Harding v Wealands
The assessment of damages is a matter of procedure governed by English law as the law of the forum, so a claimant injured in Australia could recover damages under English law rather than capped Australian damages.
Facts
Mr Harding, an Englishman, was seriously injured in a road accident in New South Wales, Australia, when he was a passenger in a car driven by his Australian partner, Ms Wealands. He sued her in England. It was accepted that the law of New South Wales governed liability under the Private International Law (Miscellaneous Provisions) Act 1995, and that law contained statutory caps and other limits on damages for personal injury, which would have significantly reduced his damages. The question was whether the caps applied, or whether damages should be assessed under English law.
Legal principle
The House of Lords held that damages should be assessed under English law. Lord Hoffmann said that the 1995 Act did not apply to questions of procedure, which were governed by the law of the forum, and that the assessment of damages, including statutory caps on the amount recoverable, was a matter of procedure. Heads of damage, which are part of the definition of the actionable wrong, are substantive, but the quantification of damages is procedural. The position is different under the Rome II Regulation, which provides that the assessment of damages is governed by the applicable law, as the Supreme Court held in Cox v Ergo Versicherung.
Related cases on choice of law in contract and tort
- Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50
- Boys v Chaplin [1971] AC 356
- Cox v Ergo Versicherung AG [2014] UKSC 22, [2014] AC 1379
- Foster v Driscoll [1929] 1 KB 470
- Ingmar GB Ltd v Eaton Leonard Technologies Inc Case C-381/98, [2000] ECR I-9305
- Libyan Arab Foreign Bank v Bankers Trust Co [1989] QB 728
- Ralli Brothers v Compañía Naviera Sota y Aznar [1920] 2 KB 287
- Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
