Harding v Wealands
This question proceeds on the assumption that I have been instructed by the defendant in Harding v Wealands.
It seeks to address how the applicability of Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II) would have been argued in the case.
This will involve an exploration of all the relevant issues in the case.
It will further anticipate the likely approach of the plaintiff to each.
The Applicable Facts of the Case
At the outset, it is pertinent to set out the applicable facts in this case.
The Clamant Mr Harding was British, domiciled in England and had always lived and worked in England. The defendant was Mr Harding's partner Ms Wealands an Australian who had always lived in New South Wales up until 2001 when she gave up her job and moved to England to live with Mr Harding, obtaining a two year working visa.
In January 2002 Miss Wealands returned to New South Wales for her father's birthday intending to stay for a period of five weeks. Mr Harding joined her slightly later. The plan was that they would have a holiday together and then both return to England. On 3 February 2002 Miss Wealands was driving her Suzuki jeep on a dirt track road in New South Wales. She had bought and insured the car before she had moved to England. Whilst Mr. Harding was sitting at the front of the vehicle, for some unknown reason, Ms Wealands lost control of the jeep and it rolled onto the roof. Unfortunately, Mr Harding suffered devastating injuries and was rendered tetraplegic by the accident.
After the accident, whilst still in New South Wales, they decided to marry. However, upon both returning to England in March, the relationship fell apart.
Mr Harding issued proceedings in England and the claim form was served on Ms Wealands shortly before she returned to Australia. Ms Wealands applied to stay the proceedings on the ground of forum non conveniens but her application was unsuccessful.
Ms Wealands conceded liability for the accident. The only issue that arose concerned the law applicable to the assessment of damages.
Thus, in light of the above, it will be the object of this paper to argue on behalf of the defendant, in light of the Rome II Convention, that the question of the assessment of damages is to be determined in accordance with the law of New South Wales.
In the alternative, the Claimant will seek to argue that damages ought to be quantified in accordance with English law.
Under the New South Wales Motor Accidents Compensation Act 1999 , damages for personal injury arising out of motor accidents are restricted, and in particular, there is a cap on general damages for pain, suffering and loss of amenity well below the English level of awards for injuries of the maximum severity
The New South Wales statute expressly provides that the limitations imposed by the Act have been instituted for the purpose of reducing the burden of claims on the insurance industry and thus keeping motor insurance premiums affordable.
It was estimated, on behalf of Mr Harding, that the effect of applying MACA rather than English law would be to reduce the damages recoverable by about 30 per cent.
In tort cases, the term “ choice of law” simply means the rules by which the courts select the system(s) of law that govern the rights and liabilities of the parties involved in that particular dispute. This selection involves the recognition of the rules that balance allotted roles between the law of the place of the tort, and the law of the forum
First Argument of the Plaintiff
Faced with an argument based on the Rome II Regulation, the Claimants may argue that all matters relating to the quantum of damages, which do not go to the actionability of tort, including the question of any caps, are to be governed by the law of the forum, being England.
Citing early cases such as Huber v Steiner, Don v Lippmann and Boys v Chaplin to the effect that in private international law all matters of remedy were for the courts of the forum, the Claimants may argue that whilst rules as to heads of damage go to the actionability of the tort, rules as to the amount of damages relate solely to the remedy.
In considering this argument in light of the Rome II Regulation, the Courts are likely to determine that it is not the best solution to classify assessment of damages as procedure, there being pragmatic reasons to classify remedies as substance. As the remedy is an inseparable part of the right, the restriction of assessment of damages can be regarded as a restriction of the right itself.
Secondly, the Courts are likely to hold that applying the lex causae to both the heads and the assessment of damages is more desirable for the purposes of private international law. The rationale behind this is the fact that the function of choice of law is to select a law that is “ most appropriate” to decide a dispute. The lex causae should therefore have a wide scope of application and only in exceptional circumstances should its effect be declined. While the lex fori is often an “ appropriate” system of law to govern a dispute, this is not always the case because exorbitant rules of jurisdiction still exist and because an acceptable basis of jurisdiction, such as the defender's domicile, is not usually as appropriate a law to govern a delictual dispute as the law of the place of damage (the main rule in article 4 of Rome II).
Finally, the unitary solution provided by the Rome II Regulation avoids the vexed issue of how to draw a line between substance and procedure within damages, and in most cases the lines between the heads of damage, the remoteness of damage, and the assessment of damage are vague.
Argument of the Defendant
The effect of the Rome II Regulation will be to generally supersede the current statutory choice of law rules within the United Kingdom, which in the main were contained in Part III of the Private International Law (Miscellaneous Provisions) Act 1995.
Moreover, Rome II Regulation overturns the highly controversial rules adopted by the United Kingdom. It presents a natural and predictable extension of its work on jurisdiction and on applicable law in contract. The regulation categorises all matters relating to damages as substantive, further adopting a narrow definition of “procedure”. Thus, the issue of damages is no longer a mixture of substance and procedure, but a unitary package, which is classified as “ substance” and governed by the lex causae.
However, it further provides that “ the existence, the nature and the assessment of damages or remedy claimed” should be governed by the lex causae. No guidance is provided as to what constitutes “ the assessment of damages or remedy claimed” , but the words used are wide enough to cover all matters relating to damages, including what have been traditionally classified as procedural issues.
This therefore represents a radical departure from the English rules which previously governed applicable law in tort with respect to damages, thereby greatly limiting the importance of previous English issues in this regard.
Argument of the Plaintiff
The second likely argument to be put forth on behalf of the plaintiff relates to Articles 4(2) and 4(3) of Rome II, which introduce qualifications to the general rule contained in article 4(1)
Firstly, with regards to article 4 (2), which stipulates that where the alleged tortfeasor and the injured party both have their habitual residence in the same country at the time when the damage or injury occurs then the law of their country of residence shall apply. In this context, the Claimants could argue that she was domiciled in England
The general rule
The general rule is contained in Article 4(1) of the Rome II Regulation which provides as follows: “ Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.”
Displacement of the general rule
The first question which needs to be addressed is the habitual residence of Miss Wealands for the purposes of the Rome II Regulation.
Support for the view that the concept of “habitual residence” in Rome II must be given an autonomous interpretation, having regard to the nature and purpose of the Regulation's rules of applicable law in which that concept appears, is strongly supported by the ECJ's decision upon a recent reference, also concerning the Brussels II bis Regulation. 
The Court was asked to consider the meaning of “habitual residence” in Case C-523/07 with regard to Art 8(1) of Brussels II bis
Following the opinion of Advocate General Kokott, it concluded that the concept of ‘habitual residence' must be made in the light of the context of the provisions and the objective of the Regulation,
Thus, as the Advocate General pointed out in point 44 of her Opinion, the intention to settle permanently with another in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that State.
By contrast, the fact that the [ person is ] staying in a Member State where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State.
The concept of “habitual residence” to be developed for the purposes of the Rome II Regulation must, of course, be capable of applying equally to adults and minors. This supports the view that an intention to reside should, at most, be one factor to be taken into account. Further, the objective of the Regulation in promoting legal certainty is consistent with the requirement that, in order to be taken into account, there must be some tangible, outward manifestation of that intention
However the aforementioned must be considered in the context of Article 4(3), which is described by recital (18) to the Rome II Regulation as an “escape clause” from arts 4(1) and 4(2):
“ Where it is clear from all the circumstances of the case that the tort is manifestly more closely connected with a country other than that indicated in paragraphs (1) and (2), the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
In applying this to the case at hand, the connecting factors that link the case with England, and rendering it substantially more appropriate to apply English law are in particular the fact that Ms Wealands and Mr Harding had been living together in a ‘ settled relationship' in England prior to the accident.
A case in which significant similarities were found was that of Edmunds v Simmonds. In Edmunds, the claimant and defendant were friends and were on holiday together in Spain. During this time the claimant was injured by the defendant's negligent driving. Both were English, the claimant returned to be cared for in England and she would suffer her losses in England. Garland J held that these were overwhelming factors leading to the application of English law under s 12.
In considering the Claimant's assertion that the tort is manifestly more closely connected with England for the purposes of Articles 4(3), it can be argued that it is evident that the defendant's link at the material time with England and with Mr Harding was not more significant than that of her Australian connection. Ms Wealands' only material connecting factor was her “settled relationship” with Mr Harding. Factors which linked Ms Wealands to NEW South Wales are that she had left her car in New South Wales, was still a citizen of Australia driving on a New South Wales driving licence, and the place of accident occurred in New South Wales.
In considering the definition of “manifeltly closer connection,” the tort as a whole must be more closely connected. It is therefore not enough for a particular issue to be more closely connected. So, if paragraph 3 is applied, all aspects of the tort must be governed by some other system of law.
This connection must be based on a pre-existing relationship between the parties
Hartley gives the example of a situation where two friends (or members of a family) living in England drive to Spain in a car owned by one of them. They have an accident in Spain in which the passenger is injured. In this situation, there are strong arguments for applying English law. If such a relationship exists, the parties will often have their habitual residence in the same country, in which case paragraph 2 would apply. Where this is not the case, paragraph 3 would be applicable.
Thus, as can be seen from the aforementioned, the inflexible approach of Rome II determines that the law of one country will be applied in each case to all aspects of a party's tortious obligations. Article 4(3) therefore makes use of the formula “ manifestly closer connection” to underline the extent to which art.4(1) contains a general rule favouring application of the lex loci delicti. It follows that departures from the general rule are clearly to be regarded as exceptional.
Rome II and the assessment of damages
Once Article 4 has been utilised as the means by which to identify the applicable law, it is then necessary to identify the issues to which it is to be applied.
Article 15(c) of the Rome II Regulation states as follows:
“The law applicable to non-contractual obligations under this Regulation shall govern in particular: … (c) The existence, the nature and the assessment of damage or the remedy claimed.”
The effect of this provision is concisely described by the Ministry of Justice “Guidance on the Law applicable to Non-contractual Obligations (Rome II)”:
“Article 15 of the Rome II Regulation defines the scope of the applicable law. It should be noted that it covers issues relating to the assessment of damages (Article 15(c)) and thereby reverses the current position in English law under which issues relating to such assessments are governed by the law of the country where the case is being determined. Under the Rome II Regulation, these issues will be governed by the law which is generally applicable.” 
In conclusion, However, the diversion of these currents to the law of tort and, represent a radical break with the English method of assessing damages in cross-border personal injury claims. The important residual role for English law in the assessment or quantification of loss in cases where a foreign applicable law is applied by an English court has been removed.
The regulation is the product of compromise. In this context, and in response to concerns that victims might be under compensated, Parliament proposed the addition of an article imposing a mandatory requirement of regard to the accident victim's actual circumstances. The Parliament's proposal was however rejected by the Council on the basis that it threatened the harmonising objectives of the regulation as a whole. Nevertheless, remnants of the proposal are evident in recital (33) which represents the compromise reached by the Council and Parliament:
“ According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.”
Chapman notes that Recital (33) clearly works against the general objective of the Rome II Regulation and its pursuit of uniformity. However, it is not wholly clear how the recital is to be applied
What is to be taken from the above noted provision which the Rome II Regulation was designed to eliminate is that such differences relate to the“ relevant actual circumstances” of the accident victim.
Therefore this offers a potential out for the plaintiff and must be addressed in regards to this question.
Chapman further interestingly notes that it may be possible that an English judge faced with a claimant who may otherwise be under-compensated to utilise recital (33) to interpret Article15(c) in such a manner that “actual losses and costs” are compensated to find an outlet in ambiguities in the wording of the Regulation.
He continues by noting that this might be achieved by ensuring that past losses and costs--actually incurred in the country of the victim's domicile (England) at the time of assessment--are fully compensated according to conventional English law principles, while all future losses fall to be determined according to the principles prevailing in the lex loci delicti.
He offers an alternative, noting that “the risk of under-compensation might justify the use of recital (33) to deploy the “manifestly more closely connected” escape clause in Article 4(3).”
From the foregoing, it They unanimously rejected the majority's reasoning in relation to the substance/procedure divide.
  UKHL 32
 Harding v Wealands  UKHL 32;  2 A.C. 1 (HL)
 Journal of Personal Injury Law 2007 Foreign compensation systems and personal injury claims Michael McParland
 Case C-523/07
 Article 4 (3)
 Edmunds v Simmonds(2001) 1 WLR 1003
 International & Comparative Law Quarterly, 2008 Choice of law for non-contractual liability: selected problems under the Rome II Regulation, Trevor C. Hartley
 Ministry of Justice, Outline of the Main Provisions (February 9, 2008).
 Zheng Tang Classification of delictual damages: Harding v Wealands and the Rome II Regulation 2008
 A. Dickinson, The Rome II Regulation: the Law Applicable to Non-contractual Obligations (Oxford: Oxford University Press, 2008), paras 14.26-14.32.
 Mathew Chapman, The Rome II regulation and a "European Law-Enforcement Area": harmony and discord in the assessment of damages
 ibid, n.11