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!
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| The 3 Moot Court judges in 2010 |
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County Court of
Portsmouth
Judgment
Sally Woolworth v John Smith (2010)
Before
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.
