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

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

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

4. 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

5. 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

6. 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%

7. Negligence
Unit 86

8. 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

9. 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

10. 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?

11. 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.)

12. 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

13. 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)

14. 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.