Regie Nationale des Usines Renault SA v Zhang - [2002] HCA 10 - HCA 2002 case summary — Zoe

CTHHCA

Regie Nationale des Usines Renault SA v Zhang

[2002] HCA 10

High Court of Australia|2002-03-14|Before: Gleeson CJ, Callinan JJ, Hayne JJ

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Source facts

Court

High Court of Australia

Decision date

2002-03-14

Before

Gleeson CJ, Callinan JJ, Hayne JJ

Catchwords

Regie Nationale des Usines Renault SA v Zhang

Source

Original judgment source is linked above.

Catchwords

Regie Nationale des Usines Renault SA v Zhang

Judgment (113 paragraphs)

[1]

The application of the law of the forum has had its defenders. It was the choice of law rule for torts favoured by Savigny, the founder of modern legal doctrine applicable to multilateral claims. Such defenders cautioned against the "wholesale abrogation" of the law of the forum because of its supposed provincialism and inadequacies. Some of the arguments in defence of the law of the forum have been based on the perceived defects in the principal alternative choice of law rules for torts, such as the rule of the place of the wrong; the rule respecting the last event in completing the wrong; the rule obliging application of the law having "the closest connection" with the wrong; or the composite and somewhat unrevealing "proper law of a tort" favoured by Dr Morris.

[2]

This Court cannot decide amongst these various options for the choice of law rule by reference solely to legal authority. Questions of legal principle and legal policy must also be considered, as Deane J explained in Oceanic. On the one hand, the "mechanistic" application of the law of the place of the wrong has been described as "absurd". It is said to reflect the thinking of those who "hanker after certainty in their rules of law" without considering the adequacy of the resulting rules from the social and economic point of view. On the other hand, criteria such as "closest connection", "the balance of interests" and "the proper law of a tort" are acknowledged, even by critics of the rule of the place of the wrong, as "flabby" and overly dependent on judicial discretions.

[64]

"1. The Plaintiff is and was at all material times domiciled in New South Wales and has resided continuously in Sydney since 1986. 2. The First Defendant and/or the Second Defendant designed and/or manufactured and/or distributed or caused or permitted to be distributed the Renault series of motor vehicles, directly or by its servants or agents. 3. In the course of such distribution the First Defendant and/or the Second Defendant caused or permitted such motor vehicles to enter and/or be sold and used in Australia and in particular, New South Wales and in the South Pacific region and in particular New Caledonia. 4. The First Defendant for the purposes set forth in paragraph 3 hereof applied for registration in Australia of the name 'Renault' and its accompanying logo as a trade mark and was granted renewals of that registration, inter alia, pursuant to applications lodged by it in Australia in 1974, 1984 and 1992. 5. The First Defendant and/or the Second Defendant at all material times advertised and promoted or caused or permitted to be advertised and promoted the Renault series motor cars, inter alia, in New South Wales and in New Caledonia as reasonably safe for motoring purposes and for use as a motor vehicle generally and, inter alia, in New South Wales and New Caledonia. 6. As a result of the matters set forth in paragraphs 2, 3, 4 and 5, the Renault series of motor vehicles entered into circulation in New South Wales and elsewhere on the Australian market. 7. On diverse occasions between 1986 and 1991 in Sydney the Plaintiff was a passenger in a Renault motor vehicle and thus became familiar with the Renault car as a motor vehicle and its use and acceptance in New South Wales, inter alia as the result of the actions of the Defendants set out in paragraph 5 hereof. 8. At all material times the First Defendant and/or the Second Defendant and each of them: (a) was duly incorporated and liable to be sued in its corporate name; (b) carried on business involving the design and/or manufacture and/or distribution of motor vehicles for use, inter alia, by members of the public; (c) knew or ought to have known that vehicles manufactured and/or designed and/or distributed by it or caused or permitted to be distributed by it would or might be involved in road accidents; (d) knew or ought to have known that vehicles manufactured and/or designed and/or distributed by it or caused or permitted to be distributed by it would or might be involved in road accidents in which those vehicles would or might roll-over; (e) knew or ought to have known that in the event of an accident, the risk of injury and/or aggravation of injury to the occupants, particularly those occupants restrained by seatbelts, would be significantly increased if the roof of the vehicle crushed into the passenger compartment; (f) knew or ought to have known or foreseen that the likelihood of the roof of the vehicle crushing into the passenger compartment could be substantially decreased or eliminated if the roof, roof pillars and connecting structures and supports of the vehicles were of sufficient strength and structural integrity; (g) knew or ought to have known or foreseen that, in the event of an accident involving one of the vehicles designed and/or manufactured and/or distributed, by it there was significant risk that occupants of the vehicle would be injured, or would have their injuries aggravated and made more severe, as a result of the roof crushing into the passenger compartment; (h) knew or ought to have known or foreseen that the roof, roof pillars and connecting structures and supports of the vehicles were at risk of or likely to or susceptible to crushing into the passenger compartment on roll-over of any such vehicle by reason of their design; (i) knew or ought to have known or foreseen that the defective design referred to in subparagraph (h) hereof could be remedied by design changes which it ought to have made in the interests of the safety of passengers in its motor vehicles. 9. On or about the 1st February 1991 the Plaintiff travelled with his son from Sydney to New Caledonia, intending to return to Sydney on the 8th February 1991. 10. (a) On or about 5th February 1991, the Plaintiff hired a motor vehicle (hereinafter referred to as "the Vehicle") manufactured and/or designed and/or distributed by the First Defendant and/or the Second Defendant. PARTICULARS Renault L53H05 Sedan registered in the name of Laubreaux AutomobiIe Company Pty Ltd. (b) At all material times the Defendants and each of them knew or ought to have known or foreseen that the motor vehicles designed and/or manufactured and/or distributed in the course of its business might be hired and used by persons in circumstances like those pleaded in subparagraph (a) of this paragraph. 11. Immediately prior to hiring the Vehicle as aforesaid the Plaintiff was offered a choice between the Vehicle and other vehicles and selected the Vehicle because of the matters set forth in paragraphs 3, 6 and 7 hereof. 12. On or about 6 February 1991, while driving the Vehicle near Touho, New Caledonia, the Plaintiff was involved in an accident in which the Vehicle rolled over.

[65]

PARTICULARS At or about 12:00 p.m. on the road between Touho and Poindimie near Ponandou. 13. During the accident and roll-over and as a result of it, the Vehicle's roof was crushed into the passenger compartment such that it struck the Plaintiff on the head and caused the Plaintiff to sustain injury. 14. The injuries suffered by the Plaintiff occurred as a result of the negligence of the First Defendant and/or the Second Defendant. PARTICULARS OF NEGLIGENCE (a) Manufacturing and/or designing and/or distributing and/or supplying and/or causing or permitting to be distributed or supplied a vehicle the design and/or manufacture which was defective in that: (i) the pillars and associated supports were of insufficient strength to prevent or substantially reduce the likelihood of the roof of the Vehicle being crushed into the passenger compartment in an accident and/or roll-over; (ii) the roof of the Vehicle was of insufficient strength to prevent it being crushed into the passenger compartment in an accident and/or roll-over; (iii) the design and/or manufacture of the Vehicle were inadequate to prevent or reduce the risk of the roof being crushed into the passenger compartment in an accident and/or roll-over. (b) The First Defendant and/or the Second Defendant failed to warn the Plaintiff or cause him to be warned of the risk of roof crush to occupants of the Vehicle, especially those wearing seatbelts. (c) The First Defendant and/or the Second Defendant failed to warn the Plaintiff or cause him to be warned of the substantial risk in driving a vehicle designed and/or manufactured in the manner particularised in paragraph (a) above. (d) The First Defendant and/or the Second Defendant failed to warn the Plaintiff or cause him to be warned of the substantial risk in driving a vehicle designed and/or manufactured in the manner particularised above whilst wearing a seatbelt. (e) The First Defendant and/or the Second Defendant failed to take the remedial action referred to in paragraph 8(i). 15. As a result of negligence of the Defendants and each of them the Plaintiff has suffered and continues to suffer injury, loss and damage. 16. Further or in the alternative, at all material times the governing law was the law applicable in New Caledonia. 17. By reasons of the matters hereinbefore pleaded, the Plaintiff and the First Defendant and/or the Second Defendant were in a quasi-contractual relationship and/or a relationship which, as a consequence of the operation of the governing law, gave rise to obligations owed by the Defendants and each of them to individuals including the Plaintiff who might drive the vehicles designed and/or manufactured and/or distributed by the First and/or the Second Defendants or caused or permitted to be distributed by them or either of them. 18. By reason of that quasi-contractual relationship: (a) the First Defendant and/or the Second Defendant owed the Plaintiff an obligation and/or duty to take care in the design and/or manufacture of the Vehicle; (b) the First Defendant and/or the Second Defendant represented and/or warranted to members of the public including the Plaintiff that the Vehicle was designed and/or manufactured so as to afford adequate protection to the occupants in the event of an accident and/or roll-over. 19. The Plaintiff relied on the representation pleaded in paragraph 18(b). 20. By reason of the matters hereinbefore pleaded: (a) the First Defendant and/or the Second Defendant has breached its said obligation and/or duty; (b) the said representation was false and/or the said warranty has been breached. 21. By reason of the matters pleaded in paragraph 20, the Plaintiff has suffered injury, loss and damage. PARTICULARS THEREOF The Plaintiff repeats the particulars set forth in paragraph 14 hereof. PARTICULARS OF INJURIES Spinal injury, concussion and loss of consciousness, shock and sequelae.

[67]

"6. The relevant provisions in this case include articles 1382, 1383, 1384 which enable an action for damages to be taken against the manufacturer of a product by a person injured by the product. In such an action, it is necessary to prove negligence or a design defect on the part of the manufacturer. 7. In relation to liability, statements of independent witnesses are prepared and submitted to the court. Oral testimony is rarely given unless a direction is made by the Judge due to a conflict of evidence contained in the written statement. 8. A Judge would assess damages once liability is proven under the following heads of damage. (a) General damages to cover bodily injury, pain and suffering and loss of amenities; (b) Out-of-pocket expenses which would include past and future medical treatment expenses, including domestic and nursing care at home; (c) Past and future wage loss; (d) Home modification to cope with wheelchair access and other comforts. 9. In cases of this nature, the assessment of damages is based upon the reports of a court appointed expert. In circumstances where the plaintiff resides out of New Caledonia, the court would appoint a medical expert from the place of the plaintiff's residence. 10. The court appointed doctor would examine the plaintiff and make a determination as to diagnosis of injuries, disabilities and prognosis. An assessment would then be made as to percentage incapacity. A report would be prepared and submitted to the Court of First Instance in Noumea. 11. General damages are assessed by the Judge after careful consideration of all the medical evidence adduced. Permanent physical and intellectual impairment, pain and suffering, permanent disfigurement, loss of amenities of life are all factors considered when making the determination as to general damages." It is not a contention of the appellants that the apparent unavailability of exemplary damages under French law is a factor relevant to the matter that the Court has to decide.

[69]

"Associate Professor J D Yeo has stated that the plaintiff has had a complete loss of motor power and sensation below T5 spinal level (nipple line) and will remain permanently paraplegic following the serious spinal injury sustained in the accident. He has received a lot of care in the past and will need a lot of care in the future and special provision will have to be made for him. It was common ground that the plaintiff had suffered damage in New South Wales and will continue to do so and that this Court had jurisdiction. See SCR Part 10 Rule IA(e). The plaintiff proposes to lead evidence from three expert witnesses of considerable experience and standing, resident in Australia, to the effect that the car 'roll over' phenomenon is well known and accounts for an appreciable percentage of accidents involving serious injuries or fatalities (5 to 10 per cent), that the Renault 19 sedan had a roof which was not of sufficient strength to withstand roll over damage and crushed too easily, that the cost per vehicle to provide a car roof of sufficient strength is comparatively small with estimates ranging from $20 to $300 and that if a roof of sufficient strength had been provided the plaintiff would probably not have been seriously injured. It has been assessed, with reasons in justification, that the Renault 19 sedan did not drop onto its roof from a height in excess of 0.5 metres. The plaintiff's experts desired to obtain details of roof crush tests carried out by the defendants and others and the relevant design and manufacturing papers. These have not been produced. There is also material relating to some American tests and standards. Both the defendants are French companies, have no presence in Australia, maintain no office in Australia, employ no one in Australia and are not registered to do business in Australia pursuant to the Corporations Law or at all. Renault Australia Pty Ltd was de-registered in Australia in 1992. Since 1984 the first defendant has held registration of its trade mark comprising 'Renault' and accompanying logo in Australia in relation to a wide range of vehicles. Renault sedans are seen on the streets of Australia but since about June or July or possibly September 1991 this is because Volvo Car Australia Pty Ltd distributes them in Australia. About that time the first defendant entered into an agreement with Volvo Australia Pty Ltd (now Volvo Car Australia Pty Ltd) whereby the latter purchases vehicles from the first defendant in France and sells them to various car dealerships throughout Australia. In his report of 29 November 1996 Mr N Gillies states that versions of the Renault 19 four door sedan have been sold in Australia since 1991. A Press Release of 11 September 1991 of Volvo Australia Pty Ltd announces the decision of Volvo to become the Australian importer of Renault cars. It refers to a 1990 agreement under which the first defendant and Volvo acquired shares in each other. It extols the virtues of the Renault 19 four door sedan. In a further Press Release of that day the safety features of the Renault 19 are stressed and it is asserted that the Renault 19 has passed all European safety tests. An undated 'Renault 19' pamphlet believed to be issued after July 1991 states 'The roof beam, rear pillar and guard designed to offer roll over as well as side and rear impact strength and absorption.' At the present time there is limited information about the roof strengths of Renault 19 sedans used in New Caledonia. The materials reveal that the Renault 19 involved in the accident was registered on 21 August 1990 and had done 13265 km at the time of the accident." His Honour next referred to several practical considerations, some of which may be in contention in varying degrees: the prospect that the majority of witnesses at trial would be witnesses as to damages and living in Australia, although their evidence might, in many instances, be reduced to, and received in writing; experts not confined to Australian residents would be required to give evidence; witnesses who actually observed the accident live in New Caledonia; pre-trial discovery and interrogatories are not available in French proceedings; the respondent and his family are in modest circumstances, and his lawyers in Australia are acting on a contingency basis; the appellants have considerable resources; proceedings in New Caledonia would probably cost much less than proceedings in New South Wales; and, the real and major contest at trial would be between the experts called on each side. His Honour did not think that linguistic differences and the absence of a jury were factors of significance. It was also his opinion that there was no arguable case of a failure, on the part of the appellants, to warn in New South Wales.

[87]

"We agree with Lord Goff's approach in Spiliada. In our view the evolution of English law since The 'Atlantic Star' cannot be ascribed to local considerations such as the incorporation of the United Kingdom into the European Economic Community. Rather, this century has witnessed such a transformation in communications and travel, coupled with a greater importance attaching to considerations of international comity as the nations of the world become more closely related to each other as to render the St Pierre principle, fashioned as it was in the nineteenth century, inappropriate to modern conditions. In this regard we agree with the views expressed by Kirby P in the Court of Appeal. The St Pierre principle places such a tight rein on the discretion of a court as to render it unable to deal justly with the problem of forum shopping, even in blatant cases … And there is force in the comment of Pryles: 'The common law jurisdictional rules [ie, the sufficiency of personal service within the jurisdiction] are not entirely satisfactory and can lead to the assumption of jurisdiction in the most tenuous circumstances where there is really no significant connection between the litigation and the forum … In these circumstances a liberal rule as to the staying of actions is required. It cuts down local parochialism as regards judicial adjudication, and is consistent with a spirit of international legal cohesion and integration.' Furthermore, in an area of the law involving the courts of other countries it is expedient to preserve as much consistency as possible between the common law countries. The doctrine of forum non conveniens has long formed part of the law of Scotland and of the United States of America. It is now the law of England. It would seem to be the law of Canada … We are unaware of any recent consideration of the question in the courts of New Zealand. In our view, the Spiliada approach should henceforth chart the course for the common law of Australia in relation to the inherent jurisdiction of a court to stay proceedings when there is a more appropriate forum in a foreign country. Likewise, we think that the reasoning of Lord Goff in Spiliada in drawing attention to a marked resemblance between the principles applicable in forum non conveniens cases and those which govern the discretionary power of a court to permit service of proceedings on a defendant outside the jurisdiction, is relevant and applicable in Australia." (footnotes omitted) In short, it seems to me with respect, that so called globalisation, the deterrence of forum shopping, comity between nations with established judicial systems (both subjects about which I will say more shortly), taken with the other factors to which their Honours referred, require that, in general, suits should not be determined in a jurisdiction which has, with respect to the relevant events, no real connexion with the defendant. The days have passed since a judge of a common law country, however eminent, could say, categorically and uncontroversially of English courts, in defence of forum shopping, as Lord Denning MR did, "[England] is a good place to shop in, both for the quality of the goods and the speed of service."

[89]

I do not think that the majority opinion in Oceanic should be applied in this case. It is not binding on me because it was not decided by reference to the Rule which falls for application here. Secondly, it is not easily reconcilable with the passage from the joint judgment in Voth that I have already quoted and which was decided a little later than Oceanic and which stressed the materiality of the applicable law to a consideration of the question whether a forum was a clearly inappropriate one. Thirdly, the word "inappropriate" must have been deliberately chosen by the rule-makers in 1988. And had they intended a test of vexatiousness or oppression then they could and should have said so. Fourthly, "inappropriate" is hardly a synonym for "vexatious" or "oppressive". Fifthly, the test adopted in the older English cases and preferred by the majority in Oceanic was seen by the English courts, and Wilson and Toohey JJ in Oceanic, to be so disconcordant with modern notions of comity that a new and fairer test should be adopted. With respect, I think this is so and should be a relevant consideration in deciding inappropriateness under the current rule. "Forum shopping" has a capacity to affect all nations, including Australia, with established and fair judicial systems. If persons injured or damaged elsewhere are free to pursue their claims in this country because they think that they will enjoy greater prospects of success here than in the jurisdiction in which the damage was inflicted, then it is only to be expected that other nations, whose curial proceedings provide more generous results for plaintiffs, whether by way of huge awards of exemplary damages or otherwise, will be receptive to forum shopping in those nations' courts by their nationals and others who have been damaged or injured in this country. The consequences in these circumstances for people and corporations in this country who have complied with all relevant laws and standards, have paid their taxes and insured against risks on the basis of the law applying where they live or operate in this country, could be grave and unpredictable and, ultimately devastating.

[106]

"But I do not think that the refusal a stay on this ground can be based upon any defensible principle. It means that the action of a rich plaintiff will be stayed while the action of a poor plaintiff in respect of precisely the same transaction will not. It means that the more speculative and difficult the action, the more likely it is to be allowed to proceed in this country with the support of public funds. Such distinctions will do the law no credit. For my part, I prefer the eminently rational principle stated by Sopinka J in Amchem Products Inc v (British Columbia) Workers' Compensation Board: 'The weight to be given to juridical advantage is very much a function of the parties' connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as "forum shopping". On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides. The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available.'" I would also regard one other of the reasons of Stein JA as erroneous in two respects: that the respondent "had only a transitory and accidental connection" with New Caledonia. First, the fact that the respondent was in New Caledonia, and that he suffered injury there in an accident in respect of which some of its residents will be important witnesses, does give the respondent more than an accidental connexion with New Caledonia. Secondly, his Honour's statement discloses an erroneous approach to the relevant issues by looking exclusively to the respondent's position and to the proposed alternative forum, rather than to the position of the parties on both sides of the record and the appellants' connexion or otherwise with New South Wales. As to the latter, the appellants have no connexion. That others choose to import and sell their cars in that State is of no relevance. It is not established that the cars sold in New South Wales are the same as those distributed where the respondent was injured. Indeed, as different countries frequently have different standards of design and safety, there must be a real prospect that a Renault vehicle sold in Australia would differ from a Renault vehicle sold in another country. So, too, different countries may impose different standards of manufacture and the compulsory change-over of vehicles once they reach a certain age. These are matters going beyond a search for and application of the law to govern this case if it were to be litigated in New South Wales. That such differences are likely to exist highlights the need to look to the appellants' as well as the respondent's position.

Regie Nationale des Usines Renault SA v Zhang

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