Introduction

The question of choice of law in tort is a difficult and complicated one.

Its difficulty stems from the many types of torts which exist, such as negligence, assault,
defamation, etc; and the various kinds of scenarios in which a claim in relation to a particular tort
may arise.
Moreover, unlike contracts, where disputes can be anticipated and a choice of law clause to this
effect may be inserted by the parties, tort injuries are most unexpected and parties are hardly
likely to give advance thought to any choice of law. Until injuries occur and the injured party
decides to pursue a claim for compensation, the issue of choice of law in tort will not arise.

This question has become even more complicated since the latter half of the 19th century, largely
due to technological advances, modern means of transport, and the fact that the marketing of
products is no longer restricted to national boundaries.
* A drug is manufactured in country A and marketed in country B, where X consumes
it and suffers personal injuries as a result.
* Y, a French tourist, is injured in a car accident driven by Z, an English domiciliary,
in Belgium.
* Defamatory letters are written by N against M in Germany, and published in London.
* An aircraft negligently manufactured in Japan crashes over England, injuring and
causing the deaths of passengers from 15 different countries.
* An English employee suffers injuries as a result of an industrial accident in Libya.
If an action is brought in England on any of these torts, which law will an English court apply?

The Choices
Law of the Forum: It may lead to injustice and inconvenience, for a defendant may be held
liable for an act which may constitute a tort in England, but not in the place where it was
committed. Besides, if the law of the forum were to apply as a general rule, then that would give
the plaintiff an incentive to forum shop for a place where the law is more favourable to him or
her than that of the place where the tort was committed.
Law of the Palce: Applying the law of the place of tort, though probably giving effect to the
natural expectations of the parties, may provoke doubts as to whether that law is the most
appropriate one to apply, especially in the case where the parties have little or no connection with
that place.
Proper Law of Tort: One solution would be to apply the proper law of tort, that is, ‘the law
which has the most significant connection with the chain of acts and circumstances in the
particular case in question’. This approach, though appearing sound and fair, sacrifices the
advantages of certainty and predictability.

The English approach

Until recently, the question of choice of law in tort had been governed by the common law rules.
However, due to their unsatisfactory impact, these rules have been repealed, to a large extent, by
virtue of Pt III of the Private International Law (Miscellaneous Provisions) Act 1995 (PILA).
Part III came into force on 1 May 1996 and only affects the choice of law rules applicable to torts
which occur after that date. Hence, the common law rules will remain relevant for some time to
come, partly because they still apply to claims where the tort occurred prior to that date, and
partly because the new provisions under Pt III of the Act exclude the tort of defamation from
their scope.

The common law rules

The common law rules on choice of law in tort could generally be seen as a compromise between
the law of the forum and the law of the place where the tort was committed.
These rules, however, have been often described as ‘raising one of the most vexed questions in
the conflict of laws’.
The choice of law rules in this field differ, depending on whether the tort was committed in
England or abroad.
It must be noted that determining the place of tort may no longer be required in cases where Pt
III of the PILA 1995 is applicable.
Nevertheless, where the tort is one of defamation, this distinction remains important to ascertain
the choice of law.

Torts committed in England

Where a tort is found to have been committed in England, the English courts always apply
English law. This is the case irrespective of how limited the parties’ connection is with England.
This rule could be illustrated by the case of Szalatnay-Stacho v Fink (1947) KB 1 CA .
The defendant, an official of the Czech Government in exile in England, sent some documents to
the President of the Czech Republic who was also in England. These documents, which were
published in England, alleged misconduct by the plaintiff, who was the Czech Acting Minister in
Egypt. The plaintiff brought an action for defamation.
Under Czech law, the publication of these documents fell within the defence of absolute
privilege, which meant that no action for defamation could be brought under that law. Under
English law, however, the defence of qualified privilege applied. This meant that the defendant
would not be liable where, having had information placed upon him, he was under a duty to
disclose them. The Court of Appeal held that, as the documents had been published here, the tort
was committed in England, and therefore, English law was the governing law.
This principle was confirmed by the Court of Appeal in Metall und Rohstoff AG v Donaldson
Lufkin and Jenrette Inc (1990), where it was stated that, if the tort was committed in England,
then English law would apply to the dispute.

Torts committed abroad

When the conduct takes place abroad, liability is determined by English law, subject to the
condition that, if liability exists by English law, it must also be civilly actionable in damages by
the law of the place where it took place. This is known as the rule in Phillips v. Eyre (1870) LR 6
QB 1 as interpreted in Chaplin v. Boys [1971] AC 356 HL.

In Phillips v. Eyre an action for assault was brought in England against the Governor of Jamaica,
the alleged tort having been committed in Jamaica. This was a tort by English law and would
have been so by Jamaican law, but after the deed was done, the Jamaican legislature passed an
Act of Indemnity, relieving the governor of liability. It was held that the claimant could not
recover here.
In 1865 Edward John Eyre, the Governor of Jamaica, in the course of suppressing a revolt,
caused a leading activist to be tried and executed under martial law. Over the next three years, a
group of leading politicians and thinkers in England attempted to have Eyre prosecuted for
murder. When the criminal process failed, they attempted to have him sued for trespass and false
imprisonment. Though this case, Phillips v Eyre, was mainly concerned with constitutional
issues, Willes J laid down a rule for choice of law in tort which endured for nearly a century
before it was finally superseded.
Handford, Peter. "Edward John Eyre and the Conflict of Laws" . Melbourne University Law
Review. [2008]: 822–860.

In a celebrated judgment Willes J said, in words which have sometimes since been treated as if
they were contained in a statute, that conduct abroad is actionable as a tort in England if:
⎯ it is of such a character as to make it actionable as a tort had it been
committed here [i.e. English law applies], and
⎯ it is not justifiable by the law of the place where it was committed.
In Phillips v. Eyre itself, (1) was satisfied, but (2) was not, so the claimant’s action failed.

The first requirement was derived from the decision of the Privy Council in The Halley (1868)
LR 2 PC 193.
An action was brought by the owners of a Norwegian ship against those of a British ship arising
out of a collision in Belgian waters, caused by the negligence of a Belgian pilot on board the
latter ship. His presence was required by Belgian law. By Belgian law the British owners were
liable for his negligence; by the then English law they were not.
The defendants were held not liable. This requirement has always been more harshly criticised
than the second requirement, though it has given rise to fewer problems in its application. It has
been removed by statute in respect of all torts except defamation.

The second requirement, that the conduct must be ‘not justifiable’ by the local law, has proved
more troublesome and has been given different meanings at different times.
In Phillips v. Eyre itself, the word ‘justifiable’ meant precisely that, for the governor’s conduct
was ‘justified’ by the subsequent legislation.
In other contexts, it could mean one of several things:
the conduct must be a tort by the local law, or
the claim must be in some way civilly actionable thereby, or
though the claim is not civilly actionable, the conduct is ‘wrong’ by that law. This would
include conduct which attracts criminal liability only.
Conduct must be a tort by the local law

In The Mary Moxham (1876) 1 PD 107, action in respect of damage caused by an employee to a
pier in Spain, it was held that the defendant employers, not being vicariously liable by Spanish
law, themselves bore no tortious liability and so were not liable in England.
Criminal Liability Tort

Machado v. Fontes, [1897] 2 QB 231 CA

An action was brought in respect of an alleged libel published in Brazil. According to the
evidence, by Brazilian law the defendant was under no civil liability at all, but could be
prosecuted for a criminal offence. It was held that the existence of criminal liability under
Brazilian law meant that the libel was ‘not justifiable’ by the lex loci, so the claimant could
obtain such damages as were available under English law. His ability to get such damages though
he could not do so by the lex loci hardly seems what Willes J had in mind by the words ‘not
justifiable’.
This consequence has been described as unsatisfactory.

The repudiation of Machado v. Fontes and the adoption of meaning (ii) by the Scottish Court of
Session in McElroy v. McAllister 1949 SC 110 led to an even more unfortunate, and indeed
preposterous, result.
The pursuer’s late husband was injured in an accident in Shap in England, forty miles south of
the border, when in a lorry being driven by another employee while they were on the business of
their Scottish employer. All parties were Scots. She sued as her husband’s executrixdative in
Scotland claiming (1) under Scots law (lex fori ), solatium; (2) and (3) by English law under the
Law Reform Act 1934 on behalf of his estate and under the Fatal Accidents Act; (4) by both laws
the funeral expenses.
(1) was not actionable in English law (lex loci) and (2) and (3) were not actionable under Scots
law (lex fori) so (4) being the only head of damage recoverable under both laws, all the widow
obtained were the funeral expenses. Apart from other considerations, this result is absurd.

The New General Rule

Section 10 of the Act abolishes the double-actionability rule and its exception as they applied to
any claim in tort or delict, except for the tort of defamation. Section 11(1) introduces a new
general rule which identifies the applicable law as that of the country in which the tort is
committed.
Where, however, the elements of the tort occur in different countries, s 11(2) provides for a
number of presumptions to help identify the applicable law. Section 11(2) states:
Where elements of those events occur in different countries, the applicable law under the general
rule is to be taken as being:
for a cause of action in respect of personal injury caused to an individual or death resulting from
personal injury, the law of the country where the individual was when he sustained the injury;
for a cause of action in respect of damage to property, the law of the country where the property
was when it was damaged; and
in any other case, the law of the country in which the most significant element or elements of
those events occurred.

Accordingly, where the elements of the tort occur in a single country, the applicable law will be
the law of that country.
Conversely, where they occur in different countries, the applicable law is identified by having
recourse to specific presumptions.
Where the cause of action is in respect of personal injury or death, it is to be presumed that the
applicable law is that of the country where the injury was sustained.
Where the cause of action is in respect of damage to property, the applicable law is that of the
country where the damage was sustained.
A, a Greek tourist in Northern Ireland, is negligent in causing an accident there, resulting in
injury to B, an American tourist, the applicable law under s 11(1) is that of Northern Ireland.
In contrast, if C, an English drug manufacturer, negligently produces a defective product which
causes personal injury to D in Spain, E in Germany and F in Belgium, then by virtue of s 11(2),
D’s claim will be determined by Spanish law, E’s claim will be determined by German law and
F’s claim by Belgian law, provided of course that the exception in s 12 does not apply.

Where the cause of action is not one for personal injury or death, or property damage, then
pursuant to s 11(2)(c), the applicable law is that of the country in which ‘the most significant
element or elements’ of the tort occurred.
This provision will operate in respect of economic torts, such as economic loss resulting from
fraudulent misrepresentation or inducement of breach of contract. The applicable law in these
cases is that of the country where the most significant elements occurred.
This is a flexible rule, which enables English courts to exercise considerable discretion when
locating the most significant elements of the tort. It is submitted, however, that since a similar
test is applied to locate the place of tort under the common law rules, English courts will have
recourse to such cases as Metall und RohstoffAG v Donaldson Lufkin and Jenrette Inc (1990);
Diamond v Bank of London and Montreal Ltd (1979); and Armagas Ltd v Mundogas SA (1986),
when ascertaining the applicable law under s 11(2)(c).