Glossaire de droit anglais Méthode, traduction et approche comparative Géraldine Gadbin-George et al.

Assessment TD mark /10 In-class exam: April 13th (40%) Presentation (60%) June exam /10 = overall English mark /10

Tort litigation Unit 85 This semester studying tort and contract law.

Tort law Negligence Defamation Nuisance Trespass In contract law a defendant’s legal obligations arise from the contractual agreement, and a defendnat’s is generally limited in his liability to the other party ot the contract. Tort law in contrast deals with other kinds of obligations, obligations to others which exist even though there no contract which links the parties, and which if violated allow the other party to bring a civil claim. Tort law includes defamation, negligence, trespass and nuisance Nuisance Trespass

Tort law “the function of tort law is to determine what legal rights we have against other people, free of charge and without our having to make special arrangements for them, and what remedies will be available when those rights are violated.” Tort Law (McBride and Bagshaw, 2015) Derived from case law and from mandatory statutory provisions One way it’s been described is like this; “the function of tort law is to determine what legal rights we have against other people, free of charge and without our having to make special arrangements for them, and what remedies will be available when those rights are violated.” Tort Law (McBride and Bagshaw, 2015) We will see that English tort law is derived from case law, and also from some mandatory statutory provisions

Tort law “the set of rules which provide remedies for damage caused by the tortfeasor to the victim” Concerned with establishing liability for wrongs Aims to return the claimant to the position he was in before the tortfeasor committed his wrongful act damages an injunction The burden of proof is on the claimant Before we start we will look at some of the basic vocvabulary that you will need. A tort is a civil wrong’: a wrongful or negligent act that unfairly results in loss or harm to another. It is committed by a ‘tortfeasor: person (natural or artificial) who committed a tort The law of tort then can be described as “the set of rules which provide remedies for damage caused by the tortfeasor to the victim” damage = an injury –= harm (uncountable) that can be harm to the victim ‘s person, reputation or financial interests, or damage to property Tort litigation is concerned with establishing liability for wrongs In general, the court will aim to return the claimant to the position he was in before the tortfeasor committed his wrongful act = redressing the wrong Wrongful = tortious (tor shus) This means that the in most clases the claimant will sur for damages (financial compensation) or seek an injunction – a court order forcing the défendant to do or refrain from doing somthing Finally we must stress that tort law deals with Private wrongs – the claimant brings the claim (=files suit) and the onus (=the burden pf proof) is on the claimant, who must adduce evidence (introduce, bring forward) to prove his case to what standars (on the balance of probabilities) which means – more than 50%

Negligence Unit 86

Negligence The defendant owed the claimant a duty of care. The defendant breached the duty of care. The claimant suffered damage as a result of the breach (= causation). The damage suffered was not too remote. To succeed in a negligence claim, a claimant must establish four elements. What are they? The defendant owed the claimant a duty of care. The defendant breached the duty of care. The claimant suffered damage as a result of the breach (= causation). The damage suffered was not too remote. If a claimant brings a claim against a defendnat, they must prove all all four elements on a balance of probabilities So we are going to look at each element in detail

1. Duty of care Concept established in Donoghue v Stevenson (1932) Following Caparo Industries v. Dickman (1990), a duty of care exists if: harm to the claimant was a reasonably foreseeable result of D’s action there was a relationship of sufficient proximity between C and D it is fair, just and reasonable to impose a duty of care The first element is the DoC This was established in Donoghue v Stevenson (1932) This is possibily the most important case in English cvil law, definitely the most famous – We are going to do a short listening, to give you a bit of background about it This is called the neighbour principle That’s the origin of negligence Over time the caselaw has developed Today the key case is Caparo and Dickman harm to the claimant was a reasonably foreseeable result of D’s action there was a relationship of sufficient proximity between C and D Link – link to definition of neighbour it is fair, just and reasonable to impose a duty of care In many cases, espacially in lower courts, the Caparo test is not used because the courts have already established that a DOC exists, or a statute exists which imposes a duty. A manufacturer ......to consumers A driver owes a doc to...... to other road users. An employer .....to his employees A solicitor ......to his clients A doctor owes a doc to his patients. An occupier of premises to .... visitors

2. Breach of the duty of care The defendant’s conduct is measured against that of a reasonable man. Would a reasonable man have foreseen the risk? Based on what he knew or ought to have known, how would a reasonable man have behaved? IThe second element of negligence is breach of duty. Having established that a duty of care exists, the next step in establishing liability is to decide whether the defendant is in breach of that duty – in other words, whether the defendant has failed to meet the standard of care required by law. What is the SOC required by law: REASONABLE MAN The defendant’s behaviour is compared to that of a reasonable man – today a reasonable person. The reasonable man is not perfect, he is a reasonably careful man, the equivalent of teh French bon père de famille The court then will ask, Would a reasonable man have foreseen the risk? Based on what he knew or ought to have (should have =aurait du) known, would he have taken any specific action?

2. Breach of the duty of care The court will take into account: the foreseeability of the damage the magnitude of the risk the likelihood of damage occurring the gravity/seriousness of any potential damage the cost and practicability of avoiding or minimising the risk When deciding whether there has been a breach, The court will take into account: the foreseeability of the damage > if damage is not reasonably foreseeable, then there is no breach (example on sheet) The amgnitude of the risk the likelihood (probability) of damage occurring the gravity/seriousness of any potential damage the cost and practicability (faisabilité) of avoiding or minimising the risk If the risk is small and the cost of avoiding it is very high, there may not be a breach; However, The greater the risk of injury, the more a defendant has to do to reduce or eliminate that risk, Finch, Emily; Fafinski, Stefan. Law Express: Tort Law (Page 42). Pearson Education Limited. Édition du Kindle. Look at cases here we have three important cases, what is the rule which we can find from these cases? If the risk is unknown or very small, then there is no breach. (However, if the risk is reasonably foreseeable, then there may be a breach.)

2. Breach of the duty of care Skilled or professional defendants are held to a higher standard A defendant’s inexperience does not lower the standard. Children are held to a lower standard than adults. The reasonable man standard is largely objective, but there are someexceptions. Skilled or professional defendants are held to a higher standard (of a “ordinary” member of the profession). A doctor’s actions are compared to those of an ordinary doctor, not an ordinary man in the street. A defendant’s inexperience does not lower the standard. (a learner driver is held to the same standard as an experienced driver) Children are held to a lower standard.> standard of care expecetd is that of ordinary children of the same age

3. Causation of damage There must be: redressable damage caused by the breach Factual causation is established using the “but for” test: the claimant would not have suffered harm “but for” D’s act/omission There must be redressable damage > we’ll see in later classes that sadness or mild anxiety will not constitute redressable damage > a physical injury or damamge to property will And the damage must be caused by the breach. This means that the claimant must show a causal link between the defendant’s act or omission and the loss or damage suffered. This is often referred to as the ‘chain of causation’. Factual causation is established using the “but for” test: the claimant must show that he would not have suffered harm “but for” D’s act/omission Without D’s act/omission, C would not have suffered harm Often its simple > A hots B with their car. B suffers a broken leg. B would not have suffered the broken leg but for A’s negligent driving. But This can be complicated when there are multiple potential cluases. It also means that even if there was a breach of a doc, the defendnat os only liable if that breach actually cuased the damage.(example on sheet)

The damage suffered was not too remote Legal causation The damage must not be too remote the type of damage suffered by C must be a reasonably foreseeable result of the breach. There is also a requirement of legal causation – the damage must not be too remote, (it must be a reasonably foreseeable result of the breach). = the chain of causation must not be too long or complex the type of damage suffered by C must be a reasonably foreseeable result of the breach.