123 / 342
GAZETTE
MAY 1987
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
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
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
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THIS IS THE WAY...
When a client makes a will in favour of the
Society, it would be appreciated if the bequest
were stated in the following words:
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for any of the charitable objects of the Society, as it,
the Society, at its absolute discretion, may decide."
All monies received by the Society are expended
within the Republic of Ireland.
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fund raising purposes. The "Cancer
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allocates all Research Grants
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