TORT

CONFLICT OF LAWS – LIA 3012

GENERAL RULE IN PHILLIPS V EYRE

• In order to file a suit in Malaysia, two conditions had to be fulfilled:

1) The wrong must have been actionable in this country if it was committed here.
2) The act complained about must have been unjustifiable in the country where it occurred.

• Prior to this case, there was the case of The Halley the defendants were held not liable because they were not
liable by English law. So the rule was established that whatever the foreign elements in the case may be, a
defendant is not liable in tort in an English court unless his conduct was actionable by English law.
• In Phillips v Eyre itself, the rule in The Halley was satisfied, the defendant was liable under English law. However, he
was not liable under the lex loci delicti (the law of the country where the alleged tort was committed). So the judge
formulated the above rule.
GENERAL RULE IN PHILLIPS V EYRE

• What amounts to unjustifiable? This was explored in Machado v Fontes  The conduct of libel did not amount to a
civil action in Brazil but it was a crime there. Even though the defendant’s conduct was not actionable by Brazilian
law, nevertheless it was not justifiable by that law if it was a criminal offence.
• However this interpretation was widely criticized. Because a crime is an action by the state. The conduct has to be
civilly actionable. This case was later overruled in Chaplin v Boys.
DOUBLE ACTIONABILITY (SCOTTISH RULE)

• While the Scottish courts adopted the rule in Phillips v Eyre, they rejected the interpretation of it in
Machado. Instead they applied a rule of double actionability, i.e. the defendant must be civilly liable
and liable in respect of the particular loss in both the lex fori ( law of the forum) and the lex loci delicti.
• Cases in point: MacKinnon v Iberia Shipping Co, M’Elroy v M’Allister.
• So the claim for damages which is available in both countries is the only thing that can be claimed.
CHAPLIN V BOYS (CURRENT APPLICABLE RULE)
• The general rule in Phillips v Eyre must now be read to provide that one cannot recover damages in Malaysia for
a foreign wrong unless the wrong would have been actionable if committed in Malaysia and also, at least as a
general rule, gave rise to a civil liability under the law of the state where it was done (no longer unjustifiable but
now civilly liable).
• The Scottish double actionability rule was also incorporated. Each kind of loss claimed must be recoverable by
both the lex loci delicti and the lex fori.
• The defendant can rely on any defence available to him (such as contributory negligence) under the lex fori or
the lex loci delicti.
• There can be any kind of civil liability under the lex loci delicti, it does not have to be tortious liability.
• Exception to the general rule (Lord Wilberforce): the policy or the purpose behind the law in the foreign country
will be analyzed to inquire in what situations, with what contexts it was intended to apply; whether or not to
apply it in the circumstances of the instant case, would serve any interest which the rule was devised to meet.
STATE OF THE LAW IN MALAYSIA

• Chan Kwon Fong v ChanWah: approved the double actionability rule in Chaplin v Boys. The court also
held that it is for the plaintiff to prove actionability by both the lex fori and the lex loci delicti. This is said
to be a highly flawed view as the accepted proposition is that it is for the defendant to plead that the
act was not actionable by the lex loci delicti.
• AG of Hong Kong v Zauyah Wan Chik : Followed the case of Chan Kwon Fong v Chan Wah and held that
the first branch of the test where the claim must be actionable in the lex fori was not fulfilled.
 PLACE OF THE TORT

• Metall & Rohstoff A.G. v Donaldson Lufkin & Jenrette Inc: Look back at the whole sequence of events and consider,
where in substance the cause of action arose (where the real key issue occurred). In this case, the court held that the
tort of inducing a breach of contract took place in England, where the damage was suffered and not in New York
where the acts of inducement occurred.
• Distillers Co (Biochemicals) Ltd v Thompson: Same principle as above case, to look at where in substance the cause of
action arose, which means that the act on the part of the defendant which gives the plaintiff his or her cause of
complaint must have occurred within the jurisdiction.
PLACE OF TORT

• Bata v Bata: Tort of libel is committed where the defamatory statements are published and not where they are
written since publication is the material element that completes the tort of libel.  Similar to other kinds of
defamation cases, where in Jenner v Sun Oil Co, defamatory remarks broadcast in a US radio station which was
heard in Ontario, it was held that the tort occurred in Ontario.
• Diamond v Bank of London & Montreal: Fraudulent misrepresentation by telex or telephone is committed where
the message is received and acted on and not in the country from which it is sent.
• Armagas Ltd v Mundogas SA: Tort of fraudulent misrepresentation was committed in Denmark where the
misrepresentation was orally communicated and acted upon.
TORT WITH A CONTRACTUAL ELEMENT

• Questions of tort and contract may interact in the same case. The defendant to a tort claim may set up as a
defence, a clause in a contract which exempts him/her from the liability in question.
• The leading case is Sayers v International Drilling Co NV where the action was brought in tort for negligence in the
course of employment. The employment contract contained an exemption clause exempting the defendants from
liability for any injury which the plaintiff might suffer in the course of employment. The majority approach was
simply to identify the proper law of the contract as being Dutch law, hence the exemption clause being valid and the
employers were not liable. No reference was made to the choice of law rule for tort even though the action was
brought in tort.
• Also consider Brodin v A/R Seljan where the statutory prohibition against exemption clauses was applied and the
defence based on such an exemption clause was not available to the defendant; and Canadian Pacific Railway Co v
Parent where the exemption clause was held to be valid and exempted the employer from a claim in tort.