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Lloyd's Maritime and Commercial Law Quarterly

THE MEANING AND PROOF OF FOREIGN LAW

Neilson v. Overseas Projects

In Neilson v. Overseas Projects Corp of Victoria Ltd ,1 the facts could hardly have been more straightforward. Mr Neilson had been sent by his employer, OPC, to work as a consultant on a project at Wuhan, China. OPC provided the living accommodation for Mr Neilson and his wife, who was living there with OPC’s permission. It was Mrs Neilson who, on getting up in the middle of the night to fetch a glass of water, fell off the edge of the stairs where a banister was to be expected but was not to be found. She brought proceedings against OPC in Western Australia, five years after the event, alleging that its negligence had caused her personal injury. A choice of law arose because the limitation periods under the laws of China and Western Australia were different. OPC pleaded that the claim was governed by the law of China, according to which it was out of time. It produced an expert on Chinese law, who tendered and spoke to the relevant provisions of the “General Principles of Civil Law” of China. Article 146 of this was translated2 in the following terms:
With regard to compensation for damages resulting from an infringement of rights, the law of the place in which the infringement occurred shall be applied. If both parties are nationals of the same country, or are domiciled in the same country, the law of their own country, or of their place of domicile, may also be applied.
In answer, Mrs Neilson led no evidence of Chinese law. She simply submitted that Art 146 was to be read as providing for the application of the law of Western Australia,3 according to which the claim was not yet limited. The gist of the two questions for the High Court was (i) whether the choice of law rule for claims arising out of foreign torts made any reference at all to the conflicts rules of the locus delicti , and (ii) if they did, whether the conflicts rule of Chinese law had been sufficiently proved. It held by a

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