2. DIFFERENT THEORIES REGARDING TORTS
When an action is brought upon a tort committed in a foreign
country, the question arises as to which law should govern the
liabilities of the parties.
There are three main theories in regard:-
(1) Theory of lex fori
(2) Theory of lex loci delicti commissi
(3) Theory of proper law of tort
(1) Law of the Forum
The theory that liability in tort should be governed by lex fori is
of German origin.
The fundamental defect of the theory is that a defendant would
be held responsible if his act is actionable according to the lex
fori, although it is quite innocent according to the law of the
country where the act was committed. So parties may choose
most favourable law / forum-shopping.
3. (2) Lex loci delicti commissi
According to this theory the liability for tort is governed by the
law of the place where the tort was committed.
It would be natural that the law of a country where the injurious
act was committed should govern liabilities.
Obviously any country has a legitimate and real concern with
the commission of torts within its borders.
Sometimes the locus delicti may be ambiguous as where the act
may take place in one country, but harm may be caused in
another country.
E.g.:- an aircraft disintegrating in flight due to something done
when it was over another country; a company manufacturing
toxic substances – instances of gas leakage to the neighboring
nations locality etc.
4. (3) The Proper law of tort
Dissatisfaction with both the theories of lex fori and lex loci
delicti has resulted in the formulation of a third theory, namely,
the theory of the proper law of tort.
Proper law of tort is that law with which the act complained of
has most significant connection.
The proper law theory would provide a much needed flexibility
and enable a decision taking into consideration the social
factors involved.
In Badcock v. Jackson , decided by a New York Court. The
plaintiff was a gratuitous passenger in the defendants motor
car. They were both domiciled in the state of New York and
were going on a weekend trip to Canada. The car was licensed
and insured in the New york state from where the journey was
begun.
The plaintiff was injured in the State of Ontario due to the -
5. - negligence of the defendant. According to Law of Ontario, the
drivers have no liability towards gratuitous passengers , but
there was no such exemption according to the law of New York.
The New York Court did not apply the Ontario law, the lex loci
delicti , but preferred the New York law because the facts and
circumstances were most closely connected with the New York
state.
This American case adopted the theory of proper law. But in
some areas this doctrine has been criticised as it may result in
different results / unfavourable results.
6. RULE OF DOUBLE ACTIONABILITY
The lex loci delicti commissi refers to the place where the
tortious act has been committed.
In Philips v. Eyre, it was opined that, “the civil liability arising
out of a wrong derives its birth from the law of the place, and its
character is determined by that law.
As a general rule, in order to found a suit in England for a
wrong alleged to have been committed abroad, two conditions
must be fulfilled.
1st, the wrong must be of such a character that it would have
been actionable if committed in England.
2ndly, the act must not have been justifiable by the law of the
place where it was done”.
7. Philips v. Eyre [(1870) LR 6 QB 1, 28-9 (Willes J)]
The case formed an important part of the development of the
law of tort with regard to foreign torts.
In this case Edward John Eyre, then Governor of Jamaica,
suppressed a rebellion in Morant Bay in October 1865. A royal
assent had been given to an Act of indemnity passed by the
Jamaican legislature to indemnify the colony’s Governor against
any claims concerning his brutal suppression of a revolt (after
proclaiming martial law)
The Court heard the case as one concerning the power of a
colonial legislature to remove a right of action against the
Governor of the colony, in England.
The judge opined that where by the law of another country an
act complained of is lawful, such act, though it would have been
wrongful according to the law of the forum were it to be
committed there, cannot be made the ground of an action in an
English Court.
8. The above case has been taken in the subsequent cases to mean
that in every action brought in England upon a foreign tort, the
plaintiff must prove that the defendant has violated the law of
locus delicti and the law of England. This is also known as the
rule of double actionability.
The difficulty in the application of this theory arises in those
cases where the facts constituting the tortious act happen to be
located in more than one region.
The 3 possible solutions are: -
(1) The governing law should be of the place where the act
commenced which constituted the tort. (but it fails for cases
like defamation / libel / defamatory letters)
(2) The tort may be deemed to be complete in the country
where the law is most favourable to the plaintiff ( but it
causes forum shopping)
9. (3) The tort is completed in the country where the harm
ensures.
The harm to reputation caused from torts like defamation
cannot be localized at one place except by resorting to fiction,
making it impossible to measure the harm in any one place as
the harm might be spread across countries.
In Bata v. Bata [1948] WN 366
The Court of Appeal held that where defamatory letters had
been written in Switzerland, but published in England, the tort
was committed in England. This was because publication was
the essential element of the tort of libel.
Hence the place of publication would be treated as the place
where the tort was committed.
10. In Monroe George Ltd. V. American Cyanamid and
Chemical Corporation [1944]KB 432; [1944] 1 All ER 386
In this case the Court of appeal laid down the test as being:
“Where was the wrongful act, from which the damage flows, in
fact done?”
The question was not where the damage was suffered, even
though damage might have been the gist of the action.
In this case, it was held that the wrongful act was done in New
York, where the goods were negligently manufactured, and not
in England, where they caused injury and damage to a farmer
who used them on his land.
11. In Distillers Co. (Bio-chemicals) Ltd. V. Thompson
[(1971) 1 All ER 694]
In this case, the Privy council modified the test by addressing
the question of: “where in substance did the cause of action
arise?”
The case concerned a drug, which was manufactured in
England and marketed in South Wales, Australia. The exporting
company neither warned the importing company nor put a
warning on the drug disclosing the risks involved when taken
by pregnant women in the early weeks of pregnancy.
The plaintiff’s mother purchased the drug in Australia, where
she consumed it whilst pregnant. This resulted in the baby being
born with physical deformities.
An action was brought in the Australian court. On appeal to the
Privy council, the substance test was applied and it was held
that the tort was committed in Australia.
12. Unlike the Monroe’s case, where the tort consisted of negligent
manufacture in New York, here (in Distillers case) the tort
consisted of negligent failure to give adequate warnings as to
the drug’s harmful side effects in Australia, where it was
marketed.
So the above given cases laws shows the different effects of
application of lex loci delicti commissi.
Proper Law / Social Environment Theory :
On the analogy of proper law of contract, the social
environment theory is propagated.
Jurist Morris has firstly mentioned about applying proper law
theory with regard to the tort, so that the best law can be
chosen, which on policy grounds, seems to have the most
significant connection with the chain of facts and
circumstances in the particular situation before court.
13. In Boys v. Chaplin [(1938) 1 K.B.673]
The plaintiff and defendant were both resident in England, but
temporarily stationed in Malta in the British armed forces.
While both were off duty, the plaintiff was seriously injured in a
road accident as a result of the defendant’s negligent driving.
Under the law of Malta, the plaintiff could only recover special
damages for his expenses and proved loss of earnings. Under
English law, however, he could also recover general damages
for pain and suffering.
The House of Lords unanimously held that the plaintiff should
recover damages assessed according to English law.
i.e., in matters of foreign torts, the courts should apply proper
law, the law of the country with which the parties and the act
done have the most significant connection.
However this principle has got many criticisms, as nations/
courts hearing the cases may not agree to admit the intended/
chosen law/ most connected law.
14. MARITIME TORTS :
Maritime torts refer to those torts that are committed on high
seas.
Such acts fall under 2 categories :-
(1) Acts confined to a single ship.
E.g.:- assault by a crew member; tortious acts by either
crew member or passengers. Mostly such cases are being
settled according to the flag state / registered state.
(2) Acts those are external to a ship :-
E.g.:- negligent act resulting in collusion with other
ship; negligent navigation resulting in damages to submarines;
fishing boats issue etc. – usually these issues will be dealt by
admiralty courts/ High courts of concerned states. Issue is dealt
under international law only when the case is having relation
with general maritime law. Only then it is actionable under
English common law also.
15. AERIAL TORTS :
Aerial torts include tortious acts committed on board an aircraft
and damage to life and property on account of crashing of
aircrafts or collision between aircrafts in the air.
The principles used by some nations include lex loci delicti &
law of registry of aircrafts.
But now the matter more governed by international
conventions.
