Remedy Issues in Multinational Tort Claims: Substance and Procedure and Choice of Law
Gray, Anthony, University of Queensland Law Journal
After a turbulent history involving many different strands of reasoning, the High Court recently adopted the law of the place of the wrong as the substantive law to be applied to both interstate (1) and international (2) torts. I have earlier expressed my general agreement with this adoption, (3) and had suggested its adoption in 1994. (4) However, while the rules regarding the law to be applied to determine conduct regulation issues (5) appear now to be settled in Australia, the rules regarding the law to be applied to determine the compensation issues (or loss distribution) appear to be less clear, at least in regards to international torts. The High Court expressly reserved the point in Regie whether kinds and quantification of damages should be governed by the law of the place of the wrong in international torts conflicts, (6) justifying a fuller examination of the issue. The focus of this article, then, will be how to determine the issue of loss distribution or compensation in a tort case involving more than one country.
This article will consider possible issues that impact on liability determination in multinational tort claims. A range of possible tests the High Court might consider in future will be considered. I conclude with a recommendation that primacy be given to the law of the place of the wrong, but that some narrowly-defined flexibility is necessary.
While the High Court has declared that the law of the place of the wrong is now the choice of law in all or virtually all cases, (7) there remains the vexed question of whether any departures from this general position will be countenanced, and if so, in what circumstances. The Court itself has partly left the door open, suggesting that some loss distribution issues, in particular heads of damage and quantification of damages, may be dealt with by a law other than the law of the place of the wrong, at least in international cases. (8) Kirby J, at least, has specifically left open the question of whether a flexible exception to the general application of the law of the place of the wrong should be applied. (9)
II FLEXIBILITY IS REQUIRED
It is strange that the High Court continues (10) not to embrace the need for flexibility in applying choice of law rules in international tort. Ironically, in considering the rules to be applied to international torts conflicts, the High Court did not seem to notice that in many other countries which have also considered this problem, either the Parliament or the courts have fashioned some kind of exception to whatever they have accepted to be the general rule. One might have thought that, in developing a new approach in Australia, the High Court would have been guided by developments in other countries.
These developments can be stated briefly in relation to several other common law jurisdictions:
(a) England: for most torts, the law of the place of the wrong is the primary rule, subject to displacement where due to the connections between the events and another jurisdiction, it is substantially more appropriate that the law of that other jurisdiction be applied. (11)
(b) United States: a variety of approaches, with the proper law of the tort, supported by the Second Restatement, (12) in the ascendancy. (13) The law of the jurisdiction with the closer/closest connection with the subject of the litigation will be applied, subject to possible interest analysis involving a question whether the policy behind the law in question would be furthered by application to this set of facts. (14)
(c) Canada has abandoned its previous adherence to the famous doctrine in Phillips v Eyre, (15) according primacy to the law of the place of the wrong, but permitting a flexible exception in international cases. (16)
(d) New Zealand continues to embrace the double actionability rule, applying the law of the forum as the substantive law, but applies a flexible exception to allow the law of the jurisdiction with the most significant relationship with the occurrence and the parties to be applied. …