A Proper Law of Torts in the Conflict of Laws

Abstract

The subject examined by this thesis is the conflicts rules which should be applied to determine liability in tort actions, and the question of whether or not "proper law" approach could be adopted in this particular area. It is submitted, in Section I, that changing circumstances and changing theoretical bases for conflict of laws, are reasons for fresh look at the area of torts in the conflict of laws. Moreover it is submitted, in Section II, that such fresh look should be firmly based on funda mental policies of conflict of laws generally, such as the absence of forum-shopping, the convenience of the parties and the achieving of uniform result whatever the forum of particular action. The existing rules are examined in the light of their application to the varying circumstances which can arise in tort actions. In addition critical examination of the existing rules is attempted, in respect of the require ments of identifying the locus delicti, and whether the existing rules relate to choice of law or jurisdictional questions. The "proper law" concept is suggested as solution to the problems arising from this critical examination, and is buttressed by the operation and use of such a concept in other areas of the law, such as contracts and recognition of foreign divorce decrees. Since the "proper law" approach has been adopted in the United States, it is necessary to examine the experience in those jurisdictions. This examination deals with the "proper law" aspect generally, and more particularly, its application in specific areas such as contributory negligence and vicarious liability. It is suggested that selective borrowing from the United States experience, excluding the policy gloss which has been placed upon the "proper law" approach in that country, would be profitable in Canada. Finally, it is suggested that "proper law" approach would be an appropriate solution and is supported by present judicial attitudes.