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SUBSTANCE & PROCEDURE IN THE LAW APPLICABLE TO TORTS: Harding v Wealands George Panagopoulos SUBSTANCE & PROCEDURE IN THE LAW APPLICABLE TO TORTS: Harding v Wealands George Panagopoulos Richards Butler 1

Meaning of the Substance & Procedure Rule Basic Principle: • Matters of procedure are Meaning of the Substance & Procedure Rule Basic Principle: • Matters of procedure are governed by the lex fori whereas matters of substance are governed by the lex causae Historically, the common law gave the widest possible meaning to the term “procedure” avoiding the application of the lex causae 2

Criticism of wide definition of “procedure” 1. Undesirable consequence of frustrating the operation of Criticism of wide definition of “procedure” 1. Undesirable consequence of frustrating the operation of Choice of Law rules • can circumvent the operation of foreign rule 2. Encourages forum shopping • by commencing litigation in England, a litigant could avoid the operation of a foreign rule of law 3

Move towards restricting the meaning of procedure • Move towards restricting the meaning of Move towards restricting the meaning of procedure • Move towards restricting the meaning of procedure Foreign Limitation Periods Act 1984 • Limitation rules of the lex causae apply to actions before the English Courts • English limitation period does not apply unless it is the lex causae • Position judicially overruled in Canada & Australia 4

Substance & Procedure Modern Approach Procedure: “the essence of what is procedural may be Substance & Procedure Modern Approach Procedure: “the essence of what is procedural may be found in those rules which are directed to governing or regulating the mode of conduct of court proceedings” Mason C. J. in Mc. Kain v Miller (1991) 174 C. L. R. 1 5

Substance & Procedure Modern Approach (cont. ) Substance “matters that affect the existence, extent Substance & Procedure Modern Approach (cont. ) Substance “matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance”. John Pfeiffer Pty. Ltd. v Rogerson (2000) 203 C. L. R. 503 (HCA). 6

Harding v Wealands: Why did the House of Lords decide as they did? • Harding v Wealands: Why did the House of Lords decide as they did? • Human factor/Justice of the case • Black letter law approach • Too complex/impractical a process • Policy decision 7

Harding v Wealands: application • Narrowest – a statutory cap should be classified as Harding v Wealands: application • Narrowest – a statutory cap should be classified as procedural – it forms part of the assessment of damages • Widest - remedies should be classified as procedural 8

Harding v Wealands: application (cont. ) • Distinction drawn between the question of whether Harding v Wealands: application (cont. ) • Distinction drawn between the question of whether a head of damage was recoverable and the quantification of damages • May be an artificial and complex distinction 9

Memories of Limitation of Actions • • • Traditionally : distinction drawn depending on Memories of Limitation of Actions • • • Traditionally : distinction drawn depending on nature of limitation A rule which extinguished a right = substance A rule which prevented the commencement of proceedings = procedural based on how a limitation rule had been worded, the limitation of either the lex causae or lex fori could apply 10

Wrongs & Other Acts (Public Liability Insurance Reform) Act 2002 • Damages for pain Wrongs & Other Acts (Public Liability Insurance Reform) Act 2002 • Damages for pain & suffering capped at $371, 380 procedural • Damages for past and future economic loss are capped at three times the amount of average weekly earnings. substantive (? ) 11

Wrongs & Other Acts (Public Liability Insurance Reform) Act 2002 • In determining an Wrongs & Other Acts (Public Liability Insurance Reform) Act 2002 • In determining an occupier’s liability for any injuries sustained by an entrant, the Courts must now consider the entrant’s level of intoxication and whether the entrant was engaged in an illegal activity at the time substantive? 12

Transport Accident Act 1986 (Victoria) • Act has a no-fault compensation scheme substantive • Transport Accident Act 1986 (Victoria) • Act has a no-fault compensation scheme substantive • Excludes recovery of damages at common law in respect of medical & like expenses, domestic services, pecuniary loss for first 18 months substantive • Compensation for first 18 months pursuant to detailed schedule procedural (? ) – does it go to quantification? 13

Transport Accident Act 1986 (Victoria) (cont. ) • • Recovery for losses beyond 18 Transport Accident Act 1986 (Victoria) (cont. ) • • Recovery for losses beyond 18 months only available if “serious injury” or 30% impairment or more. substantive Statutory cap of $686, 840 for pecuniary loss and $305, 250 for pain and suffering procedural 14

Transport Accident Act 1986 (Victoria) (cont. ) • • S. 93(20) provides: “For the Transport Accident Act 1986 (Victoria) (cont. ) • • S. 93(20) provides: “For the avoidance of doubt it is hereby declared that all the provisions of this section contain matters that are substantive law and are not procedural in nature” Inserted by S. I. 84/1994 18 months after the decision of HCA in Stevens v Head 15

Characterisation • Who is to characterise the foreign rule as substantive or procedural? • Characterisation • Who is to characterise the foreign rule as substantive or procedural? • Preferred view is that characterisation for the liberal lex fori • House of Lords look at how HCA characterised relevant provisions of MACA • Lord Hoffman [39 -41]; Lord Bridge [72] • Characterisation of Transport Accident Act in light of s. 93(20)? 16

Foreign torts or wrongs • S. 9(2) PIL (MP) Act 1995 The characterisation for Foreign torts or wrongs • S. 9(2) PIL (MP) Act 1995 The characterisation for the purposes of private international law of issues arising in a claim as issues relating to tort or delict is a matter for the courts of the forum. • • • Torts not recognised as a cause of action under English (or Scottish) domestic law How can the court in such circumstances award remedies without looking at the lex causae? Cf. Phrantzes v Argenti 17