Distillers Co (Biochemicals) v Thompson (1971) 1 NSWLR 83

Facts: The plaintiff (Pl) (Thompson) was the child of a pregnant woman who took a prescription drug in NSW made by the defendant (D) (Distillers, UK company). She was pregnant and her baby was born without arms and had defective eyesight. Pl brought action in negligence (for failure to warn that drug would be dangerous during pregnancy) in NSW. D entered conditional appearance; sought to set aside writ and service. 

Issue: Where did the tort occur?

Held (NSWSC): The NSW Supreme Court had personal jurisdiction over the English D as the locus deliciti was NSW (the tort had occurred in NSW). Not all elements of cause of action need to occur in NSW. The manufacturing process wasn’t negligent; it was the label’s indication the product was safe and harmless that gave rise to the tort (this was in NSW). 

“The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?”

Ratio: A tort will be committed where it is the place of the act/omission on the part of D which gives Pl a cause of complaint in law or where ‘in substance the wrongdoing occurred’.