Lloyd's Maritime and Commercial Law Quarterly
THE MEANING AND PROOF OF FOREIGN LAW
Neilson v. Overseas Projects
In Neilson
v. Overseas Projects Corp of Victoria Ltd
,1
the facts could hardly have been more straightforward. Mr Neilson had been sent by his employer, OPC, to work as a consultant on a project at Wuhan, China. OPC provided the living accommodation for Mr Neilson and his wife, who was living there with OPC’s permission. It was Mrs Neilson who, on getting up in the middle of the night to fetch a glass of water, fell off the edge of the stairs where a banister was to be expected but was not to be found. She brought proceedings against OPC in Western Australia, five years after the event, alleging that its negligence had caused her personal injury. A choice of law arose because the limitation periods under the laws of China and Western Australia were different. OPC pleaded that the claim was governed by the law of China, according to which it was out of time. It produced an expert on Chinese law, who tendered and spoke to the relevant provisions of the “General Principles of Civil Law” of China. Article 146 of this was translated2
in the following terms:
With regard to compensation for damages resulting from an infringement of rights, the law of the place in which the infringement occurred shall be applied. If both parties are nationals of the same country, or are domiciled in the same country, the law of their own country, or of their place of domicile, may also be applied.
In answer, Mrs Neilson led no evidence of Chinese law. She simply submitted that Art 146 was to be read as providing for the application of the law of Western Australia,3
according to which the claim was not yet limited. The gist of the two questions for the High Court was (i) whether the choice of law rule for claims arising out of foreign torts made any reference at all to the conflicts rules of the locus delicti
, and (ii) if they did, whether the conflicts rule of Chinese law had been sufficiently proved. It held by a
1. [2005] HCA 54.
2. It is a salutary fact, though, that other translations, available from the Internet and possibly more authentic than that given and received in evidence at trial (published at
http://en.chinacourt.org/public/detail.php
, which claims to be sponsored by the Supreme People’s Court of the PRC), do not include the puzzling word “also”.
3. There was a potentially complicated question whether the reference to an antipodean law was to Australian law (on the footing that the relevant law was the common law of Australia, and which does not vary from state to state) or to the law of Western Australia (on the footing that the statute law on limitation does so vary, and which was not such a bright idea in a case where the parties were not from the same Australian state). Though this is not an issue incapable of arising in the United Kingdom, the discussion of it in the present case does not really assist towards the finding of a general solution.