Boys v Chaplin [1967] EWCA Civ 3

Two British servicemen stationed in Malta were involved in a road accident. The plaintiff sued in England for damages including pain and suffering, which were not recoverable under Maltese law. The Court of Appeal held English law applied to assess damages, awarding £2,303 rather than the £53 available under Maltese law.

Facts

David Boys, a Royal Air Force technician stationed in Malta, was seriously injured when riding pillion on a motor-scooter that collided with a car driven by Richard Chaplin, a Royal Naval Air Squadron member also stationed in Malta. Both were English nationals domiciled in England. Boys suffered a fractured skull, permanent deafness in one ear, impaired balance, and partial facial paralysis. He was treated in Malta and subsequently in England before being discharged from the RAF due to his injuries.

Under Maltese law, Boys could only recover £55 for pecuniary losses, with no compensation for pain, suffering, or loss of amenities. Under English law, he could recover £2,303 including general damages.

Issues

Primary Issue

Which law should govern the assessment of damages for a tort committed abroad when both parties are English nationals temporarily in the foreign jurisdiction?

Secondary Issues

Whether Machado v Fontes [1897] 2 QB 231 was binding authority, and whether the heads of damage recoverable are matters of substantive law (governed by lex loci delicti) or procedural matters (governed by lex fori).

Judgment

The Court of Appeal, by a majority (Lord Denning MR and Lord Upjohn; Lord Justice Diplock dissenting), dismissed the appeal and upheld the award of £2,303.

Lord Denning MR held that the proper law of the tort should apply, being the law of the country with which the parties and act have the most significant connection. He stated:

“I am of opinion that in these cases we should apply the law of the country with which the parties and the act done have the most significant connection. This has been called ‘the proper law of the tort’.”

Lord Upjohn, while disagreeing with the proper law approach, held that once the two conditions in Phillips v Eyre (1870) LR 6 QB 1 were satisfied, English law governed all aspects including damages:

“In my view the ordinary rule must apply, namely, that even if, contrary to my opinion, the lex loci delicti applies to questions of substantive law, all questions of the remedy, both as to its nature and kinds or heads of assessment of pecuniary damage, must be determined in an English action entirely by English principles.”

Lord Justice Diplock, dissenting, held that heads of damage were matters of substantive law governed by the lex loci delicti, and only £53 should be recoverable.

Implications

This case represented a significant development in the English conflict of laws rules for torts committed abroad. It introduced the concept of the ‘proper law of the tort’ into English jurisprudence, departing from rigid application of the lex loci delicti rule. The majority’s approach favoured flexibility, allowing consideration of connecting factors such as nationality, domicile, and the parties’ significant connections when determining applicable law. The case was subsequently appealed to the House of Lords, where leave to appeal was granted given the fundamental importance of the issues raised.

Verdict: Appeal dismissed by majority. The plaintiff was entitled to damages of £2,303 assessed according to English law, rather than the £55 recoverable under Maltese law. Leave to appeal to the House of Lords was granted with a partial stay of execution.

Source: Boys v Chaplin [1967] EWCA Civ 3