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.

 

 

 

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