Harding (Appellant) v. Wealands (Respondent)

Under Part III of the Private International Law (Miscellaneous Provisions) Act 1995, the applicable foreign law determines whether particular heads of damage are actionable. The law of the forum governs the measure or quantification of damages under actionable heads. Quantification is a question of procedure within section 14(3)(b), notwithstanding that it may affect the parties’ financial rights. Foreign statutory restrictions directed to what a court may award, including ceilings and prescribed calculation methods, are therefore procedural unless they define the scope of liability or modify a substantive contractual obligation. An English court must disregard such procedural restrictions and assess damages under English law.

The claimant, an English resident, was rendered tetraplegic while travelling as a passenger in a car negligently driven by the defendant in New South Wales. Liability was admitted. The dispute concerned whether an English court should assess damages under English law or apply the restrictions imposed by the New South Wales Motor Accidents Compensation Act 1999.

Elias J held that assessment was procedural and governed by English law. He alternatively considered English law substantially more appropriate under section 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The Court of Appeal, in [2004] EWCA Civ 1735, held by a majority that the restrictions were substantive and unanimously rejected the alternative section 12 ground. The central issue before the House was whether quantification of damages, including statutory ceilings and calculation rules, was a question of procedure governed by the law of the forum.

1. Disposition. The House unanimously allowed the appeal and restored the order of Elias J. Lord Hoffmann and Lord Rodger of Earlsferry delivered the principal speeches. Lord Bingham of Cornhill and Lord Woolf agreed with both. Lord Carswell also agreed, subject only to a qualification concerning the availability of parliamentary material as an interpretative aid.
2. Meaning of procedure. Per Lord Hoffmann and Lord Rodger, Part III of the Private International Law (Miscellaneous Provisions) Act 1995 replaced the common-law rules governing whether a tort was actionable. Section 14(2) preserved other rules, while section 14(3)(b) required questions of procedure to remain governed by the law of the forum. In the private-international-law context, “procedure” retained its established broad meaning and included remedies and the quantification of damages.
3. Heads and quantification. The availability of a head of damage is substantive because it determines the scope of actionable liability. The amount recoverable under an actionable head is a matter of remedy or procedure. The House followed the distinction identified in Boys v Chaplin [1971] AC 356. Parliament had not transferred questions of quantification to the applicable foreign law.
4. New South Wales restrictions. The relevant provisions of the Motor Accidents Compensation Act 1999 regulated what a New South Wales court could award. They imposed ceilings, exclusions, a prescribed discount rate and other calculation rules without removing the claimant’s underlying heads of liability. Per Lord Hoffmann and Lord Rodger, supported by Stevens v Head (1993) 176 CLR 433, those provisions concerned quantification and were procedural. They consequently had to be disregarded by an English court.
5. Contractual limitations distinguished. A contractual term limiting damages, or a statute operating as such a term, may qualify the substantive obligation. That principle did not make a general statutory restriction on the remedy substantive. Lord Woolf additionally regarded the integrated statutory compensation code, including provisions impracticable for an English court to administer, as procedural in character.
6. Parliamentary material. Lord Hoffmann considered the statutory context unambiguous, but said that the ministerial statement would conclusively resolve any ambiguity under Pepper v Hart [1993] AC 593. Lord Rodger treated it as confirmation. Lord Carswell considered there was sufficient possible ambiguity to justify using it as a confirmatory aid. The statement confirmed that quantum and measure remained governed by the forum.
7. Because all disputed matters concerned quantification, the House found it unnecessary to determine the applicable law under sections 9, 11 and 12 or to decide the alternative section 12 issue.

1. House of Lords: In [2006] UKHL 32, unanimously allowed the appeal and restored the order of Elias J.
2. Court of Appeal: In [2004] EWCA Civ 1735, reported at [2005] 1 WLR 1539, held by a majority that the New South Wales damages restrictions were substantive. It unanimously rejected Elias J’s alternative conclusion under section 12.
3. High Court: Elias J held that assessment of damages was procedural and governed by English law. Alternatively, he held that English law was substantially more appropriate under section 12 of the Private International Law (Miscellaneous Provisions) Act 1995.