Homing Devices in Choice of Tort Law: Australian, British, and Canadian Approaches

Abstract

Since 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (thelex loci delicti). All three countries abandoned some species of the rule inPhillips v Eyre, which required some reference to the law of the forum (thelex fori) as well as thelex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply thelex foriin cross-border tort cases—and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadianlex loci delictiregimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of thelex foriwas formally allowed by use of a ‘flexible exception’ in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries.

60 Years of Legal Scholarship in the International and Comparative Law Quarterly

“…115 Comparative pieces are always popular and none more so when they relate to tort choice of law in Australia, Britain and Canada. 116 The relationship between private and public international law received an overdue visit in an article by Mills. 117 New technology produces new problems and there were three pieces on those posed by the internet, particularly in relation to jurisdiction.…”