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 Choice of Law in Delict: the Rise and Rise of
the lex loci delicti commissi

JOHN KIGGUNDU*
University of Botswana

1 Introduction
For centuries, choice of law in delict was not considered an important aspect
of private international law.' But developments in the latter part of the last
century and this century have made choice of law in delict a very important
aspect of private international law.' These development include the following:
(a) Drugs: there are lots of new drugs on the market. They have been developed
by scientists to deal with the major medical and health problems we face
today. These include cancer, infertility and other reproductive problems,
depression, anti-smoking patches and pills, slimming pills and diets, and
birth control pills and patches. In terms of private international law, a drug
could be manufactured in the United States of America, sold to a person in
the United Kingdom who brings it to Botswana where it is consumed by a
relative who develops terrible side-effects and dies in a hospital in South
Africa. This could lead to delictual liability for negligence. The question of
choice of law would then arise. The recent developments involving Vioxx
neatly illustrate the problem here. Vioxx is a painkiller manufactured in the
United States by American drugs giant Merck & Co Inc. It was consumed
by over 20 million people all over the world. When it was realized that it
had terrible side-effects, it was withdrawn in September 2004. A widow of
a man who died after taking the drug sued the manufacturer in the United
States. She was recently awarded over $250 million by an American court.
There are more than 4 000 suits pending against Merck all over the world,
with 100 of these in the United Kingdom alone. Where will the plaintiffs
in these cases sue? Which courts have jurisdiction? Which law will be
applied?3
(b) Accidents: catastrophic accidents are occurring with alarming frequency.

* LLB (Hons) (Makerere) LLM PhD (London) Dip LP (Kampala). Associate Professor in the
Department of Law, University of Botswana, and Research Fellow in the Department of Mercantile Law,
University of South Africa, Pretoria.
I See Chistopher Forsyth Private International Law: The Modern Roman Dutch Law Including
the Jurisdiction of the High Courts 4 ed (2003) 325-326; J Kiggundu Private International Law in
Botswana: Cases and Materials (2002) 281; JHC Morris The Conflict of Laws 3 ed (1984) 301ff; Morris:
The Conflict of Laws 5 ed by D McClean (ed) (2000) 353ff; J O'Brien Smith's Conflict of Laws 2 ed
(1999) 371.
2 Forsyth op cit note I at 325-326; Kiggundu op cit note I at 281; McClean op cit note 1 at 353;
Morris op cit note 1 at 301.
3 In a clear case of forum shopping, victims of Vioxx in the United Kingdom intend to sue Merck in
the United States instead of the United Kingdom, because the American courts award far higher amounts
of damages than the British courts.
© 2006. All rights reserved.
97 Cite as: (2006) 18 SA Mere L 97-105
98 (2006) 18 SA Merc U

The following are the most common: (i) Factory accidents: an example
is the Bhopal accident in India where a deadly gas leaked from a factory
belonging to Union Carbide, a company incorporated in the United
States. The gas killed thousands of people. The effects of this accident
are felt even today. When litigation was brought against Union Carbide
in India or the United States, the court had to determine the applicable
law. (ii) Airline accidents: these occur with alarming frequency. A typical
scenario is where the plane (such as Boeing) is manufactured in the United
States and is owned by an airline in Cyprus, and it crashes in Greece,
killing all passengers on board.4 Litigation could be brought against the
American manufacturer and/or the Cyprist airline. Once again the question
of choice of law would arise. (iii) Oil spills: when an oil tanker runs
aground and spills tons of crude oil into the sea,' damage - especially
to the environment - could be extensive. This could lead to liability in
environmental law, public international law, and delict.
(c) Easierandfaster communication: technology has tremendously advanced
the means of global communication. Easier travel means that there is more
movement of people across borders for holidays, work, and business.
This movement enhances the possibility of the occurrence of a delict
with a foreign element. The stunning development in information and
communication technology (ICT) have led to the manufacture of more
efficient computers, cellular phones, facsimile machines, television sets,
and satellites. We now live in a global village. This means that there is
quicker and faster transmission of information. A news item can now be
watched simultaneously in several countries around the world using cable
and satellite television. A newspaper can be published simultaneously
in different parts of the world and in different languages. All kinds of
information can be published globally to millions of readers and viewers
using the Internet. If the information that is transmitted happens to be
defamatory, a delict of defamation can technically be committed in several
countries. If the victim of such information wishes to sue, jurisdictional
and choice-of-law questions have to be resolved.6 In Roman-Dutch law, it
is well established that the courts have jurisdiction to hear actions based on
delicts committed abroad if the defendant is amenable to the jurisdiction
of the court by virtue of residence or domicile, or otherwise.7 What is not
clear, however, is which law should be applied. There are three competing
theories - the lex fori theory, the lex loci delicti commissi theory, and the
proper law theory. My thesis here is that if the issue of choice of law were
to arise before a court in one of the Roman-Dutch law jurisdictions, the lex

These are the actual facts of the crash that occurred in Greece on 14 August 2005.
'The Exxon Valdese disaster is a good recent example.
6 See further Forsyth op cit note 1 at 325-326; Kiggundu op cit note I at 281; McClean op cit note I
at 353; Morris op cit note I at 301.
' Mackay v Phillips (1830) Menz 455; Rogaly v General Imports (Pry) Ltd 1948 (1) SA 1216 (C), See
further, Forsyth op cit note I at 326-327; Kiggundu op cit note I at 282-283.
CHOICE OF LAW IN DELICT: THE RISE AND RISE OF THE LEX LOCI DELICTI COMMISSI 99

loci delicti commissi theory would be applied, because of the prominence

and ascendancy it has gained recently over the other two theories.

2 An Examination of the Theories

2.1 The lex fori theory
This theory is to the effect that delictual liability should be governed by the
law of the place where the action has been brought. It originated in Germany
and its main proponent was Savigny. 8 It has very little support today and it
is seen as impractical and unjust. For example, the defendant could be held
liable for what would be an innocent act in the place where it was committed.
The main argument against this theory is that applying it would encourage
forum shopping: a plaintiff would choose the forum that has a system of law
most favourable to his case - such as where he would recover substantive
damages - provided that he could find one where the defendant happened to
be amenable to the jurisdiction of that country. 9

2.2 The lex loci delicti commissi theory

This theory is to the effect that liability should be governed by the law of
the place where the delict was committed. The theory is justified on three main
grounds. In the first instance, territorial sovereignty - the law of the place
where events occur is the only law that should govern these events. Secondly,
application of this theory accords with the legitimate expectations of the parties.
Everyone is entitled to adjust his conduct to the law of the country in which he
acts.' 0 Thirdly, this theory promotes certainty and uniformity and reduces the
risk of forum shopping."
But there are also arguments against it. In the first instance, in most cases
it is fortuitous. This is clearly apparent in airline accidents. An aeroplane
manufactured in one country and owned by an airline in another country could
crash while flying over another country, en route to another country. In such a
case, the manufacturer, the airline, and the passengers have no connection at all
with the country where the accident occurs. Secondly, it could be ambiguous.
This can arise especially in the case of a drug. The drug is negligently
manufactured in the United States, exported to the United Kingdom where
it is sold to a consumer who brings it to Botswana and consumes it, and later
dies in a hospital in South Africa. Where is the delict committed? The recent
developments involving Vioxx is a very good case in point.

8 See FN Von Savigny System des heutigen rOmischeRechts (1849) vol 8 at 275ff (English translation
by WA Guthrie as A Treatise on the Conflict of Laws 2 ed (1880).
9 See further Kiggundu op cit note I at 282; McClean op cit note I at 354-355; Morris op cit note I
at 302.
0 See further Forsyth op cit note I at 329-331; McClean op cit note 9 at 355-356; Morris op cit note
9 at 303-304; O'Brien op cit note I at 379-380.
" O'Brien op cit note I at 379.
IUU (2006) 18 SA Merc U

2.3 The Proper Law Theory

This theory was propounded by the late Dr HC Morris 12 and later embraced
in the United States. According to this theory, liability should be governed by
the proper law of the delict. Such law would be the law of the country that has
the most significant relationship to the occurrence and the delict. The factors
to be taken into account in determining the most significant relationship are:
the place where the injury occurred; the place where the conduct causing the
injury occurred; the domicile, nationality, place of incorporation and place of
business of the parties; or the place where the relationship, if any, between the
parties is centred.
The main criticism against this theory is that it sacrifices the advantages of
certainty, predictability, and uniformity of result that are claimed to follow
from the application of the lex loci delicti commissi.' 3

3 The Rise and Rise of the lex loci delicti commissi

As indicated above, each of the competing theories has its advantages and
disadvantages. But international developments, especially in the recent past,
have strengthened the position of the lex loci delicti commissi to the extent that
it has now emerged as the most likely theory to be applied in Roman-Dutch
law.

3.1 Demise in the United States

The United States for a very long time followed the lex loci delicti commissi
theory and it became well established there. But this changed in 1963 with
Babcock v Jackson.'4 In this landmark decision the lex loci delicti commissi
was rejected and the proper law theory was endorsed as the one applicable
in the United States. The court stated the law thus: 5 'Justice, fairness and the
"best practical result" may best be achieved by giving controlling effect to the
law of the jurisdiction which, because of its relationship or contract with
the occurrence or the parties, has the greatest concern with the specific issue
raised in the litigation.' The law of New York was selected as the proper law and
was applied accordingly. The law as laid down in Babcock was reformulated
by Fuld CJ in Tooker v Lopez. 6
It is imperative to point out that the application of the proper law in the
United States is not uniform. Some states embraced it 7 while others rejected

2 See HC Morris 'Torts in the Conflict of Laws' (1949) 12 Modern LR 248; HC Morris 'The Proper
Law of the Tort'(1951) 64 HarvardLR 881.
11 Forsyth op cit note I at 331-333; McClean op cit note 1 at 357-358; Morris op cit note I at
304-305.
14191 NE 2d 279 (1963).
11At 283.
16249 NE 2d 394 (1969).
" See, for example, Macey v Rozbicki 18 NY 2d 289; Tooker v Lopez 249 NE 2d 394 (1960).
CHOICE OF LAW IN DELICT: THE RISE AND RISE OF THE LEX LOCI DELICTI COMMISSI 101

it."a It is also important to note that in some cases the application of these
so-called proper laws is to a certain extent a disguised application of the lex
9
fori.'
It is also important to note that in the majority of the cases where the
proper law was applied, the delict involved concerned motor-vehicle or airline
accidents. One wonders whether it could easily be applied to other delicts such
as defamation.

3.2 Entrenchment in the Britain

The lex loci delicti commissi has always been a major component of
the choice-of-law rule in Britain. In The Halley,2 the action failed because
although the conduct complained of was actionable in Belgium (the locus
delicti commissi), it was not actionable in England (the forum).
The law was clarified in Phillips v Eyre,21 where Wills J laid down the rule
22
of double actionability:
'As a general rule, in order to found a suit in England for a wrong committed abroad, two
conditions must be fulfilled. First, 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 law of the place where it was done.'

The action in this case failed because although the defendant's conduct was
actionable in England (the forum), it was not actionable23 in Jamaica (the locus
delicti commissi).
The English choice-of-law rule was finally clarified by the House of
Lords in Boys v Chaplin.24 Their lordships reviewed all the authorities on the
interpretation of Phillips v Eyre. 5 They discussed all the three theories in great
detail and concluded that none of them of itself merited following in England.
They then laid down the English choice of law - once the English court has
jurisdiction and the rule in Phillips v Eyre is satisfied, the court applies English
law (the lex fori) to all procedural and substantive law issues except to those
which require the application of the lex loci delicti commissi by virtue of the
flexibility exception.
Boys v Chaplin was significant, as it established that the choice-of-law rule
in England required double actionability - actionability in delict in England
(the lex fori), and actionability in civil law under the lex loci delicti commissi.

,"Forsyth op cit note I at 332; Morris op cit note I at 328-329. See also Dicey and Morris on The
Conflict of Laws 13 ed by L Collins et al (eds) (2000) vol 2 at 151 0n26, where the authors indicate the
position on the ground in the United States as of 1998: eleven states follow the lex loci delicti commissi
theory; three states the 'significant contacts test'; 21 states the proper law theory; three states the interests
analysis approach; three states the lex fori theory; five states the 'better law theory'; and six states have
adopted a combination of these approaches.
'9 See Kell v Henderson 270 NYS 2d 552; Rye v Colter 333 NYS 2d 96 (1972); Bray v Cox 333 NYS
2d 783 (1972). See further Kiggundu op cit note 1 at 310.
2
(1868) LR 2 PC 193.
21 (1870) LR 6 QB 1.
22
At 28-29.
23It was 'justified' by a Jamaican Indemnity statute.
24 [19711 AC 356 (HL).
-(1870) LR 6 QB 1.
I Uz (2006) 18 SA Merc U

This clearly entrenched the lex loci delicti commissi as an integral component
of the English choice-of-law rule.

4 The Legacy of Red Sea Insurance

The major breakthrough for the lex loci delicti commissi came in Red
Sea Insurance Co Ltd v Bouyges SA & others.26 The defendant, an insurance
company incorporated in Hong Kong but with its head office in Saudi Arabia,
entered into a contract of insurance with the plaintiffs who in various capacities
were employed by the Government of Saudi Arabia to construct the University
of Riyadh. The first and third plaintiffs were the main contractors. The fourth
to thirteenth plaintiffs (a consortium known as 'PCG') were the suppliers of the
precast prime building units required for the project. The fourteenth to twenty-
third plaintiffs formed a consortium known as 'HOK+4 consortium', which
acted as architectural and engineering design consultants. The buildings proved
faulty. The plaintiffs repaired the buildings. They then sued the defendant
claiming, under the terms of the insurance policy, to be indemnified for the loss
and expense incurred in repairing the buildings. The defendant counterclaimed
against PCG on the basis that it was PCG which had supplied faulty precast
units in breach of its duty of reasonable care to the other plaintiffs, and that
if the defendant was liable under the policy for the loss suffered by the other
plaintiffs then the defendant could recover the amount of such loss by way of
subrogation to the other plaintiff's rights. Under the law of Hong Kong (the
lex fori), subrogation is possible only after the insurer has compensated the
insured. In the present case, the defendant had not paid any of the plaintiff's
claims. Actually, it had repudiated all of them. But the defendant claimed that
under Saudi Arabian law (the lex loci delicti commissi) it could bring a claim
directly against PCG in delict before it had paid any of the claims. Although
the counterclaim was apparently actionable under the lex loci delicti commissi,
it was clearly not actionable under the lex fori. Accordingly, PCG applied
to have it struck out. However, the Privy Council held that exceptionally, in
an appropriate case, the plaintiff (in this case the counterclaiming insurer),
could rely exclusively on the lex loci delicti commissi even where, under the
lex fori, his claim would not be actionable. The court held further that this
exception could apply to the whole claim and not just to particular issues, and
that particular issues could even be governed by their proper law, which might
neither be the lex fori nor the lex loci delicti commissi. The counterclaim was
accordingly upheld.
Red Sea Insuranceis very significant. By extending the flexibility exception
in Boys v Chaplin" to cases where actionability under the lex fori is dispensed
with entirely, the case, albeit indirectly, endorsed the lex loci commissi theory
despite the express rejection of the latter theory.28 It is interesting to note that

26 1995] 1 AC 190 (PC).

27 1971] AC 356 (HL).
21 [19941 3 WLR 926 at 939E. See further Kiggundu op cit note I at 301.
CHOICE OF LAW IN DELICT: THE RISE AND RISE OF THE LEX LOCI DELICTI COMMISSI 103

although Saudi Arabian law was applied as the lex loci delicti commissi, it was
also, I submit, the proper law of the delict - the contract of insurance was
entered into in Saudi Arabia. The main contract, the supply contract, and the
HOK+4 consortium's services contract were all subject to Saudi Arabian law
and were to be performed there. The breaches and the alleged damage occurred
in Saudi Arabia. The defendant, though incorporated in Hong Kong, had its
head office in Saudi Arabia. So Saudi Arabian law was clearly the proper law
of the delict2 9. This decision shows that the theories can sometimes overlap,
and that sometimes it is a question of packaging
By dispensing with the lex fori entirely without overruling The Halley" the
Privy Council left the law in a quandary. Although the Privy Council insisted
that the departure from the double actionability rule in Boys v Chaplin was to
occur in exceptional circumstances only, it is not a very useful guide, as most of
the cases in this area, just like Red Sea Insurance, are exceptional. The legacy
of the case lies in its express dethronement of the lex fori and its elevation of
the lex loci delicti commissi to the position of the strongest contender of the
three theories.

5 Statutory Endorsement in England

Although the lex loci delicti commissi's position was elevated in Red Sea
Insurance, the decision did not give it absolute supremacy, as the Privy Council
applied it as an exception to double actionability. However, the supremacy
of the lex loci delicti commissi in England was confirmed by the British
Parliament in the Private International Law (Miscellaneous Provisions) Act
1995. Part III of this statute clarifies and codifies the English choice-of-law
rules once and for all." Section 10 expressly abolishes the common-law rule of
double actionability as stated in Phillips v Eyre and modified in Boys v Chaplin
and Red Sea Insurance. The general rule is that the applicable law is the law of
the country in which the events constituting the delict in question occur.32 This
clearly endorses the lex loci delicti theory as the one prevailing in English law
and endorses the decision in Red Sea Insurance. The general rule is amplified
to deal with cases where the events constituting the delict in question occur in
different countries.33 The general rule is subject to the rule of displacement: if it
appears, in all the circumstances, from a comparison of the significance of the
facts which connect the delict with the country whose law is applicable under
the general rule and the significance of any factors connecting the delict with
another country, that it is substantially more appropriate for the applicable law
to be the law of the other country, the general rule is displaced and the applicable

2 See further Kiggundu op cit note I at 301.

3(1868) LR 2 PC 193.
31 See JG Collier Conflict of Laws 3 ed (2001) 228-239; Dicey & Morris op cit note 18 at 1507ff;
Forsyth op cit note I at 337-338 McClean op cit note I at 366-377; O'Brien op cit note I at at 400-
407.
12 Section 11(1) of the Private International Law (Miscellaneous Provisions) Act.
33 Section 11(2).
1U4 (2006) 18SA Mcrc LU

law is the law of the other country.34 This rule of displacement applies not only
in relation to the case as a whole but also in relation to a particular issue or
issues in the case. This is an express recognition in depacage (the application
of different laws to different issues in a given case). The general rule does
not apply to defamation and related claims. 35 This means that defamation will
36
continue to be governed by the common law as laid down in Boys v Chaplin
37
and Red Sea Insurance.
As a recognition of the possible increase in the application of foreign law,
the general rule is further subject to the traditional exceptions to the application
of foreign law: public policy's foreign penal and revenue laws, or other public
law as would not otherwise be enforceable under the law of the forum.38
I submit that the rules in Part III of the 1995 Act constitute a major reform
of the English choice-of-law rules in delict and are commendable. 9 The rules
eliminate the deficiencies of the common law. Although Boys v Chaplin and
Red Sea Insurance greatly improved the common law, it remains deficient in
several respects. In the first instance, it is anomalous that the general rule at
common law should require actionability by two systems of law - the lex fori
and the lex loci delicti commissi, as such an approach is unknown in any other
area of English private international law. Secondly, the prominence given to
the lex fori, apart from being almost unknown in the private international law
of any other country, is rather parochial in appearance.4" Apart from matters
of procedure, and subject to overriding consideration of public policy, there
is no reason why the lex fori should be applied in a delict regardless of the
foreign complexion of the situation. Thirdly, the common-law rule can work
injustice in the sense that it gives an advantage to the defendant, as the plaintiff
could not succeed in any claim unless both the lex fori and the lex loci delicti
commissi provided for it, whereas the defendant could escape liability by
taking advantage of any defence available under either law.4 Fourthly, the
common-law principles are uncertain, as, while the general rule of double
actionability is clearly established, the formulation and application of the
exception, even after Red Sea Insurance, is highly speculative.42 Part III of
the 1995 Act effectively solves all the above deficiencies by abolishing the
lex fori requirement - the first branch of the double actionability rule. Also,
except in relation to defamation claims, the common-law choice-of-law rules
are expressly abolished. The result is a general choice-of-law rule requiring
reference to the lex loci delicti commissi, which may, in an appropriate case,

Section 12(l).
3 Section 9 (3).
36Supra note 24.
37Supra note 26.
s Section 14(3) of the Private International Law (Miscellaneous Provisions) Act. See further Dicey
& Morris op cit note 18 at 1515.
31See further Dicey & Morris op cit note 18 at 1514-1515; Kiggundu op cit note I at 304-305.
41Dicey & Morris op cit note 18 at 1514; Kiggundu op cit note I at 304-305.
41See, for example, the unfortunate results in MElloy v M'Allister 1949 SC 110.
11Dicey & Morris op cit note 18 at 1514-1515.
CHOICE OF LAW IN DELICT: THE RISE AND RISE OF THE LEX LOCI DELICTI COMMISSI 105

be displaced in favour of the law of another country by reference to the rule of

displacement.43

6 Conclusion
The lex fori is clearly discarded now. The proper law is uncertain and is in
some cases a disguised application of the lex fori, or even the lex loci delicti
commissi. The lex loci delicti commissi is clearly in ascendancy. Although it
is sometimes fortuitous and ambiguous, it is, in the majority of cases, certain
and predictable, and it accords with the legitimate expectations of the parties. It
ensures uniformity and certainty, and is consonant with the public international
rule of territorial sovereignty. It has for a long time been the applicable theory
in Continental Europe. It has finally been embraced by the United Kingdom
under statutory law and endorsed in Australia' and Canada 45 at common
law. I submit, therefore, that where the courts in a Roman-Dutch law country
has jurisdiction, it should apply the lex loci delicti commissi subject to the
flexibility or proper law exception. I further submit that in order to clarify
the law in this area once and for all, such countries should codify the lex loci
delicti commissi as the general rule for choice of law in delict. The British
1995 Act would serve as a very good model.

41Ibid.
' Breavington v Godleman (1985) 169 CLR4 I; McKain v RW Mills & Co (South Australia) (Pty) Ltd
(1991) 174 CLR 1; Stevens v Head (1993) 176 CLR 433; Goryl v Greyhound Australia (Pty) Ltd (1994)
179 CLR 463; Kontis v Barlin (1993) 115 ACTR 11; Commonwealth ofAustralia v Dennison (1995) 129
ALR 239; Nalpantidis v Stark (1995) 65 SASR 454; Thompson v Hill (1995) 38 NSWLR 454; Gardnerv
Wallace (1995) 70 AUR 113; James Hardie & Co (Pty) Ltd v Hall (1998) 43 NSWLR 554; John Pfeiffer
(Pty) Ltd v Rogerson (2000) 203 CLR 503; Regie Nationaledes Usines Renault SA v Zhang (2002) 187
ALR 1; Down Jones & Co v Inc Gutnik 12002] HCA 56, (2002) 194 ALR 433. See further Dicey &
Morris op cit note 18 (Third Supplement 2003) 400.
" Tolofson v Jensen [19941 3 SCR 1022; Hurst v Leimer (1995) 130 DLR (4th) 166 (Ont); Stewart
v Stewart Estate [1996] 8 WWR 624 (NWT); Stewart v Stewart (1997) 145 DLR (4th) 228 (BCCA);
Cowley v Brown (1997) 147 DLR (4th) 282 (Alita CA); Brill v Duckett (1997) 148 DLR (4th) 467 (Alta
CA); Leonard v Houle (1997) 154 DLR (4th) 640 (Ont CA); Hanlan v Sernersky (1997) 35 OR (3rd) 603;
Michalski v Olson [19981 3 WWR 37 (Man CA); George v Gubermovitz (1994) 44 OR (3d) 247; Buchan
v Non-Marine Underwriters,Members Lloyd's of London, England (1999) 44 OR (3d) 685; Wong v Wei
[1999] 10 WWR 296 (BC); Barclays Bank plc v Inc [200016 WWR 511 (AlIta); Gill v Gill 2000 BCSC
870; Harrington v Dow Corning Corp [20001 I1 WWR 201 (BCCA); Lebert v Skinner Estate (2001) 53
OR (3d) 559; Law v Li (2001) 53 OR (3d) 727; Schultz v Panorama TransportationInc 2001 Carswell
Ont 2334; Landry v Roy (2001) 55 OR (3d) 605; Gill v Caramex Trucking System Inc 2001 Carswell
Ont 4329; Integral Energy & Environment Engineering Ltd v Schenker of CanadaLtd (2001) 206 DLR
(4th) 265 (Alta CA); Wong v Lee (2002) 211 DLR (4th) 69 (Ont CA); Somers v Fournier (2002) 214
D.L.R. (4th) 611 (Ont CA); Teja v Rai (2002) 209 DLR (4th) 148 (BCCA); Day v Guarantee Co of North
America (2002) 200 NSR (2d) 331; Chomos v Economical Mutual Insurance Co (2002) 61 OR (3d) 28
(Ont CA); Castillo v Castillo (2002) 3 Alta LA (4th) 84; Britton v O'Callaghan (2002) 219 DLR (4th)
300 (Ont CA); Brown v Kerr-McDonald [2002] ABQB 955 (Alta). See further Dicey & Morris op cit
note 18 at 399.