samedi 16 novembre 2013

Moot Court - Modèle de jugement (Moot Court 2010)

Dear students,

Here is an example of very good judgment and dissenting opinion, which were given by the students of the Licence Bilingue in 2010.

I hope this gives you an idea of what may be expected from you.

Good luck!

The 3 Moot Court judges in 2010

County Court of Portsmouth


Sally Woolworth v John Smith (2010)


Judge Jougla
Judge Géry
Judge Boudhabhay

18 December 2010

Plaintiff                                                                                                                   Defendant
Sally Woolworth                                                                                                      John Smith

On Saturday 6th of November 2010, the plaintiff, Sally Woolworth, 20 years old, went to the « Victoria Inn », a popular pub in Portsmouth. She had arranged to meet there her French boyfriend Jean-René Bernard, 18 years old, who had just taken the ferry in Le Havre and was meant to spend the weed-end in Portsmouth.
At 6 pm, she entered the pub. It was crowded and very loud. The place was slightly overcrowded for its capacity. Mrs. Woolworth made her way to the bar and waited for Mr. Bernard. She went outside for a cigarette and as she crossed the door, she could see Mr. Bernard having an argument with the bouncer Tony O’Connor, just by the main gate. She rushed to her boyfriend and he told her that he had been denied access to the pub, as the bouncer would not accept his French driving license as a valid ID, so he could not prove he was over 18 years old. Sally and the bouncer argued for a while, and he eventually said “Alright now you two lousy drunkards get off my land now! Don’t you dare coming back, ey! You banned for real.”
Mr. Bernard told Mrs. Woolworth he would rather go somewhere else but she convinced him to enter through the bathroom window that was broken. She had smashed it four years ago and the defendant, John Smith, the pub tender, has not repaired it since then. Even though the widow was small they managed to get in. They made their way to the bar and Mr. Bernard who knew the barmaid, Maggie Carpenter, from the previous summer, ordered a pint of ale for Mrs. Woolworth and a diet coke for him. But the pub tender John Smith, who was standing next to the bar, asked Jean René for his ID card.
Mr. Bernard tried to protest but Mrs. Carpenter showed him a sign saying “No alcohol under 18” and told him she legally had to ask him for a proof of age. Hearing this, Mrs. Woolworth tried to grab Mrs. Carpenter who threw a half empty bottle of WKD on Mrs. Woolworth’s white shirt.  She rushed to the bathroom to wipe her shirt off. When she went back from the toilets, Mr. Bernard was on the floor covered in blood. Andy, a regular, told Mrs. Woolworth that Mrs. Carpenter had shouted at him so loud that he tried to stumble out of the pub and accidentally fell over a pile of pint glasses on a table and had badly hurt him. He nearly lost his eye and told Sally that he would never come back to England. Mrs. Woolworth got very affected by the break up of their relationship.

According to the plaintiff the sight of her boyfriend lying on the ground covered in blood resulted in a post traumatic injury, which was worsened by the break up of their relationship. The result of that was that Mrs. Woolworth had to stop going to. Thus, she claims for damages to compensate both the psychiatric injury and the financial damage.

We should first ask ourselves if Mr. Smith owed a duty of care to Mrs. Woolworth. The duty of care was found in a case called Donoghue v Stevenson (1936) in which Lord Atkin stated that a person owes a duty of care to all people who are “so closely and directly affected by his/her act” and if the damage was foreseeable. Concerning the first condition, Mrs. Woolworth was Mr. Smith’s client at the Victoria Inn. Furthermore, Mr. Smith was in the bar when the accident occurred. As the owner of the pub and the manager of it, he definitely owes a duty of care to all his clients. One of his duty is to insure to his clients that the place is safe and that they can walk around without being hurt. The second criteria was developed in a case called Page v Smith (1995). In this case the Court decided that “since it was foreseeable that the plaintiff might suffer injury from the accident caused by the negligence of the driver, he owed to the victim a duty of care”. In the present case, it was foreseeable that leaving glasses all over the pub could result in an accident and it was even more foreseeable as the place was overcrowded. In a case called Caparo Industries Plc v Dickman and others (1990), a third ingredient was added: the situation must be one in which it is fair, just and reasonable to impose a duty of care. Here, we can say that it is “faire, just and reasonable” to impose a duty of care as he is the owner of the pub and therefore responsible for the security and safety of the clients. As a conclusion, we can claim that Mr. Smith owed a duty of care to Mrs. Woolworth. So if there was a breach of that duty, Mrs. Woolworth will be entitled to compensation.

We should now focus on whether or not Mrs. Woolworth is suffering from a psychiatric injury. Psychiatric injury could be defined as any type of psychiatric disease caused by an accident As it was developed in the Alcock case (1992), there are two categories of psychiatric injuries: those in which the plaintiff was involved as a participant in the incident which gave rise to the action and those in which the plaintiff witnessed  someone else being injured or the immediate aftermath of an accident. Mrs Woolworth belongs to the second category as she saw Mr. Bernard on the floor covered in blood, just after the accident occurred. As Mc Grath, expert in court, explained, Mrs. Woolworth is suffering from post traumatic stress disorder that can be defined as a sever anxiety disorder that can result from an exposure to any event that result in a psychiatric trauma. In the present case, Mrs. Woolworth’s trauma was cause by the sight of her boyfriend on the floor with blood all over his face and body. Furthermore, Mrs. Woolworth’s symptoms are those of a posttraumatic stress disorder as describes in the definition that was given by the World Health Organization.

After demonstrating that Mrs Woolworth was suffering from a psychiatric injury, we should decide whether or not she is entitled to compensation. There are two categories of victims as it was clearly exposed in Alcock case (1992): primary victims and secondary victims. In order to be granted compensation for psychiatric injury you a plaintiff must prove he comes within one of the two categories.
To be considered as a primary victim, a person must prove that he/she was involved in the accident. In the present case, we can rule out the fact that Mrs. Woolworth is primary victim. Indeed, the primary victim is Mr. Bernard as he was the one injured. Mrs. Woolworth only saw Mr. Bernard covered in blood, she was out of the accident.
The first case in which the Court decided to give compensation for psychiatric injury was in Dulieu v White and Sons (1901). In this case, a primary victim was granted compensation for a psychiatric injury that resulted in the birth of a premature child. Then, in a case called Hambrook v Stokes (1925), the Court admitted to grant compensation for psychiatric injury to a secondary victim. From then, it was commonly admitted that secondary victims could be granted compensation when they suffer from psychiatric injuries. Four criteria were developed in the case Alcock v Chief Constable of South Yorkshire (1992) that a plaintiff must fulfill if he/she wants to be granted damages: a close relationship between the victims, a geographical proximity to the accident, the injury must be cause by the sight or hearing of the accident and it must result from a sudden shock.
Concerning the first element, we must ask ourselves if there was a close relationship between Mr. Bernard and Mrs. Woolworth. The burden of proof lays on Mrs. Woolworth. The police reports and the testimonies of the victims showed that they kept up a regular correspondence between themselves which was made of letters and emails. Mr. Bernard was going to England about six times a year to see Mrs. Woolworth and there relationship had lasted two years. The lawyers for the defense invoked the fact that they are both young and don’t live in the same country which could alter their relationship and therefore they claimed that the first criteria was not fulfilled. The Court does not agree with them as it considers that the victims were old enough to hold real feelings for each other and that they were seeing each other quiet often.
About the geographical proximity to the accident, it was argued that because the plaintiff was in another room when Mr. Bernard fell on the floor the criteria was not fulfilled. Once again the Court disagrees as it considers that although the plaintiff was in the toilets when the accident occurred, the toilets were those of the pub and in the pub and therefore made one with the main room.
The third criteria, the sight or hearing of the accident was strongly debated during the trial. Indeed, Mrs. Woolworth did not see Mr. Bernard falling on the floor with glassed under him as she was in another room at this time. She saw Mr. Bernard just after the accident when he was lying on the ground covered in blood. Furthermore, the police report stated that when the accident occurred the place was overcrowded and very loud. Therefore, Mrs. Woolworth could not have heard anything. But as it was stated in Mcloughlin v O’Brian (1983), direct and immediate sight or hearing of the accident isn’t required. Injury by shock can be caused to a plaintiff not only through the sight or hearing of the event, but also of its immediate aftermath. In the Mcloughlin case, a mother who saw her husband and children badly injured at the hospital shortly after the accident was granted damages. In our case, Mrs. Woolworth didn’t see her boyfriend at the hospital in bed with doctors and nurses around him to take care of him but on the ground of a pub in Portsmouth with pieces of glass on him. Furthermore, she saw him just after he fell on a pile of pint glasses, a few seconds after. Thus, applying the Mcloughlin case, we claim that this criteria was fulfilled.
The last one requires that the injury was caused by a sudden shock. As it was required in Sion v Hampstead Health Authority (1994), it has to be one single shocking event and not a gradual accumulation of assaults on the secondary victim’s nervous system. In the present case, the Court decided that Mrs Woolworth’s injury was caused by a sudden shock. Indeed, when she came out of the toilets she was expecting to see Mr Bernard waiting for her with a pint of beer and not covered in blood. This can definitely be qualified as a sudden shock.
Therefore, for the Court, Mrs Woolworth is a secondary victim and claim for damages. Lord Akner, in the Alcock case (1992), explained, when it comes to compensate secondary victims for psychiatric injuries, the need for a close and loving relationship in term of foreseeability. If there is a particular close and loving relationship, he explained, then the defendant ought to foresee that psychiatric harm to that plaintiff is likely to follow. The court explained earlier that there was a close and loving relationship between Mr Bernard and Mrs Woolworth so we can assume that Lord Akner would agree with our decision to consider Mrs Woolworth as a secondary victim.

As a secondary victim, Mrs. Woolworth is entitled to compensation. But should she be granted compensation ? It was admitted that the general goal of compensation is to restore claimants to their pre-tort position. Moreover, the guiding principles for an award of compensatory damages is that award should repair in full the damage done by the tort.
This why, according to this principle, Mrs. Woolworth should be fully compensated for her damage. However the Court must take into account the fact that the plaintiff participated to the occurrence of the prejudice and answer the question whether or not the compensation should be reduced in such situation.
First of all, she convinced Mr. Bernard to enter the bar without authorization through the bathroom’s window that she had broken four years ago. Nevertheless, the seriousness of the act must be moderate because it cannot be qualified of a break in as the window was already broken. Indeed, a break in a usually defined as to enter premises forcibly or illegally.
Secondly, she had and argument with the barmaid and according to the witnesses she was very violent. Moreover, she insisted to stay in the Victoria Inn although things were things were not going so well. Mr. Bernard wanted to leave the bar to avoid problems but she decided that they would stay there. The Court considers that in this type of situation, a reasonable man would have left the bar and would not have assaulted the barmaid because she asked for a proof of his age.
Thirdly, the plaintiff stated during the trial that she only saw a psychiatrist once and that she was waiting for the end of the trial to go back to him. In British law, there is a fundamental principle that requires that the plaintiff must reduce her prejudice as much as he/she can, it is called mitigation. Is he/she doesn’t do so, the Court won’t compensate the part of the damage that could have been reduced. Here, as we previously said, Mrs. Woolworth did not try to reduce her psychiatric damage. For these three reasons, the Court decides that the total sums granted as compensation shall be diminished.
Finally, Mrs. Woolworth said that the break up of her relationship with Mr. Bernard worsened her trauma and therefore asked the Court to take it into account. The Court refuses to take this event into account because it considers that it is a private matter. Moreover, we may assume that a break up when we are 20 years old cannot reasonably lead to compensation.

Although Mrs. Woolworth contributed to her prejudice, we must not forget about the defendant’s behavior that night. If it is established that Mrs. Carpenter shouted at Mr. Bernard which led to his fall, Mr. Smith, as long as he is her employer, is liable for the damages caused by his employee. Furthermore, Mr. Smith had been negligent. Indeed, he was in the bar when the accident occurred but he didn’t interfere to calm down Mrs. Carpenter and Mrs. Woolworth. It is the duty of every bar tender to keep their pub secured, but Mr. Smith didn’t carry out this obligation. We shouldn’t forger that the table were dirty, full of glasses and that because the place was overcrowded the probability of an accident was quiet high.
The Court appreciates Mr. Smith’s will to respect the law concerning the limitation age. He could and he had to refuse the driving license as a valid ID but he could not refuse to serve Mr. Bernard as far as he was asking for a diet coke.

To conclude, the Court decides that Mrs. Woolworth will not be fully compensated since she contributed to her prejudice. Nevertheless, Mr. Smith will still be sentenced to pay compensation to Mrs. Woolworth as there were breaches of his duties. The Court will grant £500 to Mrs. Woolworth for a psychiatric injury but refuses to compensate the loss of her wages for all the reasons previously exposed.

Dissenting opinion of Judge Selim Boudhabhay


Having arrived at a conclusion different from that of the other judges of the Court, I shall proceed, with all the respect due to the others’ opinion, to explain the reasons upon which my own opinion was formed.

In the judgement pronounced by the Court, the first matter raised by my fellows was all about the duty of care the defendant, Mr Smith, owed to the plaintiff, Mrs Woolworth. The Court applied the Donoghue v Stevenson case, but made a mistake in its application. The second criteria needed to prove a duty of care is not fulfilled by our case: the damage was absolutely not foreseeable.
In order to prove that the accident of Mr Bernard was foreseeable, the Court claims that the pile of pint glasses left on the table “could result in an accident.” My question is the following: If a child crosses a street, falls down because of a little hole on the ground, and gets finally hit by a car, does the State owes a duty of care to anyone crossing any street? As a matter of fact, leaving the street with few holes in it could result in an accident as well!
Of course, the answer to that question is no. I would like to quote Mr Smith’s brilliant defence: “Why do people come to a pub? To drink. What do they need to drink? A glass. What do you always see when you enter a popular pub? Piles of glasses.” Leaving those glasses on the table was nothing but something completely usual for a bar tender, and should not have led the Court to the conclusion that the damage was foreseeable.
Eventually, the third condition found in the Caparo Industries Plc v Dickman and others (1990) is not performed in our case. It was raised in the Caparo case that “the situation must be one in which it is fair, just and reasonable to impose a duty of care.”
As a matter of fact, Mr Smith owes a duty of care to his usual clients. However, the situation in which the accident occurred is far from being a usual situation: it was a situation of great anger on both Mrs Woolworth and Mrs Carpenter’s sides. We may all understand that everybody was deeply confused because of the argument going on. In such a situation, I am sincerely convinced that Mr Smith did not owe a duty of care to Mr Woolworth. As a consequence, if no duty of care exists, there can be no breach of such a duty of care, and Mrs Woolworth should not have been granted compensation.

Let us now focus on the psychiatric injury itself. As the Court ruled, Mrs Woolworth is a secondary victim, and she is thus entitled to compensation. I cannot contradict with the Court’s argumentation. Applying the Alcock case (1992), Mrs Woolworth is unmistakably a secondary victim; she performs all the conditions of the test planted by the Alcock case of 1992 (see judgement page 2.)
However, we should focus on the reasons of that injury. Why did Mr Bernard, former boyfriend of the plaintiff, fell on that pile of pint glasses? Why did Mrs Woolworth see her lover covered in blood in the Victoria Inn this night? The answer to these questions is obvious: Mrs Woolworth made the accident happen! She decided to enter the pub, even though Mr O’Connor, bouncer of the Victoria Inn, forbade her to do so.
I must there again claim my discord with the court: in my opinion, Mrs Woolworth actually broke in the Victoria Inn. As my fellow judges ruled, a break in is statutory defined as as to enter premises forcibly or illegally. First of all, Mrs Woolworth used force to enter the pub: Although the window was actually broken (by the plaintiff four years earlier), the defendant put a piece of plastic to cover the hole: it means Mrs Woolworth tore down this piece of plastic; which is already a use of force.
Moreover, as she was refused the access to the pub, she definitely entered the pub illegally; she entered a land against the will of its owner.
Afterwards, Mrs Woolworth went through an argument with the barmaid, Mrs Carpenters. According to the witnesses we heard during the audience, the plaintiff started the discussion, and she first tried to grab Mr Smith’s employee; such an action consists in an assault, as defined in section 39 of the Criminal Justice Act 1988.

I then had to ask myself a question: Should someone acting in an aggressive, dangerous and illegal way be granted compensation? Should someone responsible for the accident of a third person be granted compensation on the ground of the secondary victim regime?

There is a very interesting adage in French law, which is also used in international treaty law: “nemo auditur propriam turpitudinem allegans”. This principle affirms that no one can have any kind of compensation when he was, in any manner, at the origin of the damage he suffers from. I deeply think that such an adage should have applied to our case, and Mrs Woolworth should not, in my very own opinion, have been granted compensation, even a diminished compensation.

For all these reasons, I am unable to concur in the Court’s decision which grants Mrs Woolworth £500 compensation for her psychiatric injury.

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