Stevens v Head

High Court of Australia|1988-07-28|Before: McHugh JJ, Gaudron JJ, Deane J, Brennan J

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Stevens v Head [1993] HCA 19

ORDER Appeal allowed with costs. Set aside the order of the Full Court of the Supreme Court of Queensland. In lieu thereof, order that the appeal to that Court be dismissed with costs.

The appellant, Kathleen Stevens, a New Zealand citizen and resident, sustained injuries when she was struck by a motor vehicle registered and insured in Queensland and driven by a Queensland resident. The accident took place on 28 July 1988 at Tweed Heads, New South Wales, a very short distance south of the Queensland border. The appellant and her husband had travelled to Australia for the purpose of visiting the Expo exhibition held in Brisbane, but were renting accommodation in Tweed Heads because their Queensland real estate agent had been unable to secure accommodation for them north of the border.

Mrs. Stevens commenced proceedings in the District Court at Southport, Queensland, seeking damages for personal injuries. At trial, the respondent, the driver of the motor vehicle, admitted liability but argued that, as the accident occurred in New South Wales, damages should be assessed according to the provisions of Pt 6 of the Motor Accidents Act 1988 NSW ("the Act"). If applicable, the relevant provisions of the Act would operate to limit the damages otherwise available at common law in respect of the appellant's injuries. Although the trial judge concluded that the law of New South Wales, the lex loci delicti, was the applicable law, he held that the provisions of Pt 6 of the Act relied upon by the respondent were procedural in nature and not to be applied in a Queensland court. His Honour then assessed damages according to the common law of Queensland, the lex fori. On appeal, the Full Court of the Supreme Court of Queensland held that the trial judge was obliged to apply the provisions of the Act and allowed the respondent's appeal. The award of damages in favour of the appellant was reduced accordingly. The appellant now appeals to this Court seeking to restore the judgment of the trial judge.

The appeal raises three principal issues: (a) what is the choice of law rule applicable to torts committed within Australia; (b) as a matter of construction, does the Act apply to this accident; and (c) if the Act is applicable, are the relevant provisions of Pt 6 substantive or procedural?

In Breavington v Godleman [1] differing views were expressed by the members of the Court as to the choice of law rules applicable in cases of intranational torts. Wilson and Gaudron JJ. and Deane J. considered that the problem was to be resolved by reference to the Constitution. The other members of the Court considered that the court of the forum was bound to apply the common law conflict of law rules applied by that court but differed as to the content of those rules.

However, in McKain v R.W. Miller & Co. (S.A.) Pty. Ltd., a majority of the Court (Brennan, Dawson, Toohey and McHugh JJ.) resolved these differences and stated the applicable common law rules in these terms [2] :

Those rules were formulated by Brennan J. in Breavington v Godleman as follows [3] : "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." The parties in this case do not challenge the authority of McKain or seek to re-argue its correctness. The first issue in this case must therefore be resolved by an application of the common law choice of law rules as stated in the majority judgment in that case. 1. (1991) 174 C.L.R. 1, at p. 39. 2. (1988) 169 C.L.R., at pp. 110-111.

The argument of counsel for the appellant appeared to assume that, once the two stated conditions were satisfied, as he argued they were in this case, the claim of the appellant fell to be determined by common law rules as to assessment of damages applicable in the forum, without any reference at all to the provisions of the Act. Likewise, the Solicitor-General for the Northern Territory, intervening on behalf of the Attorney-General for the Northern Territory, suggested that one view of the principles as stated in McKain is that, once the two conditions were satisfied "the Queensland court can deal with the matter, but in dealing with it it never again refers to New South Wales law". These arguments reflect the view that the two conditions are a test of justiciability, that they are merely the criteria for attraction of the forum's jurisdiction and not a statement of the substantive law which governs the claim [4] . Such an approach has attracted support in Australia [5] , but is at odds with express statements of members of the Court in Breavington [6] . True it is that the joint judgment in McKain does not expressly deal with the issue, but a proper understanding of the principles enunciated by the majority makes it clear that the justiciability or jurisdictional approach has been decisively rejected.

See the discussion in Dicey and Morris on the Conflict of Laws, 11th ed. (1987), vol. 2, pp. 1366-1367. 2. Hartley v Venn (1967), 10 F.L.R. 151, at pp. 155-156; Pozniak v Smith (1982), 151 C.L.R. 38, at p. 49, per Mason J.; Walker v W.A. Pickles Pty. Ltd. , [1980] 2 N.S.W.L.R. 281, at p. 289; cf. the more equivocal statement by the New South Wales Court of Appeal in Kolsky v Mayne Nickless Ltd. (1970), 72 S.R.(N.S.W.) 437, at p. 444. 3. (1988) 169 C.L.R., at pp. 73, 110, 143, 157.

The problem here and, for that matter, other problems in relation to the choice of law rules in torts, arise from too close an adherence to the particular form of words first used by Willes J. in Phillips v Eyre [7] . The precise words used by Willes J. have been varied and their effect considered and re-considered in numerous cases such as, in English courts, Machado v Fontes [8] and Chaplin v Boys [9] and, in Australia, in Koop v Bebb [10] , Anderson v Eric Anderson Radio & T.V. Pty. Ltd. [11] , Breavington and McKain itself. The formulation adopted by the majority in McKain is more clear and more precise than earlier statements but it does not dispose of all the problems.

(1870) L.R. 6 Q.B. 1, at pp. 28-29. 2. [1897] 2 Q.B. 231. 3. [1971] A.C. 356. 4. (1951) 84 C.L.R. 629. 5. (1965) 114 C.L.R. 20.

The present formulation fails to express the prominence which, in the first instance, is to be accorded to the lex loci delicti. That such a prominence is an intended element in the majority formulation emerges from the comments of the majority in McKain on my own judgment in Breavington and its relationship to the individual judgments of Brennan and Dawson JJ. in the same case. The majority in McKain stated [12] :

His Honour saw no reason (at least in the circumstances of that case) "to depart from the lex loci delicti as the primary or basic law to be applied" [13] . Provided effect be accorded to statutes which are part of the lex fori, this approach is similar in its operation to that favoured by Brennan and Dawson JJ. This statement indicates the emphasis which, on the approach taken by the majority in McKain, should be given to the lex loci delicti. 1. (1991) 174 C.L.R., at p. 38. 2. (1988) 169 C.L.R., at p. 79; and note a similar approach to the exercise of a discretionary power to remit in Pozniak v Smith and Robinson v Shirley (1982), 149 C.L.R. 132.

The common law conditions accord to the government of the place of the wrong the authority to prescribe what shall be the kind of civil liability arising on the occurrence of the wrong (cf. per Diplock L.J. in Carl Zeiss Stiftung v Rayner & Keeler Ltd. [No. 2] [15] but reserve to the lex fori the function of determining whether the kind of civil liability to which the lex loci gives rise is enforceable in the forum: Anderson and The "Halley" [16] . If the lex loci denies any civil liability (as in Phillips v Eyre), none arises under the lex fori. This is the clearest statement of the practical effect of an application of the choice of law rules as adopted by the majority in McKain. Two important points can be derived from it. First, it illustrates that, as a matter of both logic and practicality, the traditional two conditions owing their genesis to Phillips v Eyre would be better stated and applied in the reverse order, so that it is made more clear that the basic ambit of a claim brought in the forum is fixed by the provisions of the lex loci. Secondly, once the forum court has ascertained the precise extent of the substantive claim allowed under the lex loci, the court must then give effect to its own law, even if, for instance, the operation of the local legislation cuts down the extent of the claim which could otherwise be maintained. Thus, the forum reserves to itself the power to provide that part or even all of the claim arising under the lex loci is not to be pursued in its own courts. 1. (1988) 169 C.L.R., at p. 111. 2. [1965] Ch. 596, at p. 656. 3. (1868) L.R. 2 P.C. 193, at pp. 202, 204.

Two examples demonstrate the operation of the choice of law rules so understood. Let us suppose A suffers injury in South Australia due to B's negligence but sues in Victoria to recover damages for personal injury. In South Australia, let us assume, the common law applicable to such personal injury claims is unaffected by local legislation; Victorian legislation, however, provides that damages are not to be awarded in such cases for pain and suffering. An application of the choice of law rules would require the Victoria court to apply the lex loci but to give effect to the lex fori in so far as it restricts what is otherwise recoverable. The plaintiff would thus recover no damages for pain and suffering. Let us suppose, on the other hand, the converse situation: South Australian law as the lex loci provides that, for injuries sustained in the State, damages are not to be awarded for pain and suffering; the common law in Victoria, however, is unaffected by such statutory restrictions. An application of the choice of law rules would require the same result as in the first example because, even though the forum's own law does not restrict the extent of any claim brought by the plaintiff, the lex loci is imported into the forum and applied pursuant to the common law conflict of laws rules. As Brennan J. stated in Breavington [17] , "[i]f the lex loci denies any civil liability none arises under the lex fori".

In Breavington I expressed in detail the reasons why I believed that prominence should be given to the lex loci in the resolution of tort cases involving intranational conflicts problems and why I believed the lex fori should play a part in limited circumstances only [18] . I expressed that view because I hold firmly to the opinion that Australia is one country and one nation and that "the same significance or importance cannot be ascribed to a person's conduct in moving from one State to another" [19] as to the action of a person moving from one country to another [20] . In those circumstances, I was concerned that a resolution of the conflicts problem in such cases which gave too much prominence to the lex fori would inevitably encourage forum shopping by plaintiffs [21] . The approach adopted by the majority in McKain is not consistent with my opinion as to the basic character of intranational torts, as it is founded expressly upon the view that the States are "separate countries in private international law" [22] . Nevertheless, as the two examples I have given illustrate, a proper application of the choice of law rules adopted in McKain does not permit plaintiffs to indulge in the practice of forum shopping, for the lex fori assumes significance only to the extent that it restricts the claim otherwise available under the lex loci as applicable in the forum.

ibid., at pp. 69-79. 2. Walton v Walton , [1948] V.L.R. 487, at p. 489. 3. (1988) 169 C.L.R., at pp. 78-79. 4. ibid., at p. 76. 5. Pederson v Young (1964), 110 C.L.R. 162, at p. 170, per Windeyer J., quoted in McKain (1991), 174 C.L.R., at p. 36, per Brennan, Dawson, Toohey and McHugh JJ.

In this case, New South Wales law is the lex loci delicti and therefore the substantive body of law applicable in that State, including the Act if it is found as a matter of construction to be applicable, will determine in the first place the nature and extent of any claim which can be maintained by the appellant. Having ascertained this applicable body of law, the forum court would then be required to examine the law of the forum in order to see "whether the kind of civil liability to which the lex loci gives rise is enforceable in the forum" (30). In this case, the lex fori imposes no restrictions upon the cause of action as it exists under the lex loci. The determination of this case thus turns upon the precise nature of the respondent's liability under the substantive law of New South Wales.

The Transport Accidents Compensation Act 1987 NSW ("the Compensation Act") abolished common law rights to damages for death or personal injury caused by or arising out of a transport accident occurring on or after 1 July 1987. In place of the common law entitlements, the Compensation Act established a comprehensive statutory system of compensation. This statutory system was replaced when the Compensation Act was repealed by s. 5 of the Act and common law rights in respect of death or personal injury caused by or arising out of transport accidents occurring on or after 1 July 1987 were restored by s. 6 of the Act. The retrospective operation of s. 6 is clearly expressed:

The law relating to a right to or a claim for damages or compensation or any other benefit (pecuniary or non-pecuniary) against any person for or 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. Section 7 is also retrospective in effect and provides: On the commencement of this Part, Part 6 shall be taken to have applied, during the period from and including 1 July 1987 to that commencement, to a transport accident within the meaning of the Transport Accidents Compensation Act 1987 occurring on or after 1 July 1987.

Part 6 of the Act, comprising ss. 68-82, is entitled "Awarding of Damages". Section 70 provides that "[a] court shall not award damages to a person in respect of a motor accident contrary to this Part." "Motor accident" is defined to include a transport accident within the meaning of the Compensation Act which, prior to its repeal, included a reference to an accident caused by or arising out of the use of a motor vehicle, not registered in New South Wales, on a public street in New South Wales [23] .

In the present case, the accident took place on 28 July 1988 and arose out of the use of a motor vehicle, not registered in New South Wales, on a public street in New South Wales. Prima facie, therefore, the Act would appear to be applicable. The appellant, however, maintains an argument that she raised unsuccessfully in the Full Court to the effect that, on its proper construction, the Act should not be construed as having any application to these proceedings. Counsel for the appellant argued that, at least during the transitional period identified in the Act [24] - namely, 1 July 1987-1 July 1989 - the provisions of the Act should be construed as applying only to claims directed to obtaining money from the Transport Accidents Compensation Fund ("the T.A.C. Fund"), established under s. 15 of the Compensation Act. Counsel seeks support for this argument in the fact that the T.A.C. Fund was to be continued in existence during the transitional period, despite the repeal of the Compensation Act. During the transitional period, payments were to be made into the T.A.C. Fund [25] and claims in respect of accidents occurring during the transitional period were to be settled out of the T.A.C. Fund [26] . Part 10 effectively provided that the compulsory, third-party insurance scheme introduced by the Act was to be held in abeyance for the duration of the transitional period. It also established, or so the appellant contends, a code for claims against the T.A.C. Fund during the transitional period. The appellant argues that, as her claim was never directed to obtaining damages from the T.A.C. Fund, the provisions of the Act as a whole should not be construed as having any application to the situation where proceedings are brought in Queensland against a Queensland resident who has his own insurer standing behind him.

Part 10. 2. The Act, s. 140. 3. The Act, ss. 141, 143.

Although the provisions of Pt 10 of the Act as originally enacted, before the insertion in 1990 of ss. 145A and 145B, suggest that the details of the funding and administration of the scheme during the transitional period were formulated without express regard to claims such as the present one, the appellant's argument cannot succeed in the face of the clear words of those sections of the Act quoted above. As Thomas J. observed in the Full Court, "there can be no doubt that the event upon which the [appellant] sues was a motor accident for the purposes of Pt 6".

The appellant's attempt to avoid the application of the Act by a process of construction therefore fails. The remaining question to be considered is whether the relevant provisions of Pt 6 form part of the law applicable in this case.

It is an accepted principle of private international law that matters of substantive law are to be determined by the law of the cause and matters of procedural or adjectival law by the law of the forum. If the relevant provisions of Pt 6 are classified as substantive, they will be applicable as part of the lex loci, according to the second condition of the choice of law rule. If, however, they are classified as procedural, they will not be applicable to the facts of this case, as all issues of procedure will be determined by the law of Queensland.

As I observed in McKain [27] , the simplicity of the proposition that matters of substance should be determined according to the law of the cause and matters of procedure according to the law of the forum belies the difficulty of identifying just what is procedural and what is substantive. In that case, I stated my reasons for rejecting the traditional equation drawn between matters relating to a remedy and matters of procedure [28] and proposed a new criterion for the substance-procedure distinction which has its genesis in the principal reason for drawing the distinction at all. That criterion characterized as procedural "those rules which are directed to governing or regulating the mode or conduct of court proceedings" [29] . All other provisions or rules are to be classified as substantive.

(1991) 174 C.L.R., at p. 22. 2. ibid., at pp. 22-27. 3. ibid., at pp. 26-27.

While Deane J. and Gaudron J., to a lesser extent, expressed similar opinions in their separate judgments, the majority of the Court chose to follow the traditional approach to the substance-procedure dichotomy and, in the circumstances of that particular case, distinguished between statutes of limitation which cut off resort to the courts for enforcement of the claim and statutes which extinguish a civil liability and destroy a cause of action. That particular conclusion is relevant only by analogy in this case, however, which deals not with statutes of limitation, however described, but with provisions dealing with the awarding of damages.

The relevant provisions of Pt 6 are ss. 72 and 79. Section 72 provides:

Maximum amount of damages for provision of certain home care services

(1) 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 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.

Sub-sections (5) and (6) of s. 72 further provide for limitation on the amount of compensation in cases where the services provided or to be provided are not less than forty hours per week. Section 79 provides: Determination of non-economic loss

(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 (or the maximum amount declared for the time being under section 80), 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)-(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 $1,000 for every $1,000 by which the amount of damages exceeds $40,000.

The trial judge held that these sections were procedural and thus inapplicable in a Queensland court. By reference to common law principles of assessment, he then awarded $2,000 in respect of home care services and $18,000 in respect of non-economic loss. The Full Court concluded that ss. 72 and 79 were applicable and assessed damages accordingly. It awarded $2,908 in respect of the actual cost of home care already paid to outside persons but, pursuant to s. 72(4), made no award for on-going home care provided by family members, which consisted of only two hours per week. Pursuant to the provisions of s. 79(5)(a), the Full Court also reduced the damages payable for non-economic loss from $18,000 to $3,000.

The law relating to damages is partly procedural and partly substantive [30] . According to the traditional application of the substance-procedure distinction, the question whether legislative provisions dealing with awards of damages are substantive or procedural has been approached by asking whether the provisions affect the character of the wrong actionable or go only to the measure of compensation [31] . This approach is consistent with the equation traditionally drawn between matters of procedure and matters relating to remedies. Thus, there are numerous statements to the effect that the quantification of damages is a matter for the lex fori [32] . On the other hand, Breavington and Chaplin v Boys are important decisions in Australia and England recognizing that the availability of particular heads of damages is a question of substantive law.

Dicey and Morris, (1987), op. cit., vol. 1, p. 186; Chaplin v Boys, [1971] A.C., at p. 379. 2. See, e.g., Breavington (1988), 169 C.L.R., at p. 146, per Dawson J. See also Chaplin v Boys, [1971] A.C., at pp. 378, 381-382, 392-393. 3. Breavington (1988), 169 C.L.R., at p. 119, per Brennan J.; p. 146, per Dawson J.; J. D'Almeida Araujo Lda. v Sir Frederick Becker & Co. Ltd. , [1953] 2 Q.B. 329; Chaplin v Boys, [1971] A.C., at p. 379, per Lord Hodson; p. 381, per Lord Guest; p. 393, per Lord Wilberforce; Coupland v Arabian Gulf Oil Co. , [1983] 1 W.L.R. 1136, at p. 1149; [1983] 2 All E.R. 434, at p. 446.

The appellant argues that the applicable law in this case differs from that in Breavington and Chaplin v Boys because all common law heads of damage remain available under the Act; "civil liability of the kind which the plaintiff claims to enforce" [33] remains actionable. The provisions of Pt 6 of the Act are said to deal only with the extent of recovery allowed in respect of a liability and corresponding entitlement to damages already existing at common law. The respondent, however, argues that the scheme embodied in Pt 6 effectively abolishes ordinary common law rights to particular heads of damages, provides for new and very different statutory entitlements and states expressly that a court is not to "award damages to a person in respect of a motor accident contrary to this Part" (s. 70). The respondent submits that such legislation is plainly substantive.

In Breavington [34] and again in McKain [35] , I expressed my view that provisions or rules dealing with the measure of damages are substantive in nature. In the latter case, Deane J. expressed the same opinion [36] . Although, at first glance, this view might appear to be in conflict with the authorities noted above, a close analysis of precisely what is meant by the assessment or quantification of damages indicates that this conflict is illusory and also illustrates clearly that the appellant's argument must fail.

ibid., at p. 79. 2. (1991) 174 C.L.R., at p. 24. 3. (1991) 174 C.L.R., at p. 48.

The authorities and texts give a narrow scope to the procedural aspect of the law relating to damages. In Cope v Doherty [37] , the Court considered sections of the Merchant Shipping Act 1854 UK which limited the damages recoverable in cases of collisions by reference to the value of the vessel doing the injury and her freight. The Court held that the legislation was not applicable to the facts of the case but in response to a submission by the appellants, based upon the authority of Don v Lippmann [38] , that a restriction on the amount of damages to be recovered is a matter of procedure, Turner L.J. stated that it "is a question of liability, and not of procedure" [39] . In Livesley v Horst Co. [40] , a case of breach of contract, the Supreme Court of Canada held that damages available under the lex loci contractus for breach of a foreign contract were recoverable in an action on the contract in Canada. The Court considered [41] that questions as to substantive rights included all questions as to the "nature and extent of the obligation" [42] under the foreign contract. The Court also referred to Cope v Doherty as authority for the argument that "the measure of damages in an action for reparation in respect of a tort in a foreign country is not matter of procedure, but matter of the substance of liability" [43] .

(1858) 2 De G. & J. 614 [44 E.R. 1127]. 2. (1837) 5 Cl. & Fin. 1 [7 E.R. 303]. 3. (1858) 2 De G. & J., at p. 626 [44 E.R., at p. 1132]. 4. [1924] S.C.R. 605; [1925] 1 D.L.R. 159. 5. ibid., at p. 608; p. 161. 6. Fergusson v Fyffe (1841), 8 Cl. & Fin. 121, at p. 140, per Cottenham L.C. [ 8 E.R. 49, at p. 56]. 7. [1924] S.C.R., at p. 611; [1925] 1 D.L.R., at p. 164.

Even some of the statements relied upon by the appellant illustrate how narrowly the concept of the assessment of damages is confined and thus the relatively limited scope that is given to the procedural aspect of the law relating to damages. For instance, in Chaplin v Boys, Lord Wilberforce stated [44] :

[I]n relation to claims for personal injuries one may say that provisions of the lex delicti, denying, or 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 (such as loss of consortium) or some head of damage (such as pain and suffering) should be given effect to. (Emphasis added.) Furthermore, Lord Guest relied upon statements in Dicey and Morris [45] in support of his statement that "quantification of damages is for the lex fori" [46] . An examination of the relevant pages of that edition of the text indicates how narrowly the learned authors defined "quantification of damages". It is clear that they believed that questions touching on the actual " method to be used in assessing compensation" [47] - such as the rule that English courts will assess damages once and for all [48] - should be included under the umbrella of procedure and thus referred to the lex fori, but that provisions applicable in cases of tortious or contractual breach which purport to limit or fix the defendant's liability effectively define the limits of the obligations and are therefore substantive. The current, 11th edition of the text expresses the same opinion [49] . 1. [1971] A.C., at p. 389. 2. Dicey and Morris on the Conflict of Laws, 8th ed. (1967), pp. 944, 1092. 3. [1971] A.C., at p. 381. 4. Dicey and Morris (1967), op. cit., p. 1092 (emphasis added). 5. ibid., p. 943. See also Kohnke v Karger , [1951] 2 K.B. 670, at p. 675. 6. Dicey and Morris (1987), op. cit., vol. 1, pp. 186-188; vol. 2, pp. 1405-1407.

The latest edition of Cheshire and North's Private International Law states that all questions as to the quantification of compensation should be governed by the lex fori, yet indicates by the examples given [50] - such as the competence of the forum court to decide according to its law whether there has been a tender of the amount claimed [51] and whether damages should be paid in a lump sum or by means of periodic payments - that the procedural aspect of the law of damages is limited. Sykes and Pryles appear to confine the concept of quantification to the discretion of a judge or jury as to the amount of damages to be awarded and state that a statutory limit on the amount of damages is to be regarded as an express limitation upon substantive liability [52] . Leflar, McDougal and Felix categorically assert that "[t]he size of a right is a part of the right" [53] .

12th ed. (1992), pp. 95-96. 2. The Baarn , [1933] P. 251. 3. Australian Private International Law, 3rd ed. (1991), pp. 264-265. 4. American Conflicts Law, 4th ed. (1986), p. 346.

Recent Australian cases confirm this approach. In Allan J. Panozza & Co. Pty. Ltd. v Allied Interstate (Q.) Pty. Ltd. [54] , the New South Wales Court of Appeal examined a legislative provision which purported to limit liability in cases of breach of contracts to which the legislation applied. The law of the contract was assumed by the Court to be Queensland law and the legislation was that of the Queensland Parliament. The plaintiff argued that the provision was procedural and was only to be applied in proceedings commenced in Queensland. This argument was rejected. Street C.J. stated that "[i]t is more than a mere procedural prerequisite: it is an express limitation upon the substantive liabilities arising under a contract to which the Act applies" [55] . Reynolds J.A. concluded that "statutory provisions limiting a defendant's liability are prima facie substantive" [56] . Similarly, in Byrnes v Groote Eylandt Mining Co. Pty. Ltd. [57] , Hope A.J.A. equated the legislative provision before the Court in that case, which restricted the amount recoverable by a plaintiff bringing proceedings in respect of injuries suffered in a motor accident to $100,000, to the legislation in Breavington which denied altogether the availability of particular heads of damages. Plainly, his Honour considered such legislation substantive in character.

[1976] 2 N.S.W.L.R. 192. 2. [1976] 2 N.S.W.L.R., at p. 197. 3. ibid., at p. 198. 4. (1990) 19 N.S.W.L.R. 13, at p. 33.

Most recently, in Buckby v Lloyd Aviation Jet Charter Pty. Ltd. , a decision of the Supreme Court of South Australia [58] , Cox J. discussed the operation of the common law conflict of laws rules and stated [59] :

The joint judgment, and the separate judgments of Brennan J. and Dawson J. in Breavington, make it plain that the choice of law rules do not look merely to broad categories of liability and relief (for example, damages simpliciter) but have regard, where appropriate, to particular aspects of liability - for example, particular heads of damage, or limits upon or exclusions of liability, including restrictions on the quantum of damages that may be awarded for all or certain classes of loss. Laws of this kind are substantive laws, not procedural. 1. (1992) 58 S.A.S.R. 269. 2. ibid., at pp. 274.

The law in the United States also appears to reflect the limited content of the procedural aspect of the law of damages. The Restatement, Second, Conflict of Laws [60] provides that the lex causae (as determined by the relevant principle) determines the measure of damages to be awarded, including any limitations imposed upon the amount recoverable. The Restatement draws a distinction between the right to recover damages, which is substantive, and the right of access to the courts, the method of assessing damages - whether by judge or jury - and the evidence admissible [61] , all of which are matters determined by the lex fori [62] .

American Law Institute (1971), s171. 2. American Law Institute (1971), p. 511. 3. As an example of a case involving a rule of the lex loci limiting damages, see Hernandez v Burger (1980), 162 Cal. Rptr 564.

In the final analysis, it matters little whether this question is approached by holding that assessment of damages is a matter of substantive law [63] or by adhering to the view that assessment of damages is procedural and then restricting the concept of assessment in conformity with the authorities and texts I have discussed. On either approach, the law of damages has a limited procedural aspect in conflicts situations. Outside conflicts situations, the substance-procedure distinction may require different treatment [64] . However, in conflicts situations, choice of law rules should operate to fulfil foreign rights [65] and the goals of achieving efficiency of litigation and obviating the inconvenience of conducting the trial of a case containing foreign elements in a manner with which the court is unfamiliar are both achieved if procedural law is confined to those rules which are directed to governing or regulating the mode or conduct of court proceedings [66] .

Breavington (1988), 169 C.L.R., at p. 79; McKain (1991), 174 C.L.R., at p. 24. 2. Dicey and Morris (1987), op. cit., vol. 1, p. 174. 3. "[W]here 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": Hooper v Gumm (1867), 2 Ch. App. 282, at p. 289, per Turner L.J.; Dicey and Morris (1987), op. cit., vol. 1, pp. 5-6. 4. Dicey and Morris (1987), op. cit., vol. 1, p. 174; McKain (1991), 174 C.L.R., at pp. 26-27; Bateman & Litman Real Estate Ltd. v Big T. Motel Ltd. (1964), 44 D.L.R. (2d) 474.

Applying the principles stated above, it is clear that ss. 72 and 79 of the Act are substantive in nature and form part of the applicable law in these proceedings. This conclusion would follow if both provisions were drafted so as simply to place a ceiling on the relevant heads of damages. As both provisions are far more elaborate, defining in some detail the manner in which damages are to be calculated and the factors which must be addressed in that calculation, the conclusion is even more compelling. In Southgate v Waterford [67] , the New South Wales Court of Appeal examined Pt 6 of the Act and its "contingent and limited" [68] restoration of common law rights. The procedure laid down by that decision for trial judges to follow when faced with proceedings involving application of Pt 6 shows clearly how issues of substance are involved. In applying s. 79, for instance, the trial judge must conceive of "a most extreme case" for which the statutory limit of $180,000 is reserved (s. 79(3)) and then award an amount for the case at hand by locating it on a scale ranging from nil to $180,000, bearing in mind that the statutory maximum is reserved for "a most extreme case" [69] . Having done this, the judge must discount the figure arrived at pursuant to the provisions of s. 79(4) and (5). In circumstances where, pursuant to the direction in s. 70, no damages are to be awarded unless pursuant to such complex provisions, I fail to see how it is possible to conclude that such provisions are not substantive.

(1990) 21 N.S.W.L.R. 427. 2. ibid., at p. 438. 3. Southgate v Waterford (1990), 21 N.S.W.L.R., at p. 441.

Indeed, the attempt to reach such a conclusion necessarily entails a departure from the settled substance-procedure distinction by expanding the concept of what is procedural - that, in itself, being an anachronistic approach - to the point that the assessment of damages becomes procedure not substance. That, it seems to me, is nothing less than an invitation to Australian forum shoppers.

The appellant, Mrs. Stevens, was injured when she was struck by a motor vehicle on a pedestrian crossing in Kennedy Drive, Tweed Heads, New South Wales, on 28 July 1988. She recovered a judgment in the District Court held at Southport, Queensland, against the respondent, the driver of the vehicle, for $22,500 damages for negligence. The respondent appealed to the Full Court of the Supreme Court of Queensland against the judgment on the ground that the learned trial judge, Judge Hall, had assessed Mrs. Stevens' damages "according to the law of Queensland (the lex fori) and not the law of New South Wales (the lex loci delicti)" and that such an assessment was "wrong and contrary to law".

Subject to certain minor adjustments which were made by the Full Court, the assessment made by Judge Hall was made in accordance with the law of Queensland governing the assessment of damages in that State for personal injuries caused by motor accidents occurring in that State. The Full Court held that, in assessing Mrs. Stevens' damages, Judge Hall should have applied the law of New South Wales, specifically Pt 6 - "Awarding of Damages" - of the Motor Accidents Act 1988 NSW. Although Pt 6 did not commence until 1 July 1989, it appears to have been common ground - presumably by reason of certain retrospective provisions of that Act (ss. 5, 6, 7, 69(2)) - that it should be taken to have been at all relevant times the law applicable to the awarding of damages for personal injury caused by an accident occurring in New South Wales as the result of the negligence of the driver of a motor vehicle. The Full Court reached the conclusion that Pt 6 was the governing law after considering the several reasons for judgment of the members of this Court in Breavington v Godleman [70] and in Perrett v Robinson [71] . The judgments in McKain v R.W. Miller & Co. (S.A.) Pty. Ltd. [72] had not then been published.

(1988) 169 C.L.R. 41. 2. (1988) 169 C.L.R. 172. 3. (1991) 174 C.L.R. 1.

It is unnecessary now to return to a consideration of the divergent views that were expressed prior to McKain. A formulation of the governing principles relating to intranational torts was there adopted by a majority of the Court [73] :

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 [74] 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.

(1870) L.R. 6 Q.B. 1.
1. ibid., at p. 39.
2. (1870) L.R. 6 Q.B. 1.

This formulation focusses attention on the kind of civil liability which a plaintiff is seeking to enforce. A plaintiff's cause of action under the law of the forum thus depends in part upon an affirmative answer to the question whether, by the lex loci, the relevant facts gave and continue to give [75] rise to a civil liability of the kind which the plaintiff seeks to enforce. In the present case, the respondent submits that the lex loci did not give rise to a civil liability for "non-economic loss" as defined by s. 68 of the Motor Accidents Act except as prescribed by s. 79 of that Act and that s. 79, as part of the lex loci, did not impose upon the respondent such a civil liability for damages in respect of non-economic loss as Judge Hall awarded to Mrs. Stevens. Alternatively, it is submitted that s. 79 is a substantive, not a procedural, provision and, on that account, it had to be applied by the Queensland Court in the assessment of Mrs. Stevens' damages. The submission in the latter form is supported by the Attorney-General for the Northern Territory who was given leave to intervene. The two arguments are in truth aspects of one proposition: that s. 79 is a substantive provision which defines the civil liability imposed by the lex loci; it is not a provision relating merely to the remedy available under the lex loci to enforce the civil liability which that law imposes.

The Motor Accidents Act s. 5 repealed the Transport Accidents Compensation Act 1987 NSW which had abolished all rights to or claims for damages in respect of the death of or bodily injury to a person "caused by or arising out of a transport accident occurring on or after 1 July 1987" (s. 40(1)). The term "transport accident" had been defined [76] to include not only accidents occurring on public streets in New South Wales but also accidents occurring outside New South Wales involving motor vehicles registered in that State. Certain statutory benefits had then been conferred in the event of the death of or personal injury to a person as the result of a transport accident where the accident occurred in New South Wales or where the person killed or injured was a resident of New South Wales (s. 33). Mrs. Stevens was injured in a "transport accident", as the accident occurred on the New South Wales side of the border. It was immaterial to the operation of the Transport Accidents Compensation Act that the respondent's vehicle was registered in Queensland. However, the Motor Accidents Act, by ss. 6 and 7, expressly restored common law rights:

The law relating to a right to or a claim for damages or compensation or any other benefit (pecuniary or non-pecuniary) against any person for or 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.

On the commencement of this Part, Part 6 shall be taken to have applied, during the period from and including 1 July 1987 to that commencement, to a transport accident within the meaning of the Transport Accidents Compensation Act 1987 occurring on or after 1 July 1987.

The relevant provisions of Pt 6 of the Motor Accidents Act are:

"motor accident" includes a transport accident referred to in section 69(2);

(1) 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.

(2) 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, immediately before the date of commencement of Part 2, of the Transport Accidents Compensation Act 1987), not being an award of damages to which subsection (1) applies.

A court shall not award damages to a person in respect of a motor accident contrary to this Part.

(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.

(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 $1,000 for every $1,000 by which the amount of damages exceeds $40,000.

Section 80 provides for indexation of the amounts prescribed by s. 79.

Section 70 is a legislative direction to the courts of New South Wales so that, in a case brought in a New South Wales court arising out of a "transport accident" occurring elsewhere in Australia after 1 July 1987, Pt 6 is an effective prescription of the lex fori; but Pt 6 has a general operation not restricted to cases arising out of extraterritorial transport accidents. It applies generally to the award of damages for death or personal injury in the circumstances stated in s. 69(1). The courts of New South Wales are directed by s. 70 to apply Pt 6 to all cases falling within s. 69. Part 6 does not purport to create a statutory cause of action. To the contrary, s. 6 makes it clear that the common law cause of action in negligence is available to a plaintiff who has suffered personal injury as the result of the negligence of the driver of a motor vehicle. Section 79 then governs the award of damages for non-economic loss as defined by s. 68. The four paragraphs of that definition refer to familiar items which are taken into account in assessing damages for non-economic loss under the common law.

In Southgate v Waterford [77] , the Court of Appeal of New South Wales construed s. 79(2) as requiring a trial judge to assess damages for non-economic loss as a proportion of $180,000, the maximum amount which, subject to s. 80, may be awarded under this head. The Court held that the restoration of the common law right to damages in respect of bodily injury was, in relation to non-economic loss, "both contingent and limited". The Court added [78] :

It was contingent, for example, upon the injured person's establishing that the ability to lead a normal life "is significantly impaired" (s. 79(1)). It was also contingent upon the amount of economic loss [sic, presumably non-economic loss] being assessed to be more than $15,000 (s. 79(4)). It was limited to the deductions provided in s. 79(5) and by the disentitlement to certain heads of damage formerly allowed at common law (s. 77). Accepting this approach to the assessment of damages under Pt 6 of the Motor Accidents Act [79] , the question is whether, by the law of New South Wales, the respondent's negligent causing of personal injury to Mrs. Stevens imposed upon him a civil liability of the kind which Mrs. Stevens sought to enforce (and which Judge Hall upheld) in the action in the District Court at Southport. 1. (1990) 21 N.S.W.L.R. 427. 2. ibid., at p. 438. 3. Whether the civil liability of a driver who negligently causes personal injury is rightly described as "contingent" is discussed below.

In determining whether, by the lex loci, the relevant facts give rise to a civil liability of the kind which the plaintiff seeks to enforce, the courts of the forum distinguish between substantive and procedural laws. Procedure is governed exclusively by the laws of the forum, but the substantive laws of the place of the tort determine whether, by those laws, there exists a civil liability of the kind which the plaintiff seeks to enforce. In McKain, it was held that a South Australian law which imposed a limitation on the time within which to bring an action in the courts of that State for damages for a tort committed within that State but which did not extinguish the cause of action was not a substantive law which precluded the bringing of an action in the courts of New South Wales for damages for a tort committed in South Australia. The majority followed a line of authority [80] which distinguished between a statute of limitation which does no more than cut off resort to the courts for the enforcement of a claim and a statute which extinguishes civil liability and destroys a cause of action. The former is classified as a procedural law, the latter as substantive.

A similar distinction has been drawn between a law which denies a remedy in respect of a particular head of damage in negligence (a substantive law) and a law which affects the quantification of damages in respect of a particular head of damage (a procedural law). That distinction was drawn by a majority in Chaplin v Boys [81] and by Brennan J. [82] and Dawson J. [83] in Breavington v Godleman, followed in Perrett v Robinson. In McKain, the Chief Justice accepted that "the question of what heads of damage are recoverable is now treated as a substantive issue" and that a matter concerning quantification of damage, "on traditional analysis, has been treated as a procedural consideration" [84] . But his Honour's preferred view was that the measure of damages for personal injury is a question of substantive law, as he had held in Breavington v Godleman [85] . We are respectfully unable to accept that view [86] .

[1971] A.C. 356, at pp. 378-379, per Lord Hodson; pp. 381-382, per Lord Guest; p. 393, per Lord Wilberforce; cf. pp. 394-395, per Lord Pearson. 2. (1988) 169 C.L.R., at pp. 117, 119. 3. ibid., at p. 146. 4. (1991) 174 C.L.R., at p. 24. 5. (1988) 169 C.L.R., at p. 79. 6. That view was followed by Kirby P. in Byrnes v Groote Eylandt Mining Co. Pty. Ltd. (1990), 19 N.S.W.L.R. 13, a case in which reference was made both to the nature of a limitation statute of the lex loci and to the rule to be derived from Breavington v Godleman. Both points may require reconsideration in the light of McKain.

Does s. 79(1) or s. 79(4) partially extinguish or make contingent the common law cause of action for damages for non-economic loss? If so, these provisions would be classified as substantive. It will be necessary presently to consider that question. But as Mrs. Stevens' ability to lead a normal life was significantly impaired by her injury (so as to satisfy the requirements of s. 79(1)) and as the assessment of damages for non-economic loss (by Judge Hall and by the Full Court) took Mrs. Stevens over the amount of the minimum award under s. 79(4), the respondent's argument concentrated on the limitation which s. 79 places on the amount which may be awarded for non-economic loss. In this connexion, Livesley v Horst Co. [1] and Allan J. Panozza & Co. Pty. Ltd. v Allied Interstate (Q.) Pty. Ltd. [2] , mentioned by the Chief Justice in McKain [3] in reference to an express limitation on substantive liability, should be considered. We would confine the authority of these cases to the ascertainment of a contractual liability under the foreign proper law of the contract.

[1924] S.C.R. 605; [1925] 1 D.L.R. 159. 2. [1976] 2 N.S.W.L.R. 192. 3. (1991) 174 C.L.R., at p. 24.

In Livesley v Horst a seller of hops was suing in British Columbia on a contract of sale the proper law of which was the law of California. The Supreme Court of Canada held that the seller had the rights which Californian law conferred on such a seller which rights "accrue[d] to him by reason of the contract, and may without impropriety be described as rights implied by law as terms of the contract" [4] . Although the Supreme Court observed that, by English authority, the measure of damages in respect of an extraterritorial tort "is not matter of procedure, but matter of the substance of liability" [5] , that authority has clearly been overruled by Chaplin v Boys. Allan J. Panozza & Co. Pty. Ltd. v Allied Interstate (Q.) Pty. Ltd. was a similar case. The proper law of a contract of carriage was taken to be the law of Queensland which contained a provision [6] limiting the liability of a carrier. On appeal in an action commenced against the carrier in the District Court of New South Wales, the provision was held to be "an express limitation upon the substantive liabilities arising under a contract to which the Act applies" [7] and the limitation was accordingly held to be effective. Where the sources of the rights and obligations of contracting parties are in part the express terms of the contract and in part the provisions of its proper law, the courts of the forum are constrained to ascertain the parties' rights and obligations from those sources, not from the lex fori. In our respectful opinion, there is no valid analogy between the rules for determining the contractual rights and obligations arising in part from the proper law of the contract and the conflict of law rules governing the assessment of damages in respect of extraterritorial torts. When a plaintiff is entitled to enforce a civil liability in tort in respect of a tort committed outside the forum territory, the quantification of damages to be awarded in respect of the tort is a matter for the law of the forum. The quantification of damages is a matter distinct from the kind of civil liability in respect of which damages are to be quantified.

[1924] S.C.R., at p. 607; [1925] 1 D.L.R., at p. 161. 2. ibid., at p. 610; p. 164. 3. s. 6(1) of the Carriage of Goods by Land (Carriers' Liabilities) Act 1967 Q which was deemed by s. 9 of the Act to be "incorporated in every contract of carriage". 4. [1976] 2 N.S.W.L.R., at p. 197.

Section 79 imposes a limitation on the award of damages for non-economic loss both directly, by limiting the maximum amount which may be awarded (s. 79(3)), and indirectly, by reference to two formulae: one formula requires a proportion of that maximum to be determined (sub-s.(2)); the other requires the reductions prescribed by sub-s.(5) to be made. The effect of these provisions is no different in principle from a provision which reduces damages by reference to some other formula, e.g., by reference to discount rates in excess of those applicable under Todorovic v Waller [8] . Putting sub-ss. (1) and (4) aside for the moment, s. 79 is plainly a provision which affects the measure of damages but does not touch the heads of liability in respect of which damages might be awarded. It is simply a law relating to the quantification of damages and that, as we have seen, is a matter governed solely by the lex fori.

Sub-section (1) of s. 79, though expressed as a prohibition on an award of damages for non-economic loss unless the specified condition is satisfied, appears from its context - especially sub-ss. (4) and (5) - to be of the same nature as the remainder of the section. That is to say, it governs the quantification of damages for non-economic loss by directing the court not to award any amount, even if the condition specified in sub-s.(1) is satisfied, unless the amount, when calculated in accordance with sub-s.(2), exceeds $15,000 or the relevant amount indexed under s. 80. Sub-section (1) is not properly to be regarded as a provision which denies the availability of damages under the heading of non-economic loss. Similarly, sub-s. (4) of s. 79, though expressed as a prohibition on an award of damages for $15,000 or less (indexed under s. 80), assumes a liability which is susceptible of assessment. The circumstances prescribed by both sub-s.(1) and sub-s.(4) arise not when the personal injury is suffered but subsequently, when the extent of impairment is known or when the trial, in which the plaintiff sues on an existing cause of action, concludes. In other words, sub-ss. (1) and (4) assume that a common law liability exists but direct the court not to exercise its jurisdiction to award damages when it finds that the circumstances prescribed by those respective provisions exist. The liability is not truly contingent, but the right to enforce the liability is. The provisions of sub-ss. (1) and (4) of s. 79 operate in much the same way as a statute of limitations, that is to say, by acknowledging the cause of action but barring its enforcement.

It follows that s. 79 of the Motor Accidents Act is not to be construed as containing substantive provisions for the purposes of the conflict of law rules governing the assessment of damages for extraterritorial but intranational torts. Adopting the distinction between heads of damage and the quantification of damages in respect of heads of damage, s. 79 is a law with respect to quantification. Therefore it is not the law which a Queensland court applies in assessing damages for non-economic loss suffered by a plaintiff who was injured in an accident occurring in New South Wales. The validity of this conclusion can be demonstrated in another way. If each State and Territory in Australia were to enact a provision differing in quantum, but expressed in the form of Pt 6, the courts of each State or Territory would be bound to apply the provision enacted in that State or Territory regardless of conflict of law rules. The provision corresponding with s. 70 would represent a command to the courts of that State or Territory to assess damages as provided; it would not be subject to any exception created by the conflict of law rules. The application of the equivalent of Pt 6 would not rest upon its classification as procedural or substantive but upon the legislative intent. Double actionability (in the sense explained in McKain) operates satisfactorily with respect to causes of action; with respect to the quantification of damages, no law other than the lex fori can work effectively.

The appeal should be allowed. The notice of appeal seeks a restoration of the judgment of the District Court. That is the order which should be made. It is unnecessary to consider the adjustments made by the Full Court to the assessment made by Judge Hall. The judgment of the Full Court should therefore be set aside and in lieu thereof the appeal to that Court should be dismissed.

In Breavington v Godleman [9] , a majority of the Court rejected the notion that, under the compact by which the people of Australia united as a single nation, the States are "separate countries in private international law" [10] . The reasoning of the Justices who constituted the majority in that regard varied from judgment to judgment. The basis of each of the majority judgments was, however, a perception of a fundamental constitutional truth, namely, the essential unity of Australia as "one country and one nation" [11] under the Constitution.

(1988) 169 C.L.R. 41, at pp. 77-79, per Mason C.J.; pp. 98-99, per Wilson and Gaudron JJ.; pp. 134-135, per Deane J. 2. Pedersen v Young (1964), 110 C.L.R. 162, at p. 170, per Windeyer J. 3. (1988) 169 C.L.R., at p. 78, per Mason C.J.

In McKain v R.W. Miller & Co. (S.A.) Pty. Ltd. [12] , a majority of the Court effectively reinstated the notion that the States are "separate countries in private international law" and accepted a "narrower" restatement of the private international law rule enunciated in Phillips v Eyre [13] as applicable to resolve ostensible conflict between the laws of the various Australian States [1] . The application of that "narrower" restatement of the rule in Phillips v Eyre , leads, in my view, to the conclusion reached by the majority of the Court in the present case. Regardless of whether one categorizes the relevant provisions of the Motor Accidents Act 1988 NSW as procedural or substantive, it appears to me that, in the words adopted by the majority in McKain, "by the law of [New South Wales], the circumstances of the occurrence gave rise to a civil liability of the kind which [Mrs. Stevens] claims to enforce" in the Queensland District Court. In that regard, I do not read the words "civil liability of the kind" as introducing a requirement of correspondence between particular heads of damages.

(1991) 174 C.L.R. 1. 2. (1870) L.R. 6 Q.B. 1. 3. See McKain v R.W. Miller & Co. (S.A.) Pty. Ltd. (1991), 174 C.L.R., at p. 39.

In these circumstances, I have given careful consideration to the question whether I should abandon the views which I expressed in my judgments in Breavington v Godleman and McKain. The perception that this country is a single nation with a unitary system of law, in the sense that I explained in Breavington v Godleman, lies at the heart of my understanding of the structure and working of the Constitution. Any denial of that perception seems to me to be flawed by an unjustifiable underestimation of the extent of the compact between the Australian people and a mistaken denial of the fundamental imperative embodied in s. 118 of that compact. I am fully conscious of the weight of the considerations which support the view that a decision of the Court which still enjoys majority support should be treated by an individual member of the Court as being as binding upon him or her as it is on the members of every other Australian court. There are, however, weighty statements of authority [2] which support the proposition that, in matters of fundamental constitutional importance, the members of this Court are obliged to adhere to what they see as the requirements of the Constitution of which the Court is both a creature and the custodian. Ultimately, I have come to the conclusion that I should adhere to the views which I expressed in Breavington v Godleman and McKain. In reaching that conclusion, I am influenced by the consideration that the decision in the present case seems to me to demonstrate that, subject to an important qualification, the approach adopted by the majority in McKain goes a long way towards converting the Australian legal system into a national market in which forum shoppers are encouraged to select between competing laws imposing different legal consequences in respect of a single occurrence. The qualification is, of course, that forum shopping is confined to those cases where the requirements of the narrower statement of the rule in Phillips v Eyre are satisfied in at least one State (or Territory) other than the locus State. Where actionability exists only in the locus State, however, the approach adopted in McKain seems to me to undermine the national legal system in an even more fundamental way in that it effectively precludes proceedings in other than the courts of the locus State regardless of how clearly inappropriate as a forum those courts might otherwise be.

See, e.g., Queensland v The Commonwealth (1977), 139 C.L.R. 585, at pp. 593, 600-601, 610.

It follows that, in my view, the substantive rights of the parties in the present case are governed in all Australian courts by the law of the place where the accident occurred, that is to say, the law of New South Wales as continued and modified by the Constitution and any valid and applicable laws made under it. That being so, the substantive rights of Mrs. Stevens against Mr. Head were confined by the provisions of the Motor Accidents Act 1988 NSW. The fact that they would not have been so confined if an otherwise identical accident had occurred in Queensland is irrelevant. The law of Queensland was applicable to the proceedings between Mrs. Stevens and Mr. Head in the District Court at Southport, Queensland, only to the extent that it was procedural in the narrow sense of being directed to regulating court proceedings in that State.

Mrs. Stevens, the appellant and a resident of New Zealand, was injured in a motor vehicle accident at Tweed Heads in New South Wales, a town not far from the Queensland border. She brought proceedings in Queensland against Mr. Head, a Queensland resident and the driver of the vehicle involved. It is common ground that her claim was justiciable in the courts of Queensland. It is also common ground that the accident gave rise to civil liability on the part of the driver, whether that be determined by the law of New South Wales or by the law of Queensland that would have applied had the accident happened there. The only question is whether that liability should result in a money award calculated in accordance with the law of New South Wales or one calculated in accordance with the law of Queensland.

It is curious that, notwithstanding that in 1901 the people of the several Australian colonies were "united in a Federal Commonwealth under the name of the Commonwealth of Australia" [3] , the general view has been that cases such as the present where events giving rise to tortious liability in one State [4] are litigated in another (I shall call them "interstate torts") are to be determined by rules which reach back to the common law of England of the seventeenth century [5] and which were developed to determine the legal consequences of acts and events in foreign countries. Recently, the view that s. 118 of the Constitution has a role to play in these cases was rejected, by majority, in McKain v R.W. Miller & Co. (S.A.) Pty. Ltd. [6] and it was affirmed that they are governed by the common law. And it was held that one of the private international law rules of the common law should be modified or reformulated for application to interstate torts.

Constitution, covering cl. 3. 2. For ease of expression, I make no reference to a Territory and, unless otherwise indicated a reference to a State is also a reference to a Territory. Nor do I refer to omissions which, obviously, have no place of occurrence. See, with respect to omissions in the context of foreign torts, Voth v Manildra Flour Mills Pty. Ltd. (1990), 171 C.L.R. 538, at pp. 567-569, per Mason C.J., Deane, Dawson and Gaudron JJ. 3. See Blad's Case (1673), 3 Swans. 603 [36 E.R. 991]; Blad v Bamfield (1674), 3 Swans. 604 [36 E.R. 992], cited by Willes J. in support of the second part of the actionability test in Phillips v Eyre (1870), L.R. 6 Q.B. 1, at p. 29. 4. (1991) 174 C.L.R. 1, Brennan, Dawson, Toohey and McHugh JJ.

The rule that was reformulated in the majority decision in McKain is the double actionability rule in Phillips v Eyre [7] . It was reformulated for interstate torts so that an action may be brought in one State with respect to acts or events in another State if the circumstances are of such a character that, had they occurred in the first State, they would have given rise to "a cause of action entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce" [8] and they also give rise to civil liability of that kind in the State where they in fact occurred.

(1870) L.R. 6 Q.B., at pp. 28-29. 2. (1991) 174 C.L.R., at p. 39, adopting Brennan J. in Breavington v Godleman (1988), 169 C.L.R. 41, at pp. 110-111.

In McKain, the majority endorsed the description of the States [9] proffered by Windeyer J. in Pedersen v Young as "separate countries in private international law" [10] and acknowledged that common law private international law rules might result in "disparity in legal consequences" [11] . But, it was said, that could "[not] be eliminated by refusing recognition to laws [of the State in which the action is brought] which create [that] disparity" [11] . It is not entirely clear but it seems to be accepted in that statement that the law of the State in which proceedings are brought not only governs the conduct of those proceedings, but the consequences or at least some of the consequences which attach to the act or event in question.

In this context the States are the States proper, not the Territories. 2. (1964) 110 C.L.R. 162, at p. 170. 3. (1991) 174 C.L.R., at p. 36. 4. (1991) 174 C.L.R., at p. 36.

I do not share the view of the majority in McKain. I remain convinced, as I said in that case, that the Constitution, by combined operation of covering cl. 5 and ss. 106, 107, 108, 109 and 118, effects a situation such that only one body of law applies to an act or event in Australia [12] . And in those cases where the question is whether it is the law of one State [13] or the law of another that applies, s. 118 will direct the answer. Ordinarily, that answer will be the State in which the events occurred. Certainly on the view that I hold, that can be the only answer if the law of the State in which the matter is litigated does not even purport to govern the events in question.

ibid., at p. 55. 2. In the context of s. 118 of the Constitution I speak of the States proper and not of the Territories.

There are constitutional provisions which permit of different views as to their meaning or, more often, as to their effect in a particular case. But in the context of covering cl. 3 of the Constitution whereby the people of Australia were united in a Federal Commonwealth and so far as cases of this kind are concerned, s. 118 of the Constitution is not one of them. Either its requirement that "[f]ull faith and credit be given to the laws of every State" means that the laws of the State which govern an act as it happens also govern the legal consequences of that act or it means nothing of any constitutional significance at all. And, if s. 118 does not have constitutional significance of the kind I have indicated, we are not a united Federal Commonwealth but an alliance which can at any stage be revealed as an alliance of "separate countries in private international law". It follows that I not only differ from the contrary view of the majority in McKain, I also consider that that view is wrong and fundamentally so. In my view and because the Constitution prevails over the pronouncements of this Court upon it [14] , the decision in that case, so far as it concerns s. 118 of the Constitution, should not be followed.

See, e.g., Australian Agricultural Co. v Federated Engine-Drivers and Firemen's Association of Australasia (1913), 17 C.L.R. 261, at p. 278, per Isaacs J.; Damjanovic & Sons Pty. Ltd. v The Commonwealth (1968), 117 C.L.R. 390, at p. 396, per Barwick C.J.; Victoria v The Commonwealth (1971), 122 C.L.R. 353, at p. 378, per Barwick C.J.; Buck v Bavone (1976), 135 C.L.R. 110, at p. 137, per Murphy J.; Queensland v The Commonwealth (1977), 139 C.L.R. 585, at p. 593, per Barwick C.J.; p. 610, per Murphy J.

As it happens and notwithstanding my view that s. 118 of the Constitution governs the matter, I am able to reach a decision, by resort to common law, which accords in every respect with the decision required by s. 118, namely, that the law of New South Wales applies to determine the consequences which attach to the accident involved in this case, including the damages to be awarded.

There have been two recent decisions of this Court concerning interstate torts. And there are two matters to be observed with respect to them. First, in Breavington v Godleman [15] , a majority of the Court rejected the notion, at least in cases of tort, that the rules developed for acts and events occurring in foreign countries were appropriate for the resolution of the legal issues that arise when events in one State are litigated in another. In large part, that was because, traditionally and notwithstanding a statement to the contrary in Phillips v Eyre [16] , those rules were applied in cases of tort so that the law of the forum determined the legal consequences of the events in question [17] . And, as was later observed by the majority in McKain, it is the application of the law of the forum that leads to "disparity in legal consequences" [18] .

(1988) 169 C.L.R., at pp. 77-79, per Mason C.J.; pp. 98-99, per Wilson and Gaudron JJ.; pp. 135-136, per Deane J. 2. (1870) L.R. 6 Q.B., at p. 28. 3. See, e.g., Koop v Bebb (1951), 84 C.L.R. 629; Anderson v Eric Anderson Radio & T.V. Pty. Ltd. (1965), 114 C.L.R. 20; Kolsky v Mayne Nickless Ltd. (1970), 72 S.R.(N.S.W.) 437; Maple v David Syme & Co. Ltd. , [1975] 1 N.S.W.L.R. 97. Note, however, there has been a swing towards the law of the place where the events occurred, commencing with Chaplin v Boys , [1971] A.C. 356 and including Breavington v Godleman. 4. See fn. (24).

The second matter is that no issue arose in McKain as to the substantive law to be applied in that case which was brought in New South Wales with respect to events in South Australia. It was common ground that it was the law of South Australia. Only two issues arose. The first was whether a distinction was to be made between "substantive law" and "procedural law", with the New South Wales Court applying its own procedural laws. The second was whether, if that distinction was to be made, a South Australian limitation provision was to be regarded as procedural or substantive [19] . Some passages in the majority judgment in that case may suggest that the law of the forum applies to determine the consequences which attach to interstate torts, or some of those consequences [20] . But that is not a matter that was decided by that case. That is clear from the statement in that judgment that "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" [21] .

See, for their respective formulations of the issues, ibid., p. 18, per Mason C.J.; p. 33, per Brennan, Dawson, Toohey and McHugh JJ.; p. 46, per Deane J.; p. 56, per Gaudron J. 2. See fn. (24). See also ibid., at pp. 39, 44. 3. ibid., at p. 40.

As earlier indicated, the possibility of different consequences attaching to an act or event depending on where the matter is litigated led the majority in Breavington to reject the view that the traditional common law rules of private international law should govern interstate torts. Whatever the position be with respect to acts or events in foreign countries, it is worse than absurd that the law should allow that the consequences attaching to an act or event in this country - in this united Federal Commonwealth - can vary according to the State in which they are litigated. If that is the law, the law is arbitrary and unjust. It is arbitrary because, subject only to the question of justiciability, the acts or events can be litigated in any State, no matter the extent to which its laws on the topic differ from those of the State in which the acts or events occurred and no matter that, at least ordinarily, those laws will have been developed for local conditions and without regard to their application to events outside the State. It is unjust, not only because of this arbitrariness, but because, to the extent that laws differ, there must be uncertainty as to the legal consequences that will attach to an act or event until it is known in which State it is to be litigated.

On the basis that the common law determines the rules applicable in cases such as this, the common law must take account of the fact that the States are not separate and independent nation-States, but constituent parts of a Federal Commonwealth. That can only be done, in my view, by a rule that, although the court in which proceedings are brought must observe its own laws as to the institution and conduct of proceedings, the laws of the State that govern an act or event as it happens also govern its legal consequences. Indeed, consistency with the decision in Breavington dictates that, in the absence of a solution deriving from s. 118 of the Constitution, that be accepted as the common law. And as McKain was concerned with the question whether a South Australian limitation provision was substantive or merely a provision regulating proceedings in the courts of South Australia, nothing in the majority judgment in that case requires any different formulation of the common law.

The Motor Accidents Act 1988 NSW provides, in Pt 6, with respect to the damages recoverable in consequence of motor accidents, including accidents occurring between 1 July 1987 and the commencement of that Act [22] which were transport accidents within the meaning of the Transport Accidents Compensation Act 1987 NSW [23] . The latter Act, which was repealed by the Motor Accidents Act, expressly applied to transport accidents involving a vehicle registered in New South Wales (s. 4(1)(a)(i) and (ii)) and to accidents on the public streets of New South Wales involving a motor vehicle not registered in New South Wales and whether or not required to be so registered (s. 4(1)(b)). There can be no doubt that, despite the argument for the appellant which would limit Pt 6 of the Motor Accidents Act, in its application to accidents within the meaning of the Transport Accidents Compensation Act, to accidents entitling an injured person to payments from the fund established under that latter Act, this case involves an accident to which that latter Act applied, being an accident on a public street in New South Wales, and, thus, is one to which the former Act now applies.

There may, however, be some room to question whether Pt 6 of the Motor Accidents Act purports to govern damages in cases which are litigated outside New South Wales. Section 70, which is in Pt 6, provides that "[a] court shall not award damages to a person in respect of a motor accident contrary to [that] Part." And so far as is presently relevant there then follow provisions with respect to the awarding of damages for home care by a member of the injured person's household or family (s. 72) and for non-economic loss (ss. 79, 80). Those provisions are in general terms which are wide enough to apply to all motor accidents as defined in s. 68 of that Act [24] .

Section 68 defines a "motor accident" to include a transport accident within the meaning of the Transport Accidents Compensation Act.

There is a general presumption that a statute is to be read as operating only within territorial limits and, if that presumption were to apply in this case, it would follow that the direction in s. 70 of the Motor Accidents Act to "[a] court" would be read as applying only to the courts of New South Wales. And if that were so, it might be argued that the succeeding provisions, which are concerned with the "awarding of damages" as the heading to Pt 6 indicates, should be read as confined to actions brought in the courts of New South Wales with damages in other cases being governed by the common law which, so far as concerns accidents falling within the Transport Accidents Compensation Act, was restored retrospectively by s. 6 of the Motor Accidents Act [25] .

Section 6 provides: "The law relating to a right to or a claim for damages or compensation or any other benefit (pecuniary or non-pecuniary) against any person for or 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."

The presumption that a statute only operates within territorial limits seems to derive from another presumption, namely, that "the legislature does not intend to exceed its jurisdiction" [26] . Given that State laws may operate extraterritorially [27] , the first presumption may not be soundly based. And as the Interpretation Act 1987 NSW makes express provision, in s. 12(1) [28] , for reading territorial limits into statutory provisions, it may be that there is no room for a general presumption of that kind with respect to the laws of New South Wales. But in any event, the presumption and the rule stated in s. 12(1) of the Interpretation Act must both yield to a contrary intention apparent from the terms of the statute or its subject matter [29] .

Jumbunna Coal Mine N.L. v Victorian Coal Miners' Association (1908), 6 C.L.R. 309, at p. 363, per O'Connor J. See also Horgan v Sieber; Ex parte Horgan , [1976] Qd R. 25. 2. SeeUnion Steamship Co. of Australia Pty. Ltd. v King (1988), 166 C.L.R. 1. See also the Australia Act 1986 Cth, s. 2(1); the Australia Act 1986 UK, s. 2(1). 3. Section 12(1) provides: "In any Act or instrument - (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales; and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales." 4. See, with respect to s. 12(1) of the Interpretation Act, s. 5(2) of that Act which provides: "This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned." And, generally, see Broadhurst v Paul , [1954] V.L.R. 541; Tozer v Walker , [1961] V.R. 254.

The Transport Accidents Compensation Act expressly applied to accidents occurring in New South Wales, whether the vehicle involved was or was not registered in that State. In other words, it applied to accidents involving vehicles owned by and, in the ordinary course of events, driven by residents of another State. And, it was and is inevitable that, on some occasions, some accidents of that kind would and will be litigated outside New South Wales. (Perhaps the key witnesses reside in that other State.) In that context, the direction in s. 70 of the Motor Accidents Act must be read as applying to all such accidents, no matter where they are litigated and, thus, as applying to all courts in which they are litigated.

Whether the direction in s. 70 of the Motor Accidents Act can operate of its own force in other States is an interesting question of no present significance. It is sufficient that it is general and universal and, hence, the provisions in Pt 6 dealing with damages must be read as applying generally and not merely to accidents litigated in New South Wales.

It is implicit in what I have earlier said in relation to what must be the common law of interstate torts, in the event that s. 118 of the Constitution has no application to them, and it follows from the majority decision in McKain that it is necessary to distinguish between "substantive law" and "procedural law", with the court in which proceedings are brought applying its own procedural laws and not those of the State in which the events occurred. So much is required by considerations of convenience [30] . But quite apart from convenience, that would seem to follow from the nature of laws governing procedure in the courts. Inevitably, because of their subject matter, State laws on court procedure will be construed as applying only to proceedings in the courts of the enacting State. The theoretical possibility of a State expressly providing as to the practice or procedure to be observed in the courts of another State can be put aside for reasons much more fundamental than those which provide the basis for the distinction between "substantive" and "procedural" laws at common law.

For a general discussion of considerations of convenience, see Cook, " "Substance" and "Procedure" in the Conflict of Laws", Yale Law Journal, vol. 42 (1933) 333, at pp. 343-344. See also Heavner v Uniroyal, Inc. (1973), 305 A. 2d. 412, at p. 415.

It is also implicit in what has earlier been said that the notion of "procedural laws" must be confined to laws governing the institution and conduct of proceedings and the practice and procedure of the court in which they are brought. If not confined in that way, different legal consequences may attach to an event depending on where it is litigated. Thus, the same considerations that require that the laws of the State which govern an event as it happens should govern its legal consequence also require that the notion of "procedural laws" be so confined.

A law as to damages, whether it is a law with respect to the heads of damages or as to the measure of damages, directly determines the legal consequences attaching to the act or event with which it is concerned and, on that account, it must be classified as substantive and not procedural. Moreover, consistency with the decision in Breavington requires that a law of that kind be so classified.

Part 6 of the Motor Accidents Act is part of the substantive law of New South Wales and damages in this case must be calculated in accordance with its terms. That is what was held in the Full Court of the Supreme Court of Queensland. This appeal from that Court must therefore be dismissed.

At a glance

Court

Decision date

Before

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Judgment (144 paragraphs)

Parties