Boys v. Chaplin

This was the first occasion since Phillips v. Eyre on which the House of Lords had the choice of law in a wholly foreign tort directly before it — a century after the rule was stated. It is therefore the case in which English law had its chance to settle the subject.

It did not take it. The House was unanimous on the result and divided on every route to it, and this course's verdict is the honest one: the chance to elucidate the law was lost. That failure is what makes the case examinable, and it is the strongest argument available for legislation in this area.

Two Englishmen were temporarily stationed in Malta with the British forces. The plaintiff, a passenger on a motor scooter, was seriously injured off duty in a collision with the defendant's car. Liability was admitted.

Maltese law allowed only special damages — out-of-pocket expenses and proved loss of earnings — which came to £53 on these facts. English law allowed general damages for pain and suffering, bringing the figure to £2,250.

The House of Lords was unanimous that the plaintiff should recover the higher English sum, £2,250.

But:

"But the reasons and the principles of law have been differently stated by the judges who participated in the decision and a chance to elucidate the law on this topic has been lost."

Because the reasons diverged, the safe course in an answer is to state what the case establishes and to be explicit about what it does not.

What is safe to assert — three propositions. The result: English law applied and the higher damages were recovered. The division: every member of the House gave different reasons. The occasion: this was the first time since Phillips v. Eyre that the House had the choice of law in a wholly foreign tort directly before it.

Why the case arose at all. Under Phillips v. Eyre, limb one requires the wrong to be actionable by the lex fori and limb two requires only that it not be justifiable by the lex loci delicti. Negligent driving is actionable in England and plainly not justifiable in Malta, so both limbs were satisfied and the action lay. The difficulty was one the two limbs do not address at all: the two systems agreed on liability and disagreed on damages. A rule about whether a suit may be founded says nothing about how much is recoverable, and that gap is what the House had to fill.

Why the divergence was predictable. The rule the House was working with is not a choice-of-law rule in the ordinary sense. It nominates no system. Limb one applies the forum's own law; limb two uses foreign law only as a negative condition. Machado v. Fontes had already reduced limb two almost to nothing, so that the whole substance of the obligation turned on English law — a system "involved in the case solely because the plaintiff decided to bring his action in England." A structure of that kind gives a court no principled way to decide a damages question, which is why the reasons scattered.

It opens: the concluding part of any question on choice of law in tort, and any question asking whether the common law rule is satisfactory.

Do not attribute a ratio to it. Give the three safe propositions and say plainly that the reasons differ. An answer that confidently states a single rule in this case is contradicted by the course's own verdict.

Use it to carry the argument for reform. A rule stated in 1870 by a single judge in a case about a colonial indemnity Act governed English choice of law in tort for a century before the House examined it, and when it did it could not agree. A rule of that provenance is ready for legislation — which is why the syllabus pairs this head with a European instrument.

Set the three theoretical solutions against it. The lex fori invites forum shopping; the lex loci delicti cannot locate itself in a modern tort; the proper law of the tort is flexible at the cost of predictability. Each cures the last defect and creates a new one, and that movement is the shape of the answer to any critically examine question on this head.

Keep the contrast with contract. Contract has one governing law and tort has none. In contract the parties supply the connecting factor themselves, so the law needs only the ladder — express, implied, imputed — and a short list of matters the ladder does not reach: form, illegality, capacity. In tort there is nothing to consult, which is why Phillips v. Eyre survived so long.

It does not decide: whether Machado v. Fontes is good law; nor does it lay down any general rule about the law governing damages. It decides that on these facts the plaintiff recovered the English sum.