CHAPTER 13 Tort

• Date: 07 April 2025

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CHA PTER 13

TORT

A. INTRODUCTION

The amount of tort litigation has increased signif‌icantly over the past f‌ifty

years and an increasing number of these cases involve factual connections

to more than one country. Choice of law rules for tort claims are therefore

quite important so that the applicable law can be ascertained. Much has

been written by academics and judges about choice of law in tort and yet

it remains a controversial topic. To this day dierent common law coun-

tries have quite dierent views about what the rule should be and some

of these countries, including Canada, have witnessed dramatic changes

to the rule. It is therefore important in this area, more so than in others,

to have an understanding of how and why the rule has evolved over time.

B. HISTORICA L DEVELOPMENT

The earliest English choice of law rule for tort was to use the lex loci

delicti: the law of the place of the tort. Tort evolved from the criminal

law, which is highly territorial. People are expected to comply with the

criminal law of the place where they act. So tort law also focused on the

law of the place of acting. This approach was considerably strengthened

by the vested rights theory, discussed in Chapter 10.

However, the law was changed in The Halley.1 In that case a British

ship was involved in a collision in Belgian waters. Under Belgian law the

1 (1868), LR 2 PC 193.

CONFLICT OF LAWS

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British ship was liable for the collision. Yet in proceedings in England the

court held that a defendant could not be liable in tort in an English court

unless the defendant was liable under the law of the forum. This new

approach to choice of law, which imposed the lex fori as the applicable

law, was highly chauvinistic and nearly impossible to justify. Yet it was

conf‌irmed two years later in Phillips v Eyre, a famous case that became

the leading word on choice of law in tort for many decades.2 To sue in

tort in England, the conduct in question had to be actionable under

English law and “not justif‌iable” under the law of the place of acting.

This formulation of the rule had two branches: the f‌irst followed The

Halley and the second, additional requirement was rooted in the notion

of vested rights. Over time this became known as a rule of “double act-

ionability” under which the plainti had to satisfy both branches.

There was some debate as to the meaning of the second branch of

the rule. Some thought “not justif‌iable” meant that the conduct had to

be civilly actionable under the law of the place of acting. Others thought

it had to be actionable in tort as opposed to under any other part of the

law. In Machado v Fontes the court adopted a very wide meaning of “not

justif‌iable,” holding that any conduct that was contrary to law could not

be said to be justif‌ied.3 This made it signif‌icantly easier for a plainti

to satisfy the second branch, since most injurious conduct was at least

a violation of some legal rule. This was taken close to its extreme limit

in McLean v Pettigrew, in which the Supreme Court of Canada held,

in respect of a negligence action brought in Quebec, that conduct in

Ontario which was not civilly actionable under Ontario law satisf‌ied the

second branch of the rule because it was conduct that could be caught

by a provincial statute that imposed a minor f‌ine.4

These decisions illustrate the ebb and f‌low in the law in this area.

While the rule as stated in Phillips raises the hurdle for the plainti, the

interpretation of the second branch in these subsequent cases lowers that

same hurdle. It also increases the overall importance of the f‌irst hurdle:

liability under the law of the forum.

The rule evolved again in the House of Lords’ decision in Boys v

Chaplin.5 The case involved two British soldiers, one of whom injured

2 (1870), LR 6 QB 1 (Ex Ct) [Phillips]. For a historical analysis of the litigation in

this case, see Rande W Kostal, A Jurisprudence of Power: Victorian Empire and the

Rule of Law (Oxford: Oxford University Press, 2005).

3 [1897] 2 QB 231 (CA) [Machado].

4 [1945] SCR 62 [McLean]. This conclusion is dicult to reconcile with the fact

that the defendant was acquitted in Ontario proceedings under the provincial

statute.

5 [1971] AC 356 (HL) [Boys].