IN Fencing club as to their potential liability in

IN THE MATTERS OF:

Beric v
Joffrey

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Melisandre v
Thrones Fencing Club

Jorah v
Thrones Fencing Club

Cersei v Thrones
Fencing Club

 

 

Introduction:

1.    
I am asked to advise Joffrey as his potential
liability in connection with a potential claim brought by Beric in the tort of
a civil battery.

2.    
I am asked to advise Thrones Fencing club as to
their potential liability in connection with a potential claim brought by
Melisandre in the tort of negligence.

3.    
I am asked to advise Thrones Fencing Club as to
their potential liability in connection with a potential claim bought by Jorah
in the tort of negligence.

4.    
I am asked to advise Thrones Fencing Club as to
their potential liability in connection with a potential claim bought by Cersei
in the tort negligence.

5.     Tort can be described as the area of
civil law which provides a remedy for a party who was suffered the breach of a
protected interest. In order to succeed in the tort of negligence a claimant
must show, not only that the defendant was at fault, but that he suffered
damage as a result of the defendant’s negligence1.Tortious liability arises from the
breach of a duty primarily fixed by law; such duty is towards persons generally
and its breach is redressable by an action for unliquidated damages2.Tort
is that branch of the civil law relating to obligations imposed by operations
of law on all natural and artificial persons. It concerns the basic duties one
person owes to another outside of a contract or the obligations triggered by an
unjust enrichment. It enables the person to whom the duty is owed to pursue a
remedy on his own behalf where breach of one of those duties infringes his
interests to a degree recognized by the law as such an infringement3.

`

Facts:

6.    
Beric, the umpire made a decision that went
against Joffrey, this therefore caused Joffrey to have a bad temper so as a
result, Joffrey aims his sword at the umpire who has his back turned to
Joffrey, the sword then cuts deeply into his back which hits a spinal cord and
therefore leaves Joffrey paralysed.

7.    
Melisandre is watching the competition at home
on TV , she then sees the accident and its aftermath unfold. This causes her to
be distraught after seeing her fiancé in pain, she suffers from constant
flashbacks and is diagnosed by her GP as having post-traumatic stress disorder.

8.    
Arya’s sword flew out of her hand over the
perimeter of the fence and struck the windscreen of Jorah’s car who is a
passing driver. As Jorah was so startled by the incident he swerved and crashed
into a nearby tree, within seconds the car caught fire. Jorah remained in the
van in order to retrieve some of his valuable antiques from the back seat of
the car. As a result Jorah suffered burns to his arms and back.

9.    
As Arya lost her sword she is unable to recover
her balance and falls into the spectator’s royal enclosure, Arya collides with
Cersei who was sitting on the front row. As a result, Cersei suffers a broken
shoulder.

 

 

Issues:

In order to address the potential
causes of action precisely, I shall address the relevant points of an issue by
issue basis in the following order:

10.  CLAIM 1-What
is the likely success of Beric claiming against Joffrey for the tort of a
battery?

11.  CLAIM 2-
What is the likely success of Melisandre claiming against the Thrones Fencing
Club as a secondary victim who has suffered psychiatric damage?

12.  CLAIM 3-What
is the likely success of Jorah claiming against the Thrones Fencing Club for
the tort of negligence?

13.  CLAIM 4-What
is the likely success of Cersei claiming against the Thrones Fencing Club for
the tort of negligence?

 

Law and Application:

Claim 1

14.  A
civil battery in tort law is defined as ‘the direct, intentional,
unwanted/unwarranted touching of the claimant by the defendant’ Collins v
Wilcock 1984 3 ALL ER 374.

15.  First
there has to be an element of touching for liability in battery as no force is required,
just contact Nash v Sheen 1953.  In
this instance, touching is present as Joffery throws his sword at Beric which
is a voluntary act as the sword cuts deeply into Beric’s back.

16.  Second
the act causing the battery has to be direct. In my opinion, the throwing of
the sword was direct as Joffrey purposely aims and throws the sword at the
umpire as he had bad temper due to the umpire deciding to go against him. We
can see that the act taken by Joffrey is more direct than in Scott v Shepherd
1773 3 Wm BI 892 whereby directness is more broadly defined. In Fagan v MPC
1969 1 QB 439, the driving over the officer’s foot was found to be a direct
and positive act. Joffery’s act therefore satisfies the requirement of
directness.

17.  Third
intention is required, Letang v Cooper 1965 1 QB 232. A careless act is not
sufficient enough to satisfy this element of battery. However, the requirement
of intention is satisfied as Joffrey purposely aims his sword at the umpire
showing he intentionally meant to do harm.

18.  Lastly,
Joffrey’s act was unwanted or unwarranted because being stabbed in the back by
a sword is not an ‘everyday touching’ as it was not an acceptable act and goes
beyond ‘the conduct of everyday life’ Lord Goff in F v West Berkshire Health
Authority 1990 2 AC 1 340.

19.  I
can conclude that in my opinion, Beric’s action in battery against Joffrey is
likely to be successful because he is able to satisfy all of the elements
required. In relation to Trespass to the Person, even prior to the entactment
of the Human Rights Act 1998, the judiciary sought to test how far the
conditions of a particular tort matched the relevant provisions of the European
Convention on Human Rights4.
Articles 2 and 3 respectively guarantee the right to life, and freedom from
torture or degrading treatment. Article 5 asserts the right to liberty and
security of person and seeks to ensure that the state cannot detain persons
without substantial grounds justifying that deprivation of liberty.5
Article 10 states Freedom of expression whereby ‘everyone has the right to
freedom of expression’, the act of Joffrey aiming his sword at Beric and
leaving him paralysed goes against Beric’s right to freely express his decision
of making a decision against him which he can therefore potentially claim for
as his right to freedom of expression has been violated.

 

Claim
2

20.  As
Melisandre is away from the scene, she would be classified as a secondary
victim. This means in order for the Thrones Fencing Club to owe her a legal
duty in relation to her psychiatric illness she will need to satisfy the tests
arising from the Alcock decision Alcock v Chief Constable of South Yorkshire
1992 AC 310.

21.  Does
the secondary victim claimant have a close relationship of love and affection
with the ‘primary victim’? Alcock v CC of South Yorkshire 1992 AC 310.
Melisandre has the relationship status of ‘fiancé’ to Jorah, however, the
courts will need to decide on whether this is a close enough relationship to make
this damage reasonably foreseeable. It may depend on the evidence that
Melisandre can prove as she may be able to satisfy this requirement, though it
must be said that the courts remain narrow in their interpretation on this test
as their decision may vary due to the potential of floodgates.

22.  Did
Melisandre witness the accident or its immediate aftermath? Melisandre was not
at the scene of the incident but saw the accident and its immediate aftermath
unfold live on TV. In order to decide on whether Melisandre meets this
requirement we would need to question her further on whether she did anything
subsequent to watching the immediate aftermath Gali-Atkinson v Seghal 2003
EWCA Civ 697. The Alock test would rule that live TV is not the same as being
at an actual event, however this issue is debatable as in cases so horrific
where you can identify the victim there is a potential of being able to claim
as a secondary victim.  Melisandre is
likely to fail on this criterion as she was not present at the scene of the
accident.

23.  Was
Melisandre’s psychiatric injury caused by a sudden shock? Sion v Hampstead
Health Authority 1994 EWCA Civ 26. As Melisandre saw the accident live on TV
and its aftermath unfold, this caused her to have constant flashbacks and she
has therefore been diagnosed by her GP as having post-traumatic stress disorder.
This means that Melisandre is likely to satisfy this requirement.

24.  Would
a person of ‘reasonable fortitude’ have suffered psychiatric injury in the same
circumstances? Bourhill v Young 1943 A.C. 92 As Melisandre witnessed the
event live on TV she could argue that she had reasonable fortitude. However, it
can also be argued that as she didn’t have a legal proximity to the event she
may not be able to claim as a secondary victim of psychiatric damage.

25.  Has
there been a breach of the duty of care? The courts may decide that there was
no duty of care owed to Melisandre as the secondary victim so therefore no duty
was breached Blyth v Birmingham Waterworks Co 1856 11 Ex Ch 781.

26.  What
is causation in fact? The ‘but for test’ Barnett v Chelsea and Kensignton HMC
1969 1 QB 428 would show if it was not for the Thrones Fencing Club hosting
the tournament in the two new arenas which had close proximity to the perimeter
fence and an adjacent busy road, then the incident of Jorah crashing due to the
sword striking the windscreen wouldn’t have occurred which therefore means Melisandre
would not have witnessed this incident so then she would not have been
diagnosed as having post-traumatic stress disorder and suffer from constant
flashbacks.

27. 
The Thrones Fencing Club is unlikely to owe
Melisandre a duty of care in respect of the psychiatric damage she suffered as
there was no duty of care owed by the Thrones Fencing Club to Melisandre. She
would fail to establish sufficient proximity to the incident as she was not
present at the time of the event and lastly, the court may decide that the
proximity of relationship between the primary and secondary victim is not
sufficient enough to make this kind of damage reasonably foreseeable.

 

Claim
3

28.  The
first element that needs to be fulfilled in any negligence claim is that a duty
of care exists between the parties. In order to establish whether a duty of
care was owed we use the Caparo v Dickman 1990 2 AC 590 test. The elements
that need to be satisfied are:

·      The
claimant and the injury must both be reasonably foreseeable.

·      Legal
proximity must exist between the claimant and defendant.

·      It
must be fair just and reasonable to impose a duty.

29.  Firstly,
did the Thrones Fencing Club owe Jorah a duty of care? Caparo v Dickman 1990
2 AC 605 This is between a road user and Arya who participated in the international
outdoors fencing championship. Jorah would classify as a reasonably foreseeable
claimant due to the close proximity of the fence and the adjacent busy road, as
this is a physical damage there are no legal proximity issues and lastly it is
fair, just and reasonable for a legal duty to be owed by the Thrones Fencing
Club to Jorah who is a passing driver.

30.  Was
this duty breached? The Thrones Fencing Club fell below the reasonable standard
of care due to the lack of preparation and care by allowing the competition to
take place in an unsafe environment. Also, as there had not been any sufficient
evidence of the two new arenas being a safe place for a fencing championship as
its stated that they were only used for coaching purposes. It is also noted that
the arenas had a close proximity to the perimeter fence and were next to an
adjacent road, this shows the Thrones Fencing Club is very likely to be held in
breach of duty as there was a lack of standard of care.

31.  Did
the Thrones Fencing Club factually cause Jorah’s damage? The court would use
the ‘but for’ test to decide, as if the Thrones Fencing Club did not use the
two new arenas which were in close proximity to the adjacent busy road then it
would be highly unlikely that Jorah would have crashed into the tree and
therefore the car would not have caught on fire. However, the facts suggest
that Jorah’s act may be a novus actus interveniens, breaking the chain of
causation as Jorah remained in the van to retrieve some of the valuables which
means he put himself at a higher risk of physical harm, this act caused Jorah
to suffer from burns on his back and arms. In terms of legal causation, the
type of damage suffered here which is personal injury suggests it is of a
reasonably foreseeable kind The Wagon Mound no 1 1961 AC 388.

32.  In
my opinion, Jorah’s negligence claim against the Thrones Fencing Club could
potentially be successful as duty of care had been breached by the Thrones
fencing club. However, this depends on whether the court views Jorah’s act of
trying to retrieve his valuables as a breaking of the chain of causation which
would then mean that Jorah’s claim of negligence may not be successful.

 

Claim
4

33.  The test
for a negligence claim to decide on whether there has been a breach in duty of
care Caparo v Dickman 1990 2 AC 590 which has been previously mention as
above needs to be satisfied in order for the courts to establish whether a duty
of care needs to be owed.

34.  Was
this harm the by the Thrones Fencing Club foreseeable by Cersei? The harm was
foreseeable as Cersei was sitting front row­ and as there wasn’t any barrier
between the spectators and the competitor there is potential that harm may
occur. Was there a relationship of legal proximity between Cersei and the Thrones
Fencing Club? As established in Donoghue v Stevenson 1932 AC 562 there is a
relationship of legal proximity as Cersei was sitting front row at the
tournament which is very close to where Arya was competing. Is it fair, just
and reasonable to impose a duty of care on the Thrones Fencing Club? Yes, it is
fair as the Thrones Fencing Club should take precaution to make sure there’s a
safe distance between the spectators and the competitors so no harm would be
caused as we can assume there was no barrier to protect the audience.

35.  Has
the defendant satisfied the appropriate standard of care of the reasonably
competent professional? The Thrones Fencing Club has not satisfied the
appropriate standard of care as the arena where the event took place was mainly
used for coaching purposes. As a major competition has never taken place there
this means no precautions had taken place prior to the competition and also the
distance between the competitors and the audience was not safe and reasonable
as Cersei was harmed as she suffered from a broken shoulder.

36.  Did
the Throne Fencing Club factually cause Melisandre’s damage of a broken
shoulder? The ‘but for’ test would be used by the court to establish whether if
Arya had not of collided into Cersei due to the closeness in proximity, then
Cersei would not have suffered from a broken shoulder.

37.  The
likelihood of the risk of serious harm occurring is high as there does not seem
to be a barrier between the audience and the competitors Bolton v Stone 1951
AC 850.

38.  Cost-effective
and practical precautions that could have been considered are potentially
postponing the tournament until the weather is suitable enough for it to be in
a safe environment and also a practical precaution of a potential barrier
between the audience and the competitors to decrease the likelihood of any
physical harm occurring.

39.  A
risk assessment should have been done by the Thrones Fencing Club to ensure
that the two new arenas were a safe location for the competition to take place
and also that the distance between the audience and the competitors was safe
Davis v Stena Line 2005 EWHC 420 QB.

40.  In
my opinion, Cersei claim for negligence against the Thrones Fencing Club is
likely to be successful on the grounds that the appropriate standard of duty of
care by the Thrones Fencing Club was not sufficient enough so therefore duty of
care has been breached.

Conclusions

I conclude that:

 

41.   Joffrey may be liable in battery to Beric for
his deep cut and paralysation.

42.  The
Thrones Fencing Club are unlikely to be liable for Melisandre’s secondary victim
psychiatric damage.

43.  The
Thrones Fencing Club may be liable in negligence to Jorah for his car crash,
but are unlikely to be liable for his burns on his back and arms.

44.  The
Thrones Fencing Club may be liable in negligence to Cersei for her broken
shoulder.

 

13.01.18

 

Pupil Barrister

1 Bermingham & Brennan, Tort Law 5th edition, p 1

2 Winfield, Province of the Law of Tort (1931) p 92.

3 Murphy, Street on Torts 12th edition, p 4.

4  See, eg, Olotu v Home Office 1997 1 ALL ER
385

5
See Art 5(2)-(5) AND Art 6

x

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