Federal court of australia

12.Discussion—lex loci delicti

171 I take the course counselled by Spigelman CJ and start by identifying the act on the part of the Minister which gave the applicant her cause of complaint. This is, as I have said, a matter of substance. I should not be distracted by the ingenuity of a pleader. Rather, my task is to identify the true nature of the cause of action.

172 The applicant’s cause of action is in negligence. That cause of action has three elements: duty, breach, and causation of damage: Wallace v Kam (2013) 250 CLR 375 at [7] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).

173 The Minister’s duty is pleaded at [12(a)] of the applicant’s amended statement of claim as being to “procure a safe and lawful abortion for her.” It is put at [18(b)] that the duty is to “take all reasonable steps to ensure that she has a safe and lawful abortion.” As I have said, breach is not pleaded, nor is it pleaded that the applicant has suffered damage caused by any such breach.

174 The essence of the applicant’s claim is that she apprehends breach by the Minister of the duty that he owes to exercise reasonable care in procuring for her a safe and lawful abortion. The breach that she apprehends is that he will fail to so procure. The relief that she seeks which forms the essence of her claim is twofold: the declaration that the procuring by the Minister of an abortion to be performed in Papua New Guinea would breach his duty; and, the issue of a prohibitory injunction (paragraph G of the relief) that would have the effect that the Minister be restrained from failing to discharge his duty.

175 It seems to me that the act of which the applicant complains is not located in Papua New Guinea at all. That can be illustrated through consideration of two questions: what would be the applicant’s cause of complaint if she suffered damage as a consequence of abortion performed in Papua New Guinea?; what would be the applicant’s cause of complaint if she suffered damage as a consequence of no abortion being procured at all?

176 Suppose damage is occasioned because, for want of adequate trans-cultural psychiatric expertise post-termination in Papua New Guinea or somewhere else, the applicant develops serious psychiatric illness and harms herself. The applicant’s complaint against the Minister would not be that the psychiatric services provided post-termination were negligently provided; it would be that the Minister procured an abortion in a setting where services of a particular standard were not available. Or, damage might be occasioned because, for want of adequate neurological expertise, a seizure occurring during the termination is not adequately managed and the applicant suffers brain damage. Again, the complaint would not be that whatever services were provided were negligently provided; it would be that the Minister procured an abortion in a setting where adequate neurological expertise was unavailable.

177 What brings the nature of the applicant’s case into clearest focus, in my view, is to suppose that the applicant is, post-termination, prosecuted and jailed. Her complaint against the Minister clearly would not arise out of any negligent act occurring during or after the abortion itself; it would be that the Minister procured that her abortion occurred in a country in which abortion bore the risk of criminal prosecution.

178 If the applicant were to undergo an abortion in Papua New Guinea, damage and steps in the causal chain necessary for damage may occur there. But the acts of which the applicant complains would not be the physical acts constituting the termination of her abortion. It may well be that no step (after the Minister’s decision) in the process leading up to and following her abortion is negligently taken. The perioperative actions may be perfectly adequate discharges of the duties of care of those who take them. For example, it may be that a failure by PIH to make available specialist neurologist services or an EEG does not breach a duty of care owed by PIH or any of its staff because such provision may be beyond what the reasonable person in the position of PIH would do to avoid foreseeable risk to the applicant (including because the cost of such provision may be prohibitive for PIH). The applicant’s complaint against the Minister would be that he procured an abortion in that setting in the first place. The applicant’s cause for complaint is the decision made by the Minister as to where the abortion should be performed and the steps that he takes (or fails to take) to procure that result. Those acts occurred in Australia.

179 This shows that, even if damage was suffered due to acts occurring in Papua New Guinea, Papua New Guinea would not be the law of the tort. A fortiori if no relevant acts occur in Papua New Guinea because the Minister fails to procure any abortion at all. In that instance, or where the Minister procures only an abortion that is unsafe or unlawful, if the applicant suffered damage as a consequence of not undergoing an abortion, her cause of complaint would not relate to any particular location in which a safe and lawful abortion might have been performed; it would relate to the location from which the safe and lawful abortion was not procured. The act of which the applicant complains is an apprehended failure by the Minister to exercise reasonable care in the discharge of the responsibility that he assumed to procure for her a safe and lawful abortion. The applicable law is the law of the place from which (it is apprehended) the Minister will omit to procure the procedure. It is not the (necessarily hypothetical and indeterminable) place in which the procedure, which (it is apprehended) the Minister will fail to procure, would be performed were it to be procured. The latter would in many cases be unknown and unknowable. That would have the potential to create absurdities.

180 One of the more important justifications for the lex loci delicti rule is that reliance on the legal order in force in a law area in which people act or are exposed to risk of injury gives rise to expectations that should be protected. This is similar to the values underlying estoppel, the presumption against ex post facto laws, and the doctrine of stare decisis: Pfeiffer at [75] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). This would not be undermined by the outcome that Australia is, in this case, the law of the tort. Quite the contrary: in a case such as the present neither party had, prior to the Minister’s decision to procure an abortion in Papua New Guinea, any “expectation” worthy of protection that Papua New Guinean law would apply to any tort.

181 Another justification is that application of the lex fori, or some other rule, would lead to forum-shopping: Zhang at [118] (Kirby J); [194] (Callinan J); Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [172] (Kirby J), [89] (Gummow and Hayne JJ); see also Pfeiffer at [128] (Kirby J). There is no risk of that here. Indeed, the Minister’s submission would lead to something like an obverse injustice. Were the applicable law the law of the place in which the abortion was performed, it would be open to a prospective defendant to control its liability in tort by negligently procuring a service in a country with a tort law favourable to defendants, or in which it had the benefit of a defence. Or, where the tort is one of omission the point is clearer: a wrongdoer might attempt to avoid or limit liability by alleging that, had the procedure been procured, or were it to be procured, it would have been (or will be) procured in a jurisdiction in which negligence laws favourable to defendants obtain. This is effectively reverse forum-shopping.

182 I accept, of course, that there may be many legitimate reasons why a person acts or omits to act in one jurisdiction instead of another jurisdiction, and considerations of that kind might almost never be relevant. But, on the facts of this case, it seems to me to disclose more clearly that the location of the apprehended breach that is the subject matter of the applicant’s complaint is Australia. The applicable law is that of Australia.