Melanesian Law Journal
Compensation For Breach Of Promise To Marry In Papua New Guinea
At common law, when a person failed without reasonable excuse to go through with a promise to marry, the disappointed party was able to claim compensation by way of an action for breach of promise. It is clear from nineteenth century English cases that the action could lead to an order for very substantial damages, depending on the parties’ expectations, position in society, and related factors. Although the action was usually spoken of as analogous to an action for breach of contract, the method of assessment of damages was more akin to that in a tort action for personal injury. In the 1866 case of Berry v Da Costa (1866) LR 1 CP, for example, the defendant, described as “a gentleman of considerable fortune”, had persuaded the plaintiff to leave home and live with him prior to the expected marriage, but subsequently “the plaintiff was cast off, and the defendant married another woman”. The Court of Appeal refused to overturn a jury verdict for 2500 pounds, and held that the trial judge had not misdirected the jury. In the words of Willes J, with whose opinion the other two judges agreed:
“The summing-up amounts to this - that the damages which the plaintiff was entitled to, were, not merely the loss she sustained in not becoming the wife of a gentleman of property, but that she was also entitled to be compensated for the aggravation of that loss by reason of her prospects of marrying another being materially lessened. I put this in the driest language I can select. My Lord, no doubt, further intended to intimate to the jury that in estimating the amount of compensation due to the plaintiff for her injured feelings and wounded pride, they might legitimately take into their consideration the position of a young girl who had sustained an injury such as this defendant had inflicted upon the plaintiff, in returning to her mother’s house, not as a virtuous and respected member of the family, but compelled as it were to skulk into the home she had made desolate, without daring to lift her eyes to her parent’s face.”
Almost a century later, the West Australian case of Mills v Harris  WAR 145 shows how greatly social and judicial attitudes had changed. There, Hale J held that the plaintiff was not entitled to any special
damages for the cost of her “trousseau” articles, as she had not established that the articles were now useless. On the matter of general damages, Hale J would have been disposed to award only token damages, given that “in this country
at the present day social conditions are vastly different from what they were in England during the nineteenth century”, but
in view of the “deliberately rough and unmannerly way” in which the defendant had broken off the relationship, the court
eventually awarded the plaintiff 150 pounds.
In numerous common law jurisdictions in England, Australia, New Zealand, Canada and the United States, the action has been modified or abolished in recent decades. The typical reasons against allowing the action to continue were neatly summarised in the following passage from a 1983 Report by the Law Reform Commission of British Columbia:
“The continued usefulness may be questioned of an action which either encourages people to enter into ill-considered marriages or compensates the wronged party for having been denied what would have been, in all probability, an unhappy marriage. It may also be doubted whether the law of damages, developed primarily in a commercial context, should apply to such an intimate social relationship. In particular, the possibility of such an action being used by the jilted party for blackmail or revenge cannot be dismissed.”
Following similar arguments in an earlier Report by the UK Law Commission, the action for breach of promise was abolished in England by the Law Reform (Miscellaneous Provisions) Act 1970 (UK). Section 1(1) of this Act provided:
“1. Engagements to marry not enforceable at law
(1) An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall lie in England or Wales for breach of such an agreement, whatever the law applicable to the agreement.”
Turning to Papua New Guinea, it is clear that the action formed part of the pre-Independence common law. In English v Read, for example, the Supreme Court gave judgment for the plaintiff, who was living in Hanuabada with her expatriate father and Papua New
Guinean mother. The court found that the defendant, a European, had promised marriage to the plaintiff, and then seduced her, as
a result of which she became pregnant and later gave birth to an ex-nuptial child. In awarding her 500 pounds in general damages,
the court referred to her lessened prospects of marriage as a result of her loss of virginity and the birth of the child, and also
noted the social and economic advantages which she might have gained had the marriage to the defendant gone ahead.
The question to be considered in this short comment is whether the action for breach of promise is still part of the law of Papua New Guinea.
Adoption of English Common Law under the PNG Constitution
It will be recalled that, under the Constitution, the two principal sources of the underlying law are custom, and English common law and equity. The conditions placed upon the recognition of custom are dealt with in Sch 2.1 of the Constitution. In relation to common law, Sch 2.2 goes on to provide as follows:
“(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that-
(a) they are inconsistent with a Constitutional Law or a statute;
(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or
(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1.
(2) ... [refers to the Royal Prerogative] ...
(3) The principles and rules of common law and equity are adopted as provided by Subsections (1) and (2) notwithstanding any revision of them by any statute of England that does not apply in the country by virtue of Section Sch.2.6 (adoption of pre-Independence laws).
(4) In relation to any particular question before a court, the operation of Subsection (1)(b) shall be determined by reference, among other things, to the circumstances of the case, including the time and place of any relevant transaction, act or event.”
Under Sch 2.3, if there appears to be no rule of law applicable and appropriate to the circumstances of the country, the courts (and,
in particular, the Supreme Court and the National Court) have a duty to formulate an appropriate rule as part of the underlying law,
with due regard to a number of matters. These matters include the National Goals and Directive Principles in the Constitution, the Basic Rights set out in the Constitution, analogies to be drawn from relevant statutes and custom, legislation and case law from countries with similar legal systems to that
of Papua New Guinea, and “the circumstances of the country from time to time”.
In a situation where the English common law has not been affected by an English statute, it follows from the wording of Sch 2.2(2) that it will form part of the underlying law of Papua New Guinea so long as it is not inconsistent with the Constitution or statute law of Papua New Guinea, nor with custom as adopted under Sch 2.1, and is not inapplicable or inappropriate to the circumstances of the country at the particular time. However, the position becomes confused when the English common law has been affected by a pre-Independence English statute.
Effects of pre-Independence English Statutes on Common Law
In Poisi Tatut v Chris Cassimus; Constitutional Reference No 1 of 1977  PNGLR 295, the plaintiff husband had brought an action for enticement, apparently based on common law, in the District Court at Rabaul. By
this action, the husband was in effect seeking damages for the defendant’s having committed adultery with the wife. The magistrate
formed the view that the common law action of enticement, having been abolished in England in 1970 by the Law Reform (Miscellaneous Provisions) Act 1970 (UK), was not part of the common law adopted under Sch 2.2 at Independence. The magistrate consequently referred the case to the
Supreme Court to formulate an appropriate rule of the underlying law pursuant to Sch 2.3.
As it turned out, the Supreme Court (Prentice CJ, Raine Dep CJ and Saldanha J) was denied the benefits of receiving detailed argument on the key issues, because the main actors in the dispute had by the time of the hearing virtually settled their differences. Nevertheless, Prentice CJ and Saldanha J each delivered short judgments, with which Raine Dep CJ agreed, in which the magistrate’s conclusion that the common law action had not survived Independence was approved. The Supreme Court, however, then declined for various reasons to formulate an appropriate rule under Sch 2.3 to cover the situation, saying that, in the circumstances, it was more appropriate for Parliament to take action. A verdict was consequently directed for the defendant.
On the basis of this decision, it might be concluded that the action for breach of promise of marriage, which was by coincidence abolished by the same UK statute of 1970, also did not survive Independence. That is to say, the common law action, in terms of the opening words of Sch 2.2, did not form part of “the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England” (emphasis added). It would follow that the only possibilities for a jilted party in Papua New Guinea to seek damages would be by pursuing a customary claim (assuming this was possible according to the custom of the parties), or by persuading a court to make a new rule of the underlying law under Sch 2.3.
Subsequent case law, however, has thrown doubt on the correctness of the holding in Poisi Tatut, and highlighted two sources of ambiguity which arise from the wording of Sch 2.2(3) (quoted above), a provision which was not referred to at all by the Supreme Court in the 1978 decision. The first of these confusions concerns the meaning of “notwithstanding” as it appears in sub-s (3), that is:
“The principles and rules of common law and equity are adopted ... notwithstanding any revision of them by any statute of England ... ”
The second ambiguity, in the same sub-section, is the meaning of the word “revision”, and whether this includes, or is
meant to be clearly distinguishable from, cases of “abolition”, such as that dealt with in Poisi Tatut.
The first point, which is similar to some long-standing sources of controversy over the effect of earlier reception provisions in Papua and in New Guinea, has now been resolved by the Supreme Court in The Ship “Federal Huron” v Ok Tedi Mining Ltd  PNGLR 1. It is not necessary here to discuss the complicated facts of the case, which involved several distinct legal issues. In relation to Sch 2.2(3), the essential point was whether, following Independence, common law principles of admiralty law were to be potentially applicable in Papua with, or without, taking into account any modifications effected by pre-Independence English statutes. As the court (Kidu CJ, Pratt and Woods JJ) noted in a joint judgment, the word “notwithstanding” in Sch 2.2(3) could be read in this context to produce either result. In the event, the court was impressed by the argument that the legislative arrangements of 1975 represented “a deliberate plan executed to wipe the legislative slate clean at Independence”, and went on to hold:
“... [A]fter very anxious thought we have ... formed the firm view that it was not the intention of the Constituent Assembly to introduce statute law into this country by means of modification thereby to the principles of common law and equity. ... It seems slightly odd to us that a newly emergent sovereign nation should deliberately choose to import into its law a large number of statutes of completely foreign origin which were never specifically enacted in its own pre-Independence legislatures. It seems a somewhat back-door method inconsistent with the particularity found elsewhere in the legislation of 15 September 1975. ... [I]n using the term ‘notwithstanding’ in Sch 2.2(3) it was the intention of the Constituent Assembly to exclude statutory modifications to the common law.”
In a later passsage, the court referred to Poisi Tatut in the following terms:
“This was a case involving the common law action for enticement brought by a husband against his wife’s seducer. The action was entirely eradicated in the United Kingdom by the Law Reform (Miscellaneous Provisions) Act 1970 and consequently was not part of the common law by any interpretation of the word ‘notwithstanding’ at Independence.”
Although this comment seems to indicate approval of the court’s approach and decision in Poisi Tatut, it is noteworthy that this reference is made in a quite different context, namely in considering whether, when there is no relevant
common law adopted under Sch 2.2, the court should act under Sch 2.3 to fill the gap by formulating an appropriate rule of the underlying
law. Consequently, the passing mention given to the case can hardly be taken as a specific endorsement of all aspects of that decision.
The correctness of the 1978 ruling in Poisi Tatut has more recently been questioned in the Supreme Court decision of Mt Kare Holdings v Wapula Akipe  PNGLR 60. There, as part of a complicated dispute over the issue of a Mining Lease, several of the defendants sought to have the plaintiffs’ action dismissed, on the basis of an arrangement between the plaintiffs and certain other parties which allegedly infringed the common law rules concerning champerty and maintenance (that is, the provision of financial support in return for a share of the proceeds of the litigation). At first instance, Amet J refused to dismiss the action, holding that the common law rules had been abolished by statute in the United Kingdom by the Criminal Law Act 1967 (UK) (ss 13 and 14 of which removed both criminal and tortious liability), and hence were not part of the common law at Independence under Sch 2.2. As a second ground, the trial judge held that, in any event, the common law principles should not be applied under Sch 2.2, as they were inappropriate to the circumstances of Papua New Guinea. On the first point, although the trial judge did not refer to Poisi Tatut, he accepted the plaintiffs’ argument that Sch 2.2(3), and hence the 1986 case of Federal Huron, were not really relevant, because here the common law rules were “not simply revised, they were abolished completely”.
On appeal to the Supreme Court, the trial judge’s decision was reversed. The whole court (Kapi Dep CJ, Woods, Hinchliffe, Konilio and Andrew JJ) held that the common law principles were still relevant under Sch 2.2, and were also not inappropriate to the circumstances of the country. Kapi Dep CJ and Andrew J delivered separate judgments; the other three judges expressed their agreement with both of these judgments.
In relation to the meaning of the term “revision” in Sch 2.2(3), Kapi Dep CJ stated:
“The term ‘revision’ is used to describe a process by which the Parliament in England, through statute, reviews the principles of common law and considers bringing changes to them. In my opinion, this process would include making changes either through modification and/or abolishment of the principles of common law. If a statute in England abolishes or modifies principles of common law, and that statute is not adopted under Sch 2.6 of the Constitution, the revision by the statute in England must be ignored. ... This conclusion is consistent with the decision of the Supreme Court in The Ship “Federal Huron” v OK Tedi Mining  PNGLR 1.”
Clearly, then, Kapi Dep CJ’s conclusion is contrary to the holding of the Supreme Court in Poisi Tatut. Referring to the earlier case, Kapi Dep CJ was quite dismissive:
“[T]his is not a good authority on the issue which has come before us in this case. That was a case in which this issue was not properly argued and the assumption in the reference was accepted by all parties as the correct proposition in law.”
Andrew J expressed a similar view as to the weakness of the decision in Poisi Tatut as an authority on the supposed distinction between “modification” and “abolition”, and also noted that the
court in that case had not considered the meaning of the word “notwithstanding” in Sch 2.2(3).
Having examined the terms of ss 13 and 14 of the Criminal Law Act 1967 (UK), Andrew J concluded that their effect was to abolish criminal and tortious liability for champerty and maintenance, whilst preserving other elements of the previous law, such as the rules whereby a contract involving maintenance or champerty might be treated as contrary to public policy. Consequently, Andrew J held that the English amendments amounted only to a “revision” or “modification”, and on the authority of Federal Huron (1986), were not to be adopted into Papua New Guinea.
Although not strictly necessary for his decision, Andrew J also made some illuminating comments on the difficulty, if not impossibility, of distinguishing sensibly between types or degrees of statutory amendment of the common law:
“Is there a distinction between ‘revision’ and ‘modification’ on the one hand and ‘abrogation’ on the other? Was there an ‘abrogation’ of part only of the doctrine of maintenance and champerty? Does part abrogation mean that there was only a ‘revision’? ...
Every statute which ‘revises’ or ‘modifies’ the common law would of necessity abolish a part of the whole body of law, and there is no logical distinction between a modification of the body of law as a whole and the abolition of a part thereof. I am in agreement with the submission ... that the ‘abolition’ of one small rule is by definition a ‘revision of the principles (plural) and rules (plural) of common law and equity’.”
Given that the other three judges agreed both with Kapi Dep CJ and with Andrew J, it is not easy to determine what parts of the decision
are to be regarded as binding. It can be said, however, that the authority of Poisi Tatut is now very weak. Further, if it is accepted that abolition of a rule is equivalent to modification of the body of law of which the
rule forms part, there seems little reason to give the word “revision” in Sch 2.2(3) an artificially narrow meaning.
It might then be concluded that Sch 2.2(1) and (3) must be read together, and that to determine which common law rules and principles
were in force “immediately before Independence Day”, it is necessary to disregard via Sch 2.2(3) all effects introduced
by English pre-Independence statutes, however radical those changes may have been.
On this approach, which effectively regards Poisi Tatut as wrongly decided, it is clearly arguable that the common law action for enticement, and similarly the action for breach of promise of marriage, were part of the common law imported via Sch 2.2 at Independence. Such adoption, nevertheless, is not automatic, but depends upon compliance with the conditions set out in the Schedule. As it happens, the common law of enticement is no longer relevant, because the matter is now regulated by statute (see the Adultery and Enticement Act 1988). In relation to the action for breach of promise to marry, no Papua New Guinean statute has intervened, but the common law would still be subject to the tests of consistency with the Constitution, and with custom as adopted under Sch 2(1), and finally the requirement of circumstantial applicability. I will return briefly to this point below.
The National Court Decision in Era v Paru (1994)
It is interesting here to refer to the National Court decision of Era v Paru (1994) N 1237. There, the plaintiff complained that the defendant had promised to marry her and then had an affair with her, and she
had become pregnant. When he refused to go ahead with the marriage, she claimed damages for loss of virginity, and damage to her
reputation and status in the community. A District Court magistrate in Ialibu awarded the plaintiff Kl,600 in compensation.
On appeal to the National Court, the defendant argued that, if the claim was based upon custom, the plaintiff had failed to adduce evidence as to the particular custom; alternatively, if the claim was not based upon custom, then the cause of action was not one known to the law of Papua New Guinea. Woods J rejected the argument and dismissed the appeal, saying:
“But why is this a customary action? ... [T]he case before me now is simply a personal action for damages to the complainant by way of injury to her virginity and thus to her status as an unmarried woman. I think it must be clearly accepted that it would be common knowledge that a future bride is more valuable and has greater respect if she has not had an affair or children by someone else before her marriage so why should there not be a cause of action namely personal injury to her status by the loss of her virginity. Of course it is clear that under the District Court Act the District Court has no jurisdiction in cases of breach of promise to marry [see s 21(4)(e) of the District Courts Act (Ch 40)], but this is not taken as a breach of promise to marry; the respondent was not seeking damages for missing out on the marriage, she was seeking damages for personal injuries to herself. ... [H]ere there is clear evidence that could be accepted by a court that the respondent was misled and has in effect given up a valuable asset that she has on a false pretence.”
There is of course no reason why a claim of this sort, if based on custom, could not be brought in the Village, Local, District or even the National Court, depending upon the amount at stake and other relevant circumstances. In this case, however, Woods J denied that the claim was based on custom. Instead, the court seems to have treated the action as a variety of common law tort claim for personal injury. It should be pointed out, however, that no such action appears to have been known to the English common law. That is to say, while the seduction of the woman was a matter of aggravation relevant to the assessment of damages in a breach of promise case (as, for example, in Berry v Da Costa, and English v Read, referred to above), in English common law (as distinct from the common law of Scotland) the woman had no separate action in tort based on such an “injury”. Here, the court clearly stated that the action was not one for breach of promise (had it been, the District Court would have been denied jurisdiction by s 21(4)(e) of the District Courts Act (Ch 40)). It follows, therefore, that even if the above analysis of recent cases such as the 1992 decision in Mt Kare Holdings leads to the conclusion that the common law action for breach of promise still exists in Papua New Guinea, the cause of action recognised by the court in Era v Paru was not part of that English common law imported by Sch 2.2 of the Constitution. Although the matter is unfortunately not discussed in the short judgment, the action recognised by the court must instead represent a new rule of underlying law created by the court via Sch 2.3.
In this brief note, I have considered the relevance of pre-Independence English statutes in relation to the adoption of common law
under Sch 2.2 of the Constitution, particularly with respect to the action for breach of promise to marry. While the issue is not completely free from doubt, the
weight of recent authority supports the proposition that statutory “revisions”, even extending to the complete abolition
of a cause of action, have no effect on the common law adopted in Papua New Guinea. Instead, the courts of Papua New Guinea have
to apply the criteria set out in Sch 2.2(1), including the test of circumstantial suitability, in deciding whether the unamended
common law rules should be recognised. If a higher court decides that the common law rules are not appropriate, the court may then
consider whether or not it is necessary to declare a new rule of underlying law under Sch 2.3.
Is the common law action for breach of promise to marry appropriate to the current circumstances of Papua New Guinea? In approaching this question, the court will no doubt have to consider the various arguments mentioned above (see Introduction), which in other jurisdictions have led to the abolition of the action as an anachronism. Do these arguments have the same force in Papua New Guinea? Would the specific conditions and circumstances of Papua New Guinea be sufficiently catered for by continuing to allow customary claims to be brought, where proof of the relevant custom is available, but by denying that a common law claim is any longer appropriate? Alternatively, is there need for the court to move to develop a new rule of underlying law under Sch 2.3, perhaps along the lines followed in Eva v Paru? Or, finally, is the matter sufficiently complex to require Parliamentary intervention, as occurred, for example, in the area of adultery and enticement
[*] Associate Professor of Law, University of New South Wales.
 For general discussion, see H Wright, “The Action for Breach of the Marriage Promise”, (1924) 10 Virginia Law Review 361; R Brown, “Breach of Promise Suits”, (1929) 77 University of Pennsylvania Law Review 474; Halsbury’s Laws of England, 3rd ed (London 1957), Vol 19, pp 769-74; P Bromley, Family Law, 3rd ed (Butterworths, London 1966), pp 19-27; H Finlay and A Bissett-Johnson, Family Law in Australia (Butterworths, Melbourne 1972), pp 44-48; UK Law Commission, “Breach of Promise of Marriage”, Law Com No 26 (London 1969); and Law Reform Commission of British Columbia, Report on Breach of Promise of Marriage (Vancouver 1983).
 See eg Wright, above n 1, at 365, 371-74; Bromley, above n 1, at 23-25; Law Reform Commission of British Columbia, above n 1, at 21-22.
 (1866) LR 1 CP 331 (English Court of Appeal).
 Id, at 331.
 Id, at 333-34.
  WAR 145, at 147-48.
 Id, at 149-50.
 See eg Law Reform (Miscellaneous Provisions) Act 1970 (UK), s 1; Domestic Actions Act 1975 (NZ), s 5; Marriage Amendment Act 1976 (Aust), s 23. Other references are given in Law Reform Commission of British Columbia, above n 1, at 20, 23-24.
 Law Reform Commission of British Columbia, above n 1 at 7.
 See UK Law Commission, above n 1, at 6-14.
 Unreported Supreme Court decision, (1961) SC 185.
 Id, at 6-7.
 A related but distinct issue concerns the effect of post-Independence English case law - see especially D Srivastava and D Roebuck, “The Reception of the Common Law and Equity in Papua New Guinea: The Problem of the Cut-Off Date”, (1985) 34 International and Comparative Law Quarterly 850.
  PNGLR 295, at 297.
 On customary claims in the Village, Local and District Courts, see O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, 2nd ed (UPNG Press, 1994), Ch 4, paras 4.3-4.14.
 See however the concluding sentences to n 34 below.
 See eg Booth v Booth (1934-35) 53 CLR 1 (High Court of Australia); and Murray v Brown River Timber Company Ltd  P&NGLR 167 (Supreme Court of Papua and New Guinea). For discussion, see especially R O’Regan, “The Common Law and English Statutes in the Territory of Papua and New Guinea”, (1971) 45 Australian Law Journal 297, which appears in virtually identical form in Ch 4 of R O’Regan, The Common Law in Papua and New Guinea (Law Book Co, Sydney 1971).
  PNGLR 1, at 18-19.
 Id, at 20. On this point, the court referred to the views of J Lynch (former Constitutional Draftsman), in his article “The Adoption of an Underlying Law by the Constitution of Papua New Guinea”, (1976) 4 Melanesian Law Journal 37; and J Goldring, The Constitution of Papua New Guinea (Law Book Co, Sydney 1978), Ch 11.
 The Ship “Federal Huron” v Ok Tedi Mining Ltd  PNGLR 1, at 19, 21-22. As the court noted (at 19), a similar view had been taken at first instance by Bredmeyer J, and also by Kapi J in Wahgi Savings and Loans Society Ltd v Bank of South Pacific Ltd  INSC 181; (1980) SC 185 (see at 17-18).
 The Ship “Federal Huron” v Ok Tedi Mining Ltd  PNGLR 1, at 33.
 Wapula Akipe and Ors v Mt Kare Holdings Pty Ltd, unreported National Court decision, WS No 1067 of 1990, 25 October 1991, at 3.
 Id, at 3-4.
 Id, at 3.
 Mt Kare Holdings v Wapula Akipe  PNGLR 60.
 Id, at 63.
 Id, at 64.
 Id, at 69.
 Id, at 68.
 Id, at 69.
 Id, at 68-69. Although not persuaded by it, Andrew J did acknowledge (at 69) that a counter argument had weight, “namely that whilst the draftsman considered that he needed a provision to deal with common law rules which had been revised by statute, he plainly considered that the reference to the common law rules as they stood ‘immediately before Independence Day’ took care of common law rules already abolished by statute”. For a related earlier discussion of the difficulty of distinguishing between degrees of statutory amendment, see the article and book chapter by R O’Regan, cited above at n 17.
 (1994) N 1237, at 2-3.
 See O Jessep and J Luluaki, above n 15.
 See J White, “Breach of Promise of Marriage”, (1894) 38 Law Quarterly Review 135, at 139-40; and R Brown, above n 1, at 483. While English common law did recognise a tort of “seduction”, this was a quite different type of claim, based upon the loss of the woman’s services, and brought by her father or guardian (a point noted in passing by Woods J, (1994) N 1237 at 3). It has sometimes been argued that in certain situations, a seduced party may have an alternative remedy, eg a tort claim for misrepresentation or deceit - see eg Law Reform Commission of British Columbia, above n 1, at 18-19; and L Gower, “The End of Actions for Breach of Promise?”, (1971) 87 Law Quarterly Review 314, at 315. There is, however, little English authority on the point.
 See the discussion in The Ship “Federal Huron” v Ok Tedi Mining Ltd  PNGLR 1, at 32-37.
 See text to n 8 above, and note especially the discussions in UK Law Commission, and Law Reform Commission of British Columbia, both at n 1 above.