Harding v Wealands

The House of Lords held that questions as to the quantification or measure of damages for personal injury are questions of procedure governed by the lex fori and therefore fall to be determined by English law under section 14(3)(b) of the Private International Law (Miscellaneous Provisions) Act 1995. The court concluded that the provisions of Chapter 5 of the Motor Accidents Compensation Act 1999 (New South Wales) which limit or prescribe the manner of assessment of awards are procedural in character and so are not applicable to awards made by English courts.

The Lords relied on the traditional distinction between substance and procedure (as discussed in Boys v Chaplin and related authorities), the Law Commissions' report on Part III of the 1995 Act, and authority from the High Court of Australia in Stevens v Head to characterise the NSW provisions as procedural. Lord Hoffmann and others rejected the Court of Appeal majority approach which would have treated the NSW statutory caps as substantive; the appeal was allowed and the first instance judge’s order restored.

The claimant (Mr Harding), an English national, suffered severe personal injuries in a car accident in New South Wales while a passenger in the respondent's vehicle. Liability was admitted. The claimant sought damages in England. The defendant contended that the assessment of damages should be governed by New South Wales law, specifically the Motor Accidents Compensation Act 1999 (NSW) (MACA) which imposes limits and detailed rules for assessing awards.

The legal issue was whether the assessment and quantum of damages were issues "relating to tort" to be determined by the applicable law chosen under Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (and thus potentially the law of New South Wales), or whether they were "questions of procedure" to be determined by the lex fori under section 14(3)(b) of the 1995 Act.

Procedural history: the matter was tried by Elias J who applied English law to the assessment of damages; the Court of Appeal by a majority reversed on the footing that the NSW rules should apply; the claimant appealed to the House of Lords.

Issues framed by the House of Lords included:

• whether the phrase "questions of procedure" in s.14(3)(b) should be given a narrow, "natural" meaning or the wider meaning traditionally adopted in private international law (encompassing the measure/quantification of damages);
• whether the MACA provisions relied upon were substantive rules affecting actionability or were procedural directions to local courts about awards of damages;
• whether extrinsic material (Hansard; Lord Chancellor’s statement) was necessary or appropriate to interpret s.14(3)(b).

The House of Lords concluded that, read in context and against the background of the Law Commissions' report, Parliament intended "procedure" in s.14(3)(b) to include the traditional private international law meaning, which covers the measure or quantification of damages. The court therefore characterised the relevant provisions of MACA (including statutory caps, discount rate, rules on gratuitous care and other items affecting quantum) as procedural or as directions to the courts of New South Wales about what they may award. Those provisions were therefore not to be applied by an English court under s.14(3)(b). The Lords also observed that, if necessary, the Lord Chancellor's statement in Parliament confirming that quantum remains governed by the law of the forum provided clear and admissible confirmation of Parliament's intention.

Relief sought: the claimant sought damages assessed under English law. Disposition: appeal allowed; the order of Elias J restored so that damages are to be quantified according to English law.

Appeal allowed. The House of Lords held that the assessment and quantification of damages are questions of procedure for the purposes of section 14(3)(b) of the Private International Law (Miscellaneous Provisions) Act 1995 and are therefore governed by the lex fori; the Motor Accidents Compensation Act 1999 (NSW) provisions limiting or prescribing awards of damages were characterised as procedural and accordingly inapplicable to awards made by English courts. The House restored the judgment of Elias J.

Appeal from the Court of Appeal ([2004] EWCA Civ 1735) where the Court of Appeal by majority held that New South Wales law applied to assessment of damages; appeal to House of Lords allowed and first instance judgment of Elias J restored.