Stevens v Head

[1992] HCATrans 327

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B29 of 1992

B e t w e e n -

KATHLEEN STEVENS

Appellant

and

WALTER HEAD

Respondent

MASON CJ
BRENNAN J

DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

Stevens(3) 1 10/11/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 NOVEMBER 1992, AT 10.17 AM

Copyright in the High Court of Australia

MR J.A. GRIFFIN, QC:  May it pleases the Court, I appear

with my learned friend, MR D.J. DWYER, for the

appellant. (instructed by H.W. Smith & Associates)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR J.A. McDOUGALL, for the

respondent. (instructed by Peter Lawlor)

MR T.I. PAULING, QC, Solicitor-General for the Northern

Territory:  May it please the Court I appear with

my learned friend, MR G.R. NICHOLSON, for the

Attorney-General for the Northern Territory

intervening. (instructed by the Crown Solicitor

for the Northern Territory)

MASON CJ:  Mr Griffin?

MR GRIFFIN: If the Court pleases, I handed up copies of the

appellant's outline of argument, seven for the

members of the Court and four for the registry.

MASON CJ:	Thank you.
MR GRIFFIN:	If the Court pleases. Your Honours, this

appeal relates to a motor vehicle accident which

occurred on 28 July 1988. The plaintiff appellant,

a lady then 75 years of age was struck by a vehicle

on a pedestrian crossing in Kennedy Drive, Tweed

Heads, just on the New South Wales side of the New

South Wales/Queensland border. The defendant was a

Queensland resident and whose vehicle was

registered and insured in Queensland.

The plaintiff had come to Australia with her

husband to visit Expo and she decided to stay at

the Gold Coast. She had resided at Kirra which is

in the Queensland part of the Gold Coast when she

was at the Gold Coast on the occasion of a previous

visit. On the present occasion she obtained her

accommodation through an agent in Coolangatta and

Drive.	through him she obtained accommodation in Kennedy	The injuries she sustained and their sequelae are dealt with by the learned trial judge
commencing at page 50 of the appeal book. The
precise nature of the injuries is not relevant.
The plaintiff was thrown into the air on to the
bonnet of the vehicle in question and thence on to
the roadway. She did not sustain any fractures but
there was evidence accepted by the learned trial
judge that the injuries caused her extreme pain and discomfort and converted a previously asymptomatic
degenerative disease into a symptom complex with
debilitating consequences.

Stevens(3) 2 10/11/92

His Honour also accepted the evidence of a

Dr Danesi, a psychiatrist, to the effect that the

plaintiff had suffered a post traumatic stress
disorder, and that appears at pages 52 to 54 of the

record. At page 54, His Honour accepted that the

injuries had had a traumatic effect on the

plaintiff's lifestyle and had -

created a need for her to have household assistance of a fairly extensive nature.

Those services have been provided gratuitously

first for about six months by hospital authorities

in New Zealand, and thereafter by the plaintiff's

daughter who lived close to her in New Zealand.

His Honour was satisfied - and this appears at

page 55, line 18:

I find that the plaintiff's enjoyment of the amenities of life has been diminished to a

very substantial degree. She has been changed

from a cheerful outgoing hospitable woman to

an anxious reclusive and pain-ridden person

who probably qualifies to receive the type of

charitable attention she previously provided

to others. In addition she is subject to

persistent intermittent pain and discomfort

aggravated by almost any activity. Her hip

condition will probably degenerate to the

stage where a replacement is necessary.

In relation to pain and suffering, His Honour

assessed damages at $20,000. That appears at

page 56 -

apportioning $15,000 of that sum to the period

of the trial.

He had already awarded $2000 in relation to

have been incorporated in the $20,000, so it was	Griffiths v Kerkemeyer, although that appears to
really $18,000 for pain and suffering and $2000 for
Griffiths v Kerkemeyer, and he calculated interest at 6 per cent which he assessed at $2500 and
entered judgment in the sum of $22,500.

In so calculating the award, His Honour

declined to give effect to the provisions of the

Motor Accidents Act of New South Wales, in

particular sections 72 and 79, which would have had

an impact on this case and would have had the

effect of reducing the damages had they applied.
He held that the relevant provisions of the Motor

Vehicles Insurance Act were procedural and not

substantive. He did that in an analysis that

Stevens(3) 10/11/92

commences at page 43 of the record, if I could take

Your Honours to that. He referred to the

distinction between substantive law and procedural
or adjectival law and quoted a passage in Dicey

which appears at page 43 which includes the

statement that:

The quantification or assessment of damages is

a matter for the lex fori. Thus even when

according to the lex loci delicti damages for

personal injuries can be reassessed in the
light of changed circumstances, the English

court will assess them 'once and for

all' ..... Questions such as whether loss of

earning capacity, or pain and suffering are

admissible heads of damage, whether exemplary

damages may be awarded, and all questions of

remoteness of damage are, it is submitted,

questions of substantive law.

His Honour then referred to the legislation in

question in the case of Byrnes v Groote Eylandt

Mining Co Pty Ltd, (1990) 93 ALR 131, which

contained, as Your Honours will recall, a statutory

right of action, a condition of which was the

requirement that the action be commenced within a

certain period of time. His Honour contrasted that

legislation with the form of the present

legislation, that is the legislation under the

Motor Accidents Act, and referred to that

legislation as plainly being procedural.

I will not take Your Honours to the actual sections right at this moment.	I will come to them
very shortly.	The trial judge's final conclusion

on this topic, however, appears at the foot of 48

and the top of 49.

The proper interpretation of the New

South Wales legislation under consideration here results, in my view, in the conclusion

that part 6 of the Motor Accident's Act 1988

contains procedural provisions relating to the assessment or quantification of damages. They do not prohibit the granting of damages for

non-economic loss or in respect of the

provision of home care services. Rather they
purport to restrict the circumstances in which

those heads of damages might be awarded or

endeavour to limit the quantum thereof.

Moreover it is clear that if the plaintiff in

any action is entitled to damages for non-

economic loss in the amount of $55,000.00 or

greater, but less than $180,000, the Act does

not apply any limiting factor at all.	(In
fact the process which a court assessing
damages must adopt, in determining the

Stevens(3) 10/11/92

appropriate quantum but for the Act and then

deducting a sum assessed by virtue of Sections

79 and 80, do more than anything else to

demonstrate the procedural nature of those

provisions. Clearly damages for non-economic
loss are still required to be assessed in

order to determine whether or not the

limitation provided for by Section 79 applies,

and if so, to what extent it should apply.)

The Full Court ultimately decided that those sections in the Motor Accidents Act did apply, or

should apply, and on that basis reduced

His Honour's award to $7105.36. Just how that was calculated I will tell Your Honours in due course.

But so far as its approach is concerned, the Full

Court appears to have followed the approach in

effect of Your Honour the Chief Justice in

Breavington's case. The judgment was given by

Mr Justice Thomas with whom the other two members

of the Court concurred. It emphasized the general
primacy of the place of the tort, the law of the
place of the tort, rejected the proposition that

the quantification of damages was a matter of

procedure and at page 65 of the record - I will not

read this - His Honour was influenced in part by

the judgments of the New South Wales Court of

Appeal in Byrnes v Groote Eylandt Mining to the

effect that all limitation provisions, however

expressed, should be treated as substantive law.

In the short passage at the top of page 66

His Honour rejected the proposition that the

flexible exception, which some of Your Honours,

including Your Honour the Chief Justice, identified

in Breavington, could be applied to the

circumstances of this case, with the result that

Queensland law should become applicable.

His Honour also rejected the argument that, as a

matter of construction, the Motor Accidents Act

should not have been held to apply to the present

proceedings. May I then take Your Honours to the relevant	piece of legislation, namely the Motor Accidents
Act. This Act, as Your Honours know, is the Act
which repealed the Transport Accident Compensation
Act of 1987, which was the legislation which had
removed common law rights and put into place the
system of statutory compensation known as
Transcover. Part 2 of this Act restored common law
rights and that appears in section 6 in a section
headed Restoration of Common Law Rights:

6. The law relating to a right to or a claim

for damages or compensation or any other

benefit (pecuniary or non-pecuniary) against

Stevens(3) 10/11/92

any person for in respect of the death of or

bodily injury to a person caused by or arising
out of a transport accident (within the
meaning of the Transport Accidents

Compensation Act, 1987) occurring on or after

1 July, 1987 shall be as if the Transport

Accidents Compensation Act, 1987 had not been passed and the common law and the enacted law

(except that Act) shall have effect

accordingly.

Now, Part 3 dealt with third party insurance, and

Part 4 with rehabilitation, and payments to hospitals, Part 5 with claims and court proceedings to enforce claims. I will pass over those and take Your Honours immediately to the directly relevant

part of the Act which is Part 6, which is headed

"Awarding of Damages".

TOOHEY J: When did the Act come into operation, Mr Griffin?

MR GRIFFIN: It came into operation as from 1 July 1987. It

was retrospective, Your Honour.

TOOHEY J:	Thank you.
MR GRIFFIN:	Your Honour sees that section 7 applies Part 6

from 1 July 1987. There is a specific provision to

that effect.

Now, section 68 contains some

definitions,section 69(1) states that:

This part applies to and in respect of an award of damages which relates to the death of

or injury to a person caused by the fault of

the owner or driver of a motor vehicle in the

use or operation of the vehicle.

Section 70:

A court shall not award damages to a

person in respect of a motor accident contrary

to this Part.

Section 71 provides for a discount rate of
5 per cent to be applied in relation to certain
future losses that are there set out.

Section 72(1) directly relevant says:

An award of damages shall not include

compensation for the value of services of a

domestic nature or services relating to

nursing and attendance which have been or are

to be provided to the person in whose favour

the award is made by a member of the same

Stevens(3) 6 10/11/92

household or family as the person, except in

accordance with this section.

(2) No compensation shall be awarded

unless the services are provided, or are to be

provided, for not less than 6 months and may
be awarded only for services provided or to be

provided after the 6 month period.

(3) No compensation shall be awarded if

the services would have been provided to the

person even if the person had not been injured

by the motor accident.

(4) No compensation shall be awarded

unless the services provided or to be provided

are not less than 6 hours per week and may be

awarded only for services provided or to be

provided after the first 6 hours.

Subsection (5) I will not read, but in effect, if

the services were provided, or there was a method

determined by reference to the average weekly total

earnings of employees in New South Wales, for the

purpose of valuing certain services:

(6) If the services provided or to be

provided are less than 40 hours per week, the
amount of the compensation shall not exceed

the amount calculated at an hourly rate of

one-fortieth of the amount determined in

accordance with subsection (5)(a) or (b), as

the case may be.

Section 73 regulated the award of interest on

damages. It is not directly relevant, although it
should be observed that none of the prerequisites

for an award of interest were applicable in the

present case, and for that reason unless the

Queensland law relating to interest was applicable

there would have been no interest on the award.

the event, the Full Court held that the interest In

provision was procedural, and when the Full Court

reassessed the damages it did award interest,

holding that this provision did not apply.

Section 74 and section 75 - those sections deal with contributory negligence, compelling a finding in certain cases unless the plaintiff

satisfies the court certain things, in particular

in relation to alcohol related matters.

Section 76:

The defence of volenti non fit injuria is

not available -

Stevens(3) 7 10/11/92

instead, a reduction akin to contributory

negligence is provided for, a reduction in damages.

Section 77 relates to nervous shock and, in

effect, provides that a certain degree of proximity

to the accident is required before nervous shock

damages can be awarded.

Section 78 requires awards for economic loss

to be reduced by reference to certain benefits.

Section 79(1):

No damages shall be awarded for the

non-economic loss of an injured person as a

consequence of a motor accident unless the

injured person's ability to lead a normal life

is significantly impaired by the injury

suffered in the accident.

(2) The amount of damages to be awarded

for non-economic loss shall be a proportion,

determined according to the severity of the

non-economic loss, of the maximum amount which

may be awarded.

(3) The maximum amount which may be awarded for non-economic loss is $180,000, but

the maximum amount shall be awarded only in a

most extreme case.

(4) If the amount of non-economic loss is assessed to be $15,000 or less, no damages for

non-economic loss shall be awarded.

(5) If the amount of damages to be

awarded for non-economic loss in accordance
with subsections (1) to (3) is more than

$15,000 but less than $55,000, the following

deductions shall be made from that amount:

(a) if the amount of damages is less than

$40,000 - the amount to be deducted is

$15,000;

(b) if the amount of damages is not less than

$40,000 - the amount to be deducted is

$15,000, or $15,000 reduced by $1000 for every

$1000 by which the amount of damages exceeds

$40,000.

Section 80 provides for amounts in respect of

non-economic loss to be indexed and increased by

reference to an average wage figure. That
indexation had occurred and as we will see, when

the Full Court came to reassess the damages, it

Stevens(3) 8 10/11/92

increased the damages slightly by reason of the

indexation.

Before departing from the Act, as it will

become relevant in other contexts, may I take

Your Honours briefly to Part 10. One sees in

Part 10 certain transitional provisions. There is

a definition of intermediate transport accident,

then under section 139 there is a continuation of

the previous fund, the Transport Accidents

Compensation Fund. It was to continue to be

administered by the GIO under section 139(2).

Section 140 provided for certain payments into the

TAC Fund and 141 for payments out.

Damages under section 143 were payable out of the TAC Fund, that is damages in respect of

intermediate transport accidents. They of course

were payable by the GIO under the provisions to

which I have referred, and then the system of the

Act was under section 147A for the GIO to be able

to recover such amount from any person whose fault

brought about the death or injury in question where

such person had not paid a contribution into the

TAC Fund. So in effect the GIO had a right of

indemnity against such a person.

Reverting, Your Honours, to the actual awards

in this case, I have indicated to Your Honours that

the trial judge in effect allowed $18,000 for pain

and suffering. On the basis that section 79 was

applicable to the case, the Full Court reduced that

to $3000 by deducting $15,000 from the $18,000 and
then increased that figure slightly owing to

indexation.

In relation to the question of care, the Full

Court in effect disallowed the $2000 the trial

judge had awarded altogether, because that was

apparently in respect of gratuitous care, and

evidently on the footing that the Full Court took

the view that the requirements of section 72 had

not been satisfied, but it substituted an amount of

$2908 for paid care which the trial judge had

overlooked, section 72 having no bearing on paid

care.

There was another item overlooked of $165.36.

As I have indicated, the Full Court considered that

interest on damages was procedural and allowed

Common Law Practice generally applied for accruing losses in Queensland

interest on the basis of the

of 6 per cent. Had section 73 of the Motor

Accidents Act been applied, no interest would have been payable because, as I said before, none of the

pre-requisites set out in that section applied.

Stevens(3) 9 10/11/92

Now, of course, as Your Honours will know, the decision of this Court in McKain v R.W. Miller

& Co. (South Australia Pty. Limited), (1991)

174 CLR 1, postdates the decisions of both the

trial judge and the Full Court, and it is our

fundamental submission that the appellant is

entitled to succeed in this appeal upon a proper

application of the reasoning in McKain's case.

In that case Your Honours Brennan, Dawson,

Toohey and McHugh settled on the formulation

adopted by Justice Brennan in Breavington's case,

and that formulation appears at page 39 of the

joint judgment at point 2.	Your Honour had said in
Breavington's case:

"A plaintiff may sue in the forum to enforce a

liability in respect of a wrong occurring

outside the territory of the forum if - 1. the

claim arises out of circumstances of such a

character that, if they had occurred within

the territory of the forum, a cause of action

would have arisen entitling the plaintiff to

enforce against the defendant a civil
liability of the kind which the plaintiff
claims to enforce; and 2. by the law of the

place in which the wrong occurred, the

circumstances of the occurrence gave rise to a

civil liability of the kind which the

plaintiff claims to enforce.

This restatement is narrower in

expression than the traditional formulation of the Phillips v. Eyre conditions which speak of

'a character that ... would have been

actionable' and 'justifiable'. It defines

more precisely the issues which are referred

for determination to the lex fori and the lex

loci respectively."

Your Honours had earlier referred to the previous

course of authority in this area, and to the

various policy considerations which point towards
the lex loci delicti and the countervailing
considerations that point towards the lex fori and

the different sort of circumstances in which each

might be appropriate, and we are not proposing to

go into that course of authority in any depth, or
into the policy considerations in any depth.

At page 38 point 7 Your Honours had referred to the desirability of certainty in this area in

these words, and we submit this is important for
the purposes of the present case: the overwhelming desideratum in a rule for

intranational torts is certainty of

Stevens(3) 10 10/11/92

application or, more accurately, as much

certainty as the subject matter admits.

Your Honours decided that section 118 of the

Constitution did not have any operation in relation

to choice of law in these cases and Your Honours,

at page 37, adopted the approach of Justice Dawson

on that aspect of the matter, that is the approach

of Your Honour Justice Dawson in Breavington's case

where Your Honour had said, and this is at page 37

in McKain's case:

"In my opinion, the requirement that full

faith and credit be given to the laws of a

State, statutory or otherwise, throughout the

Commonwealth, affords no assistance where there is a choice to be made between conflicting laws. Once the choice is made,

then full faith and credit must be given to

the law chosen but the requirement of full

faith and credit does nothing to effect a

choice. Nor is it to the point to say that

the full faith and credit requirement assumes

the applicability of a single law. No doubt

that is so, but it is to say no more than that

where there is a conflict of laws upon a given

question a selection must be made before the

question can be answered. The conflict rules

are based upon the same assumption but they,

unlike the full faith and credit requirement,

provide a basis upon which the selection can
be made. Section 118 of the Constitution is

not directed to a conflict of laws; where

there is a conflict it makes no choice or, to
put it another way, does not require the
application of a law which is not otherwise

applicable. "

With respect, the joint judgment expresses

less fears about forum shopping than appears in

some of the judgments in Breavington's case, and we

refer in this regard to the passage at the foot of

page 39 where Your Honours said:

The common law rules founded on Phillips v

Eyre are part of the common law of the forum,

prescribing the elements of a cause of action

justiciable in the courts of the forum. But

that view of the common law rules, coupled
with a rejection of the vested rights theory,

gives rise to a logical anomaly, for it

postulates as many causes of action as there

are forums in which the rules apply.	The
anomaly is more apparent than real.	The

causes of action arising in the several law areas of the Commonwealth are dependent on,

and incorporate as an element, the existence

Stevens(3) 11 10/11/92

of a civil liability under the lex loci

delicti. Once any of the causes of action

merges in a judgment, the original civil
liability must be taken to be merged in the

judgment and to have been extinguished. It is

no longer available to found any other cause

of action. It follows that the civil

liability to which the law of the place in

which the wrong occurred gave rise must be a

continuing liability; if that civil liability

be extinguished, the cause of action conferred

by the common law of the forum is extinguished

too.

That passage implicitly accepts, of course, that

the result of the case will, or may well, be

different according to the place in which

proceedings are in fact brought. We submit that in

applying what is, in effect, the test stated in

Koop v Bebb with the second condition modified,

Your Honours were very mindful of the pre-

Breavington course of authority and we therefore see McKain's case as laying to rest a number of

issues relating to private international law in so

far as it applied to intranational torts and we do

not seek to revive any of those issues.

It is our submission that the decision was

correct. In our submission the choice of law rule

must necessarily represent a compromise. First of

all it must compromise the policy considerations

which point to the lex loci and those that point to
the lex fori. There is a tension between those

considerations. There is also a tension caused by

a desire for certainty in the application of the

rules on the one hand and the desire to apply the

law which accords with legitimate expectations of

the parties on the other. As soon as one talks of

a flexible exception to a basic rule, in order to

cater for those circumstances in which the rule

applies unjustly - - -

McHUGH J:  Mr Griffin, there is no suggestion that McKain v R.W. Miller or its correctness is to be re-argued.

MR GRIFFIN:  No, Your Honour. I am simply pointing out that

the basis for McKain's case, or for the

formulation, is relevant when one comes to the

precise issue in this case. That is what I am

seeking to do, Your Honour.

So far as the flexible exception is concerned,

we understand McKain's case to have abandoned that

in the expectation, we would submit, that the rules

adopted will represent a reasonable compromise of

all the countervailing considerations to which we

refer.

Stevens(3) 12 10/11/92

It is our submission that the appellant's

claim satisfied both of the limbs in McKain's case.

Very little time need be spent, of course, on the

first limb, or rule. Quite plainly the appellant
would have had a cause of action of the kind she
claimed had the accident occurred in Queensland.

The learned district court judge decided that her case fell for determination without reference to the Motor Accidents Act of New South Wales and decided her case by reference to the principles applicable in Queensland. It is therefore axiomatic that the appellant satisfied the first

part of the rules.

Turning to the second rule, the question is

whether by the law of the place in which the wrong

occurred, ie New South Wales, the circumstances of the occurrence gave rise to a civil liability of a

kind which the plaintiff claims to enforce. In our submission that question admits of a simple answer. In New South Wales, by reason of the restoration of

common law rights, the person who caused damage by

reason of the negligent driving of a motor vehicle

was liable to a person injured thereby in

negligence. All traditional heads of damage were

available, albeit that the awarding of damages

under the various heads was subject to the

provisions of part 6 of the Motor Accidents Act.

The existence of those provisions did not mean,

however, that there did not exist in New South

Wales civil liability of the kind the appellant

claimed to enforce.

Although that conclusion results in

Mrs Stevens obtaining a considerably higher award,

one does not, with respect, find the result in any

way abhorrent. It can hardly be described as a

case of forum shopping when the appellant issued

her process in the district court which is closest

to the place where the accident occurred. The

accident occurred at the southern tip of the Gold

Coast, southern tip of what is, in reality, a vast

metropolitan area - only the southernmost portion

of which is in New South Wales, rather than

Queensland.

We will shortly be addressing Your Honours

about the construction of the Motor Accidents Act.

Whatever views Your Honours take in that regard, it

is perfectly apparent that the last thing that the

draftsmen of the Motor Accidents Act of New South

Wales had in mind was an action in Southport which

was directed at recovery from a Queensland resident who was backed by a Queensland insurer. But I will

come to that shortly. Your Honours, stripped of

all other features, the present case deals, in our

submission, with nothing more or less than the

Stevens(3) 13 10/11/92

extent of recovery to be had in respect of a kind
of liability which existed in both New South Wales
and Queensland. In our submission the fact of the

actual extent, or the fact that the actual extent

of the recovery differs according to which law

applies should be treated as immaterial. That the

extent of recovery should be determined by the law

of the forum is generally consistent with the long

line of Australian authority which McKain's case

sought to apply and it is also consistent with

English authority.

Our argument, of course, gains strength from

the actual formulation of the New South Wales provisions upon which the learned trial judge

relied. Having specifically restored common law

rights in part 2 of the Act, the scheme of the Act

is that the Court is not to "award damages" in

contravention of part 6. The Act thus assumes the

existence of common law liability and indeed, the

right to damages assessed according to the common

law but proceeds to state what is not to be

awarded.

DAWSON J:  What is the philosophy behind section 79,

Mr Griffin?

MR GRIFFIN:  As I understand it, Your Honour, it is designed

to first of all prevent small claims, that is to

say the minor whiplash injury or to discourage

those claims because after damages are assessed the

sum of $15,000 is deducted. Therefore if one does

not exceed $15,000 one gets no award at all for

pain and suffering.

At the other end, it is designed to put a

ceiling on awards and to - in effect for the

legislature to intervene by declaring what the

appropriate scale of awards is.

DAWSON J: Well, in other words, outside the parameters you

just suffer your own loss?

MR GRIFFIN: That is right, Your Honour, yes.

DAWSON J:  Too bad.

MR GRIFFIN: Yes. Now, Your Honours, going back to

section 79, the point that I am making will be seen

if one looks at the terminology adopted by each of

the relevant subsections. Subsection (1):

No damages shall be awarded for the

non-economic loss -

And so on. The terminology assumes that damages

would otherwise be available but directs the judge

Stevens(3) 14

not to award them if they fall into certain

categories.

(2) The amount of damages to be awarded

for non-economic loss shall be a proportion

..... of the maximum amount which may be

awarded.

(3) The maximum amount which may be

awarded for non-economic loss is $180,000, but
the maximum amount shall be awarded only in a

most extreme case.

The earlier sections are along the same lines and

of course, as I have pointed out to Your Honours,
the heading of the part is Awarding of Damages.

Now, in McKain's case, Your Honours in the

majority held that the South Australian limitation
provision was inapplicable because it took the form
of a limitation provision that was traditionally
held to be one which extinguished the remedy, not

the right. It is submitted that the legislation

under consideration here purports only to effect

the remedy. It assumes the existence of a right to

common law damages, but limits the remedy in the

manner we have indicated.

If a statute which extinguishes the remedy but not the right is procedural, a fortiori, in our

submission, a statute which limits the remedy but

does not extinguish the right must also be

procedural.

TOOHEY J:	How do you fit in to that argument, Mr Griffin, section 6 and the language, the law relating to a
right to, or a claim for damages?

MR GRIFFIN: Your Honour, I fit that in by this logic: that

the section specifically starts off by restoring

common law rights as the heading indicates.	It is
a restoration of common law rights.

TOOHEY J: That is not quite correct, is it? It is a

restoration of common law rights as affected by the

enacted law, namely, the Motor Vehicle Accidents

Act.

MR GRIFFIN: Yes, but not as affected by this law,

Your Honour. It is not as if it is stated that the

common law rights are restored subject to Part 6.

It restores common law rights independently of

Part 6 and then Part 6 comes along and states what

damages can be awarded.

Stevens(3) 15 10/11/92

TOOHEY J:  I take it under the Transport Accidents

Compensation Act it was not necessary to establish

negligence - I am sorry, I put that as a question.

MR GRIFFIN:  I believe it was, Your Honour. Perhaps if I

could deal with that a little later.

TOOHEY J: Well, it may not matter in the end, but I was

just trying to give content to the words, "the law

relating to a right to or a claim to damages".

Clearly enough, the Motor Accidents Act is not

concerned with negligence as a concept.

MR GRIFFIN:  We read that part of Part 6 as defining the

type of accident to which this legislation was to

apply.

BRENNAN J: 

Do we have the definition of "transport

accident" for the purposes of the Transport
Accidents Compensation Act?

MR GRIFFIN: 

Your Honours, we are sending for that.

TOOHEY J: 

I suppose the point perhaps, Mr Griffin, is that

the plaintiff suing in New South Wales for damages arising out of a motor vehicle accident would not,

I suppose, need to plead the Act in any way. The

statement of claim would simply reflect the common

law and then it would be, if relevant, for the

defendant to rely upon various sections to reduce

the damages to which the plaintiff would otherwise

be entitled.	Is that the way in which the Act
would work?

MR GRIFFIN:  We would submit that that is correct, that it

would operate by way of a defence to certain forms

of claim.

BRENNAN J: Could I just ask you this question, Mr Griffin:

if this case had occurred just north of the border and the cause of action had been prosecuted in the

District Court of Murwillumbah, could the New South

Wales court have disregarded section 70?

MR GRIFFIN: Depending upon the argument that we have in

relation to the construction of the Act, leaving
that aside, we would say no. But this is a matter
for the forum and the New South Wales court could
not have disregarded it. Your Honours, we submit

therefore that the logic which caused the Court in

McKain's case to hold that the South Australian

limitation provision was not applicable to the

litigation involved there, that that logic yields

the same conclusion with respect to the present

litigation, that is to say that those restrictive

provisions of the Motor Accidents Act are

inapplicable to it.

Stevens(3) 16 10/11/92

They do not even go so far as to extinguish

the right; certainly they do not extinguish the
right to any of the acceptable or accepted heads of

damage. All they do is fashion, modify and limit

the right. In our submission, that is a complete

answer to any contention that sections 72 and 79 do

not merely relate to the quantification of damages,

but in reality limit the damages the defendant will

have to pay. Particularly under this legislation,

it is a case of a limited remedy, not the case of a

limited right.

Another answer, however, is that it is

artificial to characterize the provisions of

Part 6, or some of them, as limiting damages as

opposed to being concerned with the quantification

of damages. In this respect, we submit that the

Full Court was correct in saying that in this area

the terminology should not be decisive. We refer

to page 65 of the record at the foot of the page -

this is in the Full Court's judgment, where it is

stated:

In this area the result will not depend

upon fine distinctions as to the form of the
legislation in question. It should not matter
whether the legislation states that there is

"no right of action for damages except ... " or

"damages will be limited to ... " or "damages

are not to exceed ... " or "damages are to be

calculated in accordance with the following

formula In our submission, His Honour was, however, ... ".

incorrect in two other respects. First, although
he rightly concluded that all such provisions

relate to the quantification of damages, he should

have gone on to make a distinction between

provisions which affect the remedy of damages and

those which impinge upon the right to damages.

Secondly, apart from that, he should have held that

provided the lex loci delicti recognized the

relevant head of damage, the question of

quantification of the damages was for the lex fori.

It is our submission that, quite apart from

the impact of the McKain decision upon the

circumstances of the present case and speaking

generally, questions of heads of damage aside the quantification of damages is a matter for the lex fori, and there is a considerable amount of

authority to that effect. We refer to the remarks

of Your Honour Justice Brennan on this topic in

Breavington, at page 119 starting at point 4,

Your Honour said:

Stevens(3) 17 10/11/92

The problem arises because the lex fori

not the lex loci governs the quantification of

damages: Chaplin v. Boys. A State or

Territory law may prescribe a mode of quantifying damages different from that which

would otherwise apply; e.g., by prescribing a

different discount rate from the 3 per cent

adopted in Todorovic v. Waller. Thuss. 5 of

the Common Law Practice Act 1867-1981 (Q.)

prescribes a discount rate of 5 per cent.	An
anomaly is thus created, for the measure of

damages (not the kind of civil liability) may

vary according to a plaintiff's choice of forum, although there is but one cause of action.

Your Honour Justice Dawson said this, at page 146

at the top of the page:

The application of the rule in Phillips

v. Eyre viewed in this way would preclude the

plaintiff from recovering damages for loss of

earnings or of earning capacity in the

Victorian action because damages under that

head are not recoverable under Northern

Territory law. In order to reach a contrary

conclusion it would be necessary to treat the

heads of damage under which recovery can be

made as having nothing to do with the

character of the wrong actionable under the
lex deliciti and as going only to the measure
of compensation, that is to say, as a matter
of procedure rather than as a matter of

substance. While the line between procedure

and substance may sometimes be elusive, in a

case such as this, where the action is in

negligence and damage is the gist of

liability, it seems to me that it is not

possible to say that the character of the
wrong is not altered or diminished under the

lex delicti by the exclusion of loss of

earnings or of earning capacity from the

damages recoverable. Negligent conduct giving

rise to damage in the form of loss of earnings

or of earning capacity is not a wrong which

attracts civil liability in the Northern

Territory. The relevant wrong which does

attract civil liability is negligent conduct

giving rise to damage in the form of pain and

suffering (provided no benefit has been

received under the Act) but that is not the

wrong upon which this action is based whilst

the claim for damages for loss of earnings or of earning capacity remains. In other words, the form of damage recoverable governs the

nature of the cause of action.

Stevens(3) 18 10/11/92

English authority, in our submission, is to the

same effect and one does not need to go past the

House of Lords decision in Chaplin v Boys, (1971)

AC 356 for that proposition. May we take

Your Honours first of all to the speech of

Lord Hodson at page 379 starting at letter C, where

His Lordship said:

I was at first attracted by the submission

that some liability under Maltese law being

established, the remedy under Maltese law of

compensation for actual loss of earnings and

the remedy of damages in respect of the injury itself for pain and suffering could be merged.

If this were done both heads of damage could

be treated as if they related solely to the

remedy and not to the substantive law

involved, thus avoiding the difficulty

presented by the distinction between

substantive law and procedure. I am now,

however, persuaded that questions such as

whether loss of earning capacity or pain and

suffering are admissible heads of damage must

be questions of substantive law. The law

relating to damages is partly procedural and

partly substantive, the actual quantification

under the relevant heads being procedural

only. This view is supported by authority.

The Supreme Court of Canada in Livesley v

Horst held that the question what kind of loss

actually resulting from a breach of contract

is actionable is a question of law. The

court, at p. 161, cited and relied upon a

passage from the judgment of Turner L.J. in

Hooper v Gumm, which reads:

" ... where rights are acquired under the laws

of foreign states, the law of this country
recognizes and gives effect to those rights,
unless it is contrary to the law and policy of

this country to do so."

This statement excludes procedure, for the

party invoking English law must take procedure

as he finds it.

Here I think the question of right to

damages for pain and suffering is a

substantive right and the respondent would

fail if that which I have described as the

general rule of principle were applied. That

would be a just result if both parties were

Maltese residents or even if the defendant

were a Maltese resident.

Lord Guest, at page 381, starting at letter G,

said:

Stevens(3) 19 10/11/92

Assuming that the conduct was actionable

in Malta, what law is to be applied to the
ascertainment of the damages? Is it to be the
substantive law, the law of Malta, or is it to

be the procedural law which is the lex fori?

In Don v Lippmann Lord Brougham said that

whatever relates to the remedy to be enforced

must be determined by the lex fori. There
would appear to be a distinction between

questions affecting heads of damages which are for the lex loci delicti and quantification of

damages which is for the lex fori. This is

well illustrated in Dicey and Morris, Conflict
of Laws, where the kind of damage is a matter
of substantive law and the method of
compensating the plaintiff for his loss which

is for the lex fori. Cheshire on Private

International Law is to the same effect.

It may be difficult in certain cases to

say on which side of the borderline any

particular claim of damages should fall.

Lord Guess went on to consider Scots cases dealing with Solatium; in effect, holding that the availability of solatium was not substantive

because it was not treated as a separate head of

damage, but rather was comprised in the ordinary

action for damages for injuries. And then

Lord Wilberforce, in an oft-quoted passage, at page 393, between letters A and B said:

There certainly seems to be some artifice in

regarding a man's right to recover damages for

pain and suffering as a matter of procedure.

To do so, at any rate, goes well beyond the

principle which I entirely accept, that

matters of assessment or quantification,
including no doubt the manner in which

provision is made for future or prospective

losses, are for the lex fori to determine.

On the other hand, Your Honour the Chief Justice

has expressed a different view. In Breavington's

case at 79 point 5, Your Honour said:

In reaching the conclusion that, as a

matter of conflicts of law, the law of the

Northern Territory is to be applied, I reject the notion that the principles according to

which damages for personal injury are to be

assessed is a matter of procedure. It would

be artificial to regard that question as one

of adjectival or procedural law. The measure

of damages is plainly a question of

substantive law.

Stevens(3) 20 10/11/92

In the McKain case at page 24, again at the middle

of the page, Your Honour addressed the same

question again. Your Honour said:

Moreover, it is simply no longer accepted

that all matters which touch upon a remedy are

necessarily to be treated as procedure or

adjectival. Thus, the question of what heads

of damage are recoverable is now treated as a

substantive issue and a statute placing a

limit on the amount of damages recoverable is

not regarded simply as a matter concerning

quantification of damage (which, on

traditional analysis, has been treated as a

procedural consideration) but rather as an

express limitation on substantive liability.

In Breavington I rejected the notion that the

principles according to which damages for

personal injury are to be assessed is a matter

of procedure ..... It follows that, even if it

be correct to say that a statute of

limitations only affects the availability or

otherwise of a remedy, that circumstance, of

itself, should not dictate that statutes of

limitation be classified as procedural.

In stating that a statute placing a limit on the

amount recoverable is treated as an express

limitation on substantive liability, Your Honour

referred by way of footnote to two authorities.

One is the Canadian case of Livesley v Horst Co,

(1925) 1 DLR 159. In that case, if I could take

Your Honours to it, there was litigation in British

Columbia over contracts made in California.	The
claim was for damages, but the claim in turn
depended upon whether a vendor's lien and an

accessory right of sale had arisen under California

law. Justice Duff, speaking for the Supreme Court

of Canada, said this at 161 to 162:

It is most important to observe that it

is not the foreign agreement to which effect

of the accurate Judge, whose judgment is	is given by English law but, as the language
quoted, suggests, it is the civil or legal
right generated by the contract. The right of
action, as Willes, J said, in Phillips v Eyre
is a "creature" of the law by which the
contract is governed. Applying the principle
to the circumstances of the case before us, the lien given to the vendor, and the accessory right of sale, are obviously substantive rights given by the law of California to the vendor as such; in his
capacity, that is to say as seller under a contract of sale. And the right to recover
the difference between the contract-price and

Stevens(3) 21 10/11/92

the moneys realized on the sale would seem to

be not less so. The provisions of the Code

could, no doubt, be varied or entirely

eliminated by express stipulation; and it

seems plain enough, therefore, that

indirectly, at all events, they take effect by

consent of the parties. But, however that may be, the vendor's rights under these provisions accrue to him by reason of the contract, and

may without impropriety be described as rights

implied by law as terms of the contract. On

principle, since it is the right created by

the contract, and not the agreement itself

which is enforced, there would appear to be no

pertinent distinction between rights arising

under terms thus implied by law and rights

arising by force of the general law from

express stipulations inter partes formally

embodied in the record of the agreement.

The analysis in the case thus turns upon it being

implied in the contract that the Californian

remedies would apply in the absence of stipulation

to the contrary.

At page 164, His Honour did go on to express

the view that the measure of damages in tort is
substantive rather than procedural, and he quoted
the 1858 English decision of Cope v Doherty for

that proposition. Now, in so far as that statement

by His Honour appears to have intended to represent

the state of English law on the point, it is

submitted that it simply cannot stand against the

much more recent statements to the contrary in

Chaplin v Boys in the House of Lords.

The other decision to which Your Honour the

Chief Justice referred on this point is also a

contract case. It is the case of Allan J Panozza &

Co Pty Ltd v Allied Interstate (Qld) Pty Ltd,

(1976) 2 NSWLR 192. That case is a decision of the

New South Wales Court of Appeal. A Queensland

company entered a contract with a Queensland

carrier whereby the carrier was to carry beans from

Narromine in New South Wales to Brisbane in

Queensland. The beans were lost in New South

Wales owing to the alleged negligence of the

carrier. The company sued to recover the value of

the beans in the District Court of New South Wales.

The relevant provision was section 6 of the

Queensland Carriage of Goods By Land (Carriers

Liability Act) 1967, and it is set out at page 195C

and it provided:

"A carrier shall not be liable for loss of or

injury to any goods entrusted to him under a contract of carriage or as incidental to the

Stevens(3) 22 10/11/92

carriage by land of a passenger for reward in

an amount greater than twenty dollars per

package or, in the case of unpackaged goods,

per item of goods consigned or two hundred

dollars per consignment, whichever is the

less .... tt

It was held that section 6 applied to limit the liability of the carrier. However, it had also

been held, not surprisingly, one might think, that
Queensland was the proper law of the contract.

That being so, there is no reason, in our submission, why the provision should not have

applied. It might be noted in passing that as

compared with provisions such as sections 72 and 79

of the Motor Accidents Act, section 6 was so

drafted as to limit liability as such.

Of course, the contract cases have their own

peculiarities and in my submission the Court should

not feel itself compelled, in any event, to take

the same line in relation to choice of law issues

in tort, as appears to have been taken in relation

to contract. The essential difference is, of

course, as pointed out by Justice Duff in the

Supreme Court of Canada, that the parties can

contract out of the law of the place in which they

make their contract. And indeed, they can provide

that their contract will only be judiciable in a particular forum. If the parties do not seek to

write out of their contract the law of the place
where they enter the contract then there is no
reason in principle why remedies under the law of

the place where the contract is made should not be

implied into the contract. But that is a very

different situation from the situation that faces

the Court here.

Before passing to another point, may we revert

to the question of certainty, which Your Honours in

the joint judgment expressed to be the overwhelming

desideratum in this area. We submit that if the

rule is that tort liability is of a different kind

if the heads of damage are relevantly different, if

that is the rule then there is a rule which could

be applied with certainty. However, once one goes

beyond that and endeavours to distinguish between

statutory provisions which impact in one form or

another on motor vehicle accidents or particular

heads of damage, and if one says that those changes

result in the liability being a liability of a

different kind, then in our submission the

advantage of certainty is immediately lost.

One is then compelled to go picking through

the provisions, to take sections 72 to 79 as an

example, picking through them from one to another

Stevens(3) 23 10/11/92

to determine on which side of the line they fall.

All this being done, of course, ex hypothesi in a jurisdiction other than the one in question. There

would be arguments about the criterion to be

applied, there would be arguments as to the type of

fact situations to which the criterion, whatever is

chosen, is applied and the process will be

particularly difficult if both the forum and the

lex loci have statutes which impinge in a similar

but not identical way upon the head of damage in
question.

In a sense that situation does not arise here

because the Queensland legislature had not
introduced provisions, in many instances at least,

covering the areas that were dealt with by the

draftsmen of the New South Wales Act. But what

would the position be if, for instance, Queensland

had a ceiling of $200,000, or $160,000. What if

there were provisions in Queensland that related to

Griffiths v Kerkemeyer, but were different from the

ones that applied under the Motor Accidents Act.

In Koop v Bebb it was stated in the joint

judgment that in these cases the forum applies a law of its own creation, and we submit that that

particular principle has not been interfered with

by McKain's case. So, one has the situation in

which one has the forum law with its rule or rules

impacting in various ways upon these cases, and

then one is confronted by the lex loci delicti

which has its rules and which may be, to some

extent or another, similar, or different from the

rules in question. In our submission, once one

goes beyond the simple position that if the heads

of damage are different then it is a liability of a

different kind - once one goes beyond that, one is

inevitably drawn into uncertainty associated with

what is procedure and what is substantive;

uncertainty associated with the way in which the

particular statutory provisions have been

formulated; and so on. And there would be no way

of establishing some sort of code that would bring

about certainty.

It may be suggested, for example, that

Your Honours should declare if there is a limit on

liability, that a limitation on damages in a particular area - that that should result in

liability of a different kind. Well, where does

that place the reduction of $15,000. Is that a

limit on liability? It seems to have a different

character from the ceiling of $180,000 which, of course, was not directly relevant in the present case.

Stevens(3) 24 10/11/92

On the other hand, if the rule is the rule

that we contend for, it is in accordance with
Chaplin v Boys because it is quite apparent from

the judgments in that case that Their Honours saw
the heads of damage as a necessary prerequisite to
the enforcement of the action under the lex fori
but that anything beyond that is procedural and not
to be applied by the lex fori. Instead, the

lex fori applies its own rules in that area.

If that rule is applied in that way, it is a

simple task for the forum judge. The only question

he has to ask himself about the lex loci delicti

is: is there the same kind of liability and are the

same heads of damage available. Having satisfied

himself of that, he applies the law with which he

is familiar, that is, the law of his own forum.

We need to say something now, Your Honours,

about a matter to which Your Honour Justice Brennan

alluded in Breavington, and this is at pages 119 to

120, where Your Honour raised the possibility that

Part IV of the Service and Execution of Process Act

may have created a regime which required uniformity

and the quantification of damages by any Australian

forum, and Your Honour spoke in terms of a

possibility that the local law could be outflanked

by the registration in the place of the wrong of an

out of State judgment.

We will not take Your Honours to the Act,

Your Honours will be familiar with its provisions.

Part IV of the Act provides that a person who has a

judgment in:

any Court of record of any State or part of

the Commonwealth, may obtain ..... a certificate

of such judgment -

and proceed to register it in any court of like

jurisdiction in any other "State or part of the

Commonwealth", and once registered it has the same

force and effect as a judgment of the court in

which it is registered.

Our contention on this point put briefly is

that those provisions have nothing to do with

conflict of laws; they do not expressly have any

bearing on conflict of laws, of course, and, in our

respectful submission, they have no implicit

bearing either. In our submission the only work

the Part does is to provide for an expeditious

means of enforcing judgments from State to State.

Additionally, it would only be right to speak of
the quantification of damages by the court of the
place of the wrong being outflanked if one made the

assumption that quantification of damages was for

Stevens(3) 25 10/11/92

the lex loci. It is our submission that

quantification of damages is a matter for the lex

fori and that the lex loci has no primacy unless it

happens to be also the lex fori, in which event

there would be no question of the registration of a

judgment of one court in another court.

Furthermore, as the joint judgment in McKain

states in the passage that I referred to at

page 39, once any of the causes of action merges in

a judgment the original civil liability must be

taken to be merged in the judgment and to have been

extinguished. In other words, there can only be

one judgment arising out of the liability in

question. That being so, if such judgment happens

to be a judgment entered initially by a forum other
than a court in the place of the wrong, there seems
to be no problem about it being registered in a

court of the place of the wrong. It is the only

judgment which can ever be given in relation to the

liability in question between those parties and the

court. No court, not even the court of the place

of the wrong, can be called upon to enter a

judgment inconsistent with it.

Finally, Your Honours, we repeat the argument

that we unsuccessfully put to the Full Court to the

effect that on its proper construction the Motor

Accidents Act should not be construed, at least during the transitional period, as having any

application to the present proceedings.

Now, we do not propose going through the provisions of the Act in detail. The Act made

provision with respect to third party insurance and
provided for insurers to be licensed under the Act.

An examination of these provisions reveals that at

the time of their enactment, and at the time of

this accident, those provisions were only concerned

with insurers licensed under the Act, there were no

provisions appropriate for out of State insurers.

But more importantly, during the transitional

period which was the period 1 July 1987 to

1 July 1989, the system of third party insurance

set up by the Act was held in abeyance, and it was

provided in Part 10 of the Act that the TAC fund

would continue, all damages would be paid out of

that fund, and the GIO could recover damages in

respect of any accident caused by a negligent

driver who had not paid a contribution to the TAC

fund. That was under section 147A which I referred

to previously.

Subsequently, by the Motor Accidents Amendment

Act of 1990, and might we hand up some copies of

this amending provision, Your Honours?

Stevens(3)	26	10/11/92
MASON CJ: Yes.

MR GRIFFIN:  They cover two pages.

BRENNAN J: Mr Griffin, I am not sure that I am following

this precisely because the Transport Accidents

Compensation Act defines transport accidents, if I am reading it correctly, as including accidents arising out of the use of - it might be abbreviated

to New South Wales registered vehicles, wherever

the accident might take place. In other words, it

is not just New South Wales accidents. Is that

right?

MR GRIFFIN:	Your Honour, this vehicle in question was, of course, not a New South Wales registered vehicle.
It was a Queensland registered vehicle. It was
driven by a Queenslander; it was insured in
Queensland, and the proceedings which Mrs Stevens brought never threatened the TAC fund, and this is our basic submission.
BRENNAN J:	The second category of transport accident seems

to be a a motor vehicle which is not registered in

New South Wales - - -

MR GRIFFIN: Yes.

BRENNAN J:  - - - on a public street in New South Wales. So

it would be, I take it, a transport accident,

this - - -

MR GRIFFIN: That would seem to be so, on that definition,

yes, Your Honour.

BRENNAN J:  I do not know. I am not really familiar with

the legislation, I am just inquiring.

MR GRIFFIN: Yes, Your Honour is referring to section 4 of

the Transport Accidents Compensation Act.

BRENNAN J: Yes, section 4(l)(a) and (b) seem to be the

relevant ones, I think,

MR GRIFFIN: Yes. that would seem to be correct,

Your Honour, that by reason of the fact that the

motor vehicle, although it was registered, was not

registered under the Motor Traffic Act, it would be

an unregistered vehicle under section 4(l)(b).

On that footing it would be a transport

accident within the meaning of that Act and that

would then cause it to be an accident within the

meaning of section 6 of the Motor Accidents Act.

However, an examination of the Act as a whole in

relation to the transitional period indicates that

the Act is concerned with the amounts that come out

Stevens(3) 27 10/11/92

of the TAC fund. The amendments that I handed up

to Your Honours a moment ago reflect a somewhat

belated recognition of the position of out-of-State

insurers.

The way this was done was by providing in

effect that the indemnity that was available to the

GIO against a responsible owner or driver was

available against the insurer of that vehicle.

That is done by the schedule 1 amendment on

page 10. Both section 145A and 145B are declared

to have commenced on 1 July 1989 which, of course,

is subsequent to the accident in question, although

it may be that in so far as it declares a right to

obtain indemnity, it may have had potential effect.

But the point we make is that this accident

or, more precisely, the present proceedings were

never directed to obtaining any money from the TAC

fund. They were not brought in New South Wales;

they were brought in Queensland against a

Queensland resident who had his own insurer

standing behind him.	The Act appears to have no
concern with that type of situation at all.	Of

course, the Full Court said, "None the less, the provisions of the Act are general and purport to

apply to all accidents in New South Wales." In our submission, on a proper reading of the

Act, they really establish, at least in the

transitional period, a code whereby damages can be

obtained from the TAC fund. In our submission, in
those circumstances the Act should not be

interpreted simply as a matter of construction as having any bearing upon these proceedings at all.

Your Honours, those are our submissions,

unless there is anything further that we should

address.

MASON CJ:  Thank you, Mr Griffin. Mr Jackson?

MR JACKSON:  Your Honours, may I hand to the Court copies of

our outline of submissions?

MASON CJ: Yes.

MR JACKSON: Your Honours, before coming to the substance of

our submissions, may I deal with two preliminary

matters?

The first is that Your Honours will see in

paragraph 2 of our outline of submissions some submissions which are addressed to an argument

which is not now relied on, on behalf of the other

side. However, one notes in passing that our

learned friend's submissions from time to time have

Stevens(3) 28 10/11/92

referred to events such as the fact that the appellant's plane landed from New Zealand in

Brisbane, they were staying at Tweed Heads, they

were going to go to Expo and so on. Your Honours,

to put the matter a little into perspective, the

case is not one where, in effect, the appellant got out of the plane, went to the estate agent's office at the Gold Coast, was taken to a place at Tweed

Heads and started to walk across the road and was

run down.

They had been staying in Tweed Heads for a

period of 10 days, and Your Honours, that that is

so appears at page 24 and perhaps if I could take

Your Honours to that very briefly. They had not

yet got to Expo. Now, Your Honours, the appellant

and her husband were not young people and no doubt

people work at their own pace a little, but

Your Honours will see at page 23 in the first ten

lines that they had arrived in Australia on 18 July

and the accident happened on 28th. They were

getting ready to go to Expo, they had been staying

in New South Wales for ten days and Your Honours,

if one goes to page 24 in lines 24 to 30 you will

see they had not had time to visit anywhere else, and if one goes to page 11, the way in which they

arrived in New South Wales appears at about lines

17 and line 30.

So, Your Honours, I do not want to labour the

point, but simply to say that it really is not the

case where one could say that these events happened

immediately.

Your Honours, the second preliminary matter is this, that the statute law apposite in Queensland

at the time was not to the effect that if a

resident of another State, if such a person sued in
respect of an accident happening to them in

Queensland, that they were entitled to obtain the remedies apposite to a Queensland resident,

notwithstanding the fact that they came from

another State. Your Honours, there may well have

been some problems, there may well be some

problems, in relation to the operation of

section 117 of the Constitution, but there was in

force in Queensland from, I think, 1 July 1988, the
provisions of section 20 of the Motor Vehicles

Insurance Act 1936 as amended and, Your Honours, as appears from section 3(ii) of that Act, the

provision was deemed to have come into force on 1

July 1987. Sorry, I gave Your Honours the wrong

date before.

Your Honours will see, at page number 853,

section 20, and the effect of section 20 was that a

person is not entitled to recover in respect of a

Stevens(3) 29 10/11/92

motor vehicle accident - to put it shortly - an

amount greater than that which he might have

recovered by action or other process under the law

of the State or Territory of the Commonwealth in
which the injured person had his principal place of

residence for, in effect, the same injury.

Your Honours, it may be that in relation to

such a provision, at least in particular

applications to residents of other States, that

section 17 - residents of other States who are

subjects of the Queen - that the provision has some

difficulties. But, having said that, it was a

provision which was, prima facie, in operation at

the time.

BRENNAN J:  What has it got to do with this case?

MR JACKSON: All I am saying was that one should not work on

the broad assumption that the plaintiff's

entitlements were the same as they would have been

if she had been a resident of Australia in the

first place. Queensland law was not, generally

speaking, that such a person was entitled to have

the law of another State disregarded. She was in a

particular position, no doubt, because she was not

a resident of Australia at all.

DAWSON J: 

What do we draw from that?

MR JACKSON: 

I am sorry, Your Honour?

DAWSON J: 

What further proposition do we draw from that?

MR JACKSON: 

Your Honour, none, I am simply trying to

indicate, if I may, what the position was generally
in relation to the application of the law in

Queensland. There was some provision which,

generally speaking, governed the situation; not the

particular situation, but governed the situation as

well as the common law. That is all I am trying to

say about that. There is no further conclusion at

all to be drawn from it but simply to set the

background within which the provisions were to

operate.

Your Honours, may I move from that to the matter that lies at the heart of the present case,

and that is to the Motor Accidents Act itself. Our

learned friend's submissions work on the premise that all types of damage or heads of damage were

retained under the Act - retained, albeit with some

alterations.  Your Honours, that, in our

submission, simply is not correct in relation to

section 79.

Stevens(3) 30 10/11/92

What section 79 does is to limit, and limit

the ambit of, but also to define the nature of the
relevant type of damage in respect of damages for

personal injuries, and it is not, with respect,

Your Honours, the same as the type of damage

available under the general law. Close to it, of

course, but it is something that is different and

it is different both in its quality, in the manner

of assessment of it and in the results flowing from

it.

Your Honours, in that regard, if one goes

first to section 68, what one sees is that

section 68 defines "non-economic loss" and it

defines it to mean the four heads there referred

to, and from there one goes to section 79.

Section 79(1) says:

No damages shall be awarded for the

non-economic loss ..... unless the injured

person's ability to lead a normal life is

significantly impaired by the injury suffered

in the accident.

That is the first thing it says. The second thing

it says is really that if the condition of

section 79(1) has been satisfied one then goes to
section 79(3), and section 79(3) provides for the

maximum amount to be awarded for non-economic loss

as being the figure of $180,000 as indexed. But

that provision also says that:

the maximum amount shall be awarded only in a

most extreme case.

Your Honours, from there in relation to cases that

are other than most extreme ones, one goes back to

section 79(2) and what section 79(2) says is:

The amount of damages to be awarded for

non-economic loss shall be a proportion -

of the figure referred to in section 79(3) -

determined according to the severity of the

non-economic loss.

Your Honours, what it does not say - and I will come to a decision of the Court of Appeal in New

South Wales shortly in which the proposition was

rejected - is that the amount to be awarded for

non-economic loss is the amount that one would

otherwise obtain under the general law subject to a

cap of $180,000. What it says is that the amount

of damages that one obtains is an amount which is a

proportion of a figure.

Stevens(3) 31 10/11/92

Now, Your Honours, if one were to take a

simple example: if a hand were mangled or lost the

amount that might be awarded for non-economic loss

in respect of that might be - to pick a

figure - $40,000. The amount which might be

awarded by the operation of section 79(2) might be

a figure of $30,000. It might be a figure of

$25,000. But, Your Honours, the exercise that is

engaged upon pursuant to section 79(2) is not to

find what the amount of damages that would be

awarded under the general law is in respect of the

injury, but is to assess what proportion of the severity of the most extreme case the injury in question bears to the most extreme case itself.

DAWSON J:	You cannot say that about (4).
MR JACKSON:	I am sorry, Your Honour, with respect, one can because what one does is to work out, by the
operation of section 79(2), the amount that would
be awarded as damages, and if that amount is then an amount which is below 15,000, there are no damages.

DAWSON J:  That is one way of doing it. The other is to

just work out what it is worth and if it is less

than 15,000, you do not get anything.

MR JACKSON:  Your Honour, that is a possibility, but it

would seem to be a strange way of doing it, with

respect, when the approach to be taken

fundamentally is the approach set out in

section 79(2), because Your Honour will see that

what is being spoken about throughout the provision

is the expression, "non-economic loss, damages for

non-economic loss, the amount of damages to be
awarded for non-economic loss", and the fact that

section 79(4) does not itself use the word

"damages" in the first line of it is not decisive.

What one sees is that in subsection (5), the provision is speaking about the amount of damages	to be awarded for non-economic loss in accordance
with subsections (1) to (3). One would think that
the symmetry of the provision would require that the 15,000 referred to in subsection (4) is a
figure that is to be calculated in the same way as
a figure in (5).

DAWSON J: 

You may be right about that, but is not the underlying assumption of the section that the

economic loss may be greater than the amount which

the judge is directed to award?

MR JACKSON: 

Your Honour, if one were to calculate it in

that way - one is speaking of non-economic loss, if
one were to calculate it according to the general

Stevens(3) 32 10/11/92

law, what one might obtain, say, for a paraplegic

would be, again to pick a figure, say $300,000.

But what is said by subsection (3) is that the

figure you get for the most extreme case - and let

us assume that it is such a case - is $180,000.

The provision does say, "Look to see what the

damages would be absent this and then compare that

to what a paraplegic would get under the general

law.

What the section does is to say one must

identify whether a person has suffered non-economic

loss. That test having been satisfied, the

question is then: what is the relationship between

that in terms of severity and the most extreme

case? The answer in terms of damages is then the

figure that is arrived at by the application of the

proportion.

BRENNAN J: 

What is the argument though, Mr Jackson, that

section 79 in some way eliminates the head of
damage of pain, suffering and loss of amenities?

MR JACKSON: Well, Your Honour, it does two things. If I

could put the first first; what it does is to say

that in respect of the items that section 68

indicates fall within the concepts of non-economic

loss, that the remedy in respect of those is to

obtain, described as damages, and no doubt
correctly described as damages, an amount

calculated in accordance with that provision. It

takes away a right to obtain damages at common law,

and it does so by the operation of the provisions

of section 79.

Now, Your Honour, the point I am seeking to

make from that is that if one looks at the heads of

damage contemplated by the four items in

section 68, what one sees in relation to them is
that the right to obtain damages in New South Wales

in respect of, if I can use that connecting phrase,

any of those heads, is a right which is not just

one quantified by virtue of those provisions, but

it is a right, the nature of which is itself

defined by reference to those provisions, and,

Your Honours, might I move - - -

BRENNAN J:  Can I just ask you a question which I asked

Mr Griffin? If this accident had happened at

Surfers Paradise and the action was brought in

Murwillumbah, would a New South Wales judge have

been bound by section 70?

MR JACKSON: Well, Your Honour, it depends on the meaning of

the term "motor accident". Now, that - - -

Stevens(3) 33 10/11/92

BRENNAN J: Well, assume that it is a New South Wales

registered car.

MR GRIFFIN:  Yes.

BRENNAN J: In Surfers Paradise, and the action brought in

Murwillumbah.

MR JACKSON: Well, Your Honour, so far as that is concerned,

the answer would be yes, we would submit but - I am

sorry, Your Honour has me, I think, in relation to

that. The question Your Honour put to my learned

friend was one based on the assumption I thought

that the accident was this accident, but one sued

needs to follow through to see, in effect, what the Queensland substantive law on the point is, and the	in Murwillurnbah; now if one goes to Queensland one apply, presumably, to an accident which happened in
Queensland.

BRENNAN J:  So the New South Wales court could disregard

section 70.

MR JACKSON:  I am sorry, Your Honour. I think I am talking

about a different thing.	I have got to the
Murwillurnbah court again.	Your Honour, if one is

talking about an accident that happened in

Queensland, and one sued in New South Wales in

respect of it, then, Your Honour, there would be no

reason why the New South Wales court would not

apply section 79 because that would seem to be a

positive provision, but in any event, Your Honour,

one is looking - unless one were to say, in respect

of it that somehow the operation of the test in

McKain v Miller gave rise to a different liability.

Your Honour, could I come then to a couple of

other things I wanted to say in relation to
section 79, that it was discussed in the decision

of the New South Wales Court of Appeal in Southgate

v Waterford, (1990) 21 NSWLR 429. And,

Your Honours, in that case the issue which arose

was whether the right test to be applied in the
operation of section 79 was to assess damages in

the ordinary way, as it were, and then to see if it

exceeded in effect 180,000, or whether one should

adopt the proportional test that I was adverting to

before and the latter approach was adopted by the

court.

May I take Your Honours very briefly to

page 431A, where, at the top of the page, the

argument that had been rejected by the primary

judge is set out in the first few lines, and the

submission to the contrary appears between E and F

on the same page. Then, Your Honours, one goes

Stevens(3) 34 10/11/92

from there to page 437, and at the bottom of that

page, the last paragraph, Your Honours will see

that the court suggested that the key word which

presented:

the fatal obstacle to the appellant's

contention is "proportion" -

and Their Honours then discuss that in a passage

which goes over to page 438D, and, Your Honours, in

particular between Band Con page 438

Their Honours said:

The harmony or symmetry which is imported by

the word would not be achieved if the

relationship between the amount of damages
awarded by reference to common law principle

and the maximum were the accidental one

established in the way the appellant urged.

Adopting a construction of s 79(2) -

et cetera, and then Your Honours will see, between

C and D at the end of that paragraph, the arguments of the appellant were not accepted.

Your Honours, if one goes throughout the

remainder of that page there is a discussion of the various provisions of the section, but Your Honours
will see a reference to section 70 and section 70

says that:

A court shall not award damages to a person in

respect of a motor accident contrary to this

Part.

Now, Your Honours, referring back to what

Your Honour Justice Brennan put to me before, if

one treats section 70 as being, in effect, a

provision of positive law, I put it that way, of

New South Wales applying to every case heard in New

South Wales which arises out of a motor accident,

assuming the definition of motor accident would

apply to a motor accident occurring in Queensland,

then that is the provision which would have the

effect to which I referred earlier. Your Honours,

more difficult questions arise assuming it is not a

motor accident, of course. So, Your Honour,

otherwise one would go to the operation of the

McKain test. Your Honour, I am sorry I should have

adverted to section 70 before, and the term
"court", Your Honour, is defined I think to mean

court of competent jurisdiction which -

Your Honours I am sorry I have just have not got

the reference to that, may I give it to

Your Honours a little later.

Stevens(3) 35 10/11/92

Your Honours, one comes then to a discussion of the history of these provisions and

Your Honours, not a great deal is to be gained from

the history, Their Honours say, but may I refer to

page 439 between letters C and D, or just above D,

where Their Honours say:

to the extent that the ambiguity urged by the

appellant's own argument warranted an

examination of extrinsic aids to

construction -

and they refer to particular material.

Your Honours, the material is discussed in the next

paragraph and Your Honours will see, particularly

just around letter F:

it is clear that one reason which lay behind

the fixing of a "cap" on the recovery of

damages for non-economic loss was an

estimation of what the community could afford.

Your Honours, having then discussed the issue a

little further, Their Honours refer at page 440 in

the paragraph commencing at letter E to the

approach to be taken in arriving at the proportion

and that matter is discussed further in the

succeeding pages of the reasons for judgment.

Your Honours, the point I simply seek to make

about that is that the combination of the

provisions of section 79 and the other provisions

of the Act has resulted in a regime quite different
from that which obtained prior to the various

amendments, and it is one in which the damages are

not to be assessed, in effect, on their own merits,

but rather, are to be assessed as a proportion of a
figure of $180,000 and what that means is that the

requirements of section 79 are an integral part of

the right to damages given under New South Wales

law, and we would submit, the civil liability

created under that law is limited by those

provisions.

May I take Your Honors back for just a moment

to section 6 and 7 of the Act because Your Honours

will see that section 7 says that part 6, which is

the part dealing with damages, shall be taken to

have applied to have applied to a transport

accident occurring on or after 1 July 1987. Now,

Your Honours, what that means is, of course, that

the restoration of the law given by section 6 was

one that was accompanied by the operation of

section 7 which dealt with the ambit of, and in our

submission, at least so far as section 79 is

concerned, the nature of the right to damages given

Stevens(3) 36 10/11/92

in respect of the several heads of non-economic

loss, and that has really two consequences.

The first is, we would submit, that it means

that in a case such as the present the second limb

of McKain v Miller is not satisfied in respect of

this particular class of liability and I will come

to that in a minute. The second is, that if the

provisions are satisfied, the provision of

section 79 is yet substantive rather than

procedural.

Your Honours, I have not yet referred to

section 72. What Your Honours will see is that

section 72 provides that one class of damages is

excluded entirely except in certain circumstances.

Your Honours, the class of damages is not

excluded entirely and it is also right to say that

damages of that general type may be given in

respect of persons who do not fall within the

category of "a member of the same household or

family". So that, as we put in our outline of

submissions, the argument that the second limb of

McKain v Miller does not apply is, of course - one

cannot put it as strongly in respect of that item.

But at the same time, we would submit it is

something which is substantive rather than

procedural.

May I come then to the substantive procedural

question. What we would submit is that if one goes

to the various decisions on the point, including

the passages to which my learned friend has

referred, what one sees from them is really not

that the burden of them is that provisions of the

kind to which I have been referring should be

treated as procedural, but rather that the burden
is that the provisions should, prima facie, be

treated as being substantive, and in that regard I

propose to take Your Honours, if I may for just a

moment, to those cases.	A convenient starting
point is to be found in the speeches in the House

of Lords in Boys v Chaplin, (1971) AC 356. Could I

go first to Lord Hodson at page 378G. What

Your Honours will see - it is a passage which goes

from 378G through to page 379G. His Lordship

discusses the issue commencing at 378G where he

says:

The nature of a plaintiff's remedy is a

matter of procedure ..... This includes the

quantification of damages -

but then he goes on to discuss that issue further,

and at page 379D he comes to the view where he

says:

Stevens(3) 37 10/11/92

I am not, however, persuaded that questions

such as whether loss of earning capacity or

pain and suffering are admissible heads of

damage must be questions of substantive law.

The law relating to damages is partly

procedural and partly substantive, the actual

quantification under the relevant heads being

procedural only.

I will not read out the next ten lines or so, but

in the paragraph commencing between F and G

His Lordship says:

Here I think the question of right to

damages for pain and suffering is a

substantive right and the respondent would

fail -

et cetera. Now, Your Honours, if one is talking

about section 79 and if section 79 has provided

that in respect of the several heads referred to in section 68, the right to damages is a right to have

calculated a proportion of a sum of $180,000

indexed, calculated by reference to the particular

items to which I have referred, what that does do

is to provide that in respect of those heads of

damages, the nature of them is as defined by that
provision, and to do that is something which we

would submit is substantive.

BRENNAN J: What do you mean by "the nature of them",

Mr Jackson?

MR JACKSON:  The nature of them, Your Honour, is as being

damages, if I can use the term generically, but it

is damages because of the injury which has been

sustained and the consequences of the pain and
suffering and so on.

BRENNAN J: That inflates damages with the head of damage,

does it not?

MR JACKSON:  No, Your Honour. What it does - - -

BRENNAN J:  Damages is an amount of money, head of damage is

the thing in respect to which the money is awarded.

MR JACKSON:  Of course, Your Honour. In respect of the

heads of damage - Your Honour, could I just say, if

one looks at the four items that are listed in

section 68, what one sees is that it further

subdivides what one would ordinarily regard as being a head of damage, the head of damage for pain, suffering, loss of amenities. Ordinarily

speaking one would not see - I mean under the

general law, one would not see separate sums being

Stevens(3) 38 10/11/92

awarded for disfigurement, pain and suffering, loss

of amenities and so on. One would see a sum being

awarded for those items. There may have to be some

subdivision of it for interest purposes but one

would see the sum. That is really the head of

damage, if one looks at it in a traditional

analysis, would be comething would be regarded as

non-economic loss.

That is what one sees dealt with, that

subject-matter is dealt with by section 79. What

section 79 says, in respect of that subject-matter,

you have no entitlement to damages at common law.

What it says is, you have an entitlement to a sum

which is a proportion of a sum fixed by the statute

by comparison of the nature of your injury to a

most extreme case.

McHUGH J: But what difference does it make - I am sorry,

were you finished?

MR JACKSON:  Your Honour, I was just going to say, obviously

it has some similarities with the damages at common

law but it is not the same thing.

McHUGH J: But that is the whole point, is it not? That it

has only got to be civil liability of the kind

which the plaintiff claims to enforce. Under the

law of Queensland the plaintiff can get damages for

non-economic loss and he can get damages for non-

economic loss under the law in New South Wales.

Why is that not a civil liability?

MR JACKSON:  Your Honour, that gets the plaintiff, assuming

that, into Queensland. But if one is talking about

what the plaintiff gets in Queensland then the

question arises whether section 79 is a provision

which is substantive or procedural.

McHUGH J: But what is the distinction between the two

really got to do with it? She sues in Queensland

and she seeks to enforce against the defendant a

civil liability of a particular kind and the only

question then is is whether by the law of New South

Wales the circumstances of the occurrence gave rise

to a civil liability of the kind. You throw the

whole weight of your argument on the words "civil

liability", it seems to me.

MR JACKSON:  Your Honour, I am sorry, I am really seeking to

deal with two points. What I was going to do was

to seek to tie our submissions together on both of

them having referred to these cases. May I say

what I am seeking to do, and I do them really,

Your Honour, in descending order of magnitude.	The
first - and this is the point Your Honour was

putting to me - is to say that if one looks to the

Stevens(3) 39 10/11/92

McKain v Miller test, the second aspect of the test is that there has to be a civil liability of

whatever the word is.

Your Honours, in relation to that, the first

submission we would make is that whilst it is true

that there is some civil liability brought about by

the fact of the accident, if one is looking to see

what can be sued for in Queensland, what there has

to be is a civil liability of a similar kind or of

a like kind. If the true nature of the claim to

damages brought about by section 79 is that it

gives rise to a new statutory liability, that is

not a liability which would satisfy the relevant

test.

McHUGH J:  Why not?

MR JACKSON: Because, Your Honour, it is not a civil

liability of a like kind, we would submit.

McHUGH J: Of the kind. It is an action for damages.

MR JACKSON: Certainly it is a liability for damages, but

what one is speaking about is - - -

McHUGH J: It is an action for damages for non-economic

loss.

MR JACKSON:  It is civil liability of the kind which the

plaintiff claims to enforce. What we would say is

this: the plaintiff's entitlement would be to enforce a civil liability brought about by the

statutory right under section 79. True it is it is

called damages, but not everything that is called

damages is the same civil liability.	One liability
in contract is not the same as one in tort;	it is
a statutory liability.

McHUGH J: That is true, but in most jurisdictions, statutes

have tinkered with common law rights to damages.

the extent to which a particular jurisdiction has	Is the liability of the defendant to depend upon
tinkered with the common law rights?

MR JACKSON:  Your Honour, if one describes it as being

tinkering, that gives rise to a particular answer
to the question. What one has to look to really is
to see what the nature of the right is in the place

where the event happened, and that may or may not have been affected significantly by statute or it

may have been changed completely. What was there before may have been taken away and something new

given. It undoubtedly is a question of degree in

one sense, but it is a question of examining what

the effect of the statute is.

Stevens(3) 40 10/11/92

McHUGH J: But surely it should be a matter of substance and

not the form of - it is pretty dependent on whether

you start off with, "Subsection (1) says the common

law is abolished" and then we startwith subsection

(2). I know that is what happened in - - -

MR JACKSON:  No, Your Honour, I do not suggest that for a

minute, but what I am seeking to suggest is that if

one looks at section 79 in the context in which it

appears, what one sees is that the right to damages

under the general law in respect of any of those

matters is gone. What there is is a new right.

Your Honour, I cannot take it beyond that.

McHUGH J: Well, I understand.

MR JACKSON: But, Your Honour, the second point, though,

assumes that that test is satisfied and one comes

then to see that that gets one through the door, if

I could put it in a figurative sense, of the

Queensland court. Having got there it then becomes

a question of whether the terms of section 79 are

relevantly substantive or procedural, and the point

I am seeking to make, Your Honours, is that if one

adopts taking that approach the burden of the

cases, we would submit, really supports the notion

that provisions of that kind are substantive rather
than procedural and, Your Honours, I am conscious,

in saying that, that it is an issue on which

differing views, from time to time, have been

expressed. What we are seeking to say is that the

better view of the two is that which we are

suggesting.

I was referring Your Honours to Lord Hodson in

Boys v Chaplin, page 379 about letter G, and I was going to move from there to Lord Guest at page 381 and Your Honours will see, Lord Guest, at the

bottom of page 381 in the last paragraph, refers to

Lord Brougham, and then says:

There would appear to be a distinction between

questions affecting heads of damages which are	for the lex loci delicti and quantification of
damages which is for the lex fori.

Now, your Honours, under the terms of section 79

that affects critically the heads of damage that

may be obtained and it affects critically the heads

of damage because not only does it put a cap on it,
it also defines the type of damage that may be

obtained. It is not a question of simply what

evidence may be used, what procedure may be used;

it is a question of affecting the damages

themselves. And Your Honours will see, if one

reads at the bottom of that page 381, to the top of

the next page - what is referred to there:

Stevens(3) 41 10/11/92

the kind of damage is a matter of substantive

law and the method of compensating the

plaintiff for his loss which is for the lex

fori.

Your Honours, I said that the issue was one on

which there were two views. Lord Donovan's view

appears to have been against us. That appears at

page 383, letters G to H, where he puts it very shortly. Lord Wilberforce, apart from his view

about the exception to the application of the
exception created in that case, would otherwise

have been of the view, or was otherwise of the view

that provisions, in our submission of the current

kind, were substantive. That that is so, we would

submit, appears from two passages. The first is at

page 389D, where Your Honours will see, in the
paragraph commencing just above D, His Lordship

says:

The broad principle should surely be that

a person should not be permitted to claim in

England in respect of a matter for which civil

liability does not exist, or is excluded -

et cetera, and Your Honours will see, two sentences

further down -

But in relation to claims for personal

injuries one may say that provisions of the

lex delicti, denying, or -

His Lordship says -

limiting, or qualifying recovery of damages

because of some relationship of the defendant

to the plaintiff, or in respect of some

interest of the plaintiff ..... or some head of

damage ..... should be given effect to.

Now that is his broad proposition, subject of
course, to the exception.	He deals with the issue

a little more specifically at page 392 letter F

through to 393B and having referred, between E and Fon 392, to the Maltese law, then goes on to say, between G and H, that he suspects:

that in the ultimate and difficult choice

which has to be made between regarding damages

for pain and suffering as a separate cause of action and so governed by the lex delicti, or

treating them as merely part of general

damages to calculate which is the prerogative

of the lex fori, two alternatives which are

surely closely balanced in this case, a not

insubstantial makeweight, perhaps unconscious

Stevens(3) 42 10/11/92

in its use, is to be found in a policy

preference for the adopted solution -

and then His Lordship, at the top of the next page,

in about the fifth line on the page, says:

So I prefer to be explicit about it. There

certainly seems to be some artifice in

regarding a man's right to recover damages for
pain and suffering as a matter of procedure.

To do so, at any rate, goes well beyond the

principle which I entirely accept, that

matters of assessment or quantification,
including no doubt the manner in which

provision is made for future or prospective

losses, are for the lex fori to determine.

And in speaking about future or prospective losses,

he seems to be speaking about matters such as

whether there can be a second application to a

court.

Now, Your Honours, Lord Pearson, at page 394 commencing at letter G, in the passage which goes

through to 395B, adopts the view - and, Your

Honours, I shall not read it out, but may I invite

Your Honours to read it - that it would be

artificial to treat the difference between English

law and Maltese law which materially affects the

determination of the rights and liabilities of the

preceding page at about letter F, he said:

parties as a matter of procedure only, and Your

Surely that must be a matter of substantive

law -

referring to pain and suffering.

Your Honours, at page 405G, finally,

His Lordship says:

If I am right in thinking that the question

whether damages for pain and suffering are
recoverable is a question of substantive law,

the suggested rule -

et cetera. Now, Your Honours, what we would submit

in relation to that case is that, with the

exception, of course, of Lord Donovan, the burden,

if I might use the expression again, of the

speeches of Their Lordships would support the

proposition that we are seeking to advance.

Now, Your Honours, if I could go then briefly

to the observations of members of the Court dealing

with the question in Breavington v Godleman,

Stevens(3) 43 10/11/92

169 CLR 41, at page 79 Your Honour the

Chief Justice dealt with the question, at about point 4, and it is the paragraph commencing, "In

reaching the conclusion". Your Honours have been

referred to that already I think and I shall not

read it out. Could I go then, Your Honours, to

page 91 in the joint judgment of Justice Wilson and

Your Honour Justice Gaudron. Your Honours, it is a

passage that commences at the top of the page and

goes through to about point 6 or 7 on the same

page, and Your Honours will see in the first
paragraph on the page a reference to the Phillips

v Eyre test, and then in the second sentence which

is in about the sixth line:

There is no reason in logic why the forum should not determine questions as to liability

(including the extent thereof) by reference to

the law of the place where the tort was

committed.

Then there is a reference to Machado v Fontes, and

that having been dismissed, as it were, about

half-way through the next paragraph:

However, it must be remembered that the case

was concerned with actionability and not with

choice of governing law. In this context it

is interesting to note -

and Your Honours will see. through to the end of

the paragraph, what Your Honours apparently adopted

I can put that way, or the expression in Halsbury -

that "the measure of damages in an action in

respect of a tort committed abroad is (it

would seem) to be governed by the lex loci

actus".

Your Honour Justice Brennan at page 119 in a

passage which commences at, I think, about point 3

on that page and goes through to page 120 again

about point 3, adopts a view which I think - I do

not mean to _be in the slightest degree

disrespectful in putting it that way because

Your Honour was not dealing with the exact question with which the Court is now dealing, and the burden of what Your Honour says, I think, is probably

against us - but what Your Honour says in the first

new paragraph on page 119 is:

The problem arises because the lex fori

not the lex loci governs the quantification of

damages -

Stevens(3) 44 10/11/92

but it is not 100 per cent clear in relation to the

sense in which Your Honour is using that

expression.

Your Honour Justice Dawson at page 146 about

point 2, in a passage which goes through to

point 8, adopted a view which perhaps may be

encapsulated at about point 4 on the page where

Your Honour said:

Whilst the line between procedure and

substance may sometimes be elusive, in a case

such as this, where the action is in negligence and damage is the gist of

liability, it seems to me that it is not

possible to say that the character of the

wrong is not altered or diminished under the

lex delicti by the exclusion of loss or
earnings or of earning capacity from the
damages recoverable. Negligent conduct giving
rise to damage in the form of loss of earnings

or of earning capacity is not a wrong which

attracts civil liability in the Northern

Territory.

Then at the end of the paragraph:

In other words, the form of damage recoverable

governs the nature of the cause of action -

which suggests that the damages available have a

substantive aspect to them, to put it broadly.

Your Honour Justice Toohey, at page 170 at

about point 3 on the page, said:

The limitation on the right of Territory

residents to claim damages cannot be described

as merely procedural. Clearly it is a matter

of substance.

Now, Your Honours, Perret v Robinson, 169 CLR 172,

was decided by the Court at the same time as

Breavington v Godleman, and in that case the

central issue was whether, in proceedings heard in

Queensland but arising from an accident occurring

in the Northern Territory, the Northern Territory's

provision that an action should not lie for
economic loss would operate. The Court held that
it should operate a provision limiting the amount

for recovery of economic loss.

At page 177, about point 8, Your Honour the

Chief Justice and Justice Deane dealt with the issue very briefly. At page 178, Justice Wilson

and Your Honour Justice Gaudron, in the second

paragraph in the reasons for judgment, said that

Stevens(3) 45 10/11/92

the approach in Breavington v Godleman required the

submission to be rejected. Your Honour

Justice Brennan at page 182 said, in the last

paragraph of Your Honour's reasons:

It follows that the operation of s 5(1)

and (2) is unaffected -

Your Honours, those provisions may be seen in the

first paragraph of the headnote:

"(l) Subject to sub-section (2), no action for

damages shall lie in the Territory in respect

of the death of or injury to a resident -

then subsection (2) said that -

nothing in sub-section (1) deprives a person

of the right to bring an action for damages

for pain and suffering or loss of amenities of

life.

Your Honour said, at page 182, that:

It follows that the operation of s 5(1)

and (2) is unaffected and, as the lex loci, that is the reference point for determining

the kind of claim which may be brought in the

Supreme Court of Queensland.

Your Honour Justice Dawson, at page 184, said at

about point 6:

The problem is whether the plaintiff is also

able to claim, as he purports to have done,

damages for loss of earnings or loss of

earning capacity. Damages under the latter

head are not recoverable in the Northern

Territory and there is no civil liability in respect of them.

Your Honours, if I could just pause at that point,

one tends to see in relation to the expression

"civil liability" the phrase which is of course

also reflected in McKain v Miller, "civil liability

of a kind".

Now, Your Honours, in relation to that, it is

apparent enough, we would submit, that matters such

as the availability of damages are matters which

have been described as being matters relating to

whether there is a civil liability of a particular

kind and I would refer, for example, to page 184 in Perrett v Robinson. Your Honours, at page 186, the

second line on the page, Your Honour said:

Stevens(3) 46 10/11/92

For an action to be maintainable in Queensland

for damages for loss of earning or earning

capacity, civil liability in respect of such a

claim must have existed at the relevant time

in the Northern Territory.

And that seems to refer back to civil liability for

a claim for damages for loss of earnings, or

earning capacity, which would be part of a cause of

action in the traditional analysis. And then, at

page 187, at about point 3 on the page:

Accordingly, at the relevant time the

only civil liability which existed in the
Northern Territory in respect of the wrong

alleged by the plaintiff was in respect of pain and suffering or loss of amenities of

life.

And Your Honours, that approach is again one which seems to involve the broad cause of action which would exist under the general law being one capable

of subdivision.

Finally, in relation to this case,

Your Honours, Your Honour Justice Toohey, at

page 193 in the penultimate paragraph of

Your Honour's reasons for judgment, said that:

Because of the view I have taken of the

scope and operation of s.41(3)(b), the
appellant was not thereby entitled to recover
from the respondent damages for impairment of

earning capacity. The conclusions reached in

Breavington v Bodleman are not

distinguishable.

MASON CJ:  We will adjourn there, Mr Jackson, and resume at

2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Mr Jackson.

MR JACKSON:	Your Honours, my learned friend referred to the decision of the New South Wales Court of Appeal in
Byrnes v Groote Eylandt Mining Co Pty Ltd,
(1990) 19 NSWLR 13. In that case two points were
dealt with.  One was a limitation point; the other

Stevens(3) 47 10/11/92

was the question of the application of the Northern

Territory limit on awards of damages. The Northern
Territory law provided for there to be a limit of

$100,000 on awards of damages for pain and

suffering and loss of amenities of life, that is,

no economic loss, but the limit was, as I said,

$100,000.

The New South Wales court held, as my learned friend referred Your Honours to, that the fact that

the Northern Territory law was held to apply in the

proceedings in New South Wales. That is a matter,

of course, which was decided before McKain v

Miller, but may I just mention in passing that the

Court, sitting five Justices, refused special leave

to appeal on the ground by majority of four to one
that the decision was not sufficiently attended by

doubt. That was in May 1990.

After that decision the Court gave its

judgment in McKain v Miller, 174 CLR 1, and	may I
take Your Honours to some passages in that.	If I
could go first to page 24 at about point 4	in the
reasons for judgment of Your Honour the
Chief Justice. That is a passage to which	my
learned friend - - -

MASON CJ: It has been read already, I think, Mr Jackson.

MR JACKSON:  Yes, Your Honour. That is a passage to which

my learned friend has referred and that supports

the proposition, we would submit, that we are

advancing. When one goes to the joint judgment at

page 39 what Your Honours will see is that after

stating towards the top of the page the two

criteria to be applied, Your Honours said:

The reasons for judgment of Dawson Jin

Breavington v Godleman and in the associated

case of Perrett v Robinson accord with this

formulation.

Now, I wonder if I might ask Your Honours to hold

that page for a moment and to go back to the two

passages that I referred to, to one of which I did

not refer this morning.

The first, Your Honours, is in Breavington v Godleman, 169 CLR at page 146. I took Your Honours

this morning to that part of page 146 which is the

paragraph commencing with the words, "The

application of the rule in Phillips v Eyre". If

Your Honours go on to the next paragraph, what

Your Honours will see, as Your Honour

Justice Dawson said:

Stevens(3) 48 10/11/92

If, as upon any view is so, it is the lex

delicti which determines whether the wrong

is ..... actionable in the place where it was

committed, then it cannot be said that an

action of the necessary character exists in

the Northern Territory. To say that such an

action exists because there is an action in

negligence for another type of damage, is to mistake entirely the character under the lex

delicti of the wrong alleged. I do not think

that, with regard to the claim for loss of
earnings or of earning capacity, the second

condition -

was satisfied. Your Honours, in the other case,

Perrett v Robinson, again 169 CLR, the passage in

McKain v Miller that the Court referred to at

page 39, the relevant passage at page 186 is at the

top of that page in Perret v Robinson, the passage

commencing in the second line on the page and going

to the end of that paragraph.

Perhaps if I could move from that then to

Your Honour Justice Deane at page 48 in McKain v

Miller at about point 3. Your Honours will see in the opening six lines of the paragraph commencing,

"In so far as the jurisprudential justification" et

cetera, Your Honour mentioned the measure of

damages as not being something which was

procedural.

Now, Your Honour Justice Gaudron does not, I

think, deal with the question and perhaps the

closest part to it is at page 62, about point 3.

So that, Your Honours, what emerges from those

cases, we would submit, is that the burden, if I

could overuse that term, the burden of the dicta,

we would submit, supports the view that provisions

of the kind which are seen in the sections to which

I have been referring are provisions which are

regarded as substantive, rather than procedural.

The dicta to which I have referred indicate, in our

submission, that the question is not just one of

looking at a whole cause of action, for example,

the cause of action in negligence. What has to be

looked at is the particular head of damage which is

in question.

Your Honours, if it be right to say, for

example, that a provision which says you get

nothing for a particular head of damage is one

which is substantive and, we would submit, clearly

substantive, why is not a provision which says - it

does not say that, but says you get nothing more

than $50,000 for a head of damage, or a provision
which says you get nothing unless you get more than

$20,000, or a provision which says that you get

Stevens(3) 49 10/11/92

nothing unless circumstances A, Band Care

satisfied.

Your Honours, the right that is obtained upon

the happening of events which give rise to the

cause of action, particularly in negligence where

damage is part of the cause of action, the right is

one which is given by the law of the place where

the events happen, and, Your Honours, in those

circumstances, we would submit, one should look to

identify the nature of the rights from that law.

Your Honours, the next matter with which I

would wish to deal is this - I wonder if I could go

back, for a moment, to the question Your Honour

Justice Brennan put to me this morning, and the

relevant provisions of the Acts have been supplied

to the Court now. If the accident in question were

to occur in Queensland, but with a New South Wales

registered vehicle, then if the accident were a
motor accident in terms of section 70 of the Motor

Accidents Act 1988, the New South Wales law would

apply if in proceedings in New South Wales.

Your Honours, that is because of section 70 of the
1988 Act.

Now, Your Honours, the condition of the operation of section 70 is that the accident be a

motor accident. Now, Your Honours, in such a case,

the law having that effect would be a law of the

kind referred to by the majority in McKain v Miller

at page 36 at about point one, where the Court

referred specifically to:

The power of a State to enact laws governing

the procedure of its courts -

and so on.

Now, Your Honours, the operation of

section 70, however, depends on the question

whether the accident happening in Queensland would

be a motor accident. Now, Your Honours, that term

is given meaning by two provisions of the 1988 Act.

The first is at page 3, section 3(1). Your Honours

will see that a "motor accident" is there defined

to mean an accident:

caused by the fault of the owner or driver of
a motor vehicle in the use or operation of the

vehicle which causes the death of or injury to

a person.

No territorial qualification is expressed, but in

those circumstances, looking purely at that

definition for the moment, the presumption of

interpretation referred to in, for example, Meyer

Stevens(3) 10/11/92

Heine Pty. Ltd. v China Navigation Co. Ltd., (1966)

115 CLR 10, at pages 30 to 31 by Justice Taylor,

would be applicable in our submission, His Honour

saying:

The words of the section are general but,

prima facie, "the person's, property, and

events in respect of which Parliament has

legislated are presumed to be limited to those
in the territory over which it has

jurisdiction" -

recognizing, of course, it is of no more than a

presumption.

Now, Your Honours, that is if one looked at

the definition of "motor accident" by itself but

the possible - - -

TOOHEY J: Are you taking into account, Mr Jackson, the

meaning attached to the word "owner"?

MR JACKSON:  I am sorry, I was not for that purpose.

TOOHEY J: It is just that the definition of "owner", if you

drop down a few lines:

means a person who is the owner of the vehicle

by virtue of -

certain "subsections"?

MR JACKSON: Three to five, Your Honour, yes.

TOOHEY J:  Which may appear to have a territorial

limitation.

MR JACKSON:  Your Honour, I am sorry. What Your Honour puts

to me is right if one was looking to the definition

of "owner". But in terms of the definition of

"motor accident", what I was seeking to submit was

this, that the term "means an accident caused by",	and the question would be, whoever be the owner,
whether the term "accident" appearing in that
definition was one which was to be construed as
prima facie, meaning an accident happening
territorially within New South Wales, and that is
the way in which I was seeking to make the Meyer
Heine doctrine, if I can call it that - - -

TOOHEY J: But "motor accident" is not defined merely as an

accident, it is "an accident caused by the fault of
the owner or driver of a motor vehicle" which then

takes you one step further along to see what is

meant by "owner or driver".

Stevens(3) 51 10/11/92

MR JACKSON:	Your Honour, I quite accept that, for example, one might have a motor accident which was caused by
the fault of the owner - the owner being someone outside New South Wales - and indeed the fault, in
a sense, occurring outside New South Wales. Take,
for example, Your Honour, the case of an owner who
sends an employee driving a vehicle which had not
been properly maintained so that in New South Wales
the brakes failed as he was going down the hill and
there was an accident.
Your Honour, the events, except for the accident itself, would have occurred outside New
South Wales, but the question, in our submission,
would be whether the Meyer Heine principle would have the result that when it speaks of "motor
accident" it means an accident occurring in New
South Wales, caused by the fault, perhaps wherever
occurring, of the owner, whoever the owner might
be, whether in or out of New South Wales. One
would not apply the doctrine ordinarily to more
than one part of the definition.

Your Honour, could I just say, in the end

perhaps we will be ad idem with Your Honour,
because what I was going to say was that the second

aspect of the definition of "motor accident"

appears in section 68 and it is expressed to

include a transport accident referred to in

section 69(2).	When one goes to section 69(2) it
says:

This Part also applies to and in respect of an

award of damages which relates to the death of

or bodily injury to a person caused by or

arising out of a transport accident (within

the meaning ..... of Part 2, of the Transport

Accidents Compensation Act -

Your Honours should have some pages extracted

from that Act, namely pages 6, 18 and 26.	The
definition of "transport accident", Your Honours,
is in section 4, subsection (1).	Your Honours will

see that it involves, relevantly, two parts: first

of all, paragraph (a), that is:

a motor vehicle -

(i) which is registered -

in effect in New South Wales. I will not attempt

to paraphrase or parse the qualification at the

end, the "not being" part. But, if one looks at

section 4(l)(a), then, prima facie one might think,

the Meyer Heine approach would be taken to it. A

view that possibly is not the right result may be

derived from two things. One is that section

Stevens(3) 10/11/92

4(l)(b) draws a distinction between accidents

occurring in New South Wales and inferentially

those occurring outside, although it may just be

because it is talking about where accidents

involving unregistered vehicles happen.

But the second thing is section 41(1) speaks

of a person not being precluded from making a claim
for benefits under the Act by reason of the fact
the person is entitled to make, or has made, a

claim for damages or compensation under any other

Act or law, including the law of another State.

Now, Your Honours, it is a difficult question,

no doubt, precisely what that means. It may be

that it would be right to say that if a claim was

made in another State relying on for example, the

doctrine in McKain v Miller, then in those

circumstances the claim would be treated as one

made under a law of another State and that in

effect the provisions of the definition of "motor

accident" do not really take one beyond motor

accidents which occur in New South Wales.

Your Honours, it is not necessary, with

respect, to resolve the issue, but I simply mention

the possibility - - -

BRENNAN J: This Act restricted claimants to residents of

New South Wales, did it not?

MR JACKSON:	I am sorry, Your Honour?
BRENNAN J:	Did this Act restrict claimants to residents of

New South Wales?

MR JACKSON:  Your Honour, I do not think so. Section 31 of the Act provided that:

If an injured person is able to

prove ..... that another person -

who is the owner and so on, is -

liable ..... for the bodily injury -

that that person:

is entitled to benefits under this Act.

Injured person is defined in section 3(1) to mean a

person who suffers a bodily injury which is caused

by or arises out of a transport accident.

BRENNAN J:  I thought there was a challenge to the validity

of this by the New South Wales Bar Association on

the ground that it discriminated between residents

Stevens(3) 53 10/11/92

of different States, but perhaps my recollection is

wrong.

MASON CJ: It was stood over, was it not?

BRENNAN J: Yes.

MASON CJ:  The end result was that the proceedings never

came on for determination in this Court.

MR JACKSON:	Yes.
MASON CJ:	And that I thought was as a result of legislative

changes made.

BRENNAN J: Section 33, a person resident in New South

Wales.

MR JACKSON:  I am sorry, Your Honour. Then Your Honour will

see subsection (b), a person not resident in New

South Wales who is - - -

BRENNAN J: Yes, that is right.

MR JACKSON:  Your Honours, one of the consequences of this

Act during its brief life was that some other

States enacted legislation allowing for there to be

a top-up of the benefits provided to residents of

those States injured in New South Wales.

Your Honours, the questions arising under it

perhaps fortunately no longer need to be resolved

but could I just say, in relation to section 69(2),

that its presence saying that part 6 of the 1988

Act applies specifically to the cases referred to in the definition of "transport accident" has the

consequence that, of course, our learned friend's

argument based on the non-application of the Act to

it really is bereft of substance, in our

submission. Your Honours, those are our

submissions.

MASON CJ:  Thank you, Mr Jackson. Mr Solicitor for the

Northern Territory.

MR PAULING:	May it please the Court, I hand up a brief outline of submissions.
MASON CJ:	Thank you. What is your right of intervention

here, Mr Solicitor?

MR PAULING:  Your Honour, we claim an interest to intervene

because the outcome of these proceedings has an

indirect impact on the very schemes that have

already been considered in Breavington, Perrett,

Byrnes and Guidere v GIO New South Wales.	We claim
that the - - -

Stevens(3)	10/11/92
MASON CJ:	You should be applying for leave to intervene,

Mr Solicitor.

MR PAULING:  Yes, I should, Your Honour, and I apologize. I

seek the Court's leave to intervene.

MASON CJ:	I take it there is no objection to the grant of leave to intervene, is there? You have leave to
intervene.  We will confer legitimacy upon you.

MR PAULING:  Thank you. Your Honours, the pathway we see as

being there through the cases begins with

Your Honour Justice Brennan's decision in

Breavington. I do not propose to read any passages

that have earlier been read but we make the point
that Your Honour, in pointing, at page 119 of

Breavington, to the problem arising because the lex

fori and not the lex loci governs the

quantification of damage, refers there to three

separate passages in Chaplin v Boys, and if the

Court goes to those passages and what follows on

them - they are passages by Lord Hodson, Lord Guest

and Lord Pearson, and they are each cases where

reference is made in a differential way between the

quantification of damages and heads of damage and
those passages have already been read by my learned

friend Mr Jackson and I merely note the proposition

that Your Honour Justice Brennan in Breavington is

making clear, we submit, the distinction and making

clear that it is quantification of damages that

must remain part of the lex fori and that, looking

at Chaplin v Boys, we find heads of damage dealt

with separately.

It is from that that we then take the next

point of corning to look at McKain v Miller. We submit that McKain v Miller stands for the four

propositions we have set out. We do that for this

reason, that the last part of the proposition,
proposition D, is that the substantive law of the

place of the wrong is imported into the forum -

that is that proposition - is consistent with the

second part of the conflict of law rules as stated

by the majority in McKain. If I could take

Your Honours to page 40 in McKain, the first

complete paragraph on the page:

In argument, the plaintiff conceded that

the substantive law of the place of the wrong

is "imported into the forum" and that

concession is consistent with the second part
of the conflict of law rules as we have stated

them.

That then leads to the proposition as to how it is

to be determined whether a particular law of the

place of the wrong, which may limit heads of damage

Stevens(3) 55 10/11/92

or may limit the amount of damages payable in
respect of a head of damage, to what extent that

that is substantive and therefore imported into the

forum.

It is our submission that the cases strongly

support the view that the denial of recovery for a

particular head of damage is part of the

substantive law of the place of the wrong. In that

event, on the basis of a judgment of the authority

in McKain, it is that substantive law that is

imported into the forum and then the forum court

applies it as its own law. It is a law that it has

imported in by force of its own choice of law

rules.

So in the case of Mrs Stevens, the Queensland

court can if it wishes, or could if it wished, have

gone ahead and done an assessment of damages in the

ordinary way but, having done that, would find

itself needing to refer to the substantive law of

New South Wales which had been imported in, so they

could say, "We've assessed this head of damage at

$300,000 and we've come to the conclusion that it's

a most extreme case, but we're directed by our own

law" - that is, Queensland law which has imported

into Queensland this New South Wales limit - "to

grant no more than 180,000." The command comes
from the forum law. It is not giving obedience to

the law of another place; it is giving obedience

to the forum law and applying that limit.

To the extent we say that that certainty of application is necessary, it is our respectful

submission that the very arguments that have been

advanced today demonstrate that certainty is

lacking in this area as to whether or not - or how,

in the event that it is, a limit of the sort

suggested in the New South Wales Act comes to be

applied in Queensland. Because we are dealing with the common law proposition in relation to choice of

that some gloss or explanation of it be given to	law rules, it is appropriate, in our submission,
remove the uncertainty that presently exists.

BRENNAN J:	What is the uncertainty?
MR PAULING:	The uncertainty is as to whether or not a law

that limits the amount of damages or the heads of

damages is a matter of substance or procedure.

BRENNAN J: Well, which are you dealing with, amounts of

damage or heads of damage?

MR PAULING:  I will deal with them differently, if

Your Honour pleases. We say the same result.

Stevens(3) 56 10/11/92

BRENNAN J: Well, what is the uncertainty with respect to

heads of damage, first of all?

MR PAULING: With respect to heads of damage it is our

submission that it is clear that they are part of

the substantive law of the place of the wrong.

BRENNNAN J:  When you say it is clear, there is no

uncertainty about that?

MR PAULING:  I say there is no uncertainty about that. I

say that is the weight of the judgments to which we

have referred.

BRENNAN J:  Now, the quantification of damages for a head of

damage - what do you say about that?

MR PAULING:  What we say is that actual quantification, the

mathematics, the way of adding it up, the

application of interest rates, that sort of thing,

is a law that is governed by the law of the forum.

It is a process that the law of the forum dictates.

BRENNAN J: Is there any uncertainty about that?

MR PAULING:  No. We say that is clear.

BRENNAN J: 

What is the area of uncertainty?

MR PAULING: 

Where a particular head of damage is not

abolished, but the amount that can be recovered
under it is limited.

BRENNAN J: 

In other words, the problem being whether that

relates to head of damage or whether it relates to
quantification damage?

MR PAULING: Yes, that is correct.

BRENNAN J:	I see.
MR PAULING:

We would say, though, as part of our argument

that a law of the place of the wrong which limits
the amount that might be recovered in respect of

any particular head of damage or type of damage is

a matter of substantive law, and along with

whatever the law of the place of the wrong has done

with heads of damage, those notions have to be

imported into the forum, and the forum law then

dictates that they be applied.

DEANE J: Mr Pauling, I am having trouble following it. It

may be my lack of understanding of the majority

judgment, but as I understand the majority

judgment, what Their Honours say is you apply the

Phillips v Eyre two stage test to determine whether

civil liability of that kind, or whatever the

Stevens(3) 57 10/11/92

phrase is, existed under the lex loci delecti.	But
as I understand the judgment, if that question is

answered in the affirmative you never refer again

to the law of the place. Well now, you are putting

an argument on the basis, as I follow it, that even

after you have dealt with that and answered in the

affirmative you then somehow import the substantive

law of the place of the occurrence into the forum

law to determine the outcome of the action. Now,

that is what you are putting, is it?

MR PAULING:  Yes, but I am putting it on this basis, that

what I might call the double action ability test in

Phillips v Eyre, as Justice Brennan put it in

Breavington and as the majority adopted it in

McKain, gets you into the Court. In order to be able to continue with your action - - -

DEANE J:	I follow that and - - -
MR PAULING:	Yes, but having got into that court - - -

DEANE J: But Phillips v Eyre is applied and answered in the

affirmative - - -

MR PAULING: That is right.

DEANE J: There was liability of that kind under the law of

the place where the accident occurred.

MR PAULING:  Yes. One extreme of the argument would be to

say, this is a claim in Queensland for damages for

personal injury. Now we look at New South Wales to

see if in New South Wales you can claim damages for

personal injury, because if you can, and if you can

do so in Queensland, that is it; the Queensland

court can deal with the matter, but in dealing with

it it never again refers to New South Wales law.

It deals with it as though the accident happened in

Queensland and all its consequences are in
Queensland. That is one view and one view that

takes a very broad view of what civil liability of

the kind which the plaintiff claims to enforce

might be.

Another view to be taken - the other end of the scale is to apply automatically and inflexibly

the law of the place, but that has been rejected by

the majority in McKain. So, somewhere in between
Phillips v
there we say is the point at which the it is the substantive law of the place of the wrong

which is imported into the forum which determines

matters such as whether a particular head of damage

is available or the amount of money that can be

recovered under a particular head of damage.

Stevens(3)	58	10/11/92
DEANE J:	Now, I am right.	Your argument is that that

substantive law is imported after the Phillips v

Eyre test has been satisfied.

MR PAULING:  And as a result of the fact that the forum

court is dealing with a tort that happened

somewhere else. And that is why - the test is

restated at page 39 in McKain and it is the very

next page where, consistent with that second part

of the conflict law rules as stated by the majority

the substantive law of the place is imported into

the forum.

McHUGH J: That is only dealing with the issue of the

anomaly, is it not, for the purpose of
extinguishing a cause of action. It is part of the

train of argument which commences with the

paragraph at page 39, the last paragraph.

MR PAULING:  Yes, but that only leads, in my respectful

submission, to another proposition. On one view of

Phillips v Eyre - if you took a narrow view of what

is meant by civil liability of the kind which the plaintiff claims to enforce, a plaintiff, say, in

Queensland, wanting to sue in respect of a New

South Wales matter, when one refers to the law of

the place of the wrong, one might say, "Well, no, I

am sorry, you cannot bring that action."

Now, if that were, on this reasoning, to

result in a judgment, that is a judgment

unfavourable to the plaintiff because it was not

actionable in Queensland as a result of the double
actionability test, then whatever cause of action

or right of action she had, on this basis, would

merge in the judgment and be extinguished which

would -

BRENNAN J: That seems a very surprising proposition. That

is suggesting it is the lex loci fori which might

result in the extinction of a cause of action

existing originally under a lex loci delicti. Page 39 certainly does not say that.

MR PAULING:  It is not a proposition that I am advocating is

one that is desirable or ought to be arrived at.

BRENNAN J: But it seems to me that you are straining at the

nets, somehow. You are putting two extreme

propositions which nowhere in the judgments finds

any support, nowhere in the majority judgment finds

any support. You are saying, on the one hand,

there is an extremity of the lex loci delicti

governs everything - - -

MR PAULING:  Yes.

Stevens(3)	59	10/11/92
BRENNAN J:	- - - on the other, it is the extremity of the lex loci fori governs everything.	Nobody says

that. What the majority judgment says is that you

go through the double actionability test that you

are ..... , and within that test there is the heads

of damage concept which is part of a substantive

law. Once you have passed that point then you are

into the lex loci fori to deal with the

quantification of that head of damage.

MR PAULING:  Yes, but we seek to persuade the Court that it

goes beyond just a head of damage, that if a

particular head of damage is not eliminated but

rather is limited, whether it be - - -

BRENNAN J:	What you are saying is that there are three categories and that McKain has dealt with only two.
The three are: heads of damage, quantification of
damage and substantive law.
MR PAULING:	I think what I am putting to Your Honour is

that McKain does not deal with the situation where

the law of the place says you may recover damages
of this kind but you may not recover any more than

X.       McKain does not address itself to that sort of

problem and, therefore, when one is trying to draw

a line between quantification and limits, if I can

use the latter term which is somewhat inelegant,

t. hat it is unclear at the moment whether the limit )uld itself form part of the substantive law.

In Breavington and in Perrett v Robinson in

passages that have already been read to the Court,

the discussion, particularly that of Your Honour

Justice Dawson makes it clear that if somebody says

you cannot recover for economic loss in the

Northern Territory, well that is part of the

substantive law of the Northern Territory, and the court of the forum, wherever that might be outside

the Northern Territory, has to apply it. It has to apply it as part of its own law by reason of having

imported that substantive law into the forum in

obedience to its own choice of law rules.

What is unclear at the moment, though, is

whether a court, and since nearly everyone of these

cases, I think all except one, have arisen out of

motor vehicle accidents, nearly all of them in the

Territory I might say, McKain occurred on a boat,

but since what we are really dealing with in the

vast majority of cases is damages for torts and

probably damages for personal injury, it is a

commonplace for judges to be able to, and they do

in fact, and this Court has really directed them in

many ways to do so, to divide up damages into

various heads and to assess them independently and

so on.

Stevens(3) 60 10/11/92

There is no real problem, mechanical or

otherwise, in ascertaining what the law is of the
place of the wrong provided it is within Australia.

There is no real problem, having quantified damages

in a way one would do had the tort occurred in the

forum, to then sit back and look at the law of the place of the wrong and say, "Oh, hang on a minute,

there is a limit on damages for pain and suffering

or loss of amenities" or, "I am really unable to

grant damages for economic loss". Of course, it

would be a waste of time to go through the process

if a particular head of damage had been

extinguished, and indeed the Court would not be

empowered to do so because it would have failed the

second limb of the double actionability test.

But the proposition we are putting is that it

needs to be made clear that not only heads of

damage but damages that are materially changed by

being limited to a particular amount or a
particular formulation in the law of the place of
the wrong, form part of that substantive law which

is imported into the forum and is applied by the

forum of the Court as its own law. That really is

why we took the step, if it may be of suggesting

that these things can be formulated as rules which

form a gloss on, and possibly an explanation of, the double action ability test as adopted by the majority in McKain v Miller. That is what we seek

to set out and do.

So, Your Honours, the passages that I would, were I developing this argument as the first person

to stand here, read in support of them have all

been read, but I do direct attention to this issue

as exemplified in the passages from Chaplin v Boys

and what Your Honour Justice Brennan said in

Breavington at 119, and what otherwise has fallen

from Your Honours concerning the question of

substance.

TOOHEY J: Well, Mr Solicitor, on your argument once the

two-fold test has been applied with the result that

the cause of action is justiciable in Queensland

and on your approach that involves importing the

substantive law of the State where the accident

occurred.

MR PAULING:	Yes.
TOOHEY J:	What part does the law of the forum have to play?
MR PAULING:	The law of the forum applies its own rules in relation to quantification. That has always been
the proposition.

Stevens(3) 61 10/11/92

TOOHEY J: But on the basis that the procedural law of the

forum still remains to be applied?

MR PAULING:  Oh, yes. The way in which the suit ought to be

instituted and how it is heard and what happens at

the end of it in terms of enforceability, and all

those sort of things, procedural laws of the forum

apply. It could - in accordance with McKain v

Miller, if a matter came before a Queensland court,

say, from South Australia, among other things it

may be said that the matter was statute barred in

South Australia. The Court then would apply its

own procedural laws in respect of that matter.

TOOHEY J:  So what is left in the present case by way of

quantification, other than a quantification as

dictated by the New South Wales statute? The New

South Wales statute tells you, at least,

relevantly, how damages are to be assessed.

MR PAULING:  The first thing the Queensland court has to do

in relation to the matter where there is a limit of

$180,000 is to decide whether or not the case falls

into the most extreme case description or, if not,

how it would relate on some sort of percentage

scale or other scale to a most extreme case

situation.

TOOHEY J: But in doing that it is applying the law of New

South Wales, is it not?

MR PAULING:  No, because it is applying ordinary words to

determine in the court's own experience, in the way

in which matters are run before the Queensland

Supreme Court, how bad an injury is, how extreme an

injury is. It is a matter of judgment, the answer

to which does not come from the New South Wales

statute, even though the term that is being judged

comes from there. The way in which the court

arrives at a conclusion that a particular injury is

of the most extreme kind is an application of, in

this case, Queensland law.

TOOHEY J:  I must say I have some difficulty with that. If

you are deciding whether a particular accident is

or is not an extreme case, are you talking about

the law or are you talking about - I suppose you

are talking about the law in the sense that you are

working with the words of the statute, but in any

other sense are you talking about the law?

MR PAULING:  No, that is a question of fact to be determined

on the evidence that is adduced before the court in Queensland. The way in which the court answers the

question is procedural.

Stevens(3) 62 10/11/92

TOOHEY J: Yes, but I understood you to be saying that the court is constrained by the various provisions of the Motor Accidents Act of New South Wales in terms

of what ceiling there is on particular heads of

damage and, indeed, in the case of gratuitous

services rendered at home, the availability of that

as a head of damage at all.

MR PAULING: That is correct.

TOOHEY J:  But I am just having difficulty in seeing what is

left for the Queensland court to do that could be

regarded as a matter of procedure or, at any rate,

as falling outside the operation of the Motor

Accidents Act. I understand you to be saying the

court still has to go through the process dictated

by the Act in deciding the seriousness or otherwise

of the non-economic loss, but that is not really a
question of law, is it? That is an exercise in -

it is not really fact finding; it is an exercise

in judgment, I suppose, evaluation. I just do not

understand what you mean if, indeed, you are

suggesting that there is something left of the law
of Queensland to be applied.

As far as matters that are purely procedural,

for example the availability and compellability of
witnesses - - -

TOOHEY J: Yes, I understand all that but I mean within the

framework of what we are discussing at the moment,
the assessment of damages in terms of the Motor

Accidents Act.

MR PAULING: Well, let us just take the situation that the

Queensland court has heard all the evidence, let us

say in Mrs Stevens' case, and they have heard

evidence concerning home care and the court could

go about it in one of two ways. It could say,

"Well, on the evidence concerning home care she

could not satisfy the requirements of the New South

Wales Act because she does not fit in with this,

that and the other and, therefore, I will not go

ahead and assess an amount in respect of that", or

it could go about it the other way.

TOOHEY J: All right, well, just stop there. What law is

the Queensland court applying when it reaches a

decision on that point?

MR PAULING:  We say that the Queensland court is applying

its own law because it has imported into its own

law the substantive law of New South Wales that

deals with these circumstances. And it is a

consequence of the plaintiff choosing to go to

Queensland in this case or suing in Queensland - I

am not for a moment to be taken to be reviving any

Stevens(3) 63 10/11/92

vested rights theory, please - but she has sued in

Queensland and the Queensland court says, "Well, what law does Queensland apply?" and Queensland says, "Well, we apply our own laws and one of our own laws is our choice of law rules, and that law

says that because there are substantive matters

concerned with this particular event which occurred

outside Queensland, then we apply that as part of

our own law".

TOOHEY J: Well, on that basis - and this is perhaps all I

want to say by way of addition - the actual

assessment of damages in this case would be done,

really, entirely in accord with the provisions of

the Motor Accidents Act.

MR PAULING: Well, it may become a mechanical exercise for

the judge engaged upon it but it would still none
the less be a Queensland judge exercising his

judgment in a Queensland court about Queensland

litigation which, in turn, concerns something that

happened in New South Wales. The fact that the

judge's scope might be cut down by these

provisions, and it may be a mechanical application

of some things, makes it no less a judicial act by

the judge nor his judgment on the issues any less a

judgment. It is not as though the New South Wales

law directs that some insurance company do this, or

that the executive do it; it is a power exercised

by a court. One of the powers the court exercises

is its ability to choose, by appropriate rules,

what law to apply. Here it says there is a limit

on the amount one can get for this sort of

non-economic loss.

BRENNAN J: Well, the consequence will be that a Darwin

judge sitting to hear a motor car case that arose

in Mt Isa with a Northern Territory car will not be

under any limitation of damages.

MR PAULING:  No, because in that case you would fail the

second test of actionability. It would not be

actionable in the Northern Territory.

BRENNAN J:	I see.
MR PAULING:	Because you would ask yourself the question, "Is there civil liability of that kind in the
Northern Territory?" Answer, No, so you have to go back and sue in Queensland.

What we are suggesting is that if our

submission be right, the conclusion is reached that the same result occurs in whatever forum you choose around Australia unless you happen to choose a

forum that does not even entertain that sort of

action.

Stevens(3) 64 10/11/92

Let us take some of the actions that are

referred to in other cases where they exist. Loss

of solatium is one where you can get it in some

jurisdictions and not in another. Presumably, if

you went to a place where they did not have an

action for solatium, then you fail the first part
of the test because in the forum there is no civil

liability of that kind. So you do not even get to

ask questions about what law ought to apply.	The
matter is simply not actionable.	So that sorts

out at the first level the inappropriate fora, if

you like, for particular sorts of civil liability.

Within the fora that do have civil liability

of that kind, in every one of those courts when you

go along they will say, "What is the situation in

the place where the accident happened?" They say,

"Yes, you can bring an action there." They say,

"That is very well. OK, that means it is

actionable here in the forum", and coming into this

Court we bring with it the substantive law that

attaches to the event. If, for example, in the

Motor Accidents Compensation Act of the Northern

Territory, which Your Honours considered in considered in Byrne v Groote Eylandt, one sees

there there was a limit of $100,000 on non-economic loss, of damages for pain and suffering and loss of amenities.

So the answer to the question is that the

forum considering the matter says, "Well, I have to

go about assessing damages. Is there something

about the substantive law of the Northern Territory

that ought to apply?" The answer is, "Yes, there

is a limit of $100,000." I suppose the judge would then go along and say, "Well, hang on a minute. Is

it a true limit, that is, a cap?" So that if

somebody is worth $100,000 or more you give them

$100,000. If they are worth something less than

$100,000, then you give them that. Or is it like

in the Motor Accidents Compensation Act of New

South Wales some sort of formula where you only get

$180,000 in the worst possible case? But these are

judgments that can readily be made. The law is

readily accessible. It is easily proven, and by

that process we achieve certainty of result, not by

way of imposing some constitutional implication

said to arise from section 118 or elsewhere, but by

a true test of double actionability to get the

matter into the court at all, and by taking with

it, as Your Honours said in McKain v Miller, the

substantive law of the place of the wrong which is

imported into the forum.

McKain is interesting from that point of view,

that what was imported into the forum was not the

Stevens(3) 65 10/11/92

limitation because it was not substantive law, and

that was the distinction that was necessary to be

made in the end.

So that is the result that we urge upon the

Court and it is actually interesting, when
considering what has happened in other
jurisdictions, that in Babcock v Jackson itself the

judge of the Supreme Court of New York said:

Despite the advantages of certainty, ease of

application and predictability which it

affords -

he then went along to discard a test that achieved

all those things and substitute something else

which has been a boon and delight for lawyers in

the United States ever since. So we make so bold

as to urge upon the Court that it may give a gloss

on the double actionability rule, and explain what

happens to substantive law of the place of the

wrong that is imported into the forum. And we say

that the process of reasoning we have briefly set

out here justifies that result. Unless there is

anything further, those are our submissions.

MASON CJ:  Thank you, Mr Solicitor, Mr Griffin.

MR GRIFFIN:  If the Court pleases, we have nothing by way of

reply.

MASON CJ:  Thank you. The Court will consider its decision

in this matter.

AT 3.11 PM THE MATTER WAS ADJOURNED SINE DIE

Stevens(3) 66 10/11/92