ABSTRACT
Of all the localising rules which conflict systems have developed, the law of the place of the commission of the tortious act has been the most troublesome.65 This rule of reference widely used in continental Europe and, until 30 years ago, the basis for ascertaining the governing law in the various States of the USA is substantive in nature. Until recently, the lex loci delicti commissi formed part of the governing rule on the choice of law in tort in England.66 The approach proceeds on the basis that tortious liability is the creation of the law where the tort was committed67 and governs the plaintiff’s ability to recover and the defendant’s liability to pay compensation, wherever the case happens to be brought. The concept is one of ‘vested rights’, that is, the commission of the tort creates, according to the law of the place of its commission, a right of action which the injured party can implement wherever he wishes.68 It does not matter, according to this theory, whether the personal law of the plaintiff would regard him as having such a right or, indeed, whether the parties come from the same foreign country, in which the right given by the local law is unknown. This model of tortious libility is very similar to the notion of criminality, with which the conflict of laws is not directly concerned, where liability is usually a purely territorial matter. In taking this line, the concept of tort is artificially narrowed. Of course, there are some torts which have a very close affinity to crimes, not surprising in view of their common origin, but there are many that have no such affinity. Deliberate and violent interferences with person or property create liability in both criminal law and the law of tort, but they represent only a tiny part of tortious litigation. More characteristic of the modern law of torts are the accident cases where the issue of fault is not about guilt but about liability to pay compensation. Quite apart from the problem, already alluded to, of fixing the locus delicti in a complex case, one can question the whole concept of a crude localising rule. The place where the accident occurs is always fortuitous and
the application of the local law may appear capricious. In the well known Scottish case of M’Elroy v M’Allister,69 the facts were as follows: the pursuer was the widow of a Scotsman who had been killed in England as a result of a negligent act for which his employer’s were vicariously liable. The enterprise was Scottish, the workmen were Scotsmen and the only fact linking the case with England was that the accident happened south of the Scottish border.
