Scottish Court of Session Decisions

LORD KINCRAIG'S OPINION.—[After the narrative quoted supra]—It is agreed that the Court cannot entertain this action unless the claim for damages is actionable under the lex loci delicti (M'Elroy v. M'Allister, 1949 SC 110). The pursuer does not aver that it is: the defenders do not aver that it is not. They merely call upon the pursuer to aver whether he is entitled to maintain a civil claim against the defenders under the laws of the Sultanate of Oman. The defenders submitted that the absence of any averment by the pursuer on this matter is fatal. They maintain, alternatively, that the question of the lex loci having been put in issue by their call, the pursuer is bound to make averments of the lex loci.

Both submissions are in my judgment unsound. The argument on the lex loci can be disposed of, in my opinion, by the application of two established principles of law. The first of these is that to challenge successfully the relevancy of a pursuer's case it must be demonstrated that, if all his averments are proved, his action is bound to fail. (See Jamieson v. Jamieson, 1952 S.C. (H.L.) 44, per Lord Normand at p. 50.) The second is that there is a presumption that foreign law is the same as Scots law unless the contrary is proved: Dynamit Actien-Gesellschaft v. Rio Tinto Co ., [1918] A.C. 260, Lord Dunedin at pp. 294–5 and Lord Parker at pp. 301–2; Baker v. ArcherShee, [1927] AC 844, per Lord Sumner at p. 849; Stuart v. Potter, Choate & Prentice, 1911, 1 S.L.T. 377, per Lord Salvesen at p. 382. At the stage of relevancy this means that the presumption prevails except in so far as averments are made to the contrary. (See Lord President Cooper in Prawdzic-Lazarska v. Prawdzic-Lazarski, 1954 SC 98, at p. 101.) Applying these principles to this case, I am of opinion that, if all the pursuer's averments are proved, his case will not fail by reason of the lack of proof that his claim is actionable under the lex loci delicti.The law of Scotland as the lex fori admits his claim, and it is to be presumed as matter of fact, until the contrary is proved, that the lex loci is the same as the lex fori.

It was argued for the defenders that on the authority of the cases of M'Elroy v. M'Allister (cit. sup.) and MacKinnon v. Iberia Shipping Co ., 1955 S.C. 20, it was essential to the relevancy of an action of damages arising out of an accident in a foreign country that the pursuer should aver that the lex loci allowed his claim. It was also argued that, if there was a presumption that the lex fori and the lex lociwere the same, that did not apply to an action of reparation and certainly not since the cases of M'Elroy and MacKinnon.

I am unable to accept these submissions. I do not think that the cases cited vouch the proposition that, where parties are silent as to whether the lex loci admits the claim, the pursuer's action is necessarily irrelevant. In the case of M'Elroy the widow of a man fatally injured in a road accident in England sued in Scotland for damages on the ground of negligence, claiming, inter alia, solatium or, alternatively, reparation under two statutes applying only in England, one of which gave her, as an individual, damages for "pecuniary loss." In support of her alternative claim as an individual she averred that, in the event of it being held that rights of parties fell to be determined by the law of England, the pursuer as an individual would be entitled to damages for the pecuniary loss that she had sustained, under the Fatal Accident Acts, 1846 to 1908. The defenders averred that by the law of England no action lay for solatium, and that her claim as an individual under these Acts was not valid, as the action had not been raised timeously. It was held by a Court of seven judges, approving and following Naftalin v. L.M.S. Railway Co ., 1933 SC 259, that the rights of parties fell to be determined in accordance with the law of England as the lex loci delicti, and that, as the claim for solatium was excluded by the lex loci delicti, it could not be admitted by the lex fori; and that, having regard more especially to the time-limit imposed by the Act of 1846, the pursuer had not relevantly averred that she had by English law a right of action in respect of her individual claim for patrimonial loss. The pleading point was not in issue. As the pursuer was founding on the lex loci, it was held that she had to make relevant averments of that law, and particularly where the defender had averred that the lex loci did not allow the claim in the circumstances. The position on the pleadings was quite different from the present case, where neither party makes any averment as to whether the lex loci admits the claim. Certain expressions of opinion in the case of M'Elroy taken out of context do support the defenders' arguments here. They are not in my judgment binding on me.

In the case of MacKinnon v. Iberia Shipping Co . an employee of the shipping company received injuries by accident which he attributed to the negligence of the owners of the ship, or of a fellow-servant. The accident took place on board the ship owned by the defenders when it was lying at anchor within the territorial waters of a foreign country. He brought an action for damages in Scotland claiming solatium, as well as damages for patrimonial loss. The defenders averred that the rights of parties fell to be regulated by the law of the foreign country, and that that law did not admit a claim for solatium. The pursuer's averment on this matter was that the wrong complained of was actionable by the law of the foreign country, but he did not state that that law recognised a claim for solatium. The pursuer contended that, because the accident took place on board a ship registered in a Scottish port, the lex loci delicti was the law of the flag, i.e. Scots law, and not the law of the foreign country. He also pleaded that Scots law applied by virtue of the provisions of section 365 of the Merchant Shipping Act, 1894. The Court rejected the pursuer's contentions and held that the ship's presence within foreign territorial waters involved that the lex loci delicti was that of the foreign country, and therefore that the pursuer's claim for solatium could succeed only if such a claim was admitted by the foreign law. The pursuer's contentions having been rejected, the question arose what interlocutor was to be pronounced, having regard to the averments made by the parties as to the law of the foreign country, the defender having averred that the lex loci did not admit a claim for solatium, and the pursuer having denied the defenders' averment and having averred that the wrong complained of was actionable by the law of the foreign state and no more. The Court held that, to be entitled to a proof of his claim for solatium, the pursuer must make positive averments of the lex loci, and the case was continued to give him an opportunity of considering his position. I do not regard this case as authority for the proposition that the pursuer must aver the lex loci in order to be relevant where no issue as to that law is raised. I do not regard the statements by Lord Russell at p. 34 and by Lord Sorn at p. 35 as covering the position here. No reference was made in MacKinnon to the presumption that the lex loci and the lex fori are the same unless the contrary is proved.

I was referred to the judgment of Lord Walker in Rodden v. Whatlings Ltd ., 1961 SC 132, in which his Lordship repelled a plea to relevancy which was supported only by the argument that the pursuer's failure to make any averment of the lex loci was fatal. Lord Walker did not think that this argument was vouched by the authority of M'Elroy. The case of MacKinnon is not referred to in the judgment. I read Lord Walker's judgment as being based upon the applicability of the presumption and its effect on pleadings, and in this respect I agree with him.

I was also referred to the judgment of Lord Hunter in Pryde v. Proctor and Gamble Ltd ., 1971 S.L.T. (Notes) 18, in which his Lordship held that, where no question of foreign law was raised in the pleadings, the Scottish Courts were entitled to decide the case according to the law of Scotland, or at any rate to proceed upon the view that the lex loci delicti is the same as the law of Scotland. I agree with Lord Hunter. Reference was also made in the course of the argument to Dicey, The Conflict of Laws, (9th ed.) Rules 177 and 178; Anton, Private International Law, p. 567; Carr v. Fracis Times & Co ., [1902] AC 176, and Rosses v. H. H. Sir Bhagvat Sinhjee, (1891) 19 R. 31.

As regards the argument that the presumption did not apply to an action of reparation, I see no reason in principle why it should not, if it applies in other spheres of law.

It was argued alternatively by the defenders that, esto the question of foreign law had to be put in issue by the defenders before the pursuer was required to make averments of it, a call on the pursuer to state whether he is entitled to maintain a civil claim against the defenders under the foreign law was sufficient. I do not agree. A call on the pursuer to make an averment which he does not need to make in order to be relevant is valueless and has no effect. The call is not an averment of fact, and does not amount to a denial of any of the pursuer's averments, nor to the making of any different averments from those made by the pursuer. In my judgment nothing short of an averment by the defenders to the effect that the lex loci does not allow the claim will compel the pursuer to make full averments of what the lex loci is.

[His Lordship then dealt with the relevancy of the averments of fault against Hunter, with which this report is not concerned, and concluded]—

For these reasons I shall repel the defenders' preliminary plea and approve of the issues.

The defenders reclaimed, and the case was heard before the First Division on 4th June 1974.