WATCH OUT FOR ACCIDENTS OVERSEAS

The Full Court of the Supreme Court of Western Australia recently had to decide what law applied when an Australian tourist in China who suffered injuries in negligent circumstances, tried to sue her employer in Australia. At the first hearing, the trial judge applied the Australian choice of law rules to determine that the law of the place of the wrong (China) should apply. He then applied a Chinese choice of law rule which permitted the Court to apply at its discretion the law of the party’s place of nationality. He then applied Australian law and found that the plaintiff could recover damages. However, if he had applied Chinese law, the claim would have failed because it was time barred, that is, she had sued outside their statutory limitation period. The Court of Appeal then reviewed the technicalities in applying two systems of law. In the end, they took the more certain course of applying the recent decisions of the High Court which followed policies of certainty and predictability (Regie National Des Usines Renault SA v Zhang [202] 210 CRL 491). These cases require the application of the substantive law in the place where the negligence occurred without reference to any aspects of the law of the place where the hearing was being conducted. Accordingly, the Court should have applied the law of China. It was clearly statute barred under Chinese law and so the claim failed. The lesson is to see your lawyer sooner rather than later to ascertain what your rights might be following an accident.

DISCLAIMER

These personal injury law articles were published with the express permission of Stacks/The Law Firm. Please note that the information was correct at the time of publication, but personal injury law is subject to legislation changes from time to time and thus it is recommended that you contact a Stacks/Goudkamp lawyer should you have any questions relating to any of the topics above.