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SUBSTANCE & PROCEDURE IN THE LAW APPLICABLE TO TORTS:

Harding v Wealands

George PanagopoulosRichards Butler

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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

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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

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Move towards restricting the meaning of procedure

• Move towards restricting the meaning of procedureForeign 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

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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

McKain v Miller (1991) 174 C.L.R. 1

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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).

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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

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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

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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

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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

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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 (?)

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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?

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Transport Accident Act 1986 (Victoria)

• Act has a no-fault compensation schemesubstantive

• Excludes recovery of damages at common law in respect of medical & like expenses, domestic services, pecuniary loss for first 18 monthssubstantive

• Compensation for first 18 months pursuant to detailed schedule procedural (?) – does it go to quantification?

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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

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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

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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)?

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Foreign torts or wrongs

• S. 9(2) PIL (MP) Act 1995The 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