There's not one document that is the Constitution. It's more or less like the IIIrd Republic. You have different principles :
the separation of powers : Parliament and Government form a sort of power entity and the judges are strictly independent
the rule of law
the sovereignity of Parliament : there was a transfer of powers from the Monarch to the Parliament. An act that is given the royal assent is the most important document.
It works very well when there's no connection with abroad. But in 1972, the UK decided finally to enter the European Union. In the 1980s, when the UK signed the Human Rights Act, the question is how to articulate those legislations ?
The UK was one of the founding country. European Convention of Human Rights was one of the achievement of the Council.
The separate Bill of rights : one concerning GB, one concerning Scotlland and one northern Ireland.
An individual can lodge a complain in Strasbourg arguing that domestic law is unconventionnal. The UK, the judgement of E court of Human rights have binding force.
HRA :
Uk is a dualist state. In UK constitutional law, it is a royal prerogative to sign and ratify international instruments. Because of separation of powers, in order to prevent the Gt having an independent law making power outside parliament, the Uk is dualist. If the UK law is supposed to be changed by international treaty, it must be ratified. Then an act of parliament must be passed.
In 1950 the UK Gt signed the convention.
But it is not binding until the state ratified the text. The ratification had not been made in 1953.
The EHRA became binding in the UK at international law. But an act of parliament is needed for the EHRA. That act was adopted in 1998.
After WW2, the Council of E was founded and was supposed to draft a convention listing rights and liberties. The ECHR was adopted. It declared civil and political rigjhts. It provides that the enjoyment of these freedom could not suffer any discrimination art 14.
art 2 to 12
Art 1 relates to private and family life and his or her correspondance
'' there shall be no interference from the auhorities....''
Sunday times v UK : the position is that the ONU shift to the state to establish legality
Any state body reaching a decision must be given discretionary rule to decide. On complex policies, the state is likely to be allowed a certain dose of appreciation.
In 1966, the Uk accepted the jurisdiction of the european court of human rights. The Uk Gt was demanded to comply with any ruling of the court of Strasbourg. But the ruling did not directly change the Uk law. It was very expensive and very long. The successive Gt had not incorporate the european convention in UK law.
There have been lots of actions against the UK. So evolutive and dynamic approach of the european convention. Even if the Uk believed that laws and state practices were incompatible with the convention
After 1966 when the Court find irrepeatedly the UK in fault, the Uk had to enact a specific bill of rights to incorporate european convention in Uk law. That was done in 1998.
T Blair decided to give the European convention greater effect to domestic law and then decided to adopt legislation. This piece of legislation was given the royal assent in november 1998.
European convention was not the only document that provided protection of the Human rights. The judges had already provided a certain level of protection. The key element, that is to say how to articulate the constitution with this document, was done mainly thanks to the european convention. Section 1 of the HRA list the ECHR that will be given full effect.
Art 1 requires that the signatory state respect theses rights within their jurisdiction
Art 13 is the right to an effective remedy before a national authority. If a right or freedom has been violated by any administration, it is possible to seek a remedy directly before a court. The UK Gt regards the HRA to be a fullfilment of this right. And then the individual may petition direclty to the court of Strasbourg. The UK Gt is required to comply with any adverse ruling in such situation
Section 2 requires that the Uk court must be bound by jurisprudence.
Section 3 will impose an obligation on the interpretation of any piece of legislation. Every public body, political institution needs to look into the possibility of compatibility or non compatibility. This duty exists for all pieces of legislation, whenever it was enacted. The judge is supposed to consider the compatibility or non compatibility.
When an interpretation is not possible, when the law is incompatible with the european convention, the highest court (house of lords) may issue a declaration of incompatibility that will be sent to the Gt who will decide whether or not legislation must be done. But the judge will not modify the law itself, otherwise, there would be a violation of separation of powers. Thanks to the HRA, we can before a local court evoke the conventional rights of the european convention.
The european convention and the treaty of Rome are very solid, very strict but also very flexible.
The Bill of rights is about trying to fing a settlement, an organization between the different institutions. The Parliament is as strong and powerful as the monarch used to be. An act of Parliament is supreme. The HRA transposes the european convention. But how can Parliament can still be supreme when it is suposed to respect a certain amount of rights and freedom ? It cannot legislate freely on certain points. It must comply with conventional rights. This is how it affects the British constitution.
The HRA is exactly the same as the european convention of human rights. The judges used to protect the rights. Now, there is this HRA. The judge used to be a strong mean to protect rights, because there was no declaration of rights. Then was drafted the european convention of human rights. You could only petition to the Court of Strasbourg to enforce your rights, before 1998, because of the absence of incorporation of this convention in UK law. Thanks to the HRA, law can be declared incompatible. You can go directly in front of the UK courts.
The HRA is organized in sections.
Section 1 lists the conventional rights that are given full effect (2 to 12 and 14). artcile 13 is not transposed because it considered the text itself creates a right to an effective recourse in front of local courts.
Art 1 : obligation to respect human rights defined in the convention. The HRA is seen as fulfilling this obligation, that is the reason why there is no transposition. A UK court must take into account, since 1998, the european convention of human rights and the case law of the Court of Strasbourg to take into account the evolution and dynamic of law. It is binding only for a specific case. The Courts in the Uk will interpret further than what it written in the convention.
Section 4 : if in a case where obviously an old act of parliament is not compatible with a conventional right, the law lords are expected to declare incompatibility of this document. They must declare incompatibility.
On parle de l'intégration d'un texte de droit européen : soit droit communautaire, soit droit conventionnel
En 1972 la GB rentre dans l'UE avec le european community Act. Pour le coté conventionnel, GB signataire en 1950. Signature, ratification et incorporation. Il faut attendre 1953 pour que tous les Etats aient signé et que le texte soit considéré comme un texte de droit international. Mais, en 1953, il n'y a pas encore eu ratification. Si l'acte d'une institution politique est pris, il s'applique dans le pays. On peut alors agir devant les juridictions locales, mais qui décrètent que la loi est ainsi. En 1998, on décide de procéder à l'incorporation de la european convention of HR dans la loi anglaise par le HRA, qui énonce des méca à respecter pour l'application du droit conventionnel et transpose en droit interne certains articles de la convention européenne.
dimanche 3 mai 2009
TRUST
The trust
It certainly is the symbol of the common law system.
I. The historical origins of the trust
Equity's and position of stringent personal obligations upon to a legal owner to hold property for the benefit of another. The consequence is that the legal owner is no longer able to treat the property as his own. He's acting for the benefit of another.
The trust is equity. The trust is a way of avoiding the common law rules. It lead to the emergence of the use that later became the trust.
Avoiding the common law to dispose of the land.
There are 2 main concepts : feudalism and tenure :
A tenant is somebody who has been vested with ownership interests by his lord. It's only interest is in the land. In exchange for the use of the land, you will have a set of duties in relation to the lord.
The land is held by the Crown. There are several tenants with different sets of right for one piece of land.
Each tenant has interests. In the feudal system, king → barons (tenants in chief) → lords (mesne lords).
The main feature for disposing the land between the highest lord and the other lords is that you could only transmit it to the oldest son.
The right of wardship was the right to manage the estate of the child until he reaches majority. The problem is that the manager took all the profit and was not obliged to give it to the child at his majority. This situation causes many problems. A person takes the benefit of a thing that does not belong to him. Common law was not protecting.
It was then decided to use equity, rather than changing the common law.
There was the emergence of the use.
To avoid all those trights and duties linked to the land, the tenant A will convey his property to people (X, Y and Z) as co-owners, for the benefit of use by B. It is a conditional conveyance. The condition is that X, Y and Z manage the land for somebody else. The people benefiting for the use could be other children, daughters... But for the common law, they don't exist. The common law only know the first transfer to X, Y and Z. If you have a problem, you must go to equity courts.
X, Y and Z are called the trustees or usees who hold legal ownership for B. At common law, exist but in equity, exist to the condition of.... This condition is to benefit B.
A is the settlor who gives legal ownership to the usees.
B has equitable interests/ownership but he does not exist at common law.
From the use to the trust :
Henry VIII needed money because of the war. But he could not obtain the money he owns as feudal lord because of his tenants resorting to uses. Some people were benefiting from the land he originally owned. He could not reached them because at common law they did not exist. He went to Parliament to enact the Statue of Uses in 1535 : the use was treated as a conveyance of land and B is treated as X, Y and Z. The statute didn't allow for B to remain unknown to common law. Therefore, B has to pay taxes and have duties. The statute in practice abolished the use. But people did not really appreciate this situation.
The Equity court said that the use was forbidden but they just had to create the same mechanism under another name. The responsa in Equity was the trust.
II. The structure of the trust
The parties at trust :
There are several possibilities. Trust gives right to equitble rights or interests (equitable title). It is still opposed to the legal title e.g the common law title.
- A (settlor) can become the trustee for some people who are the beneficiaires (B and C). B and C are the equitable owners.
- A (settlor) can leave to B (trustee) the legal title for B and C (beneficiaries) to hold equitable interest.
- A (settlor) can trust B (trustee) but instead of having other persons as beneficiaries, he is the beneficiary. The interest is that if A dies, B will manage the property for the heirs that won't have to pay taxes and will have no duties because they do not exist at common law.
The only thing that cannot exist is A cannot trust A for A being the beneficiary.
What the trust is not :
The trust is not a legal person. The trustee acts on his own name, not as an agent for the trust as if the trust were legal person. (le trust n'est pas une PM).
Beneficiaries have limited liability, like shareholders. If the trust goes bankrupt, creditors cannot recover the money by suing the beneficiaries. At common law, the beneficiaries do not exist.
The trust can be used for business transactions or personal transactions.
However, the trust relationship can run in parallel to an agency relationship (mandat). They are both fiduciary obligations.
It is not a will, or donation under condition.
It is not a stipulation pour autrui as the latter is a contract. Trust is not contractual because contracts fall under the common law.
It is not a bailment (dépôt) because the person who loans the good retains his property rights whereas the settlor loses all property rights. Moreover, the bailment falls also under the common law.
The trust is not something definite.
III. The legal rules : powers and duties
The trustee's duties :
General obligations :
Duty of care : « he must exercise such care and skill as is reasonable in the circumstances, having regard in particular ». Equity is about maintening care. This is a natural obligation.
The inflexible rule : the trustee cannot brech that rule, otherwise, he engages his responsability. He cannot receive any benefit from his position as a trustee. Duty not to purchase the trust property for himself.
Specific obligations :
Duty to invest : « trustees acting honeslty with ordinary prudence and within the limits of their trusts are not liable for mere errors of jugdments ».
Duty to distribute
Obligations toward the beneficiary : to guarantee equality between the beneficiaries and to present account of everything done.
The trustee's powers
Powers are discretionnary.
Power to delegate, to insure the goods and the property, power to sell (granted later on), power to manage, power to mortgage, power of maintenance, power of advancement.
The beneficiary's rights
He only exists at equity.
Right to control the trustee, to challenge the care and the way the trustee manages the property. Right to revoke or modify the trust terms.
Right to follow the trust's property. If the trustee was selling the land, the beneficiary can follow the land, and the new owner can be hold the property for the beneficiary.
But there is an exception : equity darling's : the new owner is in good faith. He did not know there was a trust. You cannot be found liable and the beneficiary loses everything. He may go against the trustee but no against the new owner.
IV. Consequences : the concept of property
A linear system, an accordionist system, the absence of concept of '' droit subjectif ''
The linear system :
The trustee has two ''patrimoines'' in terms of French law : the one he owns and the one he receive has the trustee.
Notion of tenure and title : even if you have a transmission to different persons, the beneficairy can use the trust to divide it.
An accordionist system :
It is a very flexible system : it can involves only 2 people or many people.
Legal ownership of the trustee is the fructus and the part of abusus (right to dispose but not to destroy).
Equitable ownership : usus
Legal and equitable titles are different normally. But the term '' equitable title '' does not cover a set range of duties and rights.
Equitable ownership can thus amount to legal ownership. The beneficiary can have so much powers. The aim is always the same : ginving to the beneficiary what he cannot get at common law.
V. Basic rules of Land law
The trust is at the basis of land law.
If gives co ownership : you got two forms of co ownership : joint tenancy or tenancy in common.
Joint tenancy :
Each co owner is entitled to the whole : there are no shares. There is only one title, jointly owned. It gives the right to survivorship. Title vests in survivors automatically, regardless of any will.
Tenancy in common :
There are individed shares : there are shares but they have not been divided up amongst those entitled. No right of survivorship. This means that such a share may be passed on by a will.
The rights are completely different in terms of inheritance.
Legal title :
The legal estate (owned by the trustee) can only be held on a joint tenancy. The legal estate may not be held by more than four persons (except for charities).
Equitable interests can be held either on a joint tenancy or a tenancy in common. A minor cannot hold legal title.
There may be any number of equitable owners. Even one trustee may hold on trust for several equitable co-owners.
Creation od co-ownership :
Express trust : the trust is intentionnally set up for a land and is in writing. But sometimes, people do not put in wrinting the trust : there is then an implied trust.
Implied trust, resulting trust : the court presumes that the person does not put money into a property without the intention to get a share. Presumption of advancement (gift) does not work. But it has limits. If you do not manage to prove you put more money than the others, you only get a share that correspond to the money you gave.
Implied trust as a contructive trust : arises where it would be unconscionable for a legal owner to deny the beneficial interest of another. The courts will not decide the share according to amount of money put into buying or improving the property but according to what the courts deem fair.
It certainly is the symbol of the common law system.
I. The historical origins of the trust
Equity's and position of stringent personal obligations upon to a legal owner to hold property for the benefit of another. The consequence is that the legal owner is no longer able to treat the property as his own. He's acting for the benefit of another.
The trust is equity. The trust is a way of avoiding the common law rules. It lead to the emergence of the use that later became the trust.
Avoiding the common law to dispose of the land.
There are 2 main concepts : feudalism and tenure :
A tenant is somebody who has been vested with ownership interests by his lord. It's only interest is in the land. In exchange for the use of the land, you will have a set of duties in relation to the lord.
The land is held by the Crown. There are several tenants with different sets of right for one piece of land.
Each tenant has interests. In the feudal system, king → barons (tenants in chief) → lords (mesne lords).
The main feature for disposing the land between the highest lord and the other lords is that you could only transmit it to the oldest son.
The right of wardship was the right to manage the estate of the child until he reaches majority. The problem is that the manager took all the profit and was not obliged to give it to the child at his majority. This situation causes many problems. A person takes the benefit of a thing that does not belong to him. Common law was not protecting.
It was then decided to use equity, rather than changing the common law.
There was the emergence of the use.
To avoid all those trights and duties linked to the land, the tenant A will convey his property to people (X, Y and Z) as co-owners, for the benefit of use by B. It is a conditional conveyance. The condition is that X, Y and Z manage the land for somebody else. The people benefiting for the use could be other children, daughters... But for the common law, they don't exist. The common law only know the first transfer to X, Y and Z. If you have a problem, you must go to equity courts.
X, Y and Z are called the trustees or usees who hold legal ownership for B. At common law, exist but in equity, exist to the condition of.... This condition is to benefit B.
A is the settlor who gives legal ownership to the usees.
B has equitable interests/ownership but he does not exist at common law.
From the use to the trust :
Henry VIII needed money because of the war. But he could not obtain the money he owns as feudal lord because of his tenants resorting to uses. Some people were benefiting from the land he originally owned. He could not reached them because at common law they did not exist. He went to Parliament to enact the Statue of Uses in 1535 : the use was treated as a conveyance of land and B is treated as X, Y and Z. The statute didn't allow for B to remain unknown to common law. Therefore, B has to pay taxes and have duties. The statute in practice abolished the use. But people did not really appreciate this situation.
The Equity court said that the use was forbidden but they just had to create the same mechanism under another name. The responsa in Equity was the trust.
II. The structure of the trust
The parties at trust :
There are several possibilities. Trust gives right to equitble rights or interests (equitable title). It is still opposed to the legal title e.g the common law title.
- A (settlor) can become the trustee for some people who are the beneficiaires (B and C). B and C are the equitable owners.
- A (settlor) can leave to B (trustee) the legal title for B and C (beneficiaries) to hold equitable interest.
- A (settlor) can trust B (trustee) but instead of having other persons as beneficiaries, he is the beneficiary. The interest is that if A dies, B will manage the property for the heirs that won't have to pay taxes and will have no duties because they do not exist at common law.
The only thing that cannot exist is A cannot trust A for A being the beneficiary.
What the trust is not :
The trust is not a legal person. The trustee acts on his own name, not as an agent for the trust as if the trust were legal person. (le trust n'est pas une PM).
Beneficiaries have limited liability, like shareholders. If the trust goes bankrupt, creditors cannot recover the money by suing the beneficiaries. At common law, the beneficiaries do not exist.
The trust can be used for business transactions or personal transactions.
However, the trust relationship can run in parallel to an agency relationship (mandat). They are both fiduciary obligations.
It is not a will, or donation under condition.
It is not a stipulation pour autrui as the latter is a contract. Trust is not contractual because contracts fall under the common law.
It is not a bailment (dépôt) because the person who loans the good retains his property rights whereas the settlor loses all property rights. Moreover, the bailment falls also under the common law.
The trust is not something definite.
III. The legal rules : powers and duties
The trustee's duties :
General obligations :
Duty of care : « he must exercise such care and skill as is reasonable in the circumstances, having regard in particular ». Equity is about maintening care. This is a natural obligation.
The inflexible rule : the trustee cannot brech that rule, otherwise, he engages his responsability. He cannot receive any benefit from his position as a trustee. Duty not to purchase the trust property for himself.
Specific obligations :
Duty to invest : « trustees acting honeslty with ordinary prudence and within the limits of their trusts are not liable for mere errors of jugdments ».
Duty to distribute
Obligations toward the beneficiary : to guarantee equality between the beneficiaries and to present account of everything done.
The trustee's powers
Powers are discretionnary.
Power to delegate, to insure the goods and the property, power to sell (granted later on), power to manage, power to mortgage, power of maintenance, power of advancement.
The beneficiary's rights
He only exists at equity.
Right to control the trustee, to challenge the care and the way the trustee manages the property. Right to revoke or modify the trust terms.
Right to follow the trust's property. If the trustee was selling the land, the beneficiary can follow the land, and the new owner can be hold the property for the beneficiary.
But there is an exception : equity darling's : the new owner is in good faith. He did not know there was a trust. You cannot be found liable and the beneficiary loses everything. He may go against the trustee but no against the new owner.
IV. Consequences : the concept of property
A linear system, an accordionist system, the absence of concept of '' droit subjectif ''
The linear system :
The trustee has two ''patrimoines'' in terms of French law : the one he owns and the one he receive has the trustee.
Notion of tenure and title : even if you have a transmission to different persons, the beneficairy can use the trust to divide it.
An accordionist system :
It is a very flexible system : it can involves only 2 people or many people.
Legal ownership of the trustee is the fructus and the part of abusus (right to dispose but not to destroy).
Equitable ownership : usus
Legal and equitable titles are different normally. But the term '' equitable title '' does not cover a set range of duties and rights.
Equitable ownership can thus amount to legal ownership. The beneficiary can have so much powers. The aim is always the same : ginving to the beneficiary what he cannot get at common law.
V. Basic rules of Land law
The trust is at the basis of land law.
If gives co ownership : you got two forms of co ownership : joint tenancy or tenancy in common.
Joint tenancy :
Each co owner is entitled to the whole : there are no shares. There is only one title, jointly owned. It gives the right to survivorship. Title vests in survivors automatically, regardless of any will.
Tenancy in common :
There are individed shares : there are shares but they have not been divided up amongst those entitled. No right of survivorship. This means that such a share may be passed on by a will.
The rights are completely different in terms of inheritance.
Legal title :
The legal estate (owned by the trustee) can only be held on a joint tenancy. The legal estate may not be held by more than four persons (except for charities).
Equitable interests can be held either on a joint tenancy or a tenancy in common. A minor cannot hold legal title.
There may be any number of equitable owners. Even one trustee may hold on trust for several equitable co-owners.
Creation od co-ownership :
Express trust : the trust is intentionnally set up for a land and is in writing. But sometimes, people do not put in wrinting the trust : there is then an implied trust.
Implied trust, resulting trust : the court presumes that the person does not put money into a property without the intention to get a share. Presumption of advancement (gift) does not work. But it has limits. If you do not manage to prove you put more money than the others, you only get a share that correspond to the money you gave.
Implied trust as a contructive trust : arises where it would be unconscionable for a legal owner to deny the beneficial interest of another. The courts will not decide the share according to amount of money put into buying or improving the property but according to what the courts deem fair.
Cours DU
Outlines on Tort Law (= responsabilité délictuelle)
Tort law :
- No distinction between public and private law (Responsabilité délictuelle/administrative) : comparative law.
- Most important part of « private law » : importance of the writs. For example in contract law, no writs at the beginning, but many solutions are inspirated by tort law : for example, in case of non-performance (= non exécution) of the contract, the judge give damages as in tort law. Tort law is the very beginning of « droits des obligations »
- Connection between the fact and the legal answer.
Chapter 1: Introduction to the law of tort
Section 1: Origin of torts
- Common law: vs Equity
- Case law (=jurisprudence) = judge-make law
- Writ of trespass: allowed the victim of a wrong to summon the tortfeassor i. e. the person who committed the tort to appear before the Royal Court.
- Trespass: a direct and forcible injury i. e. Peter hits John with a wooden stick. Trespass is only connected with physical or material injury or damages. But what happended if your damage is not material or physical, for example a moral or emotional damage ?
The Courts extended this writ of trespass to other situations and invented new actions by analogy : tresspass on the case
- Invention of a new cause of action: trespass on the case (extension of an existing writ)
- most modern torts developed from trespass on the case.
- Case by case basis. Courts or legislature may always create new torts. There is a big difference with French tort law : art 1382 of the Civil Code is a general principle in France whereas in English law, tort law has developed on a case by case basis, a catalogue of different torts and not with a general principle. Sometimes, solutions are the same, but not with the same way. There is a more liberal view of liability in England.
Section 2: Definition
I- Defining tort law :
- A tort is a legal wrong. Not the « faute » as in France : the basis is not the same.
- Law of torts defines the obligations imposed on members of society and provides for compensation for harms caused by breach of those obligations. It’s a modern definition of the law of tort= « obligations ».
II- Interests protected by the law of tort :
1) Intentional invasion of personal and proprietary interests : connected with the writ of trespass.
2) Interests in economic relations, business and trading interest
3) Interests in intellectual property: = confidential information : copy rights and patents (brevet): much of the law is statutory law: acts from legislation; no case law, just interpretation of statutes.
4) Negligent interference with personal, proprietary and economic interests: emotional damage for example. Very famous decision : Donoghue Vs Stevenson 1932 : The tort of negligence was developedto several interests on parsonal safety. The boundery (= frontière) between economic loss and material damage is problematic.
5) Further protection of personal and proprietary interests
6) Reputation: tort of defamation.
7) Due process (= procès équitable) :In the European Human Rights Convention : Right to protection from abuses of the judicial process.
8) Convention rights: = Consequences of the European Human Rights Convention (EHRC) 1998 : a question arose : to know whether the principles developed by the Common Law offered adequate coverage of convention rights ?
Victoria Beckam and Britney Spears or Nicolas Sarkozy and Carla Bruni: Protection of privacy : no tort in English law ; art 9 of Civil Code in France.
Introduction of the EHRC in the English system : Article 8 : create a protection of privacy. England had to create a new law; not just modify because this law doesn't exist.
Some Englsh Academics (doctrine) thing that the EHRC will be a crucial development of Tort Law.
9) European Union law (1973): another revolution for English lawyers. New tort, new possibility to get compensation, because the creators of the European Union were only in a civil law system. Real legal revolution: UK joins UE in 1973: if a state breach the European law, a citizen can ask for a compensation before the ECJ or a national court (ex : Factor Tame Case).
Influence of the European Union on English Tort Law.
Chapter 2: general principles of the law of tort
Section 1: An overview of the law of tort :
Two important things : liability and causal connection.
I- Liability :
-Existence of a legal obligation or a legal duty
-Intention is irrelevant: intention is not important, what is important: to see an obligation
-Central idea: to commit a wrong because there is a breach of a legal obligation or duty. But also the vistim has to suffer from the wrong : a damage is necesary : cf causal connection.
-Vicarious liability: ex : liability of a corporate body for the tortIous acts of their employees. (= liable even if you have not commited yourself the wrong)
II- Causal connection :
-A sufficient connection between the defendant's conduct (= the wrong) and the claimant's damage. The Courts elaborated the tests reguarding legal connection :
-Existence of two different tests :
-directness test (Re Polemis 1921):
Some workers employed by the defendants to work on a ship negligently caused a piece of metal to fall into the hold (=cale) of the ship, which contained barrels of petrol.
The piece of metal when falling ignited (=ignifuge càd qui protège du feu) the petrol vapour that was in the hold, causing a fire which destroyed the ship.
The Court of Appeal held the defendants liable for the loss of the ship because it was direct consequence of the negligent act of their employees.
-reasonable foresight test (Wagon Mound 1961):
The defendants carelessly discharged oil from their ship into Sydney Harbour. Hours after the ship had left the harbour, the oil was carried by wind and tide(=marée) beneath the plaintiff’s wharf.
Three days later, as some workers were doing some welding (=soudure) work on the wharf, some cotton waste under the wharf took fire and caused great damage.
The Judicial Committee of the Privy Council (It’s a part of House of Lords which look cases from Commonwealth countries :Australia: not anymore) held that the defendants were not liable because they could not have reasonably foreseen that the plaintiff wharf would be damaged by fire when they carelessly discharged oil into the harbour.
There was no direct connection, the judges didn’t apply the directness test. They create a new test: The JCPC held that the defendant is not liable because they couldn’t have reasonably foreseen that the plaintiff wharf would be damaged by the fire when they carelessly discharged oil into the harbor.
The reasonable foresight test has been prefered to the directness test ans it is now use by the Courts.
III- General defences to actions in tort:
- self defense
- statutory authority: example: doctor: secret: HIV: the doctor can inform the future wife because there is a statute for that ; you can invique a statute : patents or copyrights.
- assumption of risk = acceptation du risque. ex : Jackass: no compensation because of suffering
- inevitable accident: ex : a suicide under a train: the family can't ask for damages.
- the contributory negligence of the victim partly exonerates the defendant: if you do something which contributes to the damage: no compensation.
Section 2: Negligence :
- There are four components to prove to establish negligence.
The claimant was owed a duty of care
There was a breach of that duty of care
The claimant suffered damage as a result of that breach (causation)
The damage suffered was not too remote
- Legal burden (= charge de la prevue) of proving each of these elements falls upon the claimant.
Sub-section 1: Duty of care :
It is the obligation to take proper care to avoid causing injury to someone else.
There are two ways in which a duty of care may be established
- The defendant and claimant are within one of the « special relationships »
- Outside of these relationships, principles developed by case law define if such a duty of care exists
- Eventually the existence of a duty of care suggests that it mat exist a liability for failing to act.
I- Existence of special relationships :
There are a number of situations in which the courts recognize the existence of a duty of care:
-One road-user to another
-Employer to employee
-Manufacturer to consumer (see Donoghue v. Stevenson)
-doctor to patient
-solicitor to client
II- The neighbour principle :
Founded, created by this decision in 1932.
Donoghue Vs Stevenson :
Facts :
Mrs Donoghue and a friend visited a café. Mrs Donoghue’s friend bought her a bottle of
ginger beer. The bottle was made of opaque glass. When filling Mrs Donoghue’s glass, the
remains of a decomposed snail – which had somehow found its way into the bottle at the
factory – floated out. Mrs Donoghue developed gastroenteritis as a result.
Since Mrs Donoghue had not bought the bottle of ginger beer herself she could not make a
claim in contract upon breach of warranty. She therefore brought an action against the
manufacturer of the ginger beer. The House of Lords had to decide whether a duty of care
existed as a matter of law.
Legal principle: the manufacturer owed duty to take care that the bottle did not contain foreign bodies which could cause her personal harm.
Lord Buckmaster:
- It was impossible to accept such a wide proposition and it was difficult to see how trade could be carried or if it were the law.
- No logical reason why such a law would be restricted to manufacturers of food.
- If a duty of care existed it seemed to him that it must cover the construction of every article: ‘if one step why not fifty?”.
Lord Atkin :
-There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ... The rule that you are to love your neighbour becomes in law : you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply.
- You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.
http://www.youtube.com/Watch?v=zWia3GCzyLQ
Lord Atkin’s opinion was supported by Lords Thankerton and MacMillan and opposed by Lord Tomline who supported Lord Buckmaster’s view.
Several opinions, different Lords. One of them established a principle: page 13, 19, 27, and 28.
-Lord Atkin. He thinks there is no duty of care. He refers to another case of a sale of a noxious hair wash: but not exactly the same. Obiter dicta of a judge. §6 page 18: criticize: to find existence a duty of care. Can’t find an existence because it’s not a contractual relationship. Duty in business. He starts to discuss all cases similar. He doesn’t agree to find a duty of care. It’s would be too expensive for business. Page 19: discusses other cases but he’s interpreting them differently:
-Georges v Skivington: pager 21: he founds a basis to establish a duty of care: the problem is common to all the cases where liability is established: based on elements presents in those cases. If such a duty exists, it must be bases upon on elements common to all the cases.
-Lord Atkin will find this basis: he answers to the precedent. He finds a legal principle: page 19 §2: find the existence of a principle but a judge is not supposed to give a definition of a principle. It’s beyond their function. He used the bible: Christian principal: if a duty of care exists is because we have to take care of our neighbour: foreseeing to be responsible of what we have done. Reasonable foreseebility.
-Lord Buckmaster: he doesn’t support that the duty of care exists. He refers to several cases. He mentions a very important case: Georges: noxious hair wash. The husband bought the hair wash for his wife = very similar. The claim is made by a person who didn’t bought the shampoo; but Lord B thinks there was a throat: the case was not similar.
-Lord Atkin thinks that duty of care exists in that situation; he discusses the other cases; he refers also to Georges: if such a duty exists it must logically be based upon element common to cases where it is found to exist.
LORD ATKIN: principle (ratio decidendi): the rule that “you have to love your neighbour” becomes in law “you must not injure your neighbour”. The lawyer’s question is: who is my neighbour? It’s the person who could be injury. It’s based on the principle of reasonable forseeability : you must take reasonable care to avoid acts or omissions which you can, reasonably foresee, would be likely to injure your neighbour.
NB : we cannot know where is the plrinciple in the decision, we only know that when judges used that principle as a precedent.
The existence of the duty of care is determined by the Neighbour principle:
Problem : it’s a very wide principle : The category of neighbour is never closed. The Neighbour principle is not limited in its application : categories of negligence are never closed.. We can find a duty of care in any situation if we can proof that foreseeability.
Courts can aloso fond new ctegories of negligences. The interest depends on the public policy.
The principle was redefined in Caparo Industries plc(= public limited company) v. Dickman (1990).
Facts: The case considered the liability of an auditor for financial loss suffered by investors. However, it also set out the three points which a court must consider to establish whether a duty of care exists.
Legal principle: the three points are :
-reasonable foresight of harm (cf : Donoghue)
-sufficient proximity of relationship (not in Donoghue : it’s an added condition)
-it is fair, just and reasonable to impose a duty (not in Donoghue : it’s an added condition)
the legal principle is now more precise thanks to the two added conditions.
Donoghue v. Stevenson Caparo Industries plc v. Dickman
➢ Avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour
➢ Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question
➢ Reasonable foresight of harm
➢ Sufficient proximity of relationship
➢ Fair, just and reasonable to impose a duty
III- Liability for failing to act :
-No duty to the world to take positive action to prevent harm (no legal obligation to intervene in English law)
BUT -if you do intervene, however, you are still not liable in negligence, unless you make matters worse: East Suffolk Rivers Catchment Board v. Kent and another (1940).
Ex: girl on Bridge which will commit suicide: no obligationto intervene but if you do so : liable if you make matters worse: ex: break her leg.
There is no discussion on causation, no discussion on the existence of a duty of care (different approacges of civil lawers and common lawers : in France, we don’t refer to the duty of care).
Exceptions :Existence of special protections :
- Courts have the flexibility to take public policy considerations into account.
- Possibility for the courts to protect certain classes of defendant from liability in negligence:
- Police, rescuers and public authorities: ex :prison officer and prisoners; employer to employee
No general duty of care owed by the police to any individual. It was held instead that the duty to the police is the public at large : Hill v. Chief Constable of West Yorkshire 1989 : Yorkshire Ripper (éventreur) Case. The mothers of 13 victims wanted the police to be found liable because The police could not prevent the kills. They have a duty of care to the public at large; not individual. (seulement une obligation de moyen pas de résultat)
Approach extended to the fire service (Capital and Counties plc v. Hampshire County Council 1997) and the coastguard (OLL Ltd v. Secretary of state for Transport 1997). All these public services have duty of care at public at large only.
- Unborn children :
Burton v. Islington Health Authority 1992: a duty of care is owed to an unborn child which becomes actionable on birth (different from France).
Only applicable to persons born prior to 22 July 1976 when the Congenital Disabilities (civil liability) act 1976 come into force.
Congenital disabilities act 1976:(civil action for damages, no criminal action) the right of a child born disabled is distinct from the right of a mother to bring civil action for damages in respect of that disability.
Extended to pre-conception torts, where the mother is harmed prior to conceiving and the harm suffered affects the health of the baby birth. ( Before the pregnantcy :ex: Roaccutane).
Mckay v. essex Health Authority 1932 : the Common Law recognises no right for wrongful life (= réparation de la vie handicapée : cf arrêt Perruche in France)
McFarlane v Tayside Health Board 1999: claims in respect of financial costs of bringing up a healthy child born as a consequence of a negligent performance of a sterilisation are not recoverable. They refused to say that the damage is the child. No compensation for that, no claim for compensation of that.
Sub-section 2: Breach of duty : (= manquement à l’ogligation de diligence)
Definition : there is a breach of duty when the defendant has not come up to the standard of duty required by law.
To summarize, there is a breach of duty when:
-There was reasonable foresight of harm
-There was sufficient proximity or relationship
-It was fair, just and reasonable to impose a duty
-and the defendant fell below the required standard of care (=devoir de diligence).
-Standard of care: essential element of breach of duty (the same for everyone).
-Test of the reasonable person
-Existence of some situations in which the courts need to apply a different standard (standard for different catagories of people)
-When determining the standard of care, the courts will take all the circumstances of the case into account
-Breach of duty has to be proved (burden of proof= charge de la preuve : the victim).
I- Standard of care :
Existence of a breach of duty :
➢ There was reasonable foresight of harm
➢ There was sufficient proximity or relationship
➢ It was fair, just and reasonable to impose a duty
➢ The defendant fell below the required standard of care :
Leading case : Blyth v. Birmingham Waterworks (1856) :
Facts: A wooden plug( = bouchon en bois) in a water main (=canalisation) become loose (=deserré) in a severe frost. The plug led to a pipe(=conduit) which in turn went up to the street. However, this pipe was blocked with ice, and the waterinstead flooded the claimant’s house. The claimant sued in negligence.
Legal principle: Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
Standard= reasonable man here. It’s very broad or wide.
To summarize: The standard of care is linked to the conduct of the defendant end this conduct will be measured against that of the reasonable person.
Characteristics of a reasonable person:
- Hall v. Brooklands Auto-Racing Club 1933:
- the man in the street; or
- the man on the Clapham (the average class was leaving there) omnibus; or
- the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves. (= l’homme qui ramène à la maison ses magazines sous son brad et qui tond sa pelouse le soir, en bras de chemise)
It’s an average man, educated but not to much : he is not perfect.
It’s a key concept in english tort law. It is an objective concept or approach, not subjective, even if there are special cases of tort.
- Objective test :
the general question is « what would a reasonable person have foreseen in this particular situation » ? Rather than “what did this particular defendant foresee in this particular situation”?
They like objective test, not subjective test. To unpredictable (imprévisible).
II- Special standards of care :
The courts apply a different standard from that of the reasonable person :
-where the defendant has a particular skill (= competences)
- where the defendant has a particular lack of skill
-where the defendant is a child
-where the defendant is competing in or watching a sporting event.
A- Skilled or professional defendants :
-The standard of care applied to professionals with a particular skill or expertise in that of the reasonable person with the same skill or expertise.
Bolam v. Friern Hospital Management committee 1957 :
Facts: The claimant underwent a course of electro-convulsive therapy in hospital as treatment for severe depression.
This involves the application of electrical current tot the patient’s head with the aim of causing seizures.
The doctor failed to provide the claimant with any muscle relaxants or restraints (=attaché). The claimant suffered dislocation of both hip joints with fracture of the pelvis on each side. The court had to decide whether it was negligent not to provide relaxants or restraints.
Legal principle: The standard of care for doctors is the “standard of the ordinary man exercising and professing to have that special skill”.
There were conflicting views from practitioners on the use of relaxants and restraints.
Held that the doctor treating the claimant had acted in accordance “with a competent body of medical opinion and was therefore not negligent”.
The Bolam test has also been held to apply to other professionals in general
-Auctioneers : Luxmoore-May v. messenger May Baverstock, 1990
-Double glazing window designers : Adams v. Rhymney Valley DC, 2000.
The Bolam test has been criticised: too protective of professionals.
The House of Lords clarified the situation in Bolitho v. City and Hackney Health Authority 1997 :
Facts: the claimant suffered brain damage as a result of a doctor’s failure to attend to clear a child’s blocked airways by intubation.
There was a difference of medical opinion as to whether intubation was necessary in the particular circumstances.
Legal principle: A doctor can be liable in negligence despite the presence of a body medical opinion in favour of his action if it can be demonstrated that the professional opinion is not capable of withstanding logical analysis. (ne pas resister à une analyse logique);
It is however very difficult to prove professional negligence where there is a body of opinion which agrees that the defendant has followed an accepted practice.
B- Unskilled defendants :
-The general standard of care in negligence is an objective test, judged against the standards of the reasonable person. This means that no allowance is made for the inexperience or lack of skill of the defendant.
-Nettleship v. Weston 1971 :
Facts: a learner driver crashed into a lamp post and injured her instructor.
Legal principle: the driver was liable despite her inexperience. The standard of care required of all motorists is the same: that of the reasonably competent driver.
-the same principle has been held to apply in relation to junior doctors. There are required to reach the standard of the reasonable competent doctor of the same rank. (Wilsher v. Essex Area Health Authority, 1986)
-Where persons undertake an activity requiring specialist skills, there are required to reach the standard of a person reasonably competent in that skill.
This was already stated in Welles v. Cooper, 1958.
C- Children :
-Required to reach the standard of care reasonably expected of ordinary children of the same age.
Mullins v. Richards, 1998:
Facts: Two 15-years-old schoolgirls were fencing with plastic rulers during a class when one of the rulers snapped and fragment of plastic caused one of them to lose all useful sight in one eye.
Legal principle: the question is whether an ordinary, prudent and reasonable 15-years-old schoolgirl in the defendant’s situation would have realized as such: not found liable.
Sometimes children are judged like adult according to circumstances. (1384 al 1: responsabilité du fait des choses et des personnes, en France: n’existe pas en GB).
D- Sporting events :
Spectators and competitors in sporting events may be owed a lower standard of care than the general standard.
Woolridge v. Summer 1963 :
Facts: An experienced rider at an equestrian event galloped his horse around a corner so quickly that the horse went out of control, plunged off the track and injured a photographer in the ensuing chaos.
Legal principle: held to be an « error of judgment » on the part of the rider rather than actionable negligence: the duty of care would only be breached where a competitor demonstrated a « reckless disregard » for the safety of the spectator.
-football match : Smoldon v. Whitworth and Nolan, 1997:the referee (arbitre): he ought a duty of care to the participants. In colts rugby union match the referee was find liable for very serious injuries, because of a collapsed scrum (mêlée): prohibition of collapsed scrum. Liable because the standard of care applied to him: special standard of care as a reasonable skilled referee, he should have required the players to form and defined sequence of crouch (pencher) touch, pause, engage.
III- Other relevant factors :
➢ A. Magnitude of risk : the risk is higher in a situation than in another.
➢ B. Cost and practicability of precautions : you should take precautions to avoid an accident, but sometimes the cost is too important.
➢ C. Social value of the defendant’s activities: the judge takes that into account.
➢ D. What the reasonable person would have foreseen?
A- Magnitude of risk : :
1°) Likelihood of the injury (= possibilité pour que la chose survienne : probabilité du dommage)
Bolton v. Stone (1951); Miller v. Jackson (1977)
Facts: Damage caused by cricket balls which had been hit out of the ground.
In Bolton case, the ground had been occupied and used as a cricket ground for about 90 years. On some six occasions in a period over 30 years a ball had been hit into the highway but no one had been injured.
In Mille caser, balls were hit out of the ground eight or nine times a season.
The magnitude of risks is more important inthe second case. You should take into account the magnitude of risk when appreciated the standard of care.
Legal principle: A greater risk of damage than normal increases the standard of care required of a potential defendant.
Negligence was not found in Bolton case but was in Miller case.
2°) Judges have a great amount of discretion in determining the relevant standard of care “in all the circumstances”.
Haley v. London Electricity Board (1964) :
A blind claimant fell down a hole dug (=trou) in the pavement. Given that it is reasonably foreseeable that a blind person could be walking along a pavement, the defendants had a duty to take extra precautions to ensure safety.
There is a link between magnitude of risk and the duty to take precautions.
3°) Seriousness of the potential injury :
Parsi v. Stepney Borough Council (1951) :
Facts: - The claimant was a mechanic. His employer knew that he was blind in one eye. While the claimant was using a hammer to remove a bolt (=un boulon) on a vehicle, a chip of metal flew off and entered his good eye. He became totally blind.
- No goggles (=lunettes de protection) were provided for him to wear.
- It was not the ordinary practice for employers to supply goggles to men employed in garages on the maintenance and repair of vehicles.
Legal principle: The defendant owed a higher standard of care to the claimant because they knew that an injury to his good eye would cause him much more serious consequences than the same injury to a worker with two good eyes.
The employer should have taken extraprecaution because his employer was blind in one eye : the damage would have been more important.
B- Cost and practicability of precautions :
= extension of the mgnitude of risk. Do these extraprecautions cost mney ? if it’s the case, is there a limit of the cost ?
The court will also take into account what measures the defendant could have taken to avoid the risk of injury, the cost of those measures and the ease (facilité) with which they could have been implemented. (balance whether or not the cost is proportionate or not)
Key case : Latimer v. AEC ltd (1953):
Held that the cost of the measures to take to avoid the risk of injury would have been too high and disproportionate to the relatively small risk of injury. The defendant was not found liable.
But remember that : Impecuniosity (insolvabilité) is not a defence to a breach of duty.
C- Social value of the defendant’s activities :
Ex : the police ; tramway company ; trains (when it was a public service)
It’s mitigate (= modère) the appreciation of the judges.
- Where the defendant’s interest is in the public interest, it is likely to require the exercise of a lower standard of care.
- Daborn v. Bath Tramays Motor Co ltd (1946), Asquith LJ stated that “the purpose to be served, if sufficiently important, justifies the assumption of abnormal risk”
- This does not mean that the defendant is justified in taking any risk.
D- What the reasonable person would have foreseen :
-The standard of care is predicated upon (= basé sur) what the reasonable person would have foreseen.
-This depends upon the probability of the consequence. A defendant must take care to avoid “reasonable probabilities, not fantastic possibilities” (Fardon v. Harcourt-Rivington, 1932).
It’s a balance.
IV- Proving breach of duty :
It’s a matter of objective law (=procédure) (Vs substantive law = dt matériel ou substanciel)
The legal burden of proving (= charge de la preuve) breach of duty is on the claimant. However there are certain circumstances in which the claimant may have some assistance :
-where the maxim Res ipsa loquitur applies
-where section 11 of the Civil Evidence Act 1968 applies
A- The maxim Res ipsa loquitur :
Three conditions must be satisfied.
Key case: Scott v. London & St Katherine Docks co, 1865 : key case or starting case.
Facts: The claimant was injured by a sack of sugar which fell from a crane (= une grue) operated by the defendant.
Thinks speaks from themselves.
Legal principle: A claimant will be assisted by Res ipsa loquitur if:
-the thing causing the damage is under control of the defendant or someone for whose negligence the defendant is responsible
-the cause of the accident is unknown (the court find a breach of duty without earing detailed evidence : the things speack for himself)
-the accident is such as would not normally occur without negligence. It’s a standard situation : if there is an accident, it’s mean that there was a negligence before.
1°) Control :
The event which causes the damage must be within the control of the defendant :
-in Easson v. LNER (1944) a four-year-old child fell through the door of a long distance express train while the train was in motion some seven miles from the previous station, and was injured.
-No evidence as to how the door was opened.
-held that the mere fact that the door was opened was not of itself prima facie evidence of negligence
you could not presume that the company has the control of all the events on the train : a person could have open the door (third condition) : so, no application of this maxim. (pas d’obligation de sécurité : resp délictuelle ici, alors qu’elle aurait été contractuelle en France : exemple similaire pour la resp médicale)
2°) Cause unknown :
If the cause of the accident is known, res ipsa loquitur cannot apply.
The facts do not « speak for themselves ».
Instead the court must decide on all the facts whether negligence is established :Barkway v. South Wales Transport, 1950 :
The claimant was killed when the defendant’s bus veered off the road down an embankment (= bus est sorti de sa trajectoire et s’est retourné sur le talus) and it was established that the accident occurred because of a defect in one of the tyres (= pneus).
-it was shown that the defect might have been discovered beforehand if the defendant had required drivers to report incidents. = negligence
-it was held that the negligence of the defendant in failing to institute such a system was established.
3°) Accident would not normally accur without negligence :
Examples of situations are:
-a large bag of sugar fell from a hoist onto the claimant (Scott v.London & St Katherine Docks Co, 1865)
-a customer slipped on yoghourt on a supermarket floor that had not immediately been cleaned up (Ward v. Tesco Stores ltd, 1976). We could discuss the control of the yoghourt by the supermarket because it’s not so much different with the case of the train (Easson v. LNER, 1944).
-a patient went into hospital with 2 stiff (= rigide) fingers and came out with 4 stiff fingers (Cassidy v. Ministry of health, 1951). (importance of the third condition)
4°) The effect of res ipsa loquitur :
-it raises a prima facie presumption of negligence against the defendant.
-the defendant must than explain how the accident could have occurred without negligence.
-if the defendant succeeds, then the claimant must try to prove the defendant’s negligence.
Res ipsa loquitur does not reverse the legal burden of proof. It only states a presumption and the burden remains on the claimant if the defendant succeeds in proving that the rule does not apply. It’s only an assistance for the claimant.
B- Civil Evidence Act 1968 :
- According to section 11 of this Act, if the defendant has been convicted of a criminal offence by a UK court this is taken as proof that the defendant did commit it in any associated civil proceedings unless the contrary is proved. (= Presumption)
- If the defendant has been convicted of an offence which includes negligent conduct, then the burden of proof shifts to the defendant to prove that there was no negligence (ex: Careless or inconsiderate driving). (= Reverses the burden of the proof)
And that to make easier the proof for the claimant.
Sub-section 3: Causation and remoteness of damage :
Causation and remoteness of damage provide the link between the defendant’s negligent conduct and the harm suffered by the claimant. Link between the damage and the wrong.
I- Causation :
A- Factual causation :
Causation is factual and sometimes difficult to establish
-the breach of duty must be the factual cause of the damage. The general test used by the courts to determine factual causation is known as the “but for” test.
- Cork v. Kirby Maclean Ltd, 1952
- the question to be asked as a starting point in establishing factual causation is “but for the defendant breach of duty, would the loss or the damage have occurred?” (= si l’auteur supposé de la faute n’avit pas commis un tel acte, le dommage aurait il eu lieu ?)
Barnett v. Chelsea ad Kensington Hospital Management Committee, 1969 :
Facts: A patient was turned away from a casualty department (service aux blessés) by a doctor who refused to examine him. He later died of arsenic poisoning. It was shown that the man would not have recovered even if the doctor had treated him.
Legal principle: The hospital was not liable for the clear breach of duty in failing to treat the patient. The failure to treat was not the cause of the death. The patient would have died just the same. Because there is no causation
B- Problems in proving factual causation :
➢ Multiple causes of damage
➢ A “lost chance of recovery”
➢ Multiple consecutive causes of damage
1°) Multiple causes of damage :
-Where there is more than one possible cause of harm to the claimant, the claimant does not have to show that the defendant’s breach of duty was the only cause of damage or even the main cause of damage.
Key case: Bonnigton Castings Ltd v. Wardlaw, 1956 :
Facts: The claimant contracted pneumoconiosis after working for years in dusty conditions. There were two main causes of dust in the foundry, one of which was required by law to be extracted. It was impossible to prove which dust the claiman has inhaled.
Legal principle: Since the dust which should have been extracted was at least a partial cause of the damage, the defendant was liable in negligence. The claimant therefore only needs to show that a defendant’s breach of duty “materially contributed to the damage”
In that case, the criteria is a material contribution to the damage.
-What if there are too many possible causes for the claimant to discharge the burden of proof on balance of probabilities?
Wilsher v. Essex Area Health Authority, 1988 :
Facts: The claimant was born prematurely and needed extra oxygen to survive. A junior doctor (NB : standard of care for a junior doctor is the same as a senio doctor) inserted a catheter into a vein rather than an artery. As a result the baby received too much
oxygen, which caused damage to the retina and consequent blindness.
But there were five possible causes of the baby’s blindness. It was impossible to say which of the five causes had actually caused the damage.
Legal principle: Causation was not established. Since none of the potential causes was more likely to have happened than any of the others the balance of probabilities was not satisfied.
In that case, another criteria is use when there are several causes : the balance of probabilites.
Taking Bonnington Castings and Wilsher together, it can be said that where there is more than one cause, the defendant’s breach must be the substantial cause of the damage.
Where breach of duty (= manquement à l’obligation de diligeance) has a material effect on the likelihood (= probabilité) of injury then subsequent injury will be said to have been caused by the breach: McGhee v. National Coal Board, 1973. (lien entre probabilité et dommage = « subsequent »). On assimile la probabilité du dommage et le dommage quand il y a eu faute créant la possibilité d’un dommage et qu’un dommage survient après.
Facts : McGhee was employed to clean out brick kilns (= fours en brique) and developed dermatitis from his work.
- he sued his employer for negligence for failing to provide the proper washing facilities (pas de sanitaires dans l’entreprise pour se laver les mains)to prevent the outbreak of dermatitis. That might have been the cause : likelihood of injury. The lack of facilities have had a material effect.
- the issue before the House of Lords was whether the failure to provide the washing facilities has caused the rash. Could have had a material effect. As a result, the defendant was found liable.
2°) Lost chance of recovery :
The courts are extremely reluctant to impose liability where the negligence of the defendant caused the claimant to loose a chance.
Hoston v. East Berkshire area health authority, 1987 :
Facts: A boy fractured his hip when he fell from a tree. The hospital made a misdiagnosis and the boy developed a hip deformity. Experts confirmed that he would have had a 75% chance of developing the deformity with a correct diagnosis.
The court of appeal upheld (= confirme) the decision of the trial judge who awarded the boy 25% of the damages that were considered appropriate for his injury for his lost chance of recovery. The health authority appealed to the House of Lords.
Legal principle: The decision of the Court of Appeal was reversed (= censurée). The HL considered that, since there was only a 25% chance that the negligence had caused the boy’s injuries, this did not satisfy the balance of probabilities.
3°) Multiple consecutive causes of damage :
Where there are consecutive causes of damage, the application of the “but for” test is applied to the original defendant.
Performance cars LTD v. Abraham, 1962 :
Facts: The first defendant negligently drove into a Rolls Royce. The Rolls Royce was later
negligently struck by another car, driven by the second defendant.
Legal principle: the first defendant remained liable. The second defendant was not liable for the cost of the respray (= coup de peinture) since the car already needed a respray at the time of the collision with the second defendant.
C- The Novus actus interveniens maxim :
➢ The intervening act may be:
• A third party act
• An act of the claimant
• An act of nature
1°) Third party act :
a third person intervene in the chain of causation and the question is « is this intervening act break the chain of causation ? »
The original defendant will be liable where the intervening act does not cause the loss and where the intervening act is one that should have been reasonnably foreseen (Lamb v. Camden London Borough Council 1981)
When will an intervening event will break the chain of causation ?
Key cases: Baker v. Willoughby (1969) and Jobling v. Associated Dairies (1982)
Facts : In Baker v. Wilhoughby : the claimant was knocked down by a car due to the negligent drivingof the defendant. He suffered a permanent stiff leg as a result. After the accident, but before the trial, he was shot in the injured leg during a robbery at work. As a result his leg was
amputated.
In Jobling v. Associated Dairies Ltd, the claimant was injured at work due to his employer’s
negligence. He slipped and injured his back and lost 50% of his earning capacity as a result.
Three years later he developed a spinal disease. This has not been brought about by the
accident. He was consequently unable to work.
Legal principles:
-in Baker v. Willoughby : the court held that the gunman’s act was not a novus actus interveniens. The original defendant remained thus liable. The House of Lords held that the defendant was liable to pay full compensation for the injury he had caused, based on the claimant’s losses beyond the time when his leg was amputated.
Because of the chain of causation, the second event is the result of the first event : the two injuries are linked.
-in Jobling v. Associated Dairies limited: the disease of the spine was held to be a novus actus interveniens which did break the chain of causation.
The employer liability was limited to four years’ loss of earnings because, whatever had happened, this illness would have cause the disability and was a « vicissitude of life ».
It did break the chain of causation so there is no liability.
2°) Act of the claimant (faute de la victime) :
Key case: McKew v. Holland & Hannen & cubbitts Ltd, 1969
Facts : As a result of the defendant’s negligence, the claimant suffered a leg injury. This left his leg seriously weakened. He later fell when attempting to descend a steep flight of steps (= un groupe de marches) with no handrail (= rembarde), suffering further serious injuries. He did not seek assistance in climbing the stairs.
Legal principle: the claimant’s act is attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance when his leg had previously given way on occasions was unreasonable.
The court held that this act was a novus actus interveniens which had broken the chain of causation. As a result the defendants were not liable in damages for his second injury.
He contributed to his own damage.
The behaviour of the claimant can be entirely unreasonable in all circumstances ; but it could be only a partial contribution, so there will be an influence on the compensation.
3°) Act of nature :
No liability where the intervening act of nature is foreseeable and separate from the initial negligent act or omission.
Key case: Carslogie Steamship Co Ltd v. Royal Norwegian government, 1952
Facts : The claimant’s ship was damaged following a collision. After temporary repairs, the ship then left for the US where permanent repairs could be carried out. During the cross of the Atlantic, a storm caused further damage to the ship.
A storm is an act of nature
Legal principle: the defendants were not liable for the damage caused by the storm. The storm could have happened on any voyage and therefore the storm damage was not a consequence of the collision. It was foreseeable (= prévisible) and quite separate from the initial negligent act or omission, so the defendant was not liable.
It’s an objective approach of foreseeability.
II- Remoteness :
For how much of the claimant’s loss should the defendant be responsible?
A) The remoteness test
B) The “egg-shell skull rule”
C) The impecunious claimant
A) The remoteness (or directness) test :
Key cases : - Re Polemis and Furness, Wilthy & co ltd, 1921
- Wagon Mount, 1961
Re Polemis and Furness, Wilthy & co ltd, 1921 :
Facts: Some workers employed by the defendants to work on a ship negligently caused a piece of metal to fall into the hold (cale) of the ship, which contained barils of petrol. The piece of metal when falling ignited the petrol vapour that was in the hold, causing a fire which destroyed the ship.
Legal principle: the defendants were liable for all damages which resulted from the breach of duty, regardless of whether the damage was foreseeable by the defendant.
It was not really in favour of the defendant.
Wagon Mound, 1961 :
Facts : the defendants carelessly discharged oil from their ship into Sydney Harbour. Hours after theship had left the harbour, the oil was carried by wind and tide beneath the plaintiff’s wharf. Three days later, as some workers were doing some welding work on the wharf, some cotton waste under the wharf took fire and caused great damage.
Legal principle: at first instance, the trial judge applied the principles from Re polemis, finding that the defendants were liable for the fire damage, since the fouling to the wharf was a foreseeable consequence of the leakage.
On appeal, the Privy Council (= part of the Appellate Committee which deals with cases of Commonwealth countries who have accepted its jurisdiction : its decision are not binding) reversed the decision, holding that the correct test for remoteness is reasonable foreseeability of the kind or type of damage in fact suffered by the claimant.
This second case is much more modern. The two cases are good law in England, but today, the Wagon Mount case is refered by the English courts : reasonnable foreseeability.
B) The “egg-shell skull “rule :
The defendant must take their victims (the claimant) as they find them.
Key case : Smith v. Leech Brain & co ltd, 1961
Facts: The claimant was splashed by molten metal as a result of his employer’s negligence and
suffered a burn to his lip. This burn triggered (=causé, provoqué) cancer, from which the claimant died. The claimant’s lip was pre-malignant at the time of the incident.
No break of the chain of causation.
Legal principle: Some form of harm from the burn was foreseeable although the particular type of harm in the particular circumstances was not.
However, despite the fact that death from cancer was not a foreseeable consequence of the burn, the employers remained liable in negligence for the full extent of the damage.
C) The impecunious claimant :
The losses result from the claimant’s lack of means.
Key case: Liesboch dredger v. SS Edison, 1933
Facts : The claimant’s dredger sank due to the defendant’s negligence. They could not afford to replace the lost dredger.
In order to fulfill their contractual obligations, the claimant’s hired (=loué) a dredger at an exorbitant rate.
Legal principle: The claimants could not recover the high rental charges since these were a result of their own lack of means and not « immediate physical consequences » of the negligent act.
Mitigation of loss : obligation de minimiser le dommage : it doesn’t exist in France but the topic is discussed. The Catala project wants to implement this common law concept.
If you suffer a damage, you should not take action to increase the damage or not to act. Ex: you are sacked (viré) : it is a damage but no compensation if you don’t search for a new job. You should look after work because of the mitigation of loss.
The Liesboch case has been distinguished (la CA a écarté l’application de ce principe légal) by the court of appeal in cases relating to mitigation of loss (Perry v. Sidney Philipps, 1982) and subsequently only considered to apply in “exceptional circumstances” (Mattocks v. Mann, 1993). La règle de l’impecunious claimant ne s’applique que dans des cas exceptionnels, sinon, c’est la règle de la mitigation of loss qui s’applique. But the impecunious claimant is stell good law : you cannot invoque your impecuniosity.
The principle of liesboch case is too strict, so thejudges mitigated this principle with the mitigation of loss. It’s onlly applied in exceptionnal circumstances, but there is no yet a decision so it’s hard to say what they are.
Damages should only aim to put the claimant into the position he would be in had the defendant exercised reasonable care.
Section 3: Special duties :
Do not forget: special duty situations can be mixed in with standard duty situations very easily. You can apply both regimes.
➢ 1) Economic loss
➢ 2) Negligent misstatement
➢ 3) Psychiatric injury
I- Economic loss (manque à gagner) :
= Financial losses which are not attributable to physical harm caused to the claimant or his property: - Loss of profits
- Loss of trade
- Loss of investment revenue
Pure economic loss which is not consequential on physical damage to the claimant’s property is not recoverable in tort. You need first a physical damage, and after a financial loss : indiect financial loss.
Key case: Spartan stell and alloys ltd v. martin & co Ltd, 1973 :
Facts: The claimants manufactured stainless steel alloys (= alliage d’acier inoxydable) at a factory 24 hours a day. The defendant’s employees, who were working on a nearby road, damaged the electrical cable to the factory.The electricity board shut off the power supply to the factory for 14 hours until the cable was mended (= réparé).
The claimant “scrapped” a melt in the furnace, reducing its value by £368. If the supply had
not been cut off, they would have made profit of £400 on the melt, and £1767 on another four
melts, which would have been put into the furnace.
They claimed damages from the defendants in respect of all three sums.
Legal principle: The claimants could recover the damage to the melt in progress and the loss of profit on that melt.
They could not recover the loss of profit during the time that the electricity was switched off.
The damage to the melt in progress was physical damage and the loss of profit on it was a direct consequence of a physical damage. The further loss of profit was pure economic loss and not recoverable.
It’s a very strict decision : it is not fair, ut in Common Law fairness is ot the problem whereas in France.
In Spartan Steel and Alloys Lord Denning (a very liberal judge Vs conservative) said:
“I think the question of recovering economic loss is one of policy. Whenever the courts draw a line to mark out the bounds of duty they do it as to limit the responsibility of the defendant... It seems to me better to consider the particular relationship in hand and see whether or not, as a matter of policy, economic loss should be recoverable or not”.
But this opinion is a subjective approach, whereas in Common Law, it’s an objective approach !
II- Negligent misstatement (déclaration dolosive) :
Only in 1964, whereas in France in 1804 ! it’s in the field of precontractual liability.
Hedley Byrne v. Heller, 1964: liability in tort can be founded upon a negligent misstatement.
Facts: The claimant was an advertising company that was offered work by a small company with whom they had no previous dealings.
It sought a reference from the company’s bank which was prepared without any checks being made into the current state of its finances.
In reliance (en faisant confiance, en se reposant sur) upon the bank’s reference, the claimant carried out work for the company which went into liquidation before any payment was made. The claimant sought to recover its losses from the defendant bank on the basis of its negligent misstatement.
Legal principle: There are circumstances (« special relationships » must exist between the parties, so : subjective approach !!!)in which a person can be liable in tort for losses caused by a statement which he made if he did not take sufficient care to ensure that his statement was accurate (= approprié) or if he did not make it clear that he had taken no steps to ensure his accuracy.
It’s a very liberal decision in UK, so, there is a :
Strict limitation:
A special relationship must exist between the parties before there is a possibility for negligent misstatement that causes economic loss.
-The relationship will exist if one party exercises skill (= compétences) and judgment and the other party acts in reliance of this skill and judgment.
-The person making the statement must possess skill in relation to the particular statement that is made and should realise that the other party will act in reliance upon the statement.
-The party to whom the statement is made must have acted in reliance with that statement in circumstances where it was reasonable (= objective approach) for him to rely upon the statement.
Ex of special relationship : betwwen a bank clerk advirtising in a morage (=hypothèque) or between a friend advirtising by a mechanic friend on a car.
The criteria from Hedley Byrne v. Heller were restated in Caparo Industries v. Dickman (Caparo case redefine the neighbour principle after the Donoghue case, and also precise the criteria of Hedley case)
➢ The statement would be communicated to the claimant
➢ The statement would be made specifically in connection with a particular transaction,
➢ The statement would be very likely to rely upon it in deciding whether or not to proceed with the transaction.
III- Psychiatric injury (dommage moral) :
A- Definition of psychiatric injury :
The psychiatric injury suffered must be a medically recognised condition.
- Post-traumatic stress disorder
- Pathological grief
- Personality disorder
- Miscarriage (=fausse-couche)
Distress (= stress) and simple grief (= peine) are not considered as medically recognised conditions.
The psychiatric damage must be caused by a “sudden event”
Alcock v. Chief Constable of South Yorkshire, 1992 :
Facts: The police allowed a large crowd (= foule) of football supporters into an already crowed stand which was surrounded by a high perimeter fence (= barrière). In the chaos that followed, 95 people were crushed to death.
A large number of claims were made by those present at the scene and those who had viewed the events on television. Claims were made by various family members and friends of those present.
Legal principle: Shock (leading to psychiatric damage) “involves the sudden appreciation by sight or sound of a horrifying sight or sound or a horrifying event which violently agitates the mind”.
The shock will be the damage and so will be the psychiatric injury.
If the event could have been expected, there will not be any psychiatric injury.
B- The elements of the tort :
The defendant owed a duty of care to the claimant
The defendant breached the duty
The claimant suffered the damage
The damage was not too remote
The claimant must be a reasonable foreseeable victim (key concept in tort law)
Page v. Smith, 1995 :
Foreseeability of physical injury is sufficient to allow a claimant directly involved in the incident to invoke a psychiatric injury.
1°) Primary victims:
They are directly involved in the incident.
In White and Others v. Chief Constable of South Yorkshire Police, 1999, the House of Lords held that only persons in actual danger of physical harm can be classified as primary victims.
2°) Secondary victims:
They must satisfy a test established in Alcock v. Chief Constable of South Yorkshire Police, 1992 :
- There must be a close relationship of love and affection with the primary victim (there is a rebuttable (=réfragable) presumption in favour of this in the case of parents and spouses)
- Ordinary passers-by may be able to claim if the incident witnessed was particularly horrific.
- How the shock was caused must also be taken into account.
The claimant must see or hear the event through unaided sight or hearing. (= direct : ils doivent être sur place)
In Alcock it was held that shock communicated by live television broadcasts was not sufficient since it did not show recognisable or identifiable individuals suffering.
The “egg-shell skull” rule also applies in cases of psychiatric damage.
English common law is very strict : it is more an economic approach than a fairness approach.
Section 4: Remedies in the law of torts :
= A remedy is any of the methods available at law for the enforcement, protection, or recovery of rights or for obtaining redress for their infringement.
➢ 1. Damages (financial compensation) = common law remedies
➢ 2. Injunctions = equitable remedies (special fiels or contracts ans specific or extra-conditions)
I- Damages :
Damages are a sum of money awarded by the court as a compensation for a tort or a breach of contract. Damages are usually a lump-sum (= forfaitaire) award.
The principle is that the award of damages should return the claimants to the position that they would have been in, had the tort not occurred.
There are three basic situations :
- Harm, loss or injury that is amenable (= susceptible) to quantification such as damage to property
- Harm, loss or injury that is harder to quantify, typically involving personal injury
- Torts which are actionable per se, i. e. there is no requirement of harm where the damages represent the wrong arising from interference with the claimant’s legal interest. (=responsabilité objective) in that case, you would have to compensate even of there is no wrong (ex : statutes ; products liability)
A- Mitigation of loss :
A claimant must take reasonable steps to ensure that the losses that he is claiming are kept to a minimum. It’a an obligatin to receive damages.
B- Categories of damages :
1) Special damages :
Special damages are those which are capable of being calculated at the time of the trial and which are presented to the court in a form of calculation
Special damages are:
Loss of earnings before trial
Medical expenses prior to trial
Damage to property, e. g. loss of a vehicle in an accident.
2) General damages :
General damages are those which are not capable of being calculated at the time of trial and are left to the court to quantify:
Loss of future earnings
Cost of future medical expenses
Pain and suffering
3) Nominal damages :
These damages are awarded when the claimant’s right have been infringed but little harm has been caused. (ex : your neighbour have left his car in your garden)
4) Contemptuous damages : (= demande abusise de dommage)
- These damages are also awarded when the level of harm caused is low.
- They differ from nominal damages in that the court feels that the action should not have been brought (even though the claimant has been successful in establishing the elements of a tort).
5) Aggravated damages
These damages are awarded over and above the damages that are necessary to return the claimant to the position that he would have been in had the tort not occurred.
6) Exemplary damages
Exemplary damages are an additional award that reflects the court’s disapproval of the defendant’s conduct. (in US : punitive damages)
Distinction between aggravated and exemplary damages:
- Aggravated damages are awarded on the basis of the injury or feelings caused by the defendant’s conduct.
- Exemplary damages are awarded on the basis of the defendant’s conduct (irrespective of whether it injures the claimant’s feelings).
Rookes v. Barnard, 1964 :
Facts: After a disagreement, the claimant left his union. The defendant, an unpaid union (=syndicat) official, told the claimant’s employer that there would be a strike unless the claimant was dismissed.
Following his dismissal, the claimant brought a civil action founded in conspiracy against the defendant and others.
Legal principle: The House of Lords considered the distinction between aggravated and exemplary damages.
Held that the purpose of aggravated damages was to compensate the claimant for loss or harm suffered whilst the purpose of exemplary damages was to punish the defendant for unacceptable behaviour and deter ( =dissuader) others from similar behaviour.
It’s a very closed system : the judges didn’t give exemplary damages easily (Vs US approach)
It was held that there are three situations that justify the imposition of exemplary damages:
- Oppressive, arbitrary or unconstitutional action by the servants of the government,
- Cases where the defendant is calculated to make a profit that will exceed the compensation otherwise payable to the claimant,
- In situations where exemplary damages are explicitly authorised by statute.
II- Injunction : (equitable remedy)
An injunction is a discretionary remedy which takes the form of a court order that requires that the defendant behave in a particular way.
There are two kinds of injunctions :
*prohibitory injunction : the most common form of a court order which requires the defendant to refrain from doing something ; in order words, to stop committing the tort that he is committing
*Mandatory injunction: these compel the defendant to take a particular action to rectify the situation that has arisen due to his tortuous behavior.
They are relatively uncommon.
The circumstances were defined in Redland Bricks Ltd v. Morris, 1972 :
-there must be a strong possibility of substantial damage in the future
-there must be pecuniary remedies
-the defendants must have behaved « wantonly (he knew he did it) or unreasonably »
-the injunction must be capable of reflecting exactly what the defendant was compelled to.
3 kinds of injunctions:
Injunctions vary according to the time at which there are obtained in relation to the omission of the tort.
- Prior to the tort: if the claimant has good grounds to believe that a tort will be committed, he may apply for a quia timet injunction. (prohibitory injunction)
- When the tort is committed: the claimant can apply to the court for an interim injunction to stop the tort before the trial to resolve the main issue. (mandatory injunction)
- After the tort is committed: the claimant may seek a final injunction to prevent the reoccurrence of the tort.
Since the usual remedy in tort is damages, a claimant will not be granted an injunction unless he is able to establish that damages would not be an adequate remedy. Courts are relunctant.
Equitable maxims:
Claimants must ensure that the circumstances of their case do not offend against key equitable remedies:
- equity does nothing in vain
- delay defeats equity : The claimant should act quickly, promptly; there is no delay in equity because it’s a discretionary branch.
- he who seeks equity must do equity
Indian common law
Special common law
-Common law applied by the end of the 19th century.
-Existence of codes used to reform and to clarify the law and not to consolidate it. They still applying local costumes. They codify their laws. It’s a compilation.
-Independence in 1947 did not radically after the basic characteristics of Indian law. They exported the common law system but no equitable law : no equity branch; they don’t use injunction but justice equity and fairness.
Existence of some distinguishing features from Common Law :
Precedents are tailored to the particular local facts of a case ;
No distinction between equity and Common Law ;
law of property differs clearly from the English legal system;
Written constitution.
Correction
DU DE DROIT ANGLAIS NIVEAU 1
MAI 2007
1) What are the general defences to actions in tort? (1 pt)
–self defense
–statutory authority
-assumption of risk
-inevitable accident
2) What are the four components of negligence? (1 pt)
-existence of the duty of care
-breach of the duty of care
-suffered a damage: causation
-the damage not be to remote : remotness
3) What is the neighbour principle used for? Is it limited in its application? (2 pts)
Stevenson
duty of care? To know if whether or not a duty of care is due: neighbour principle.
Is it limited? It was redefined by the case.
4) To what extent was this principle redefined?
When answering the question, explain the facts and the legal principle of the case
redefining the neighbour principle. (4 pts)
It must be just fair and reasonable to impose this principle
5) What is a “reasonable man” in English tort law? (2pts)
Case: Brouklands: the man is average
6)
John was taken to the hospital after having slipped on a yogurt in a Sainsbury
shop. He suffers a severe back injury. Explain the key rule that governs the
liability in this context. (6 pts).
Rules to apply to the fact: Accident would not normally accur without negligence
-examples of situations are:
-a large bag of sugar fell from a hoist onto the claimant (scott v.London & St Katherine)
-a customer slipped on yoghourt on a supermarket floor that had not immediately been clean up (Ward v. Tesco Stores ltd 1976)
-a patient went into hospital with 2 stiff (rigide) fingers and came out with 4 (Cassidy v. Ministry of health 1951)
The effect of res ipsa loquitur
-it raises a prima facie presumption of negligence against the defendant.
-the defendant must than explain how the accident could have occurred without negligence.
-if the defendant succeeds, then the claimant must try to prove the defendant’s negligence.
Res ipsa loquitur does not reverse the legal burden of proof. It only states a presumption and the burden remains on the claimant if the defendant succeeds in proving that the rule does not apply
Condition
7) Explain what “the but for test” is. (2 pts)
1952
8) Explain what “mitigation of loss” is. (2 pts)
Mitigation of loss: Catala: obligation to minimize the damage
Tort law :
- No distinction between public and private law (Responsabilité délictuelle/administrative) : comparative law.
- Most important part of « private law » : importance of the writs. For example in contract law, no writs at the beginning, but many solutions are inspirated by tort law : for example, in case of non-performance (= non exécution) of the contract, the judge give damages as in tort law. Tort law is the very beginning of « droits des obligations »
- Connection between the fact and the legal answer.
Chapter 1: Introduction to the law of tort
Section 1: Origin of torts
- Common law: vs Equity
- Case law (=jurisprudence) = judge-make law
- Writ of trespass: allowed the victim of a wrong to summon the tortfeassor i. e. the person who committed the tort to appear before the Royal Court.
- Trespass: a direct and forcible injury i. e. Peter hits John with a wooden stick. Trespass is only connected with physical or material injury or damages. But what happended if your damage is not material or physical, for example a moral or emotional damage ?
The Courts extended this writ of trespass to other situations and invented new actions by analogy : tresspass on the case
- Invention of a new cause of action: trespass on the case (extension of an existing writ)
- most modern torts developed from trespass on the case.
- Case by case basis. Courts or legislature may always create new torts. There is a big difference with French tort law : art 1382 of the Civil Code is a general principle in France whereas in English law, tort law has developed on a case by case basis, a catalogue of different torts and not with a general principle. Sometimes, solutions are the same, but not with the same way. There is a more liberal view of liability in England.
Section 2: Definition
I- Defining tort law :
- A tort is a legal wrong. Not the « faute » as in France : the basis is not the same.
- Law of torts defines the obligations imposed on members of society and provides for compensation for harms caused by breach of those obligations. It’s a modern definition of the law of tort= « obligations ».
II- Interests protected by the law of tort :
1) Intentional invasion of personal and proprietary interests : connected with the writ of trespass.
2) Interests in economic relations, business and trading interest
3) Interests in intellectual property: = confidential information : copy rights and patents (brevet): much of the law is statutory law: acts from legislation; no case law, just interpretation of statutes.
4) Negligent interference with personal, proprietary and economic interests: emotional damage for example. Very famous decision : Donoghue Vs Stevenson 1932 : The tort of negligence was developedto several interests on parsonal safety. The boundery (= frontière) between economic loss and material damage is problematic.
5) Further protection of personal and proprietary interests
6) Reputation: tort of defamation.
7) Due process (= procès équitable) :In the European Human Rights Convention : Right to protection from abuses of the judicial process.
8) Convention rights: = Consequences of the European Human Rights Convention (EHRC) 1998 : a question arose : to know whether the principles developed by the Common Law offered adequate coverage of convention rights ?
Victoria Beckam and Britney Spears or Nicolas Sarkozy and Carla Bruni: Protection of privacy : no tort in English law ; art 9 of Civil Code in France.
Introduction of the EHRC in the English system : Article 8 : create a protection of privacy. England had to create a new law; not just modify because this law doesn't exist.
Some Englsh Academics (doctrine) thing that the EHRC will be a crucial development of Tort Law.
9) European Union law (1973): another revolution for English lawyers. New tort, new possibility to get compensation, because the creators of the European Union were only in a civil law system. Real legal revolution: UK joins UE in 1973: if a state breach the European law, a citizen can ask for a compensation before the ECJ or a national court (ex : Factor Tame Case).
Influence of the European Union on English Tort Law.
Chapter 2: general principles of the law of tort
Section 1: An overview of the law of tort :
Two important things : liability and causal connection.
I- Liability :
-Existence of a legal obligation or a legal duty
-Intention is irrelevant: intention is not important, what is important: to see an obligation
-Central idea: to commit a wrong because there is a breach of a legal obligation or duty. But also the vistim has to suffer from the wrong : a damage is necesary : cf causal connection.
-Vicarious liability: ex : liability of a corporate body for the tortIous acts of their employees. (= liable even if you have not commited yourself the wrong)
II- Causal connection :
-A sufficient connection between the defendant's conduct (= the wrong) and the claimant's damage. The Courts elaborated the tests reguarding legal connection :
-Existence of two different tests :
-directness test (Re Polemis 1921):
Some workers employed by the defendants to work on a ship negligently caused a piece of metal to fall into the hold (=cale) of the ship, which contained barrels of petrol.
The piece of metal when falling ignited (=ignifuge càd qui protège du feu) the petrol vapour that was in the hold, causing a fire which destroyed the ship.
The Court of Appeal held the defendants liable for the loss of the ship because it was direct consequence of the negligent act of their employees.
-reasonable foresight test (Wagon Mound 1961):
The defendants carelessly discharged oil from their ship into Sydney Harbour. Hours after the ship had left the harbour, the oil was carried by wind and tide(=marée) beneath the plaintiff’s wharf.
Three days later, as some workers were doing some welding (=soudure) work on the wharf, some cotton waste under the wharf took fire and caused great damage.
The Judicial Committee of the Privy Council (It’s a part of House of Lords which look cases from Commonwealth countries :Australia: not anymore) held that the defendants were not liable because they could not have reasonably foreseen that the plaintiff wharf would be damaged by fire when they carelessly discharged oil into the harbour.
There was no direct connection, the judges didn’t apply the directness test. They create a new test: The JCPC held that the defendant is not liable because they couldn’t have reasonably foreseen that the plaintiff wharf would be damaged by the fire when they carelessly discharged oil into the harbor.
The reasonable foresight test has been prefered to the directness test ans it is now use by the Courts.
III- General defences to actions in tort:
- self defense
- statutory authority: example: doctor: secret: HIV: the doctor can inform the future wife because there is a statute for that ; you can invique a statute : patents or copyrights.
- assumption of risk = acceptation du risque. ex : Jackass: no compensation because of suffering
- inevitable accident: ex : a suicide under a train: the family can't ask for damages.
- the contributory negligence of the victim partly exonerates the defendant: if you do something which contributes to the damage: no compensation.
Section 2: Negligence :
- There are four components to prove to establish negligence.
The claimant was owed a duty of care
There was a breach of that duty of care
The claimant suffered damage as a result of that breach (causation)
The damage suffered was not too remote
- Legal burden (= charge de la prevue) of proving each of these elements falls upon the claimant.
Sub-section 1: Duty of care :
It is the obligation to take proper care to avoid causing injury to someone else.
There are two ways in which a duty of care may be established
- The defendant and claimant are within one of the « special relationships »
- Outside of these relationships, principles developed by case law define if such a duty of care exists
- Eventually the existence of a duty of care suggests that it mat exist a liability for failing to act.
I- Existence of special relationships :
There are a number of situations in which the courts recognize the existence of a duty of care:
-One road-user to another
-Employer to employee
-Manufacturer to consumer (see Donoghue v. Stevenson)
-doctor to patient
-solicitor to client
II- The neighbour principle :
Founded, created by this decision in 1932.
Donoghue Vs Stevenson :
Facts :
Mrs Donoghue and a friend visited a café. Mrs Donoghue’s friend bought her a bottle of
ginger beer. The bottle was made of opaque glass. When filling Mrs Donoghue’s glass, the
remains of a decomposed snail – which had somehow found its way into the bottle at the
factory – floated out. Mrs Donoghue developed gastroenteritis as a result.
Since Mrs Donoghue had not bought the bottle of ginger beer herself she could not make a
claim in contract upon breach of warranty. She therefore brought an action against the
manufacturer of the ginger beer. The House of Lords had to decide whether a duty of care
existed as a matter of law.
Legal principle: the manufacturer owed duty to take care that the bottle did not contain foreign bodies which could cause her personal harm.
Lord Buckmaster:
- It was impossible to accept such a wide proposition and it was difficult to see how trade could be carried or if it were the law.
- No logical reason why such a law would be restricted to manufacturers of food.
- If a duty of care existed it seemed to him that it must cover the construction of every article: ‘if one step why not fifty?”.
Lord Atkin :
-There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ... The rule that you are to love your neighbour becomes in law : you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply.
- You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.
http://www.youtube.com/Watch?v=zWia3GCzyLQ
Lord Atkin’s opinion was supported by Lords Thankerton and MacMillan and opposed by Lord Tomline who supported Lord Buckmaster’s view.
Several opinions, different Lords. One of them established a principle: page 13, 19, 27, and 28.
-Lord Atkin. He thinks there is no duty of care. He refers to another case of a sale of a noxious hair wash: but not exactly the same. Obiter dicta of a judge. §6 page 18: criticize: to find existence a duty of care. Can’t find an existence because it’s not a contractual relationship. Duty in business. He starts to discuss all cases similar. He doesn’t agree to find a duty of care. It’s would be too expensive for business. Page 19: discusses other cases but he’s interpreting them differently:
-Georges v Skivington: pager 21: he founds a basis to establish a duty of care: the problem is common to all the cases where liability is established: based on elements presents in those cases. If such a duty exists, it must be bases upon on elements common to all the cases.
-Lord Atkin will find this basis: he answers to the precedent. He finds a legal principle: page 19 §2: find the existence of a principle but a judge is not supposed to give a definition of a principle. It’s beyond their function. He used the bible: Christian principal: if a duty of care exists is because we have to take care of our neighbour: foreseeing to be responsible of what we have done. Reasonable foreseebility.
-Lord Buckmaster: he doesn’t support that the duty of care exists. He refers to several cases. He mentions a very important case: Georges: noxious hair wash. The husband bought the hair wash for his wife = very similar. The claim is made by a person who didn’t bought the shampoo; but Lord B thinks there was a throat: the case was not similar.
-Lord Atkin thinks that duty of care exists in that situation; he discusses the other cases; he refers also to Georges: if such a duty exists it must logically be based upon element common to cases where it is found to exist.
LORD ATKIN: principle (ratio decidendi): the rule that “you have to love your neighbour” becomes in law “you must not injure your neighbour”. The lawyer’s question is: who is my neighbour? It’s the person who could be injury. It’s based on the principle of reasonable forseeability : you must take reasonable care to avoid acts or omissions which you can, reasonably foresee, would be likely to injure your neighbour.
NB : we cannot know where is the plrinciple in the decision, we only know that when judges used that principle as a precedent.
The existence of the duty of care is determined by the Neighbour principle:
Problem : it’s a very wide principle : The category of neighbour is never closed. The Neighbour principle is not limited in its application : categories of negligence are never closed.. We can find a duty of care in any situation if we can proof that foreseeability.
Courts can aloso fond new ctegories of negligences. The interest depends on the public policy.
The principle was redefined in Caparo Industries plc(= public limited company) v. Dickman (1990).
Facts: The case considered the liability of an auditor for financial loss suffered by investors. However, it also set out the three points which a court must consider to establish whether a duty of care exists.
Legal principle: the three points are :
-reasonable foresight of harm (cf : Donoghue)
-sufficient proximity of relationship (not in Donoghue : it’s an added condition)
-it is fair, just and reasonable to impose a duty (not in Donoghue : it’s an added condition)
the legal principle is now more precise thanks to the two added conditions.
Donoghue v. Stevenson Caparo Industries plc v. Dickman
➢ Avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour
➢ Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question
➢ Reasonable foresight of harm
➢ Sufficient proximity of relationship
➢ Fair, just and reasonable to impose a duty
III- Liability for failing to act :
-No duty to the world to take positive action to prevent harm (no legal obligation to intervene in English law)
BUT -if you do intervene, however, you are still not liable in negligence, unless you make matters worse: East Suffolk Rivers Catchment Board v. Kent and another (1940).
Ex: girl on Bridge which will commit suicide: no obligationto intervene but if you do so : liable if you make matters worse: ex: break her leg.
There is no discussion on causation, no discussion on the existence of a duty of care (different approacges of civil lawers and common lawers : in France, we don’t refer to the duty of care).
Exceptions :Existence of special protections :
- Courts have the flexibility to take public policy considerations into account.
- Possibility for the courts to protect certain classes of defendant from liability in negligence:
- Police, rescuers and public authorities: ex :prison officer and prisoners; employer to employee
No general duty of care owed by the police to any individual. It was held instead that the duty to the police is the public at large : Hill v. Chief Constable of West Yorkshire 1989 : Yorkshire Ripper (éventreur) Case. The mothers of 13 victims wanted the police to be found liable because The police could not prevent the kills. They have a duty of care to the public at large; not individual. (seulement une obligation de moyen pas de résultat)
Approach extended to the fire service (Capital and Counties plc v. Hampshire County Council 1997) and the coastguard (OLL Ltd v. Secretary of state for Transport 1997). All these public services have duty of care at public at large only.
- Unborn children :
Burton v. Islington Health Authority 1992: a duty of care is owed to an unborn child which becomes actionable on birth (different from France).
Only applicable to persons born prior to 22 July 1976 when the Congenital Disabilities (civil liability) act 1976 come into force.
Congenital disabilities act 1976:(civil action for damages, no criminal action) the right of a child born disabled is distinct from the right of a mother to bring civil action for damages in respect of that disability.
Extended to pre-conception torts, where the mother is harmed prior to conceiving and the harm suffered affects the health of the baby birth. ( Before the pregnantcy :ex: Roaccutane).
Mckay v. essex Health Authority 1932 : the Common Law recognises no right for wrongful life (= réparation de la vie handicapée : cf arrêt Perruche in France)
McFarlane v Tayside Health Board 1999: claims in respect of financial costs of bringing up a healthy child born as a consequence of a negligent performance of a sterilisation are not recoverable. They refused to say that the damage is the child. No compensation for that, no claim for compensation of that.
Sub-section 2: Breach of duty : (= manquement à l’ogligation de diligence)
Definition : there is a breach of duty when the defendant has not come up to the standard of duty required by law.
To summarize, there is a breach of duty when:
-There was reasonable foresight of harm
-There was sufficient proximity or relationship
-It was fair, just and reasonable to impose a duty
-and the defendant fell below the required standard of care (=devoir de diligence).
-Standard of care: essential element of breach of duty (the same for everyone).
-Test of the reasonable person
-Existence of some situations in which the courts need to apply a different standard (standard for different catagories of people)
-When determining the standard of care, the courts will take all the circumstances of the case into account
-Breach of duty has to be proved (burden of proof= charge de la preuve : the victim).
I- Standard of care :
Existence of a breach of duty :
➢ There was reasonable foresight of harm
➢ There was sufficient proximity or relationship
➢ It was fair, just and reasonable to impose a duty
➢ The defendant fell below the required standard of care :
Leading case : Blyth v. Birmingham Waterworks (1856) :
Facts: A wooden plug( = bouchon en bois) in a water main (=canalisation) become loose (=deserré) in a severe frost. The plug led to a pipe(=conduit) which in turn went up to the street. However, this pipe was blocked with ice, and the waterinstead flooded the claimant’s house. The claimant sued in negligence.
Legal principle: Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
Standard= reasonable man here. It’s very broad or wide.
To summarize: The standard of care is linked to the conduct of the defendant end this conduct will be measured against that of the reasonable person.
Characteristics of a reasonable person:
- Hall v. Brooklands Auto-Racing Club 1933:
- the man in the street; or
- the man on the Clapham (the average class was leaving there) omnibus; or
- the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves. (= l’homme qui ramène à la maison ses magazines sous son brad et qui tond sa pelouse le soir, en bras de chemise)
It’s an average man, educated but not to much : he is not perfect.
It’s a key concept in english tort law. It is an objective concept or approach, not subjective, even if there are special cases of tort.
- Objective test :
the general question is « what would a reasonable person have foreseen in this particular situation » ? Rather than “what did this particular defendant foresee in this particular situation”?
They like objective test, not subjective test. To unpredictable (imprévisible).
II- Special standards of care :
The courts apply a different standard from that of the reasonable person :
-where the defendant has a particular skill (= competences)
- where the defendant has a particular lack of skill
-where the defendant is a child
-where the defendant is competing in or watching a sporting event.
A- Skilled or professional defendants :
-The standard of care applied to professionals with a particular skill or expertise in that of the reasonable person with the same skill or expertise.
Bolam v. Friern Hospital Management committee 1957 :
Facts: The claimant underwent a course of electro-convulsive therapy in hospital as treatment for severe depression.
This involves the application of electrical current tot the patient’s head with the aim of causing seizures.
The doctor failed to provide the claimant with any muscle relaxants or restraints (=attaché). The claimant suffered dislocation of both hip joints with fracture of the pelvis on each side. The court had to decide whether it was negligent not to provide relaxants or restraints.
Legal principle: The standard of care for doctors is the “standard of the ordinary man exercising and professing to have that special skill”.
There were conflicting views from practitioners on the use of relaxants and restraints.
Held that the doctor treating the claimant had acted in accordance “with a competent body of medical opinion and was therefore not negligent”.
The Bolam test has also been held to apply to other professionals in general
-Auctioneers : Luxmoore-May v. messenger May Baverstock, 1990
-Double glazing window designers : Adams v. Rhymney Valley DC, 2000.
The Bolam test has been criticised: too protective of professionals.
The House of Lords clarified the situation in Bolitho v. City and Hackney Health Authority 1997 :
Facts: the claimant suffered brain damage as a result of a doctor’s failure to attend to clear a child’s blocked airways by intubation.
There was a difference of medical opinion as to whether intubation was necessary in the particular circumstances.
Legal principle: A doctor can be liable in negligence despite the presence of a body medical opinion in favour of his action if it can be demonstrated that the professional opinion is not capable of withstanding logical analysis. (ne pas resister à une analyse logique);
It is however very difficult to prove professional negligence where there is a body of opinion which agrees that the defendant has followed an accepted practice.
B- Unskilled defendants :
-The general standard of care in negligence is an objective test, judged against the standards of the reasonable person. This means that no allowance is made for the inexperience or lack of skill of the defendant.
-Nettleship v. Weston 1971 :
Facts: a learner driver crashed into a lamp post and injured her instructor.
Legal principle: the driver was liable despite her inexperience. The standard of care required of all motorists is the same: that of the reasonably competent driver.
-the same principle has been held to apply in relation to junior doctors. There are required to reach the standard of the reasonable competent doctor of the same rank. (Wilsher v. Essex Area Health Authority, 1986)
-Where persons undertake an activity requiring specialist skills, there are required to reach the standard of a person reasonably competent in that skill.
This was already stated in Welles v. Cooper, 1958.
C- Children :
-Required to reach the standard of care reasonably expected of ordinary children of the same age.
Mullins v. Richards, 1998:
Facts: Two 15-years-old schoolgirls were fencing with plastic rulers during a class when one of the rulers snapped and fragment of plastic caused one of them to lose all useful sight in one eye.
Legal principle: the question is whether an ordinary, prudent and reasonable 15-years-old schoolgirl in the defendant’s situation would have realized as such: not found liable.
Sometimes children are judged like adult according to circumstances. (1384 al 1: responsabilité du fait des choses et des personnes, en France: n’existe pas en GB).
D- Sporting events :
Spectators and competitors in sporting events may be owed a lower standard of care than the general standard.
Woolridge v. Summer 1963 :
Facts: An experienced rider at an equestrian event galloped his horse around a corner so quickly that the horse went out of control, plunged off the track and injured a photographer in the ensuing chaos.
Legal principle: held to be an « error of judgment » on the part of the rider rather than actionable negligence: the duty of care would only be breached where a competitor demonstrated a « reckless disregard » for the safety of the spectator.
-football match : Smoldon v. Whitworth and Nolan, 1997:the referee (arbitre): he ought a duty of care to the participants. In colts rugby union match the referee was find liable for very serious injuries, because of a collapsed scrum (mêlée): prohibition of collapsed scrum. Liable because the standard of care applied to him: special standard of care as a reasonable skilled referee, he should have required the players to form and defined sequence of crouch (pencher) touch, pause, engage.
III- Other relevant factors :
➢ A. Magnitude of risk : the risk is higher in a situation than in another.
➢ B. Cost and practicability of precautions : you should take precautions to avoid an accident, but sometimes the cost is too important.
➢ C. Social value of the defendant’s activities: the judge takes that into account.
➢ D. What the reasonable person would have foreseen?
A- Magnitude of risk : :
1°) Likelihood of the injury (= possibilité pour que la chose survienne : probabilité du dommage)
Bolton v. Stone (1951); Miller v. Jackson (1977)
Facts: Damage caused by cricket balls which had been hit out of the ground.
In Bolton case, the ground had been occupied and used as a cricket ground for about 90 years. On some six occasions in a period over 30 years a ball had been hit into the highway but no one had been injured.
In Mille caser, balls were hit out of the ground eight or nine times a season.
The magnitude of risks is more important inthe second case. You should take into account the magnitude of risk when appreciated the standard of care.
Legal principle: A greater risk of damage than normal increases the standard of care required of a potential defendant.
Negligence was not found in Bolton case but was in Miller case.
2°) Judges have a great amount of discretion in determining the relevant standard of care “in all the circumstances”.
Haley v. London Electricity Board (1964) :
A blind claimant fell down a hole dug (=trou) in the pavement. Given that it is reasonably foreseeable that a blind person could be walking along a pavement, the defendants had a duty to take extra precautions to ensure safety.
There is a link between magnitude of risk and the duty to take precautions.
3°) Seriousness of the potential injury :
Parsi v. Stepney Borough Council (1951) :
Facts: - The claimant was a mechanic. His employer knew that he was blind in one eye. While the claimant was using a hammer to remove a bolt (=un boulon) on a vehicle, a chip of metal flew off and entered his good eye. He became totally blind.
- No goggles (=lunettes de protection) were provided for him to wear.
- It was not the ordinary practice for employers to supply goggles to men employed in garages on the maintenance and repair of vehicles.
Legal principle: The defendant owed a higher standard of care to the claimant because they knew that an injury to his good eye would cause him much more serious consequences than the same injury to a worker with two good eyes.
The employer should have taken extraprecaution because his employer was blind in one eye : the damage would have been more important.
B- Cost and practicability of precautions :
= extension of the mgnitude of risk. Do these extraprecautions cost mney ? if it’s the case, is there a limit of the cost ?
The court will also take into account what measures the defendant could have taken to avoid the risk of injury, the cost of those measures and the ease (facilité) with which they could have been implemented. (balance whether or not the cost is proportionate or not)
Key case : Latimer v. AEC ltd (1953):
Held that the cost of the measures to take to avoid the risk of injury would have been too high and disproportionate to the relatively small risk of injury. The defendant was not found liable.
But remember that : Impecuniosity (insolvabilité) is not a defence to a breach of duty.
C- Social value of the defendant’s activities :
Ex : the police ; tramway company ; trains (when it was a public service)
It’s mitigate (= modère) the appreciation of the judges.
- Where the defendant’s interest is in the public interest, it is likely to require the exercise of a lower standard of care.
- Daborn v. Bath Tramays Motor Co ltd (1946), Asquith LJ stated that “the purpose to be served, if sufficiently important, justifies the assumption of abnormal risk”
- This does not mean that the defendant is justified in taking any risk.
D- What the reasonable person would have foreseen :
-The standard of care is predicated upon (= basé sur) what the reasonable person would have foreseen.
-This depends upon the probability of the consequence. A defendant must take care to avoid “reasonable probabilities, not fantastic possibilities” (Fardon v. Harcourt-Rivington, 1932).
It’s a balance.
IV- Proving breach of duty :
It’s a matter of objective law (=procédure) (Vs substantive law = dt matériel ou substanciel)
The legal burden of proving (= charge de la preuve) breach of duty is on the claimant. However there are certain circumstances in which the claimant may have some assistance :
-where the maxim Res ipsa loquitur applies
-where section 11 of the Civil Evidence Act 1968 applies
A- The maxim Res ipsa loquitur :
Three conditions must be satisfied.
Key case: Scott v. London & St Katherine Docks co, 1865 : key case or starting case.
Facts: The claimant was injured by a sack of sugar which fell from a crane (= une grue) operated by the defendant.
Thinks speaks from themselves.
Legal principle: A claimant will be assisted by Res ipsa loquitur if:
-the thing causing the damage is under control of the defendant or someone for whose negligence the defendant is responsible
-the cause of the accident is unknown (the court find a breach of duty without earing detailed evidence : the things speack for himself)
-the accident is such as would not normally occur without negligence. It’s a standard situation : if there is an accident, it’s mean that there was a negligence before.
1°) Control :
The event which causes the damage must be within the control of the defendant :
-in Easson v. LNER (1944) a four-year-old child fell through the door of a long distance express train while the train was in motion some seven miles from the previous station, and was injured.
-No evidence as to how the door was opened.
-held that the mere fact that the door was opened was not of itself prima facie evidence of negligence
you could not presume that the company has the control of all the events on the train : a person could have open the door (third condition) : so, no application of this maxim. (pas d’obligation de sécurité : resp délictuelle ici, alors qu’elle aurait été contractuelle en France : exemple similaire pour la resp médicale)
2°) Cause unknown :
If the cause of the accident is known, res ipsa loquitur cannot apply.
The facts do not « speak for themselves ».
Instead the court must decide on all the facts whether negligence is established :Barkway v. South Wales Transport, 1950 :
The claimant was killed when the defendant’s bus veered off the road down an embankment (= bus est sorti de sa trajectoire et s’est retourné sur le talus) and it was established that the accident occurred because of a defect in one of the tyres (= pneus).
-it was shown that the defect might have been discovered beforehand if the defendant had required drivers to report incidents. = negligence
-it was held that the negligence of the defendant in failing to institute such a system was established.
3°) Accident would not normally accur without negligence :
Examples of situations are:
-a large bag of sugar fell from a hoist onto the claimant (Scott v.London & St Katherine Docks Co, 1865)
-a customer slipped on yoghourt on a supermarket floor that had not immediately been cleaned up (Ward v. Tesco Stores ltd, 1976). We could discuss the control of the yoghourt by the supermarket because it’s not so much different with the case of the train (Easson v. LNER, 1944).
-a patient went into hospital with 2 stiff (= rigide) fingers and came out with 4 stiff fingers (Cassidy v. Ministry of health, 1951). (importance of the third condition)
4°) The effect of res ipsa loquitur :
-it raises a prima facie presumption of negligence against the defendant.
-the defendant must than explain how the accident could have occurred without negligence.
-if the defendant succeeds, then the claimant must try to prove the defendant’s negligence.
Res ipsa loquitur does not reverse the legal burden of proof. It only states a presumption and the burden remains on the claimant if the defendant succeeds in proving that the rule does not apply. It’s only an assistance for the claimant.
B- Civil Evidence Act 1968 :
- According to section 11 of this Act, if the defendant has been convicted of a criminal offence by a UK court this is taken as proof that the defendant did commit it in any associated civil proceedings unless the contrary is proved. (= Presumption)
- If the defendant has been convicted of an offence which includes negligent conduct, then the burden of proof shifts to the defendant to prove that there was no negligence (ex: Careless or inconsiderate driving). (= Reverses the burden of the proof)
And that to make easier the proof for the claimant.
Sub-section 3: Causation and remoteness of damage :
Causation and remoteness of damage provide the link between the defendant’s negligent conduct and the harm suffered by the claimant. Link between the damage and the wrong.
I- Causation :
A- Factual causation :
Causation is factual and sometimes difficult to establish
-the breach of duty must be the factual cause of the damage. The general test used by the courts to determine factual causation is known as the “but for” test.
- Cork v. Kirby Maclean Ltd, 1952
- the question to be asked as a starting point in establishing factual causation is “but for the defendant breach of duty, would the loss or the damage have occurred?” (= si l’auteur supposé de la faute n’avit pas commis un tel acte, le dommage aurait il eu lieu ?)
Barnett v. Chelsea ad Kensington Hospital Management Committee, 1969 :
Facts: A patient was turned away from a casualty department (service aux blessés) by a doctor who refused to examine him. He later died of arsenic poisoning. It was shown that the man would not have recovered even if the doctor had treated him.
Legal principle: The hospital was not liable for the clear breach of duty in failing to treat the patient. The failure to treat was not the cause of the death. The patient would have died just the same. Because there is no causation
B- Problems in proving factual causation :
➢ Multiple causes of damage
➢ A “lost chance of recovery”
➢ Multiple consecutive causes of damage
1°) Multiple causes of damage :
-Where there is more than one possible cause of harm to the claimant, the claimant does not have to show that the defendant’s breach of duty was the only cause of damage or even the main cause of damage.
Key case: Bonnigton Castings Ltd v. Wardlaw, 1956 :
Facts: The claimant contracted pneumoconiosis after working for years in dusty conditions. There were two main causes of dust in the foundry, one of which was required by law to be extracted. It was impossible to prove which dust the claiman has inhaled.
Legal principle: Since the dust which should have been extracted was at least a partial cause of the damage, the defendant was liable in negligence. The claimant therefore only needs to show that a defendant’s breach of duty “materially contributed to the damage”
In that case, the criteria is a material contribution to the damage.
-What if there are too many possible causes for the claimant to discharge the burden of proof on balance of probabilities?
Wilsher v. Essex Area Health Authority, 1988 :
Facts: The claimant was born prematurely and needed extra oxygen to survive. A junior doctor (NB : standard of care for a junior doctor is the same as a senio doctor) inserted a catheter into a vein rather than an artery. As a result the baby received too much
oxygen, which caused damage to the retina and consequent blindness.
But there were five possible causes of the baby’s blindness. It was impossible to say which of the five causes had actually caused the damage.
Legal principle: Causation was not established. Since none of the potential causes was more likely to have happened than any of the others the balance of probabilities was not satisfied.
In that case, another criteria is use when there are several causes : the balance of probabilites.
Taking Bonnington Castings and Wilsher together, it can be said that where there is more than one cause, the defendant’s breach must be the substantial cause of the damage.
Where breach of duty (= manquement à l’obligation de diligeance) has a material effect on the likelihood (= probabilité) of injury then subsequent injury will be said to have been caused by the breach: McGhee v. National Coal Board, 1973. (lien entre probabilité et dommage = « subsequent »). On assimile la probabilité du dommage et le dommage quand il y a eu faute créant la possibilité d’un dommage et qu’un dommage survient après.
Facts : McGhee was employed to clean out brick kilns (= fours en brique) and developed dermatitis from his work.
- he sued his employer for negligence for failing to provide the proper washing facilities (pas de sanitaires dans l’entreprise pour se laver les mains)to prevent the outbreak of dermatitis. That might have been the cause : likelihood of injury. The lack of facilities have had a material effect.
- the issue before the House of Lords was whether the failure to provide the washing facilities has caused the rash. Could have had a material effect. As a result, the defendant was found liable.
2°) Lost chance of recovery :
The courts are extremely reluctant to impose liability where the negligence of the defendant caused the claimant to loose a chance.
Hoston v. East Berkshire area health authority, 1987 :
Facts: A boy fractured his hip when he fell from a tree. The hospital made a misdiagnosis and the boy developed a hip deformity. Experts confirmed that he would have had a 75% chance of developing the deformity with a correct diagnosis.
The court of appeal upheld (= confirme) the decision of the trial judge who awarded the boy 25% of the damages that were considered appropriate for his injury for his lost chance of recovery. The health authority appealed to the House of Lords.
Legal principle: The decision of the Court of Appeal was reversed (= censurée). The HL considered that, since there was only a 25% chance that the negligence had caused the boy’s injuries, this did not satisfy the balance of probabilities.
3°) Multiple consecutive causes of damage :
Where there are consecutive causes of damage, the application of the “but for” test is applied to the original defendant.
Performance cars LTD v. Abraham, 1962 :
Facts: The first defendant negligently drove into a Rolls Royce. The Rolls Royce was later
negligently struck by another car, driven by the second defendant.
Legal principle: the first defendant remained liable. The second defendant was not liable for the cost of the respray (= coup de peinture) since the car already needed a respray at the time of the collision with the second defendant.
C- The Novus actus interveniens maxim :
➢ The intervening act may be:
• A third party act
• An act of the claimant
• An act of nature
1°) Third party act :
a third person intervene in the chain of causation and the question is « is this intervening act break the chain of causation ? »
The original defendant will be liable where the intervening act does not cause the loss and where the intervening act is one that should have been reasonnably foreseen (Lamb v. Camden London Borough Council 1981)
When will an intervening event will break the chain of causation ?
Key cases: Baker v. Willoughby (1969) and Jobling v. Associated Dairies (1982)
Facts : In Baker v. Wilhoughby : the claimant was knocked down by a car due to the negligent drivingof the defendant. He suffered a permanent stiff leg as a result. After the accident, but before the trial, he was shot in the injured leg during a robbery at work. As a result his leg was
amputated.
In Jobling v. Associated Dairies Ltd, the claimant was injured at work due to his employer’s
negligence. He slipped and injured his back and lost 50% of his earning capacity as a result.
Three years later he developed a spinal disease. This has not been brought about by the
accident. He was consequently unable to work.
Legal principles:
-in Baker v. Willoughby : the court held that the gunman’s act was not a novus actus interveniens. The original defendant remained thus liable. The House of Lords held that the defendant was liable to pay full compensation for the injury he had caused, based on the claimant’s losses beyond the time when his leg was amputated.
Because of the chain of causation, the second event is the result of the first event : the two injuries are linked.
-in Jobling v. Associated Dairies limited: the disease of the spine was held to be a novus actus interveniens which did break the chain of causation.
The employer liability was limited to four years’ loss of earnings because, whatever had happened, this illness would have cause the disability and was a « vicissitude of life ».
It did break the chain of causation so there is no liability.
2°) Act of the claimant (faute de la victime) :
Key case: McKew v. Holland & Hannen & cubbitts Ltd, 1969
Facts : As a result of the defendant’s negligence, the claimant suffered a leg injury. This left his leg seriously weakened. He later fell when attempting to descend a steep flight of steps (= un groupe de marches) with no handrail (= rembarde), suffering further serious injuries. He did not seek assistance in climbing the stairs.
Legal principle: the claimant’s act is attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance when his leg had previously given way on occasions was unreasonable.
The court held that this act was a novus actus interveniens which had broken the chain of causation. As a result the defendants were not liable in damages for his second injury.
He contributed to his own damage.
The behaviour of the claimant can be entirely unreasonable in all circumstances ; but it could be only a partial contribution, so there will be an influence on the compensation.
3°) Act of nature :
No liability where the intervening act of nature is foreseeable and separate from the initial negligent act or omission.
Key case: Carslogie Steamship Co Ltd v. Royal Norwegian government, 1952
Facts : The claimant’s ship was damaged following a collision. After temporary repairs, the ship then left for the US where permanent repairs could be carried out. During the cross of the Atlantic, a storm caused further damage to the ship.
A storm is an act of nature
Legal principle: the defendants were not liable for the damage caused by the storm. The storm could have happened on any voyage and therefore the storm damage was not a consequence of the collision. It was foreseeable (= prévisible) and quite separate from the initial negligent act or omission, so the defendant was not liable.
It’s an objective approach of foreseeability.
II- Remoteness :
For how much of the claimant’s loss should the defendant be responsible?
A) The remoteness test
B) The “egg-shell skull rule”
C) The impecunious claimant
A) The remoteness (or directness) test :
Key cases : - Re Polemis and Furness, Wilthy & co ltd, 1921
- Wagon Mount, 1961
Re Polemis and Furness, Wilthy & co ltd, 1921 :
Facts: Some workers employed by the defendants to work on a ship negligently caused a piece of metal to fall into the hold (cale) of the ship, which contained barils of petrol. The piece of metal when falling ignited the petrol vapour that was in the hold, causing a fire which destroyed the ship.
Legal principle: the defendants were liable for all damages which resulted from the breach of duty, regardless of whether the damage was foreseeable by the defendant.
It was not really in favour of the defendant.
Wagon Mound, 1961 :
Facts : the defendants carelessly discharged oil from their ship into Sydney Harbour. Hours after theship had left the harbour, the oil was carried by wind and tide beneath the plaintiff’s wharf. Three days later, as some workers were doing some welding work on the wharf, some cotton waste under the wharf took fire and caused great damage.
Legal principle: at first instance, the trial judge applied the principles from Re polemis, finding that the defendants were liable for the fire damage, since the fouling to the wharf was a foreseeable consequence of the leakage.
On appeal, the Privy Council (= part of the Appellate Committee which deals with cases of Commonwealth countries who have accepted its jurisdiction : its decision are not binding) reversed the decision, holding that the correct test for remoteness is reasonable foreseeability of the kind or type of damage in fact suffered by the claimant.
This second case is much more modern. The two cases are good law in England, but today, the Wagon Mount case is refered by the English courts : reasonnable foreseeability.
B) The “egg-shell skull “rule :
The defendant must take their victims (the claimant) as they find them.
Key case : Smith v. Leech Brain & co ltd, 1961
Facts: The claimant was splashed by molten metal as a result of his employer’s negligence and
suffered a burn to his lip. This burn triggered (=causé, provoqué) cancer, from which the claimant died. The claimant’s lip was pre-malignant at the time of the incident.
No break of the chain of causation.
Legal principle: Some form of harm from the burn was foreseeable although the particular type of harm in the particular circumstances was not.
However, despite the fact that death from cancer was not a foreseeable consequence of the burn, the employers remained liable in negligence for the full extent of the damage.
C) The impecunious claimant :
The losses result from the claimant’s lack of means.
Key case: Liesboch dredger v. SS Edison, 1933
Facts : The claimant’s dredger sank due to the defendant’s negligence. They could not afford to replace the lost dredger.
In order to fulfill their contractual obligations, the claimant’s hired (=loué) a dredger at an exorbitant rate.
Legal principle: The claimants could not recover the high rental charges since these were a result of their own lack of means and not « immediate physical consequences » of the negligent act.
Mitigation of loss : obligation de minimiser le dommage : it doesn’t exist in France but the topic is discussed. The Catala project wants to implement this common law concept.
If you suffer a damage, you should not take action to increase the damage or not to act. Ex: you are sacked (viré) : it is a damage but no compensation if you don’t search for a new job. You should look after work because of the mitigation of loss.
The Liesboch case has been distinguished (la CA a écarté l’application de ce principe légal) by the court of appeal in cases relating to mitigation of loss (Perry v. Sidney Philipps, 1982) and subsequently only considered to apply in “exceptional circumstances” (Mattocks v. Mann, 1993). La règle de l’impecunious claimant ne s’applique que dans des cas exceptionnels, sinon, c’est la règle de la mitigation of loss qui s’applique. But the impecunious claimant is stell good law : you cannot invoque your impecuniosity.
The principle of liesboch case is too strict, so thejudges mitigated this principle with the mitigation of loss. It’s onlly applied in exceptionnal circumstances, but there is no yet a decision so it’s hard to say what they are.
Damages should only aim to put the claimant into the position he would be in had the defendant exercised reasonable care.
Section 3: Special duties :
Do not forget: special duty situations can be mixed in with standard duty situations very easily. You can apply both regimes.
➢ 1) Economic loss
➢ 2) Negligent misstatement
➢ 3) Psychiatric injury
I- Economic loss (manque à gagner) :
= Financial losses which are not attributable to physical harm caused to the claimant or his property: - Loss of profits
- Loss of trade
- Loss of investment revenue
Pure economic loss which is not consequential on physical damage to the claimant’s property is not recoverable in tort. You need first a physical damage, and after a financial loss : indiect financial loss.
Key case: Spartan stell and alloys ltd v. martin & co Ltd, 1973 :
Facts: The claimants manufactured stainless steel alloys (= alliage d’acier inoxydable) at a factory 24 hours a day. The defendant’s employees, who were working on a nearby road, damaged the electrical cable to the factory.The electricity board shut off the power supply to the factory for 14 hours until the cable was mended (= réparé).
The claimant “scrapped” a melt in the furnace, reducing its value by £368. If the supply had
not been cut off, they would have made profit of £400 on the melt, and £1767 on another four
melts, which would have been put into the furnace.
They claimed damages from the defendants in respect of all three sums.
Legal principle: The claimants could recover the damage to the melt in progress and the loss of profit on that melt.
They could not recover the loss of profit during the time that the electricity was switched off.
The damage to the melt in progress was physical damage and the loss of profit on it was a direct consequence of a physical damage. The further loss of profit was pure economic loss and not recoverable.
It’s a very strict decision : it is not fair, ut in Common Law fairness is ot the problem whereas in France.
In Spartan Steel and Alloys Lord Denning (a very liberal judge Vs conservative) said:
“I think the question of recovering economic loss is one of policy. Whenever the courts draw a line to mark out the bounds of duty they do it as to limit the responsibility of the defendant... It seems to me better to consider the particular relationship in hand and see whether or not, as a matter of policy, economic loss should be recoverable or not”.
But this opinion is a subjective approach, whereas in Common Law, it’s an objective approach !
II- Negligent misstatement (déclaration dolosive) :
Only in 1964, whereas in France in 1804 ! it’s in the field of precontractual liability.
Hedley Byrne v. Heller, 1964: liability in tort can be founded upon a negligent misstatement.
Facts: The claimant was an advertising company that was offered work by a small company with whom they had no previous dealings.
It sought a reference from the company’s bank which was prepared without any checks being made into the current state of its finances.
In reliance (en faisant confiance, en se reposant sur) upon the bank’s reference, the claimant carried out work for the company which went into liquidation before any payment was made. The claimant sought to recover its losses from the defendant bank on the basis of its negligent misstatement.
Legal principle: There are circumstances (« special relationships » must exist between the parties, so : subjective approach !!!)in which a person can be liable in tort for losses caused by a statement which he made if he did not take sufficient care to ensure that his statement was accurate (= approprié) or if he did not make it clear that he had taken no steps to ensure his accuracy.
It’s a very liberal decision in UK, so, there is a :
Strict limitation:
A special relationship must exist between the parties before there is a possibility for negligent misstatement that causes economic loss.
-The relationship will exist if one party exercises skill (= compétences) and judgment and the other party acts in reliance of this skill and judgment.
-The person making the statement must possess skill in relation to the particular statement that is made and should realise that the other party will act in reliance upon the statement.
-The party to whom the statement is made must have acted in reliance with that statement in circumstances where it was reasonable (= objective approach) for him to rely upon the statement.
Ex of special relationship : betwwen a bank clerk advirtising in a morage (=hypothèque) or between a friend advirtising by a mechanic friend on a car.
The criteria from Hedley Byrne v. Heller were restated in Caparo Industries v. Dickman (Caparo case redefine the neighbour principle after the Donoghue case, and also precise the criteria of Hedley case)
➢ The statement would be communicated to the claimant
➢ The statement would be made specifically in connection with a particular transaction,
➢ The statement would be very likely to rely upon it in deciding whether or not to proceed with the transaction.
III- Psychiatric injury (dommage moral) :
A- Definition of psychiatric injury :
The psychiatric injury suffered must be a medically recognised condition.
- Post-traumatic stress disorder
- Pathological grief
- Personality disorder
- Miscarriage (=fausse-couche)
Distress (= stress) and simple grief (= peine) are not considered as medically recognised conditions.
The psychiatric damage must be caused by a “sudden event”
Alcock v. Chief Constable of South Yorkshire, 1992 :
Facts: The police allowed a large crowd (= foule) of football supporters into an already crowed stand which was surrounded by a high perimeter fence (= barrière). In the chaos that followed, 95 people were crushed to death.
A large number of claims were made by those present at the scene and those who had viewed the events on television. Claims were made by various family members and friends of those present.
Legal principle: Shock (leading to psychiatric damage) “involves the sudden appreciation by sight or sound of a horrifying sight or sound or a horrifying event which violently agitates the mind”.
The shock will be the damage and so will be the psychiatric injury.
If the event could have been expected, there will not be any psychiatric injury.
B- The elements of the tort :
The defendant owed a duty of care to the claimant
The defendant breached the duty
The claimant suffered the damage
The damage was not too remote
The claimant must be a reasonable foreseeable victim (key concept in tort law)
Page v. Smith, 1995 :
Foreseeability of physical injury is sufficient to allow a claimant directly involved in the incident to invoke a psychiatric injury.
1°) Primary victims:
They are directly involved in the incident.
In White and Others v. Chief Constable of South Yorkshire Police, 1999, the House of Lords held that only persons in actual danger of physical harm can be classified as primary victims.
2°) Secondary victims:
They must satisfy a test established in Alcock v. Chief Constable of South Yorkshire Police, 1992 :
- There must be a close relationship of love and affection with the primary victim (there is a rebuttable (=réfragable) presumption in favour of this in the case of parents and spouses)
- Ordinary passers-by may be able to claim if the incident witnessed was particularly horrific.
- How the shock was caused must also be taken into account.
The claimant must see or hear the event through unaided sight or hearing. (= direct : ils doivent être sur place)
In Alcock it was held that shock communicated by live television broadcasts was not sufficient since it did not show recognisable or identifiable individuals suffering.
The “egg-shell skull” rule also applies in cases of psychiatric damage.
English common law is very strict : it is more an economic approach than a fairness approach.
Section 4: Remedies in the law of torts :
= A remedy is any of the methods available at law for the enforcement, protection, or recovery of rights or for obtaining redress for their infringement.
➢ 1. Damages (financial compensation) = common law remedies
➢ 2. Injunctions = equitable remedies (special fiels or contracts ans specific or extra-conditions)
I- Damages :
Damages are a sum of money awarded by the court as a compensation for a tort or a breach of contract. Damages are usually a lump-sum (= forfaitaire) award.
The principle is that the award of damages should return the claimants to the position that they would have been in, had the tort not occurred.
There are three basic situations :
- Harm, loss or injury that is amenable (= susceptible) to quantification such as damage to property
- Harm, loss or injury that is harder to quantify, typically involving personal injury
- Torts which are actionable per se, i. e. there is no requirement of harm where the damages represent the wrong arising from interference with the claimant’s legal interest. (=responsabilité objective) in that case, you would have to compensate even of there is no wrong (ex : statutes ; products liability)
A- Mitigation of loss :
A claimant must take reasonable steps to ensure that the losses that he is claiming are kept to a minimum. It’a an obligatin to receive damages.
B- Categories of damages :
1) Special damages :
Special damages are those which are capable of being calculated at the time of the trial and which are presented to the court in a form of calculation
Special damages are:
Loss of earnings before trial
Medical expenses prior to trial
Damage to property, e. g. loss of a vehicle in an accident.
2) General damages :
General damages are those which are not capable of being calculated at the time of trial and are left to the court to quantify:
Loss of future earnings
Cost of future medical expenses
Pain and suffering
3) Nominal damages :
These damages are awarded when the claimant’s right have been infringed but little harm has been caused. (ex : your neighbour have left his car in your garden)
4) Contemptuous damages : (= demande abusise de dommage)
- These damages are also awarded when the level of harm caused is low.
- They differ from nominal damages in that the court feels that the action should not have been brought (even though the claimant has been successful in establishing the elements of a tort).
5) Aggravated damages
These damages are awarded over and above the damages that are necessary to return the claimant to the position that he would have been in had the tort not occurred.
6) Exemplary damages
Exemplary damages are an additional award that reflects the court’s disapproval of the defendant’s conduct. (in US : punitive damages)
Distinction between aggravated and exemplary damages:
- Aggravated damages are awarded on the basis of the injury or feelings caused by the defendant’s conduct.
- Exemplary damages are awarded on the basis of the defendant’s conduct (irrespective of whether it injures the claimant’s feelings).
Rookes v. Barnard, 1964 :
Facts: After a disagreement, the claimant left his union. The defendant, an unpaid union (=syndicat) official, told the claimant’s employer that there would be a strike unless the claimant was dismissed.
Following his dismissal, the claimant brought a civil action founded in conspiracy against the defendant and others.
Legal principle: The House of Lords considered the distinction between aggravated and exemplary damages.
Held that the purpose of aggravated damages was to compensate the claimant for loss or harm suffered whilst the purpose of exemplary damages was to punish the defendant for unacceptable behaviour and deter ( =dissuader) others from similar behaviour.
It’s a very closed system : the judges didn’t give exemplary damages easily (Vs US approach)
It was held that there are three situations that justify the imposition of exemplary damages:
- Oppressive, arbitrary or unconstitutional action by the servants of the government,
- Cases where the defendant is calculated to make a profit that will exceed the compensation otherwise payable to the claimant,
- In situations where exemplary damages are explicitly authorised by statute.
II- Injunction : (equitable remedy)
An injunction is a discretionary remedy which takes the form of a court order that requires that the defendant behave in a particular way.
There are two kinds of injunctions :
*prohibitory injunction : the most common form of a court order which requires the defendant to refrain from doing something ; in order words, to stop committing the tort that he is committing
*Mandatory injunction: these compel the defendant to take a particular action to rectify the situation that has arisen due to his tortuous behavior.
They are relatively uncommon.
The circumstances were defined in Redland Bricks Ltd v. Morris, 1972 :
-there must be a strong possibility of substantial damage in the future
-there must be pecuniary remedies
-the defendants must have behaved « wantonly (he knew he did it) or unreasonably »
-the injunction must be capable of reflecting exactly what the defendant was compelled to.
3 kinds of injunctions:
Injunctions vary according to the time at which there are obtained in relation to the omission of the tort.
- Prior to the tort: if the claimant has good grounds to believe that a tort will be committed, he may apply for a quia timet injunction. (prohibitory injunction)
- When the tort is committed: the claimant can apply to the court for an interim injunction to stop the tort before the trial to resolve the main issue. (mandatory injunction)
- After the tort is committed: the claimant may seek a final injunction to prevent the reoccurrence of the tort.
Since the usual remedy in tort is damages, a claimant will not be granted an injunction unless he is able to establish that damages would not be an adequate remedy. Courts are relunctant.
Equitable maxims:
Claimants must ensure that the circumstances of their case do not offend against key equitable remedies:
- equity does nothing in vain
- delay defeats equity : The claimant should act quickly, promptly; there is no delay in equity because it’s a discretionary branch.
- he who seeks equity must do equity
Indian common law
Special common law
-Common law applied by the end of the 19th century.
-Existence of codes used to reform and to clarify the law and not to consolidate it. They still applying local costumes. They codify their laws. It’s a compilation.
-Independence in 1947 did not radically after the basic characteristics of Indian law. They exported the common law system but no equitable law : no equity branch; they don’t use injunction but justice equity and fairness.
Existence of some distinguishing features from Common Law :
Precedents are tailored to the particular local facts of a case ;
No distinction between equity and Common Law ;
law of property differs clearly from the English legal system;
Written constitution.
Correction
DU DE DROIT ANGLAIS NIVEAU 1
MAI 2007
1) What are the general defences to actions in tort? (1 pt)
–self defense
–statutory authority
-assumption of risk
-inevitable accident
2) What are the four components of negligence? (1 pt)
-existence of the duty of care
-breach of the duty of care
-suffered a damage: causation
-the damage not be to remote : remotness
3) What is the neighbour principle used for? Is it limited in its application? (2 pts)
Stevenson
duty of care? To know if whether or not a duty of care is due: neighbour principle.
Is it limited? It was redefined by the case.
4) To what extent was this principle redefined?
When answering the question, explain the facts and the legal principle of the case
redefining the neighbour principle. (4 pts)
It must be just fair and reasonable to impose this principle
5) What is a “reasonable man” in English tort law? (2pts)
Case: Brouklands: the man is average
6)
John was taken to the hospital after having slipped on a yogurt in a Sainsbury
shop. He suffers a severe back injury. Explain the key rule that governs the
liability in this context. (6 pts).
Rules to apply to the fact: Accident would not normally accur without negligence
-examples of situations are:
-a large bag of sugar fell from a hoist onto the claimant (scott v.London & St Katherine)
-a customer slipped on yoghourt on a supermarket floor that had not immediately been clean up (Ward v. Tesco Stores ltd 1976)
-a patient went into hospital with 2 stiff (rigide) fingers and came out with 4 (Cassidy v. Ministry of health 1951)
The effect of res ipsa loquitur
-it raises a prima facie presumption of negligence against the defendant.
-the defendant must than explain how the accident could have occurred without negligence.
-if the defendant succeeds, then the claimant must try to prove the defendant’s negligence.
Res ipsa loquitur does not reverse the legal burden of proof. It only states a presumption and the burden remains on the claimant if the defendant succeeds in proving that the rule does not apply
Condition
7) Explain what “the but for test” is. (2 pts)
1952
8) Explain what “mitigation of loss” is. (2 pts)
Mitigation of loss: Catala: obligation to minimize the damage
samedi 20 janvier 2007
lundi 13 novembre 2006
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