denning M.R., Davies and Russell

L.JJ.) in Morgan v. Fry tl968] 3 W.L.R. 506 has shown the same

tendency as Widgery J. at first instance (noted at [l9fil71 C.L.J.

186) to regard all strike notices as being of the same character.

Theoretically a notice to strike may be either a notice to breaNc, a

notice to terminate or a notice to suspend. The problem is that

whether it be breach, termination or suspension, difficult legal

problems arise. In this particular case a number of loc};men, clis-

contented with the lack of militancy on the part of the Transport

and General Workers' Union, left that union and formed a s¢lall

breakaway union of their own, the Union of Port Workers. Officials

of the Transport Umon (which included in its ranks all cbther lock-

men employed by tl2e Port of London Authority) decided to take

action to force members of the brealcaway union to rejoin the Trans-

port Union. Accordingly, notice was served on the Port of London

Authority on 14 March I963 that " on and from Monday, 1 April

l963, the members of this organisation (the Transport Union)

employed as lockmen at the EBlackwall and South-West India Dc)ck

will be instructed not to work with the Union of Port Workers and

other non-trade unionists." Lockmen were required to give one

week's notice to terminate their contracts. The plaintiff, a member

question ss For what damage is the defendant liable? " T}le lex fori is confined to the issue "How much compensation is available to

the defendant for damage caused which is not too remote according

to the lex causae? " Such a solution once again protects the English

courts from the "forum shopper." The present writer is in agreement with the conclusion!. although

not the reasoning, of the dissenting judgment of Diplock L.J..

[U]nder Maltese law physical injuries sustained by the plain-

tiff as a result of the defendant's act in Malta do not give

rise to any civil liability. In my view the (laInages of £2,:!50

awarded under this head are; not recoverable but only the £53

for which the defendant incurred civil liability under the law

of Malta.

It is, however, obvious that the Enal word has yet to be said

in relation to both of the problems presented. It is to be hoped

that the House of Lords, where an appl on behalf of the defendant

is pending, will feel able to meet squarely the probIems presenteds

and provide us with an authoritative solution for this troubled a.rea

of the conflict of laws. DAVID PEARL.

LEGAL EFFECr OF STRIKE NarICE

THE Court of Appeal (Lord Denning M.R., Davies and Russell

L.JJ.) in Morgan v. Fry tl968] 3 W.L.R. 506 has shown the same

tendency as Widgery J. at first instance (noted at [l9fil71 C.L.J.

186) to regard all strike notices as being of the same character.

Theoretically a notice to strike may be either a notice to breaNc, a

notice to terminate or a notice to suspend. The problem is that

whether it be breach, termination or suspension, difficult legal

problems arise. In this particular case a number of loc};men, clis-

contented with the lack of militancy on the part of the Transport

and General Workers' Union, left that union and formed a s¢lall

breakaway union of their own, the Union of Port Workers. Officials

of the Transport Umon (which included in its ranks all cbther lock-

men employed by tl2e Port of London Authority) decided to take

action to force members of the brealcaway union to rejoin the Trans-

port Union. Accordingly, notice was served on the Port of London

Authority on 14 March I963 that " on and from Monday, 1 April

l963, the members of this organisation (the Transport Union)

employed as lockmen at the EBlackwall and South-West India Dc)ck

will be instructed not to work with the Union of Port Workers and

other non-trade unionists." Lockmen were required to give one

week's notice to terminate their contracts. The plaintiff, a member

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