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.

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