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    Conflict of laws – Jurisdiction – Tort

    Booth v Phillips

    Admiralty Court
    Nigel Teare QC setting as a High Court judge
    17 June 2004

    The word “damage” in CPR 6.20(8) refers to harm which has been sustained by the claimant, whether physical or economic.

    Grahame Aldous (instructed by Humphreys & Co, Bristol) for the claimant.
    Lawrence West QC (instructed by Eversheds) for the defendants.

    The claimant’s husband was the chief engineer on a vessel owned and managed by the second to fourth defendants. The first defendant was the master of the vessel. The vessel sailed from Singapore before a problem with the loading ramp was remedied. A cargo was loaded in Freemantle and repairs undertaken. A problem with the same mechanism developed subsequently in Egypt, and the claimant’s husband died as a result of an accident whilst trying to repair it. The claimant issued proceedings in England, in negligence. As against the second to fourth defendants, the claim was brought in negligence and contract. It was alleged that the accident was caused by a breach of an implied term of the contract of employment that the claimant’s husband would be provided with a safe place and system of work. The first defendant was resident within the jurisdiction but the other defendants were not. They applied to set aside the order which the claimant had obtained giving her permission to serve them out of the jurisdiction. The issues arising included the definition of “damage” in CPR 6.20(8). The claimant contended that she had sustained damage within the jurisdiction in her own right, namely the loss of her dependency on her husband, and in her right as executrix of his estate, namely his funeral expenses. The second to fourth defendants contended that the “damage” referred to in the rule was the damage which completed the cause of action in tort, and that damage – the death of the claimant’s husband – occurred in Egypt.

    NIGEL TEARE QC:

    CPR 6.20(8) provided: “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 issue between the parties was one of construction of the rule. His Lordship considered first the words of the rule themselves. CPR 6.20(8)(a) referred to a claim in tort where “damage was sustained within the jurisdiction”. There was no reference to the damage which completed the cause of action. The Civil Procedure Act 1997 s 2(7) enjoined the Rules Committee to try “to make rules which are both simple and simply expressed”. Having regard to that, his Lordship did not consider it appropriate to interpret damage in CPR 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 had been sustained by the claimant, whether physical or economic. Further, it was to be observed that CPR 6.20(8)(b) referred to a claim in tort where “the damage sustained resulted from an act committed within the jurisdiction”. The definite article was used there whereas it was not used in CPR 6.20(8)(a). That suggested that it was sufficient for the purposes of sub-para (a) that some damage (not all of the damage) was sustained within the jurisdiction.

    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. That was said to be an improbably wide construction to give the rule. However, it had to be remembered that before jurisdiction was exercised the court had to be satisfied that it was appropriate to exercise that jurisdiction, which involved considering whether England was 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 was had to that requirement there did not appear to be anything objectionable about the claimant’s construction of the rule.

    For those reasons a consideration of the ordinary and natural meaning of the words used in the rule suggested that the claimant’s construction of the rule was to be preferred.

    The only English authority to which his Lordship was referred was Metal und Rohsoff AG v Donaldson Lukin & Jenrette Inc [1989] 3 All ER 14, which did not provide any real assistance on the issue which had arisen in the instant case.

    His Lordship also considered the Canadian cases of Skyrotors v Carriere Technical Industries 102 DLR (3rd) 323 and Vile v Von Wendt 103 DLR (3rd) 356, and the Australian case of Flaherty v Girgis [1985] 4 NSWLR 248. Those authorities could not determine the issue in the instant case which depended upon the wording of CPR 6.20(8). However, there was nothing in them which caused his Lordship to alter the view he had formed after considering the ordinary and natural meaning of CPR 6.20(8). On the contrary, the reasoning of the appellate courts in both countries supported the meaning which his Lordship considered should be given to “damage” in CPR 6.20(8).

    In the present case the claimant sued in her own right and as executor of her husband’s estate. Her claim in her own right stems from the Fatal Accident Act 1976. It was accepted by the second to fourth defendants that her claim was in tort. She sought to recover “the injury resulting from the death” of her husband, which was the loss of her financial dependency upon him. Such financial detriment was damage (within the meaning of that word as used in CPR 6.20(8)(a)) which was sustained in England where she lived. The expenses of hr husband’s funeral were incurred in England and that was also damage sustained in England. For those reasons the claimant had established a ground for seeking permission to serve out of jurisdiction.

    The defendants’ applications would be dismissed.

    As reported in “New Law Journal” 9th July 2004