Cooley v Ramsey

In September 2005 the claimant, Shane Cooley, sustained severe head injury, including brain damage, and multiple orthopaedic injuries when his motor cycle collided with the defendant's car. The collision occurred in New South Wales, Australia. There is no dispute that it was caused by the negligence of the defendant. As a result he is grossly handicapped.

A claim form was issued on 5^th July 2007, Shane’s father being his litigation friend. Proceedings were issued and served out of the jurisdiction in New South Wales with the permission of Master Yoxall given by order dated 20^th August 2007 pursuant of CPR 6.20 and 6.21. The issue that now arises before me is whether the English court has jurisdiction to grant such permission and, if so, whether as a matter of discretion such permission ought to be granted. That issue arises on an Amended Application Notice re-dated 19^th October 2007 and issued on behalf of the defendant pursuant to CPR 23.10.

At the time of the collision Shane was aged 31 years. He is a British citizen with close family living in England. At the time of the collision he was on a working visa in Australia, where he had been for about one year. His parents, Mr and Mrs Cooley, went to Sydney immediately to care for and support their son. After seven weeks in hospital he was transferred to a rehabilitation unit in Sydney. After about six months, on 18^th March 2006 he was repatriated to England with his parents. Since then, they have been substantially involved in caring for him. Mr Cooley has given up his job, and Mrs Cooley is a trained nurse. Both have remained his main carers to this day. They are all now living in rented accommodation in Kent.

It is the claimant’s case that a suitably adapted bungalow will be needed for Shane. Experts will be required to view and consider any proposed property. A multidisciplinary approach has continued since Shane has returned to live in England. Certain support roles have been recommended, for example a buddy/support worker and a personal trainer to work under the close supervision of a physiotherapist and an occupational therapist. It is his case that notwithstanding the ongoing rehabilitation process he is, and will remain, a patient, unable to live independently, and in need of lifetime care and support, with no residual earning capacity. He will continue to live in England and all care, support, medical and therapy needs will be provided in England.

Experts in the following disciplines have already been instructed to prepare reports on Shane: (i) Consultant Neurosurgeon (ii) Consultant Neuropsychologist (iii) Consultant Maxillofacial Surgeon (iv) Consultant Orthopaedic Surgeon (v) Care Expert (vi) Occupational Therapy Expert (vii) Neurophysiotherapist.

In addition it is anticipated by those acting for Shane that further experts will need to be instructed in the near future, including: (vii) Consultant Ophthalmic Surgeons (Shane’s eyesight has already deteriorated); (ix) Speech and Language Therapists; (x) Consultant Neuropsychiatrists/Psychiatrists (to comment on the issue of his capacity both in the conduct of the litigation and in managing his financial affairs); (xi) Accommodation Expert (as already mentioned)

Evidence in support of the Defendant’s application is given in witness statements by a solicitor instructed on his behalf by his insurers, Insurance Australia Group, trading as NRMA Insurance. The facts upon which reliance is placed include that Shane was working as a telecommunications engineer and living in an apartment which he rented in Manley. It is said that “damage [was] only … incurred in England because the Claimant’s parents have brought him here from Australia some six months after the accident”. It is confirmed that liability will not be disputed. The evidence continued:

“Whilst it is true that expert and lay witnesses are likely to be resident in England…. It is very unusual in cases of this nature for any but a few of the expert witnesses to need to be called to a hearing to give oral evidence. Equally, I would not anticipate that more than one or two of any lay witnesses would not be agreed by the parties. Any expense in travelling such witnesses would of course have to be born by the defendant and therefore the Claimant should not be concerned by such matters”.

The evidence for the defendant continues, stating that claims of this nature are governed by the provisions of the Motor Accidents Compensation Act 1999 (“MACA”) of New South Wales, a copy of which is exhibited. The Claimant has in fact pursued a claim under the provisions of that act. A detailed Chronology sets out the numerous events and communications between the parties that have taken place in New South Wales in compliance, or purported compliance, with MACA, including the issue of proceedings in the New South Wales Supreme Court on 6^th July 2007, one day after proceedings were commenced in England.

In evidence given in a witness statement dated 17^th December 2007 by the Claimant’s solicitor, it is stated that at the time of the accident Shane was on a working visa in Australia known as a “sub class 457 visa”, that is said to have entitled him to remain in Australia to perform specific work for a designated employer for a limited period. As a direct consequence of his injuries, Shane remained incapacitated and unable to work following his discharge from hospital on 10^th March 2006 in Sydney. It is said that he would have therefore been unable to meet the conditions of his visa, and his prospects of remaining in Australia beyond his discharge from the rehabilitation hospital would have been negligible. His parents had hoped that he would have recovered sufficiently to carry on his life as it was before the accident, but as treatment progressed the possibility of his continuing without a substantial level of peer support and input from his family and friends became apparent. His family and friends, including his sister are all in England. The steps taken on his behalf in New South Wales would enable him to obtain his entitlements under Australian law. These steps included an attempt in March 2007 to obtain an interim payment from the Defendant’s insurers to assist with the purchase of an appropriate home for Shane close to his family. The insurers offered to make an advance subject to proceedings being issued, and the approval of the New South Wales Supreme Court being obtained. The Claimant did not take the steps necessary to obtain such an approval.

The statement goes on to say that experts on both sides will be from English based experts, and that it is impractical to expect them to give their evidence in Australia, because they all have substantial clinical practices. It is said the nature of a case such as this is that a considerable amount of work and liaison between the Claimant, the experts instructed by the Claimant and the lawyers is necessary before the stage of a final hearing is reached, if it is ever reached. It is said that that will be impossible to achieve if the proceedings are brought in Australia.

For the purpose of the proceedings before me, there has been no real issue on any of the factual matters set out.

The statutory provisions governing service out of the jurisdiction in Australia are as follows:

“6.20… a Claim Form may be served out of the jurisdiction with the permission of the court if –

General grounds

(1)

a claim is made for a remedy against a person domiciled within the jurisdiction…

Claims in tort

(8)

a claim is made in tort where-

(a)

damage was sustained within the jurisdiction; or

(b)

the damage sustained resulted from an act committed within the jurisdiction”.

The parts of CPR 6.20 in sub-paras (1) and (8)(b) are included only for context. The defendant in this action was not domiciled in England but in New South Wales, and the damage sustained resulted from an act committed in New South Wales. The only basis for service out of the jurisdiction in this case is if damage was sustained in England within the meaning of Part 6.20(8)(a).

The terms of CPR 6.20 make clear that it is permissive and not mandatory. CPR 6.21 sets out the basis upon which permission may be given as a matter of discretion:

“(2A) the court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim”.

There is no dispute that the burden lies upon the claimant to satisfy the court that it has jurisdiction, and that England is the proper place to bring the claim, and generally that the discretion of the court should be exercised to give the permission sought. There must of course be a serious issue to be tried and that is not in dispute in the present case.

Howard Palmer QC, appearing for the Defendant, submits that the court has no jurisdiction to give the permission Master Yoxall gave in this case, alternatively, that England is not the proper place in which to bring the claim, and so, for that and other reasons, the discretion of the court ought not to be exercised in favour of the Claimant.

Mr Killalea QC for the Claimant submits that the court has jurisdiction for the reasons set out in Booth v Phillips [2004] EWHC 1437 (Comm); [2004] 1 WLR 3292 by Mr Nigel Teare QC (now Teare J).

Mr Palmer advances a number of criticisms of the reasoning in that case (while accepting that the result of the case may have been correct, in spite of that), including that: (1) the defendant’s submissions were on a mistaken footing; (2) it is not consistent with the cases decided under Art 5(3) of the Judgments Regulation (formerly the Brussels Convention); (3) it is not consistent with cases decided under RSC O.11; (4) it incorrectly applies considerations which are applicable in cases decided in relation to different jurisdictions within a single state, and which are not applicable in relation to different jurisdictions in different states.

If Booth is a decision on the very point I have to decide, then being a decision by a judge as experienced in this field of the law as Teare J, it carries great weight. So it is necessary to consider Booth in detail.

The facts as set out by Teare J included the following:

“1 The claimant in this action is Mrs Margaret Booth, the widow of Clifford Booth who was employed as chief engineer on the MV Maysora. On 2 March 2001 he died whilst working on board the vessel in Egypt.

2 The first defendant was the master of the vessel at the material time and one or more of the second to fourth defendants are the owners and managers of the vessel. The defendants say that the third defendants are the owners and that the fourth defendants are the managers.

3 The claimant, in her own right and as executrix of the estate of her husband, claims against the first defendant in negligence and against the second to fourth defendants in negligence and for breach of the Mr Booth's contract of employment

4 The court has jurisdiction over the first defendant because he resides within the jurisdiction. However, he applies to the court for an order that the proceedings against him be stayed on the grounds that there is another forum, namely the court of Jordan, which is clearly or more distinctly more appropriate for the trial of the action against him. By an order dated 28 November 2003 Master Miller gave permission to serve proceedings out of the jurisdiction on the second, third and fourth defendants pursuant to CPR r 6.20. They apply to set aside that order on the grounds that there no grounds for exercising jurisdiction over them and that, if there are such grounds, this is not an appropriate case for the exercise of such jurisdiction….

6 … the vessel sailed from Singapore before a problem with the loading ramp and associated winch was remedied. …. In Egypt a problem again developed with the winch mechanism. Mr Booth, … was seeking to remedy the fault when the ramp fell causing parts of the equipment to disintegrate. Mr Booth was struck by one or more pieces of metal and died as a result.

7 The claim against the first defendant is put in negligence. It is said that he ought not to have departed from either Singapore or Fremantle with a defective winch mechanism. The claim against the second to fourth defendants is put in negligence and in contract. It is said that the accident was caused by a breach of an implied term of the contract of employment that Mr Booth would be provided with a safe place and system of work.

Grounds for jurisdiction

8 The claimant can sue the first defendant as of right because he is within the jurisdiction. But as against the second to fourth defendants she must establish that there is a ground for the court to exercise jurisdiction over them within CPR r 6.20.

9 It is submitted on behalf of the claimant that there are three grounds for exercising jurisdiction against the second to fourth defendants. I shall deal with each in turn.”

Teare J then turned to consider the first ground for jurisdiction, under CPR 6.20(3) (necessary and proper party). At para 23 he held that the claimant had established that ground. Next he considered the second proposed ground for jurisdiction, under CPR 6.20(5)(c) (contract of employment governed by English law). At para 31 he held that the Claimant had not established the necessary good arguable case that the contract was governed by English law, and so failed on this ground of jurisdiction.

Teare J then turned to the third and last proposed ground, under CPR 6.20(8)(a), damage sustained within the jurisdiction. This ground was advanced on two separate bases. As he said at para 33:

“It is said that in this case the claimant sustained damage within the jurisdiction in her own right, namely the loss of her dependency upon her husband, and in her right as executrix of his estate, namely, his funeral expenses.”

The claim for loss of her dependency was a claim under the Fatal Accidents Act 1976 (as Teare J noted at para 44). The claim for funeral expenses was advanced under the Law Reform (Miscellaneous Provisions) Act 1934 s.2(c). Mr Palmer submitted that this may have not have been the case, because, he submits, funeral expenses can equally be claimed under the Fatal Accidents Act 1976, and in proceedings such as that by Mr Booth’s widow, it is not normally significant under which Act the funeral expense claim is advanced. But I see no room for doubt that Teare J was asked to consider the matter on the footing that the funeral expenses were claimed under the 1934 Act, and that he did so. That is what he says in terms in para 33. And he says it again in para 44, cited below.

Teare J addressed first considered the meaning of CPR 6.20(8), and then the claims for loss of dependency and for funeral expenses separately, as follows (words in square brackets are inserted by me):

“34 The issue between the parties is therefore one of construction of the rule. I am told there is no English authority which determines the matter but that there are Australian and Canadian cases which support the claimant's construction.

35 I shall start (and perhaps ought to finish) with the words of the rule themselves. CPR r 6.20(8)(a) refers to a claim in tort where "damage was sustained within the jurisdiction"… It should be given its ordinary and natural meaning, namely, harm which has been sustained by the claimant, whether physical or economic. Further, it is to be observed that CPR r 6.20(8)(b) refers to a claim in tort where "the damage sustained resulted from an act committed within the jurisdiction". The definite article is used here whereas it is not used in CPR r 6.20(8)(a). This suggests that it is sufficient for the purposes of sub-paragraph (a) that some damage (not all of the damage) is sustained within the jurisdiction. …

44 In the present case the claimant sues in her own right and as executrix of her husband's estate.

[a] Her claim in her own right stems from the Fatal Accidents Act 1976. It is accepted by the second to fourth defendants that her claim is in tort. She seeks to recover in respect of "the injury resulting from the death" of her husband (see section 3 of the Fatal Accidents Act 1976) which is the loss of her financial dependency upon him. Such financial detriment is, in my judgment, damage (within the meaning of that word as used in CPR r 6.20(8)(a)) which was sustained in England where she lives.

[b] One element of her claim [under the 1934 Act] as executrix of her husband's estate is, I am told, the expenses of her husband's funeral, which were incurred in England. That was also damage sustained in England.

[c] For these reasons the claimant has established another ground for seeking permission to serve out of jurisdiction.”

Mr Killalea relies on Booth primarily to support the proposition that economic loss, in the form of loss of a source of income, counts as damage which may be sustained within the jurisdiction within Part 6.20(8)(a). But he also submits that the case is authority for the proposition that where injury or death is suffered in one jurisdiction (here Egypt) and consequential economic loss in another (here funeral expenses in England), then the economic loss in England is sufficient to found jurisdiction within Part 6.20(8)(a), where the claim is under the 1934 Act, (or, impliedly, by a claimant who is living). In my judgment, that is clearly what Teare J was deciding.

Mr Palmer does not dispute that economic loss may be damage within Part 6.20(8)(a), but submits that that does not take the claimant far enough to succeed in this case (although it did in that case). He submits that that was really the only material issue that Teare J had to decide in respect of the Fatal Accidents Act claim, and that having decided that, his decision in relation to the 1934 Act added nothing. Moreover, he submits that the relative insignificance of the claim under the 1934 Act in that case meant that Teare J may not have had the benefit of full argument, and that in any event he fell into error.

In order to understand Mr Palmer’s submission, it is necessary to set out again the above passages from the judgment, but this time including the summary of the arguments that I have omitted above.

The relevant parts of those paragraphs for this purpose read as follows:

“33 It is said that in this case the claimant sustained damage within the jurisdiction in her own right, namely the loss of her dependency upon her husband, and in her right as executrix of his estate, namely, his funeral expenses. This is disputed by the second to fourth defendants who say that the "damage" referred to in the rule is the damage which completes the cause of action in tort and that that damage, the death of the claimant's husband, occurred in Egypt.”

Mr Palmer submits that the submission that the “damage” referred to in the rule is the damage which completes the cause of action in tort and that that damage, the death of the claimant's husband, occurred in Egypt discloses a misunderstanding by counsel of what constitutes the cause of action under s.3 of the 1976 Act.

Mr Palmer submits that, while the death of the deceased is a necessary condition for the dependency claim, it is not damage within the meaning of the 1976 Act. He refers to the following provisions of s.3 of that Act:

“3(1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively…

(5)

If the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those expenses.”

Accordingly, he submits, that it was an error for the defendants to argue that the death of the claimant’s husband was damage which occurred in Egypt, since for the purposes of the 1976 Act it was not damage at all. If that is what the defendants were arguing, Mr Palmer may well be right. But that is not how I read Teare J’s judgment. I read that argument of the defendants as being addressed to the claim under the 1934 Act. In relation to that claim the defendants were arguing that the physical damage, in that case death, had occurred in Egypt, that that completed the cause of action, and so that the economic damage (funeral expenses) suffered in England was not damage within the meaning of Part 6.20(8)(a).

That is the argument that Teare J rejected, saying at para 35:

“There is no reference to the damage which completes the cause of action. Section 2(7) of the Civil Procedure Act 1997 enjoined the Rule Committee to try "to make rules which are both simple and simply expressed". Having regard to this I do not consider it appropriate to interpret damage in CPR r 6.20(8)(a) as meaning "the damage which completed the cause of action in tort". It should be given its ordinary and natural meaning, namely, harm which has been sustained by the claimant, whether physical or economic.”

Reading the judgment as I do demonstrates not only that the argument of counsel in relation to the 1976 Act claim was not on a false basis, but also that the argument of counsel in relation to the 1934 Act figured more largely in the debate than Mr Palmer submits.

Thus far, I conclude that the authority to be attributed to the judgment of Teare J is not undermined by his having been presented with submissions on a mistaken basis. The case before Teare J was correctly argued thus far.

Mr Palmer starts his submissions on the Art 5(3) cases with the citation from Metall & Rohstoff v Donaldson [1990] 1 QB 391 at 437A, and ABCI v Banque Franco-Tunisienne [2003] EWCA Civ 205; [2003] 2 Lloyd’s Rep 146 para 43, to the effect that the rule relating to service out of the jurisdiction in states not parties to the Brussels Convention (New York in that case) was changed to give effect to that Convention and the Civil Jurisdiction and Judgment Act 1982 and the decision of the European Court of Justice in Handelskwekerij GJ Bier v Mines de Potases d’Alsace SA (Case 21/76) [1978] QB 708. I accept that that is so up to a point. But Parliament did not fully assimilate the rules relating to non-party states with those relating to states which are parties. The significant difference that Parliament left in being was that under the Convention and the Judgments Regulation the court retains no discretion, whereas in relation to non-party states there is the discretion to be found in CPR Part 6.20 and 6.21(2A).

It follows from this, in the words of Professor Briggs in “Civil Jurisdiction and Judgments” 4^th ed para 4.43, that “there is no compelling reason to apply this line of Convention and, probably, Regulation authority outside the field of application of the Convention or Regulation itself”.

That this is so is apparent from the case of Marinari v Lloyd’s Bank plc (Case C-364/93) [1996] QB 217. Art 5(3) provides as follows:

“A person domiciled in a contracting state may, in another contracting state, be sued: . . . (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred; . . .”

In Marinari the Court recalled:

“11.

In Mines de Potasse d'Alsace [1978] Q.B. 708, 731, paras. 24 and 25, and Shevill [1995] 2 A.C. 18, 61, para. 20, the court held that where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression "place where the harmful event occurred" in article 5(3) of the Convention must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the plaintiff, in the courts for either of those places.”

The Court then held:

“The term "place where the harmful event occurred" in article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as not referring to the place where the victim claims to have suffered financial loss consequential on initial damage arising and suffered by him in another contracting state.”

The reasoning of the Court is significant:

“19.

There is no basis for interpreting article 5(3) of the Convention by reference to the applicable rules on non-contractual civil liability, as proposed by the German Government. That interpretation is also incompatible with the objective of the Convention, which is to provide for a clear and certain attribution of jurisdiction: see  Rösler v. Rottwinkel (Case 241/83) [1986] Q.B. 33, 59, para. 23, and  Jakob Handte et Cie. G.m.b.H. v. Traitements mécano-chimiques des surfaces S.A. (TMCS) (Case C-26/91)  [1992] E.C.R. I-3967, 3995, para. 19. The delimitation of jurisdiction would then in fact depend on uncertain factors such as the place where the victim's assets suffered subsequent damage and the applicable rules on civil liability.

20.

Finally, as regards the argument as to the relevance of the location of the assets when the obligation to redress the damage arose, it must be pointed out that the proposed interpretation might confer jurisdiction on a court which had no connection at all with the subject matter of the dispute, whereas it is such a connection which justifies the special jurisdiction provided for in article 5(3) of the Convention. It would be possible that the expenses and losses of profit incurred as a result of the initial harmful event might be established elsewhere and that, therefore, as far as effective taking of evidence is concerned, that court would be entirely inappropriate.”

The risk of jurisdiction being founded in places that are inappropriate is addressed in relation to states not party to the Judgments Regulation by CPR Part 6.21(2A).

Teare J reached his conclusion for these reasons. At para 36 of his judgment he said:

“36 On behalf of the second to fourth defendants it was objected that if the claimant's construction of the rule were correct then a ground for exercising jurisdiction would exist where accidents causing personal injury or death occurred abroad so long as some damage, e g loss of earnings, was sustained within the jurisdiction. This was said to be an improbably wide construction to give the rule. However, it must be remembered that before jurisdiction is exercised the court must be satisfied that it is appropriate to exercise that jurisdiction, which involves considering whether England is the forum in which the case could most suitably be tried for the interest of all the parties and for the ends of justice. When regard is had to this requirement there does not appear to me to be anything objectionable about the claimant's construction of the rule.

37 For these reasons a consideration of the ordinary and natural meaning of the words used in the rule suggests that the claimant's construction of the rule is to be preferred to that of the second to fourth defendants.”

Before me Mr Killalea made a further submission. It was that on the defendant’s construction of Part 6.20(8) there might be cases where England was clearly the proper place in which to bring the claim, but there would be no discretion to enable that to happen if Part 6.20(8) were interpreted as giving the court no jurisdiction. The positions are not symmetrical. Under Part 6.20(8) (unlike under Art 5(3)) a wide interpretation of jurisdiction comes with the safeguard of Part 6.21(2A) discretion, whereas a narrow interpretation of jurisdiction comes with no safeguard.

It is to be noted that in ABCI v Banque Franco-Tunisienne the claimant failed because it was held that there was no good arguable case that it sustained damage within the jurisdiction. It sustained it in Switzerland (para 45). That case does not assist on the question whether the damage suffered in the present case was suffered in England: plainly it was, so long as it counts as damage within Part 6.20(8)(a).

Mr Palmer also drew my attention to Henderson v Jaouen [2002] EWCA Civ 75. That is a case decided under the Convention, and so does not take the matter any further.

I reject the submission that Teare J failed properly to have regard to or apply the Convention or Regulation line of authorities.

The principle upon which Mr Palmer relies is set out and Dicey & Morris The Conflict of Laws 14^th ed para 11-148: our courts must always be cautious before allowing proceedings to be served out of the jurisdiction. If there is any doubt about the construction of the rule giving jurisdiction, it must be resolved in favour of the foreigner.

This principle, and the cases that establish it, are very well known and Teare J had the point before him as it is summarized in Metall at p435B-C, to other parts of which he referred in his judgment. I have no doubt that he had the principle fully in mind. Given his view that the rules should be given its ordinary and natural meaning, which he found clear, the principle could have little application.

In my judgment the cases under RSC Order 11 do not assist in resolving the issue before me, because the interpretation to be placed on Part 6.20(8)(a) is clear.

The cases within this category to which Teare J referred are set out in paras 40-42 of his judgment. They are also referred to in Dicey & Morris para 11-221.

Mr Palmer submits that different considerations apply to allocation of jurisdiction between different jurisdictions within a singles state (examples are the United Kingdom, Canada, Australia and the USA) and between different jurisdictions in different states. The editors of Dicey & Morris simply write:

“In Canada and Australia, similar wording has been held to apply to consequential pecuniary damage sustained in the forum flowing from physical injury caused outside the forum”.

Mr Palmer could cite no authority for the proposition that different considerations apply to cases from Australia and Canada relating to jurisdiction, and I do not accept it.

I respectfully agree with the decision of Teare J, and do so for the reasons that he gives. I note that it appears to be the view favoured by Professor Briggs, and that there is no suggestion by the editors of Dicey & Morris that that view is incorrect. For the reasons given above, I reject the submissions that Teare J was in error, or that he failed to take into account any principles or authorities which he should have taken into account.

The proper approach, and the contentions of the parties in this case, are well reflected in the following passage from Dicey & Morris at para 11-222 and 11-149:

“11-222 … In principle the jurisdiction where the tort is committed is prima facie the natural forum for the determination of the dispute: “If the substance of the alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other fact could displace the conclusion that the courts of that jurisdiction are the natural forum” [words of Goff LJ in The Albaforth [1984] 2 Lloyd’s Rep 91, 96 cited in Metall at p484E]. But where the acts or omissions occur, and the damage is sustained in different countries, the forum conveniens may depend on the extent to which the issues are likely to relate to liability or to damage, and the relative importance of the place of acting and the place of damage from the point of view of the convenience of the parties and of witnesses and the other factors which the court takes into account in the exercise of the discretion under CPR r 6.20.

11-149 … The fundamental question … is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”.

For the Claimant Mr Killalea identifies the following considerations. There is no issue on liability, but only on damage. Shane was brought back to England. He is British and this is where his family live. He depends on their support. His return to England was the natural consequence of the injuries he sustained. There is nothing adventitious in the fact that he has suffered damage in England. The nature and extent of the damage, the medical and other care that he will need, and the sums that will be required to compensate him for the damage, will all be matters on which the evidence of numerous witnesses, both of fact and expert, will be required, probably by both parties, and those witnesses are all based where Shane is, namely in England. Further, in preparing a claim as complex as this one is likely to be, there must be close liaison between the legal representatives of the claimant and the litigation friend, Mr Cooley, and between each of these together with the expert witnesses, some of whom, such as the care experts, will also be witnesses of fact. If the case is pursued in New South Wales, the legal representatives must also be in that jurisdiction, and the necessary close liaison will be impractical. Not only is the distance very great, but the difference in time means that telephone or video links are difficult to use effectively. Moreover, in assessing the compensation required, the court must have some knowledge of the environment in which a victim is to live out his life, and that environment includes not only the physical conditions in which he lives, but also the availability of funding and services from the state, not only as it is at the time of any trial (or settlement agreement) but also as it is thought likely to be in the future. These are matters which a court located in England will be better placed to assess than a court in Australia. Finally, Mr Killalea notes that this is not a case in which the court of either jurisdiction would have to apply a law other than its own. While the law of New South Wales would apply to liability (if there were an issue, which there is not), the quantification of damage falls to be determined by the law of the court, which means English law if the case proceeds in England: Harding v Wealands [2006] UKHL 32; [2006] 3 WLR 83.

For the Defendant it is submitted that it is likely that much of the expert evidence will be agreed, or capable of being put before the court in the form of written reports, or by video link. Mr Palmer submits that the real issue of principle that divides the parties is whether the damages should be assessed under English law, or under the law of New South Wales. In Harding at paras 16 to 19 Lord Hoffmann set out some of the differences. What he referred to as the most striking is that in New South Wales the discount rate applied is 5%, compared with 2.5% set under the Damages (Personal Injury) Order 2001. The claimant in Harding said that under the law of New South Wales he would recover 30% less than he would under English law. Further, the Defendant relies on the steps that have already been taken in New South Wales on behalf of Shane to recover compensation.

Following the dictum of Lord Goff in Spiliada [1987] AC 460, 483B-C, I would not grant permission in this case merely because a refusal to do so might deprive the Claimant of a higher award of damages here. The advantage to Shane of a higher award here is counterbalanced by the advantage to the Defendant of a lower award in New South Wales. It is true that the loss of such an advantage to Shane would be felt by him directly in terms of the care and facilities that would become beyond his reach if the award is inadequate for his needs. But the advantage to the Defendant of a lower award is not just that an insurance company would pay out less money. One of the statutory objects of MACA, s.4(1)(d)) is to keep premiums affordable. The distribution of the risk inherent in the use of motor vehicles is a matter of social and political policy. Not all societies can afford, or think it proper to provide for, the level and cost of care for accident victims that is provided in England. These are matters of allocation of resources on which this court is not well placed to form a view. An Australian defendant might well think it unjust that the victim of an accident in New South Wales should receive more compensation than a local victim, (and compensation paid for by an Australian insurance company), merely because he happens to have come from, and returned to, a country with a compensation régime more favourable to claimants than the local scheme.

I have little hesitation in finding that the Claimant has established his case that England is the proper place in which to bring this claim. I accept the submissions of Mr Killalea that the interests of justice for both parties require that the claim be prepared with the benefit of the close liaison between each of Shane’s legal representatives, Mr Cooley, and the witnesses, both the witnesses of fact and the expert witnesses. The fact that, if this is done, there may then be no dispute, does nothing to diminish the need that it be done. It can only be effectively and properly done in England, where Shane now is, and where he is expected to remain.

It follows that the application is dismissed.