Stevens v Head

[1992] HCATrans 114

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B7 of 1992

B e t w e e n -

KATHLEEN STEVENS

Applicant

and

WALTER HEAD

Respondent

Application for special

leave to appeal

DEANE J

DAWSON J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 APRIL 1992, AT 12.47 PM

Copyright in the High Court of Australia

Stevens 1 10/4/92

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

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

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

MR J.A. McDOUGALL: If the Court pleases, I appear for the

respondent. (instructed by Peter Lawlor)

DEANE J:	Yes.
MR GRIFFIN:	Your Honours, section 72 and 79 of the Motor

Accidents Act of New South Wales, whilst recognizing home care services and pain and

suffering respectively as heads of damages in a

personal injuries action and, more particularly, a
motor vehicle matter, place limitations on the

recovery which can be had in respect of those heads

of damage.	The provisions are set out at pages 12,
13 and 14 of the application book.	The most

significant aspect of the operation of the pain and
suffering provisions is in relation to monetary

limitations. Section 79(3) says that:

The maximum amount which may be awarded for

non-economic loss is $180,000.00 but the

maximum amount shall be awarded only in a most

extreme case.

Section 79(5), which is a provision directly

relevant in the present case, provides in part that

the sum of $15,000.00 is to be deducted in any
instance in which:

the amount of damages is less than $40,000.00. These amounts have been increased, but I will refer

to the figures as they initially stood.

Your Honours, those provisions were instituted in

an Act which repealed the former Transport

Accidents Act, which was the Transcover legislation

and it restored common law rights. Section 6 is

the provision which restored common law rights, and

it may be found at pages 11 and 12 of the

application book.

These present proceedings raised two important

issues with respect to those provisions.

DEANE J:  Mr Griffin, you can assume that we know the facts,

we have read the judgments and, within reasonable

limits we are familiar with the legislation, which

means you can go straight to the way you want to

develop the argument.

MR GRIFFIN: If the Court pleases.

Stevens 2 10/4/92

MR GRIFFIN: 

If the Court pleases. The two important issues

are these: one, if those provisions are
substantive is a forum court, other than New South

Wales, bound to give effect to them, and two, are

they properly classified as substantive provisions

or are they procedural.

Now, the resolution of these questions is very

much affected, though not finally determined, by

the decision in McKain.	Judgment in McKain was
decision of the Full Court in the present case.	delivered on 19 December 1991, which was after the delivered in October.

Now, as to the first of the questions I have

identified, the majority judgment in McKain

approaches the problem differently from the way in

which it was approached by the Full Court. The

Full Court, basing itself on Breavington, applied
the principle of the primacy of the place of the
tort, and holding that there was no basis for
saying that the flexible exception, which had been
spoken of by some of the judges in Breavington, was
applicable in the circumstances, decided that

sections 72 and 79 applied to the assessment of

damages in question.

Now, the application of the majority judgment

in McKain would require the case to be approached

quite differently. The majority judgment in McKain

restated the application of private international

law principles to intranational torts by means of a

slightly modified rule in Phillips v Eyre. This

was done by expressly applying the principles as

stated by Justice Brennan in Breavington, and these

principles are to be found at 66 ALJR 198, and may

I take Your Honours to them. His Honour said:

"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 that the traditional formulation of

the Phillips v Eyre conditions which speak of

Stevens 3 10/4/92

'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'.

DEANE J:  I notice that Mr Justice Thomas, at page 29 of the

appeal book, expressed the view that

Justice Brennan's judgment in Breavington supported the conclusion of the trial judge in this case?

MR GRIFFIN: That is so, Your Honour, yes. Now, it is our

submission that if it were decided according to

those principles, the present case would be

analysed in the following way:  Mrs Stevens could

sue in the forum, that is Queensland, if her claim

satisfied two requirements. The first requirement

would, of course, be that had the cause of action

arisen within Queensland she would have been

entitled to enforce a civil liability of the kind

which she claimed to enforce. Stopping there,

there is, of course, no doubt about the fact that

her claim satisfied that requirement. Queensland

had not made any relevant statutory change, and

there can be no disputing that had the accident

occurred in Queensland Mrs Stevens would have been

entitled to precisely the amount of damages that

were assessed by the trial judge who, in the end,

though for a different reason from the one that I

am presently advancing, tried the case according to

Queensland law.

Now, the second prerequisite, as stated by the

majority in McKain, is that, by the law of the
place in which the wrong occurred, namely New South

Wales, the circumstances gave rise to a civil liability of the kind which Mrs Stevens was

claiming to enforce in Queensland. This, of
course, was a different formulation from the second

condition in Phillips v Eyre, which spoke of the

requirement that the circumstances be actionable in

the place of the wrong, and it was a different

formulation from the Machado v Fontes formulation

which spoke in terms of the circumstances being not

justifiable.

Now, as we read the judgment of the majority

in McKain, Koop v Bebb is reinstated, though with

the modification to the second condition that I

have indicated. The law of the forum, not the lex

loci delicti, is as it is under the rules of private international law, the source of the

wrongdoer's obligation and the law of the forum is

applied. The action is dependant on and

incorporates as an element the existence of a

liability under the lex loci delicti of the kind in

question.

Stevens 4 10/4/92

Now, the statement lower down on page 198 of the Australian Law Journal Report, to the effect

that such formulation postulates as many causes of

action as there are forums in which the rules

apply, plainly acknowledges that the substantive

law being applied is the law of the forum, though

subject, of course, to the incorporation into the

forum law of the requirement of the existence of a

civil liability of the same kind under the lex loci

delicti and, of course, that is consistent with the

judgments of Your Honour Justice Dawson and

Justice Brennan in Breavington.

Now., it is submitted that Mrs Stevens' case

satisfies the second requirement in Phillips v Eyre

as restated by the majority in McKain. It is

submitted that notwithstanding sections 72 and 79

of the Motor Accidents Act, there existed in New

South Wales at all relevant times civil liability

of the kind which Mrs Stevens claimed to enforce in
Queensland, and it is submitted that that is so,

notwithstanding the limitations imposed upon recovery for home care services and pain and

suffering in the sections to which I have referred.

The only way in which the applicant's claim

would not satisfy the Phillips v Eyre conditions,

as amended by the majority in McKain is if the

words were read extremely narrowly. I refer, of

course, to the words "give rise to a civil
liability of the kind which the plaintiff claims to

enforce". Now we, of course, draw attention to the

width of the expression generally, that is, "civil

liability of the kind", and the width of the words

"liability" and "kind", and point out that there is

no suggestion that there must be available remedies

of the kind, or more particularly, remedies of an

identical kind, available in place of the wrong.

So, unless those words are to be read

extremely narrowly, Mrs Stevens' claim satisfies

the requirement and the situation is to be

distinguished from Breavington where the

Northern Territory legislation in question had

annihilated recovery for economic loss and had

thereby obliterated the relevant head of damage.

Well now, Your Honours, I turn to the question

whether sections 72 and 79 are substantive or

procedural. On this issue the trial judge held in

favour of the applicant by holding that they were

procedural. The Full Court overruled that

determination by deciding that they were
substantive. Our submission is that sections 72
and 79 are properly classified as procedural

provisions, with the consequence that they have no

impact on the case when being heard by a Queensland

Stevens 10/4/92

court, irrespective of the Phillips v Eyre

position. Our first proposition in support of that

submission is that it is consistent with the

analysis - - -

DEANE J: This is a fall-back argument, is it?

MR GRIFFIN: Well, no, Your Honour. We submit that - well,

it is a fall-back argument in the sense that if our

first argument is not correct then if this argument

is correct we still succeed, yes.

DEANE J: That is what I meant. I think we might hear Mr

McDougall in relation to the first argument.

MR GRIFFIN: If Your Honour pleases.

MR McDOUGALL:  May it please the Court, the respondent's

contention is, firstly, that the decision appealed

from is correct or, at least, not attended with

sufficient doubt. But turning firstly to the

argument raised by my learned friend in relation to

whether or not the law of the forum or the law of
the location where the tort was committed should

apply, it is submitted, Your Honours, that a proper

interpretation of what was being said by the court
in McKain is contained in the judgment of the

majority at page 197 where it is said that:

We do not wish to foreclose -

and then they refer to the decision of Your Honour

Mr Justice Dawson in Breavington v Godleman -

future consideration of the question whether

the Phillips v Eyre rule (as we state it in

this judgment) is suitable for application to

actions arising from torts occurring outside intercourse throughout this country and the

various parts of Australia (to which the Chief	general similarity of the laws in force in the	Justice referred in Breavington v Godleman (at 78)), the overwhelming desideratum in a rule
for intra-national torts is certainty of
application or, more accurately, as much
certainty as the subject matter admits.

It is the respondent's contention that the Court

meant by those comments that the law of the lex

loci delicti applied to achieve that certainty,

rather than the law of the forum. If the law of

the forum was to apply, there would be no certainty

because it would change from place to place

depending upon the particular legislation in force

in the forum.

Stevens 6 10/4/92

DAWSON J:  You might not be sure of the forum, but you could

certainly be sure of the law.

MR McDOUGALL:  Yes, Your Honour. It is submitted,

Your Honour, that the certainty is achieved by always applying the law of the tort, as was

proposed by the Court in Breavington, and

uncertainty is achieved when you disregard the law

of the lex loci and apply the law of the forum to

the consideration of the tort.

So it is our contention, Your Honour, that the

purpose of Breavington was to eradicate the evil of

forum shopping. It is our contention that the main

motive for forum shopping is the maximizing of the

quantum of damages. Now, if the law of the forum

is applied in the quantification of damages that

does not eradicate the problem of forum shopping,

it encourages it, in our submission, and for that

reason, in Breavington, the Court decided - and

there are various references in the outline of
argument submitted to the Court, for that reason

the Court determined that the law of the location,

that is the lex loci, applied in the quantification

of damages, as opposed to the law of the forum.

Your Honours, they are really our submissions

in relation to whether or not the lex loci applies.

The rest of our submissions relate to whether or

not the decision of the Full Court appealed against

is wrong. We submit that the headnote of

Breavington firstly says:

the law of the Northern Territory, as the lex

loci delicti, was to be applied ..... in

determining the entitlement to damages.

I have referred in my outline of argument,

Your Honours, to the decision of the Chief Justice

at page 79 where he says:

The measure of damages is plainly a question

of substantive law.

Mr Justice Brennan said, at page 119, that there

was a problem that arose -

because the lex fori not the lex loci governs

the quantification of damages -

and referred to the decision in Chaplin v Boys.

However, Mr Justice Brennan considered that, on its

true construction, Part IV of the Service and

Execution of Process Act -

has created a regime which requires uniformity

in the quantification of damages by any

Stevens 7 10/4/92

Australian forum which recognizes a liability

arising from an extraterritorial tort

occurring within Australia. If that be so,

then state or territorial laws prescribing a

mode of quantifying damages different from

that prescribed by the lex loci would be

inapplicable to an assessment of damages for

an extraterritorial tort occurring within

Australia.

Then Your Honour Mr Justice Dawson said, at

page 146:

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.

Further in that quotation, on page 146, Your Honour

Mr Justice Dawson 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 of

earnings or of earning capacity from the

damages recoverable.

Mr Justice Toohey at page 170 of Breavington 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.

While the other judges did not remark upon the applicable law relating to damages, all of the

judgments, in our submission, were based upon the

need to ensure that in Australia one set of facts

did not give rise to different legal consequences depending upon the location or venue of the court

in which legal proceedings were instituted.

It is submitted that that is the underlying

basis upon which Breavington was founded, and it

would frustrate that basis if provisions like the

Northern Territory Act under consideration in

Breavington, or the New South Wales legislation,

which is under consideration here, was to be

considered as simply procedural or adjectival

Stevens 10/4/92

because, as I earlier submitted, Your Honours, the

motive for forum-shopping is to maximize the

quantum of damages generally and to apply the forum

to the quantification of damages as opposed to the

law of the lex loci, then that would defeat that

purpose.

It is submitted that whilst the New South

Wales provisions that we are discussing might be

different from the Northern Territory provisions

considered in Breavington, the latter expressly

excluded damages - that is, the Northern Territory

legislation. Here the section speaks in terms of

awards of damages rather than actions for damages.

The Court of Appeal in New South Wales in

Byrnes considered the question of the ceilings on

the quantification of damages. They were

considering the workers compensation legislation in

the Northern Territory and, in his decision at

pages 32 and 33, Mr Justice Hope applied the

decision of Breavington and considered that it was
appropriate for the trial judge,

Mr Justice Carruthers, to apply the lex loci and limit the quantum of the plaintiff's damages at the

trial in Byrnes' case to the total of $100,000, as

was the ceiling in the workers compensation

legislation in New South Wales.

Special leave was refused in Byrnes. The

court decided that that decision was unattended

with sufficient doubt, and it is our submission

that the Court should find the same here, because
the court has simply applied Breavington and found

that the lex loci is the appropriate law to apply

in the quantification of the damages that

Mrs Stevens suffered.

Your Honours, we really cannot take it further

than to say that as Your Honour Mr Justice Dawson

said in Breavington at page 146, that is:

where the action is in negligence and damage

is the gist of liability -

then as the law of the lex loci is applied to the

tort, it must also be applied to the quantification

of damages. I really cannot take it further than

that, Your Honours.

DEANE J: Thank you, Mr McDougall. There will be a grant of

special leave to appeal in this case.

AT 1.11 PM THE MATTER WAS ADJOURNED SINE DIE

Stevens 9 10/4/92