The Gazette 1987

GAZETTE

MAY 1987

when it was damaged (2) in a case of death, the country where the deceased was when he was fatally injured. L aw r e f o rm In this writer's opinion, it is now necessary to introduce legislation providing for appropriate choice of law rules in tort cases and related matters. However, before any such legislation is introduced considera- tion will have to be given to the issues which are numerous and in- tricate and, it is submitted the Law Reform Commission is probably best equipped to carry out such review. 26 In view of the great complexity of the subject, it is highly desirable that detailed con- sideration be given to all aspects of choice of law in tort. It will be necessary, for example, to con- sider options for law reform not only in the case of the basic torts resulting in personal injury, death and damage to property, but also with respect to certain specific torts such as the economic torts and defamation. One of the many problems which the Joint Working Party examined

upon a more closely defined general rule. 25 " However, the great disadvan- tage of the proper law on its own is its uncertainty, and the Joint Working Party provisionally con- cluded that a pure proper law rule, without elaboration, would be unacceptably uncertain and un- suitable for statutory reform. It was correctly of the view that after a tort had occurred, it was clearly desirable that the parties in dispute should be able to ascertain their rights and liabilities as easily as possible and preferably without resort to litigation. Accordingly, it went on to make proposals for cer- tain defined types of tort, which, it is submitted, avoids any pro- blems of uncertainty. It proposed that the following presumptions should be added to the basic pro- per law rule: the country with which the occurrence and the par- ties had the closest and most real connection would, unless the con- trary were shown, be presumed to be - (1) in a case of personal injury or damage to property, the coun- try where the person was when he was injured or the property was

monly occurring torts, such as per- sonal injury and damage to property; (ii) that the "proper l aw" should apply, that is the law of the coun- try with which the occurrence and the parties had the closest and most real connection. Again, there would be presumptions which would indicate the applicable law for the most commonly occurring torts. It is submitted that, in view of the judicial philosophy which Walsh J. advocated in Grehan's case, the second option would be more apposite in an Irish context. In addition, there are other benefits with such a rule which, it is submit- ted, might be adopted in this coun- try. As the Joint Working Party put it: "It would be possible to concen- trate on the particular facts; the temptation to re-classify an issue so as to avoid treating it as an issue in tort . . . would be reduced; and such an approach would also wholly avoid the ex- ceptions which . . . appear to us to be a necessary part of any choice of law system based

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