vendredi 14 novembre 2014

Defence writ - an example

Attention: the teacher thinks this is a very good paper. However, the titles are not 'legal' enough. Should you draw some inspiration from it, please find better titles!


DEFENDANT’S ARGUMENTS

 

Between:

                        Oliver Petroni                         Smith & Wilson Ltd

                                                                                  92 George Street, Portsmouth

                                                                                  Hampshire P01 2RG

 

                        Clara Gravel                                       Maureen Henry & Maryse Lhommet

                                                                                  221B Baker Street, Portsmouth

                                                                                  Hampshire P02 8AQ

 

FACTS:

            On October 15th, Ms. Clara Gravel left the St Mary’s Hospital at dawn after visiting her son in intensive care. Her son, Ashton Gravel, is suffering since his birth from meningitis and has undergone continuous treatment at the St Mary’s Hospital since then. Ms. Clara Gravel left the hospital in a hurry after spending the night there. She was worried that she would be late again for her shift at the hair salon. Her boss had already warned her that she would no longer tolerate any tardiness. Ms. Gravel could not afford to lose her job since her son’s condition requires continuous medical care. When she arrived on Spur Road, she saw a bicycle left unattended against a wall. Unfortunately, Ms. Gravel felt obligated to steal the bicycle in order to guarantee that she would arrive on time at work.

            As she was biking up the street, she heard a loud motor roar. She looked back and saw a yellow sports car racing behind her. Ms. Gravel started biking faster as she was scared of the speed at which the car was racing towards her. Ms. Gravel kept looking back frequently but she quickly realized that her life was in danger; the car was running way too fast compared to her speed and she realized that he would never be able to break safely. Ms. Gravel saw the narrow street Regal Close as an opportunity to get to safety. As she turned safely in Regal Close, she heard a crash. She looked back to see the yellow sports car rolling over and stopping against the wall. The driver airbag was deployed. She saw a man getting out of the car from the driver side. He showed no sign of injury and walked to the rear of the car. Shortly after, an ambulance arrived at the scene, taking Mr. Petroni for obligatory check ups. Ms. Gravel waited to make sure no one was hurt. She did not try to flee from the scene. A police patrol arrived a couple minutes later, arresting her without any resistance from her.

 

DISCUSSIONS:

A/ Car accident

The plaintiff argues that a duty of care is owed by our client, Ms. Gravel, concerning the car accident, which leads to the repair of damages concerning Mr. Petroni’s psychological troubles, the loss of a collection car and economic damages.

The first stage of the test to impose this duty of care is to prove that it was reasonably foreseeable. The car accident was however not reasonably foreseeable by our client Clara Gravel. Clara Gravel was committing a theft and she was judged for that. The case Langley v. Dray accepted a duty of care on someone driving a stolen car towards a policeman chasing him. The situation here is completely different. Indeed, the defendant was driving a bicycle but chased by a Lamborghini. The yellow sport’s car being racing behind her, she never made the link that the car was chasing her for the theft. The car was bright yellow, it was clear that it was not a police car. Furthermore, owners of such sports cars, often like to speed to show off the impressive motor. The neighbourhood being not a very wealthy neighbourhood, the defendant did not think that anyone in that library could be the owner of such a car. According to the Police Reform Act of 2002 part 2 section 15, the police power for arresting someone can be exerciced by police authorities, police officers or constable. The act never mentions an ordinary citizen. Besides, this power, according to the Act in the part 4, chapter 2, section 59, shall be necessary and applied with a proportionnate amount of force required by the situation. Regarding the facts, there can not be any proportion between a Lamborghini driving at 50mph and a bike. Such situation is not a chase but a hunt all the more dangerous so as the biker did not wear a helmet. Ms Gravel could not reasonably expect to be hunted by the plaintiff who had no specific right to act and chase her. Moreover, A bicycle on a hill doesn’t reach a very high speed. 

When Ms. Clara Gravel turned into the street, she was hoping to find rescue from the car and in no way to did she foresee that the car was going to follow her. She thought the reckless driver would continue to demonstrate his lust for speed by continuing on Spur Road. According to section 87 of the Road Traffic Regulation Act of 1984, chasing a thief does not exempt anyone from the imposed speed limit. Thus the plaintiff should have obeyed the speed limit, which would have prevented him from losing control of his vehicle. Also, a nationwide police gives clear guidance that bikes should not be pursued when the person does not wear a helmet because of the higher risk of injury to the rider. Therefore, it was not reasonably foreseeable for Clara Gravel that Oliver Petroni was chasing her and was trying to get to her. She clearly thought it was just another reckless driver trying to show off. She could not foresee that he would follow her in the narrow street where she tried to get to safety.

Therefore, according to the Road Safety Act of 2006 section 26, the driver hold a duty of control of his vehicule which made him responsible for the damages his car provokes. Such duty does not exist for bikers since the Act never mentions it. The accident not being reasonably foreseeable, it would be unfair regarding the disproportionnate amount of force, power, that owns a car face to a bike and the prejudice they can provoke to each other to recognize the existence of a duty of care pretendingly owed by Ms Gravel. A car, and a fortiori a Lamborghini can have a devastated impact on a bike as show us the damages provoked by the crash of the lamborghini to a wall. If such a crash had happened between the Lamborghini and the biker, the biker would have been dead.  As a result, based, on the absence of the three criterias defined by Caparo v. Dickman case of 1990, there is absolutely no duty of care of Ms. Clara Gravel towards Mr. Oliver Petroni. Thus there is no reason for Ms. Gravel to be liable for the loss of the collection car, fear of circulation or the fees due to the crash.

B/ Dog’s death

As we previously stated, the car accident was not reasonably foreseeable by Clara Gravel. The dog’s death was even less foreseeable. Ms. Gravel did not see the plaintiff get in his car neither did she see him put his small Chihuahua inside. Clara Gravel could not foresee that by turning in the narrow street she would cause a car crash that would lead to the death of a dog in the Lamborghini. Furthermore, one must think about the plaintiff’s responsibility in the death. Rule 57 if the Highway Code states: “When in a vehicle make sure dogs or other animals are suitably restrained so they cannot distract you while you are driving or injure you, or themselves, if you stop quickly. A seat belt harness, pet carrier, dog cage or dog guard are ways of restraining animals in cars. » The plaintiff has explained that the dog was sitting on the front seat. We can correctly conclude that with the haste to follow our client, Mr. Petroni did not take the time to harness his dog properly as stated in article 57 of the Highway Code.  As the consequence, the presence of the dog whithin the plaintiff's car was not reasonnably foreseeable. There was no proximity linked as defined in the Caparo v. Dickman case of 1990, since it is the plaintiff, as a driver, based on the Road Safety Act of 2006 section 26 hold a duty of controle his vehicule  and thus was responsible of his passengers. In no way, Ms Gravel was concerned. As a matter of facts, it would be neither reasonnable nor fair to confirm the pretendingly existing duty of care invoked by the plaintiff, since it would release the plaintiff from his negligence to keep the controle of his vehicule.

 

 

C/ Economic prejudice

 

According to the plaintiff the accident caused him a psychological disorder which affected his job and made him lose money. Such a consequence cannot and shall not be imputed on Ms Gravel. Indeed, the car crash was the consequence of M Petroni volenti since he willingly pushed the speed pedal of his lamborghini, driving far faster than the speed limit. The fact of driving far faster than the speed limit show us that the plaintiff accepted both the risk of a potential damage and the legal consequences of it. As a consequence, M Petroni knew by driving so fast that he ran the the risk to have an accident which could have destroyed his car, as much as he was running the risk to loose his chihuahua.

This acceptation of the risks, added to the violation by the plaintiff of his duty of controlling his car, which constitutes a fault,completely exempts Ms Gravel from any liability of any sort, as stated the Court in the case  xxxx vxxxx 2003 (deleted by teacher) Indeed, in this case the Court established that the turpitudine of the victim of the damage completely exempts anybody else from responsibility. As a conclusion, the accident was provoked by a fault of the plaintiff (violation of his duty of controlling the car, speed limit, no respect of security rules for animals ). 

Furthemore, in the case xxxxx v xxxx 2009, the Court recognized that foreseability alone was not enough to create a duty of care. But in this case, foreseability was not even proved. Moreover, the Cour stated that only “ a real and immediate risk” on  someone 's life shall constitute a breach of the article 2 of the ECHR. In this case, however, it was not the plaintiff driving in its Lamborghini who was in danger but Ms Gravel who was chased by the plaintiff at 50 mph while biking. Thus, nobody but the plaintiff shall be declared liable for the damages created by the accident.

 

CONCLUSION:

 

Considering that Ms Gravel did not owe a duty of care to the plaintiff, the consequences of the accident, that is to say the dog's death, the damaged car, and (if really existing) the psychological damages as the fear of the circulation, can not be imputed to Ms Gravel.

As a result, it is asked to the Court not to declare Ms Clara GRAVEL liable for the prejudice of Mr Oliver PETRONI.

 

 

 

lundi 10 novembre 2014

Que sont-ils devenus?... Des nouvelles des anciens de la Licence Bilingue

Une nouvelle rubrique vient d'éclore dans votre Blog!

Aujourd'hui, des nouvelles de Manon, actuellement en LLM à l'Université de Portsmouth! A quelques heures de ferry du Havre, Portsmouth est une ville dynamique, en front de mer, où il fait bon vivre! Chaque année, les L3 y font un petit pèlerinage juridique, à la rencontre des juges et avocats...

Le mot de Manon:

"J'ai en effet intégré le LLM in Law de l'Université de Portsmouth et je dois dire que j'en suis pleinement satisfaite. Les cours sont enseignés d'une façon bien différente à la France, une grande place est laissée au dialogue entre étudiants et professeurs durant les 'seminars'. Nous avons de nombreuses présentations à faire, ce qui me permet de développer mes compétences à l'oral. La vie universitaire anglaise est plus soutenue. La bibliothèque est ouverte 24/7, des lieux spécifiques existent juste pour les étudiants (l'Union), de grands événements sont organisés sur le campus (freshers' fairs). De mon point de vue, Portsmouth est une bonne ville pour étudier. La population étudiante y est dense, on peut sortir, il y a des endroits très sympas et le campus de la fac est assez impressionnant (une vraie ville dans la ville)."
 
Si comme Manon, vous voulez nous faire partager votre expérience, n'hésitez pas à nous écrire!
 
Gunnwarf Quays et la Spinnaker Tower, l'un des meilleurs endroits de Portsmouth

The Guildhall

Université de Portsmoyth: la Business School où se déroule une partie des cours de droit
 
 

mercredi 5 novembre 2014

Writ of Summons - an example


In the name of the County Court of Portsmouth

December 1st, 2011

 

Between :

 

§  Jean Arthur BOYER and his legal representatives Mr and Mrs BOYER Michel, represented by Mrs PESNEL Pauline and Mrs LAINE Ophélie (Fish & Cage LLP).

And

§  Robert ANDERSON, represented by Mr Nicolas RZEZNIK et Mr Paul VERDIER.

 

Elizabeth the second by the Grace of God of the United Kingdom of Great Britain and Nothern Ireland and of Our other Realms and Territories Queen, Head of the Commonwealth, Defender of Faith :

To : Robert Anderson
Of : Ruskin Road
Porstmouth PO4 8, UK
ENGLAND

We command you that within 14 days after the service of this writ on you, inclusive of the day of service, you do cause an appearance to be entered for you in an action at the suit of :

JEAN-ARTHUR BOYER, 3 RUE JULES SIEGFRIED, 76600 LE HAVRE

And take notice that in default of you doing so the plaintiff may proceed therein, and judgment may be given in your absence.

 

Mr BOYER’S CLAIM IS FOR:

-Damage for bodily harm,
-Damage for mental injury
-Damage for non-pecuniary damage
-Damage for financial loss (repayment of the hospital fees and the loss of chance to participate to an international bridge competition which prize was 15,000 £.

 

FACTS

 

In December 2010, our client Jean-Arthur BOYER (JA) and the Portsmouth Bridge Club headmaster Robert Anderson (Bob), began a written correspondence in order to negotiate the contract for the giving of a master-class to the Portsmouth Bridge Club. They both agreed on a salary of 50 pounds for the day. Bob added “We will look after you during your stay […] I promise”.

On 15th of January, the plaintiff arrived at Portsmouth and gave his class as it was foreseen. After the class, the defendant offered JA to join the whole team in a pub. JA came by later in the evening and was offered some drinks by Bob.

As JA is not really fluent in English he started to talk to Bob’s girlfriend, Casey who was the only French speaker and sat next to him. Bob obviously got jealous and threatened JA by grabbing his shirt and yelling “You may be my guest but if you keep chatting up my girlfriend, I’ll kill you”. As Bob was trying to kiss his girlfriend goodbye, she pushed him and he felt to the floor. When he came back up, he apparently wanted to hit Casey but hit violently JA instead. Our client smashed onto the table which consequently broke into parts and crashed on the floor. He barely managed to stand back up and immediately ask for an opportunity to lie down because he was feeling miserable.

Bob walked him to a room and laid him on the floor. He noticed that JA was passing away but just opened the window and walked away letting him alone and not caring any further about him. On top of that it was very cold outside and it was foreseeable that it was about to snow. 

He woke up completely wet and cold. Seriously wounded, disoriented and confused, the plaintiff took some time to realize what happened last night, and pull himself together. As nobody heard his cries for help and he was left back all alone he put all his forces together to call an ambulance. 

At the Portsmouth Regional Hospital, Dr Howard Jenkinson certified that JA was checked by the nurses and found in good wealth. The medical core advised him to go back home which he did. He indeed managed to take a ferry back to Le Havre but his condition got worse and worse during the journey.

As a result he was admitted to the emergency service of the Hospital of Le Havre the following day. He was diagnosed a pneumonia and 3 broken ribs and consequently stayed in his bed for four weeks and missed 3 important International Bridge Competition including one happening in Beijin with a prize of 15,000 pounds. JA had a nervous breakdown and as result became depressed. He is currently followed by a psychologist.

 

DISCUSSION

We will first examine the very source of the damage of our client that is to say the trespass inflicted by Bob to Jean-Arthur.

I.                    Trespass to the person

Strongly convinced that both assault and battery cannot be denied in our case, we will demonstrate it to our distinguished judges.

1.      Assault

Assault is defined as an act causing the claimant reasonably to apprehend that immediate physical violence would be used on him. Two elements are necessary in order for assault to be constituted: an act and a reasonable expectation of physical violence.

First of all, there is no doubt about the existence a threat. Indeed, Bob yelled at Jean-Arthur “You may be my guest but if you keep chatting up my girlfriend, I will kill you.” Such a threat is enough to constitute an assault. It has already been decided in R. v Costanza (1997).

Bob was really violent in two ways: Firstly by the way he said those insulting words. Indeed, he did not whisper it but grabbed our client and yelled at him. He, then, used violence by saying “I will kill you”.

Such violence was not justified and is still not justifiable! Indeed, why did Bob get angry? He got angry only because Jean-Arthur was innocently talking to Casey. They were probably talking about France, Paris, foods, bread and beret! Everything was clearly innocent. However, Bob saw it differently because he was clearly drunk!

The defendants argued that Bob is not a violent man. They did issue a letter on this matter in which a mother of Bob’s pupil testifies that he was a good person and that Jean-Arthur had an inappropriate behaviour during the night (see defence’s piece 4). First of all, this mother meets Bob once or twice a week and doesn’t know enough about him to bring a pertinent testimony about Bob being a nice person. Then, Jean-Arthur may have taken Casey’s hand but this clearly meant nothing to him. He is a French guy and is a more friendly and touchable person. This has been misinterpreted and is obviously the result of a CULTURE SHOCK. In addition, the reason why Jean-Arthur was talking to Casey was not because he wanted to make advances to her but only because she was the only French speaker and it was much easier for him. Indeed, Jean-Arthur arrived in the morning and had no time to get used to England and English people. As a consequence, what was seen as rudeness was in fact shyness.
We have to add to these arguments that Annie Richman did testify in a WRITTEN AND LEGAL DOCUMENT admissible in Court that “the evening of the 15th of January, I left early, before the incident happened”. In their conclusions of the trial, the defence party argued that “Annie Richman witnessed the events that happened that evening in the pub”. Is it to believe that the defendant lies? Or is it the main witness that does not say the truth. Distinguished judges, how can you accept it?

In addition, Jean-Arthur was intimated and had many reason to be. The situation was very different from the one of Thomas v National union of Mineworkers in which it was considered that there was no assault because there was police everywhere and minors were safe in the bus. Here, Bob already grabbed him by the shirt. And, he was in a pub with Bob’s friends who were also drunk and could not possibly rescue him. In fact, the only person that was supposed to help him in such a situation was Bob, the person who EXPRESSLY promised that he would take care of him (see plaintiffs’ piece 1). This same person was unable to keep his word and in addition was precisely the one putting him in a great danger.

Seeing those arguments, the Court must declare Bob liable for assault.

Now that we have proved that Bob assaulted Jean-Arthur, we will prove that he also committed battery on him.

 

B.     Battery

Battery is the intentional and direct application of force to another person. There are 3 elements to consider: Force, Direct Application and Intent.

Force as well as direct application is not to be discussed: Bob hit JA. He held his hand and hit him in the face. The shock was so violent that JA smashed onto the table which consequently broke into parts and he finally crashed on the floor. It makes no doubt that there was Force Direct application.

In some cases, the Court requires an extra-element which is Hostility. Most of the time, this is necessary in cases involving schoolboys Wilson v Pringle (1987). But, here, we can add that even though there was no intent to hit JA, the defendant had clearly no regrets (he let him lie on a floor a whole night without even worrying a little bit about what could have happened to him). He was even hostile to Jean as he assaulted him during the night.

Concerning the Intent, the defence may consider that Jean was not Bob’s target. It may be right. It may be wrong. But the result is that Jean was hit and because of it, suffered from three broken ribs (see plaintiffs’ piece 4). It would not be fair to consider that since the wrong person was hit, Bob could not be liable. In Livingstone v Ministry of Defence (1984), the House of Lords agreed with this reasoning and considered that the intent could be transferred. Meaning, that no matter if you miss your target and hit someone else: Battery is constituted.

The Defence argued that the punch did not cause the three broken ribs. We do believe, and we are sure that your distinguished judges will believe so, that it is impossible to deny that if anyone hit you and you were discovered the following day three broken ribs, there is a casual link. The punch is the only event that could have caused him this damage. He did not broke his ribs because of his alleged drunkenness : it is the result of Bob’s angriness and irresponsibility.

Let’s imagine Bob did not miss Casey and hit her with the same intensity (let’s keep in mind that Jean smashed onto the table) ; as she is a woman and thus is a little bit more delicate, she could have died! In addition, even though he has been described as “a good man”, how to explain that he intended to hit a former battered woman.

To conclude, we will reaffirm that Bob is liable for two different trespasses to the person which are ASSAULT and BATTERY. As a result, the Court must declare Bob liable for battery.

But trespass to the person is not the only source of Bob’s liability. Indeed, we also plea for Bob’s negligence to be recognized.

 

II.                 Negligence

We do thank the defence for having proved that there were a duty of care between Matthew and our client (in reality he only gave him accommodation) and between the pub and our client but what is the point with negligence? Again, they did not prove anything. Moreover, it is needed to reaffirm that in our case, we focus of Robert Anderson. Matthew, the pub or the hospital are not at stake. Two persons or more may have been negligent in one night but it does not erase the defendant’s negligence.

A.    Damage

In Portsmouth, it was certified by Dr Howard Jenkinson that “Mr BOYER said he was suffering from a pain in his back and had a sore throat”(see plaintiff’s piece 3). These two symptoms clearly correspond to the diagnostic of the Hospital of Le Havre, meaning 3 broken ribs and a pneumonia. Because of an insufficient medical check-up which shall not be further dealt with, our client had to make his way home all alone under unimaginable circumstances and with painful inner injuries. Indeed, the doctor “advised Mr BOYER to go home”( plaintiffs’ piece n°3). As the medical receipt by Dr Hakim Bensaid shows, J.A. Boyer’s pneumonia and 3 broken ribs are the cause of a fivefold medication, inter alia strong pain killer with various side effects, in order to maintain a bearable condition. It is unquestionable that J.A. Boyer’s pneumonia and his broken ribs constitute a serious harm to his health.

We can’t deny that the cause of pneumonia is the night spent in coldness. The Defence argued that the doctor only prescript antibiotics. But how can they prove it? Would the lawyers of the defence also be doctors? We do agree and accept the certificate of Dr House but what is the link between this piece and the prescription of Dr BENSAID if they cannot prove the medicine prescript are antibiotics.

Our client started playing bridge at the age of 4 and at the age of 6 he already became the youngest Bridge-champion of his generation at the inter-regional Junior Bridge Competition. As passionate as he was he dropped school at the age of 12 in order to focus on his career as bridge player. This background information explains why Dr. Laura Mauroy attested in her psychological report an impairment of emotional order as there are behavioural disorder, anxiousness and depression, being the result of an emotional shock. This emotional shock is due to what happened in Portsmouth and obliges our client to consult a psychologist regularly. Dr. Hakim Bensaid has recommended our client to stay in bed for 3 weeks at minimum to recover (see plaintiffs’ piece 4). J.A. Boyer consequently missed three important bridge competitions. The severe depression J.A. Boyer suffers from clearly result from the fact that he had to give up the participation at just mentioned competitions and finally had to give up playing bridge, being not only his hobby or passion, but actually his life

Hence, the damage resulting from Robert Anderson’s negligent behavior is not only physical, but also psychological.

 

B.     Duty of care

Furthermore it is to be examined if R. Anderson had a duty of care towards the claimant. The Caparo test applies in order to identify whether a duty of care exists. The questions that must be answered for the test are if the damage was reasonably foreseeable (i), if the relationship between the claimant and the defendant was sufficiently proximate (ii) and if it is just and reasonable to impose a duty of care (iii).

(i)                 Reasonable foreseeability

In order to confirm a negligent behavior on sides of R. Anderson the damage must have been reasonably foreseeable. As the defendant witnessed J. A Boyer pass out he knew about the severity of the victims blessings and our clients helplessness. Also the defendant who caused J. A. Boyer two broken ribs was the best to know how hard he hit the claimant and that the fact that he is feeling ill afterwards, has to lie down and passes out is a clear warning as to J.A. Boyer’s state of health.

It was foreseeable that J.A. Boyer could have suffered from internal injury and that his state of health would become worse without any medical help. As the claimant was unconscious it was also foreseeable that he couldn’t get up and close the window that R. Anderson left open and hence, it was also foreseeable that J.A. Boyer might catch a serious cold or even pneumonia, as it was the case. We have to keep in mind that it all happened in January. As a consequence it was cold outsight and it was foreseeable that it could snow at any moment.  The dangerous situation the claimant was in and let alone with made it also foreseeable to bring with it long-term effects like depression.

 

(ii)               Proximity

The defendant employed the claimant and there was such thing as a written exchange (see plaintiffs’ piece 1 and defences’ piece 1 and 2), negotiating the terms contract. However, not only the contractual basis indicates a duty of care towards the claimant.

Another reason for a responsibility towards J.A Boyer is that it was the defendant himself who had injured the claimant so bad he had to lay down and even passed out. R. Anderson was the only one witnessing the claimant passing out and hence the only one who could have taken further actions to ensure the well-being of J.A. Boyer. The defendant was fully aware of the bad state the claimant was in.

 Lastly the fundamental element constituting a duty of care towards J.A. Boyer is that R. Anderson was aware of the fact that the claimant is minor and his parents didn’t agree to the trip to Portsmouth. Namely, in a letter from December 4th J.A. Boyer in letter confessed (see defences’ piece 1), he would not tell his parents he was going to Portsmouth and that it would be kind if the host could find a hotel to stay for our client. The defendant replied in a letter on December 15th (see plaintiffs’ piece 1) that our client could stay at Matthews (one of the clubs player’s) house near the harbour, and that Matthew and R. Anderson himself will look after J.A. Boyer  during his stay there. Our client agreed in a letter from December 28th (see defences’ piece 2). The proximity was thus freely generated in the promise to take care about and look after our client.

(iii)             Reasonability and justifiability to impose a duty of care

Moreover it must be just and reasonable to impose a duty of care. It doesn’t seem unjust to impose a duty of care on someone who himself provoked the claimants bad state of health.

None the less there are also further indications in the written exchange of our client and R. Anderson as mentioned above that absolutely justify imposing a duty of care on the defendant. Not only have we got a breach of the promise to be looked after and cared about, but the exact opposite. And instead of providing our client with a safe place for the night, he was carelessly left alone in an obviously highly risky and critic constitution of health.

It is also reasonable to impose a duty of care as R. Anderson “took charge” of the claimant, witnessed his deterioration and was the only one who could actually help.

The requirements for the Caparo test are hence fulfilled and an existent duty of care is justified.

 

C.     Breach of duty

Moreover, there has to be a breach of duty which has caused the damage to the claimant. R. Anderson left J.A. Boyer all alone, lying on the floor with an open window although it was snowing outside; so our client spent a night on the floor with three broken ribs in a freezing cold and it was even uncertain if and when he was going to wake up again. The defendant also didn’t provide any help for the claimant although he was aware of the fact that he hit his guest so hard that he fell on a table, rolled on the floor, could hardly stand up again and walk, felt sick after the attack and finally passed out when he was walked to a room. R. Anderson omissions undoubtedly constitute a breach of duty.

 

D.    Causation

For R. Anderson to be held liable there must be a causational link between the claimant’s harm and the defendant’s omission. The crucial question is whether the harm would have occurred without R. Anderson’s breach of duty owed to J.A. Boyer.  Without R. Anderson’s attack J.A. Boyer would not have broken his ribs and would not have passed out. Also it is highly likely that, if R. Anderson would have called an ambulance at least when the claimant had passed out instead of leaving the claimant lying on the floor with an open window, the damage could have been reduced. Dr. Roland Hoffmann certified that it was certainly the window, left open which made J.A. Boyer catch pneumonia. It was generally foreseeable that the claimant’s condition would get worse without any further help.

 

All the required elements for the application of Tort Law are fulfilled, such as the requirements for negligence. Indications for a probable defence are not given and R. Anderson was thus negligent when letting J.A. Boyer alone.

All these events provoked damages to our client.

 

III.               Mitigation

JA is accused by the Defence of having not mitigated his damage. He, indeed, did not come back the following day to the Portsmouth hospital but does that mean that he tried to do everything possible to feel worse?

The first  reason why he did not go back to the Hospital of Le Havre for the X-Ray is that he needed to go back home because he had already paid for the trip. Is it possible to blame J.A for it? Clearly not.

Moreover, this hospital did not seem to worry about his conditions this is why it was much better to go somewhere else and find someone that won’t only check him but also make further examinations. Indeed, according to Dr Howard Jenkinson’s certificate “After examining Mr BOYER, the nurse wrote that she had not discovered anything wrong and advised Mr BOYER to go home”. If the nurse had considered an X-Ray had to be done, she would have done it immediately! As a consequence, Jean-Arthur only followed her advised and came back home. He had no reason to believe that she was wrong. Unfortunately, our client’s pain increased and became so unbearable that he decided to go to the Hospital of Le Havre where he was fully examined and discovered a pneumonia and 3 broken ribs.

In addition, the nurse invited the plaintiff to do an X-Ray the following day and even though he would have decided to go back to the Portsmouth hospital the following day, he would have probably waited a whole day. This is exactly how long he waited in order to go to the hospital of Le Havre.

Concerning the travel, defence did not succeed in proving how this trip on the ferry would have maximized his damages.

Admitting mitigation in our case would have a serious impact on our society. The fear of being opposed mitigation would lead people to call into question the diagnostic of every qualified people, preventing them consequently to do their work effectively.

 

 

 

 

IV.              Damages

As a result of Bob’s negligence, assault and battery, our client suffered many damages. Among these, we do claim a compensation for: Damage for bodily harm (A) ; Damage for mental injury (B) ; Damage for non-pecuniary damage (C) ; Damage for financial loss (D).

As the defence seems to mix up the financial situation of the Portsmouth Bridge Club which is a legal person and the person of Robert Anderson, we ask them a legal proof that he has “financial difficulties” and cannot pay for the damages he caused.

A.    Damage for bodily harm

The medical report written by Dr HOFFMAN Roland on JA’s medical conditions certified that the battery and negligence committed towards our client led, not only to serious injuries, but also to a “Incapacité Totale Temporaire” (Indeed, the causal link between the harm of our client and the acts of Bob is, as we already proved it, OBVIOUS). In other words, JA got to stay in bed for 3 weeks and got unable to undergo his activities and particularly bridge. During the whole time, he suffered from the common effects of pneumonia : Fever, Shortness of breath, Sweating, Shaking chills, Muscle pain and Fatigue. These effects were strengthened because of his three broken ribs (see plaintiffs’ piece 4). As a consequence our client could hardly breathe. These pains ought to be considered as of great importance. That is why we require the defendant to be condemned to pay 5, 000 pounds for bodily harm, strongly believing that this sum of money is not excessive.

 

B.     Damage for mental injury

As we already mentioned it, our client was fond of bridge. In fact, bridge was his mere activity, his profession. He quid all he had and particularly his studies in order to focus on his passion. When Dr Hakim BENSAID advised him to stay in bed for three weeks (plaintiffs’ piece 4), JA got an emotional shock. As a result of this whole month of inactivity, our client got severely depressed. The best proof of his depression is the simple fact that he took the decision to stop playing bridge. We also have a written proof of Dr Laura MAUROY who certified us that JA was suffering a mental injury. She precised that the origin of the harm was coming from Bob’s actions.

Today, our client is traumatised and will probably need the assistance of a psychologist forever. On these grounds, we, the plaintiff party, claim 2, 500 pounds for mental injury.

 

C.     The non-pecuniary damage

These couple of days in Portsmouth were supposed to be common: our client was to give a master class to the Portsmouth Bridge Club, to have fun with the team, to sleep at Matthew’s and then to go back home. The reality of the week-end is far from this peaceful version. It is undeniable that this gap between what should have happened and the reality created a non-pecuniary damage for which we ask 300 pounds.

 

D.    Damage for financial loss

(i)                 Hospital charges

Hopefully when our client was in England, he had his European Health Insurance Card and got reimbursed for all the health care charges of the Hospital of Portsmouth. He also got reimbursed by the Securité Sociale and his insurance company for the charges of the Hospital of Le Havre.
Concerning the ambulance, the plaintiff did not receive any bill yet. This is the reason why we ask the defendant to pay 50 pounds in case our client would have to pay for it in the future.

(ii)               Loss of chance

By staying in bed for four weeks as advised by the doctor, our client missed three bridge competitions. Among these, he was about to participate to the International Bridge Competition in Beijin where there was a 15,000 pounds prize at stake. Thus, he lost the chance to win it.

In order to recognize such a loss, there must be a causation that is to say a causal relationship between conduct and result. This causal link is obvious : Bob’s negligence, assault and battery are responsible for the convalescence of our patient and consequently for he did not take part to the competitions and lost the chance to win the money (see plaintiff’s piece 2).

Considering the precedent Chaplin v. Hicks (1911), we require the defendant to be condemned to pay 50% of the final prize of the Beijin Competition, that is to say 7, 500 pounds. We also ask the defendant party no to dare saying that our client had no chance to win without any legal proof.

 

Conclusion

It is asked to the Court that the defendant:

-          Be declared liable for trespass to the person and negligence ;

-          Be condemned to pay 18, 350£ to Mr Jean-Arthur BOYER.