IN THE MATTERS OF:
Jorah v Arya/Thrones Fencing Club
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Melisandre v Thrones Fencing Club
Cersei v Arya/Thrones Fencing Club
Beric v Joffrey
1. Tort law is about providing remedies for those who suffered a breach in their interests, which includes physical safety (Trespass to the Person), land (Trespass to Land), property (Negligence), reputation (Tort of defamation) and economic interest (Negligence). This is also used to help reduce the damage/liability imposed on someone. The Human Rights Act 1998 adapted the relevant articles of European Convention of Human Right in the UK law as most of the rights under the convention were already under the common law. This enables the individual to seek remedies when courts’ decision becomes incompatible with the Convention rights.1
2. With the given case I am asked to advise the following defendants against the claims made against them:
i. I am asked to advise Arya and the Thrones Fencing Club as to their possible liability in tort of negligence brought by the potential claimant, Jorah.
ii. I am asked to advise the Thrones Fencing Club as to their potential liability in tort of negligence brought by the potential claimant, Melisandre.
iii. I am asked to advise Arya and the Thrones Fencing Club as to their potential liability in tort of trespass to person and negligence with the potential claims brought by Cersei.
iv. I am asked to advise Joffrey of his potential liability in tort of trespass to the person with the potential claims brought by Beric.
3. The Thrones Fencing Club (TFC) was hosting an outdoor fencing championship. The game was allocated in the two new arenas due to the bad weather. Arena 1 and Arena 2 has close proximity to the perimeter fence and an adjacent busy road which is why they were used for coaching purposes only.
4. While competing, Arya struck her sword at Sandor’s helmet and it flew over the perimeter fence. It struck Jorah’s windscreen, whilst his car was passing by. The car swerved and crashed into a tree, which then caught fire. Jorah suffered burns to his body as he tried to retrieve some valuable antiques.
5. Melisandre, Jorah’s fiancée was distraught after seeing what happened to her fiancé through television. She was diagnosed with the GP with post-traumatic stress disorder.
6. After Arya lost her sword, she lost her balance and fell into one of the spectators. She collided with Cersei, who suffered broken shoulders.
7. Joffrey threw his sword at the umpire after their decision went against him. Beric, who had his back turn when the sword cut deeply into his back, which resulted in hitting the spinal nerve and made him paralysed.
8. Claim 1: Whether Arya/Thrones Fencing Club be held liable for the damage suffered by Jorah and the possibility of economic loss.
9. Claim 2: Whether the Thrones Fencing Club be liable for the psychological injury of the possible claimant, Melisandre.
10. Claim 3: Whether Arya/Thrones Fencing Club can be held liable for the injury suffered by Cersei.
11. Claim 4: Whether Joffrey can be held liable for the damage suffered by Beric.
LAW AND APPLICATION
DUTY OF CARE
12. In order for Jorah’s claim to be successful, we need to establish whether Arya or the Thrones Fencing Club owes the claimant a duty of care.
13. Duty of care is derived from Lord Atkin’s ‘neighbour principle’ from Donoghue v Stevenson 1932 AC 562, where a duty of care is a legal obligation to take care of your neighbour, who is defined as someone you should have in mind that is likely to be affected by act or omission.
14. Using Caparo v Dickman 1990 UKSC 2 test, three elements must be fulfilled to identify if the defendant owes the claimant a duty of care:
i. Was the harm to the claimant reasonably foreseeable by the defendant?
ii. Was there a relationship of legal proximity between the claimant and the defendant?
iii. Is it fair, just and reasonable to impose a duty of care on the defendant?
To establish the first element, I believe the claimant belongs to the category of a road user or pedestrian, in which the claimant could foresee that a potential accident could occur anytime. Arya as a defendant would foresee that the sword could hit anyone. However, TFC as the defendant should have foreseen that where the game is taking place with close proximity to the road, there is a possibility of an accident occurring.
It is assumed that when there is a physical injury there would be a legal proximity in time and space because Jorah suffered burns on his arms and back. But, the claimant’s act of retrieving valuable antiques caused the physical injury, which could be perceived as novus actus interveniens. I believe that the claimant could be partly responsible for the damage they sustained because if Jorah did not stay inside of the vehicle when it caught on fire, he would not have suffered any burns on his arms and skin. Nevertheless, injuries are still foreseeable after Jorah’s car crashing into a tree, though I do not have sufficient information whether the burns on his arms and back were the only injuries he sustained.
Thus, it is fair, just and reasonable to impose a duty of care on the TFC rather than Arya because Jorah suffered harm from the TFC’S negligence of ensuring that the game can take place safely.
15. After establishing that the TFC has a duty of care towards Jorah, has this duty of care been breach? Using Blyth v Birmingham Waterworks Co 1971 3 WLR 370, there would be a set of standard of care of a ‘reasonably competent’ professional, in which the Thrones Fencing Club has to follow.
16. The defendant should have known that the game occurring in Arena 1 and Arena 2 has a high risk of harm occurring because of the close proximity to the perimeter fence and the busy road. Further to this, the harm that could occur is very serious as there is a possibility of the swords hitting someone or something which could result in a serious injury.2
17. The defendant would have to foresee any risk of harm that could occur, as stated in Bolton v Stone 1951 AC 850 Lord Oakley: “The standard of care in the law of negligence is the standard of an ordinarily careful man, but, in my opinion, an ordinarily careful man does not take precautions against every foreseeable risk…he takes precautions against risks which are reasonably likely to happen”. 3 I believe that the defendant had failed to foresee the risk of harm.
18. According to Latimer v AEC 1953 AC 643, the defendants should have placed practical precaution such as signs saying that a fencing game is occurring. In addition, they should have raised the height of the perimeter fence to avoid the sword getting across.
19. A risk assessment should have been done, which is looking at the possibilities of a sword flying out the arena and could hit anyone passing by, including cars because the arena has a close proximity to the road. If the defendant had proceeded with extra precautions such incidents could have been avoided.
20. However, did Arya’s sword actually caused the damage to the claimant or was it the TFC’s negligence in placing the game in the arena that was close to the road, which attracted more accidents. Using the ‘but for’ test from Barnett v Chelsea and Kensington HMC 1969 1 QB 428, that is ‘but for’ the TFC’s negligence, would the claimant suffer damages? 4 In this case, we look at whether the damage to the claimant would have happened regardless of the fencing club’s negligence, but Jorah’s acts may be a novus actus interveniens. Had the claimant left the vehicle as soon as it caught fire, his physical injury could have been lessened.
21. In my opinion, the claimant could also have suffered economic loss from the valuable antiques. However, I do not have enough information as to whether did Jorah manage to salvage all the valuable antiques or were they left in the van when he sustained physical injury.
22. The damage to his car when the sword hits the windscreen can be recovered as it is a damage to the claimant’s property. This is identified as ‘consequential’ economic loss where the financial loss is the direct consequence of physical damage to the claimant personally or to their property. If Jorah’s car did not catch on fire then the claimant would not have suffered burns in trying to retrieve the valuable antiques. Should the claimant suffer economic loss, then Spartan Steel & Alloys v Martin & Co Ltd 1973 QB 27 implied that consequential loss is recoverable. Thus, Jorah should be able to be compensated for his loss.
23. To conclude, the TFC does owe Jorah a duty of care and would be held for liable for their negligence.
DUTY OF CARE
24. The same definition of duty of care would apply to Melisandre as she is classed as a secondary victim because she suffered post-traumatic stress disorder (PTSD) as a result of witnessing the events that occurred to her fiancé through TV.
25. The court would follow the test for duty of care set owed to secondary victim claimants from Alcock Chief Constable of South Yorkshire Police 1991 3 WLR 1057
i. Must have a close relationship of love and affection with the primary victim
ii. Must have proximity to the accident, or its immediate aftermath, which was sufficiently close in time and space
iii. Must have suffered nervous shock through what was seen or heard of the accident or its immediate aftermath
In this case, Melisandre is the fiancée of the primary victim and does not classify to have a close relationship as stated in Alcock, which only includes parents, spouses and children. This could make Melisandre’s claim for psychiatric injury fail. However, using Lord Keith’s judgement in Alcock v Chief Constable of South Yorkshire 1992, I believe that if Melisandre can establish her close relationship of love and affection with the primary victim, Jorah, then her claim for psychiatric damage will be successful and the claimant would be entitled to the compensation. 5
In McLoughlin v O’Brian 1983 1 AC 410 psychiatric injury was foreseeable because the victims were close members of the claimant’s family and her proximity in time and space to the accident. Melisandre only witnessed the accident and its aftermath through TV so it doesn’t satisfy the proximity in time and space, but she was diagnosed with PTSD as a result of what happened to her fiancée. Moreover, I do not have enough information as to whether Melisandre’s psychiatric injury was caused by a sudden shock or it was developed after the events.
Lastly, a person of ‘reasonable fortitude’ would have suffered psychiatric injury if they were in the same circumstances Bournhill v Young 1943 AC 92. I believe that anyone in the same circumstances as the claimant would at least suffered some psychological harm upon witnessing the accident that occurred to their fiancée.
26. Therefore, I believe that the claim of psychiatric injury against the TFC would be more successful than against Arya.
27. A claim for possible assault is raise were Collins v Wilcock 3 All ER 374 defined assault as ‘an act or words which cause the defendant to reasonably expect immediate infliction of a battery on them by the defendant’.
28. Arya satisfies the element of having ‘an act or words’ from R v Constanza 1997 Crim LR 576 as there is an act of the defendant falling into the spectator’s area and colliding with Cersei. But no ‘negating words’ were used to remove the threat to the claimant.
29. In my opinion, the defendant’s act was neither ‘intentional’ or ‘reckless’, but not also careless. Using the authority of Letang v Cooper 1964 2 All ER 929, even if the person intended to hit someone but missed their target, it still counts as intentional as they had the attention of doing the act. It can also be said that the act was reckless because the defendant is aware that their action could result from harm but still doing the act. Arya failed to collect her balance, thus, falling onto Cersei, in which I believe would not have happened if the TFC did not hold the game in the arenas. On their defence of the bad weather, which is a natural event, forced them to proceed where there are risks of harm. I do not think that the natural event, in this case, breaks the chain of causation.
30. Furthermore, the claimant can reasonably expect an immediate battery using Stephens v Myers 1830 4 C&P 349. I would assume that because the game took place in a smaller space, the spectators had a close proximity where the games occur.
31. This leads to claim on liability for battery which is defined by Collins v Wilcock as ‘the direct, intentional, unwanted/unwarranted touching of the claimant by the defendant’.
32. In Nash v Sheen, The Times, 13 March 1953, for a claim in battery to be successful there must be touching and followed by Scott v Shepherd 1773 2 WLR 892 that the touching must be direct. There is touching and it’s direct because the defendant collided with the claimant and as a result, the claimant suffered a broken shoulder.
33. See paragraph 28 on whether the defendant’s act is intentional or reckless.
34. Another element is ‘transferred intention’ from Livingstone v Ministry of Defence 1984 NI 356, in which I do not believe to be present from the defendant’s action.
35. The action of the Arya is ‘unwanted/unwarranted’ as F v West Berkshire Health Authority 1990 2 AC 1 that in battery any intentional physical contact that goes beyond the ‘everyday touching’ such as Arya colliding with Cersei will be unwanted.
36. In my opinion, the claim for assault or battery would be unlikely to be successful if the claim was brought against Arya, whereas the claim against TFC would likely to fit for negligence.
DUTY OF CARE
37. In the claim between Cersei and Arya/TFC, the duty of care needs to be established. (See paragraph 13 for the duty of care)
38. Caparo v Dickman test is applied to establish if either Arya or the TFC owes Cersei a duty of care. Firstly, the harm to the claimant must be reasonably foreseeable by the defendant in which Arya and the TFC would have been aware of the surroundings whilst the game is occurring. The arena has a close proximity and so they could foresee that there is a possibility of the players colliding with the spectators.
39. Secondly, the claimant fits the element of ‘primary victim’ as he suffered physical injury which establishes that there is proximity in time and space between the claimant and the defendant. Arya has a close proximity to the spectator’s royal enclosure when she fell on Cersei, which led to his broken shoulder.
40. Lastly, I believe it is only fair, just and reasonable to impose a duty of care on the TFC as it would have been unfair to leave the claimant remediless after suffering a physical injury. Although, Arya was partly responsible for the damage suffered by Cersei, using the ‘but for’ test; ‘but for’ the TFC’s negligence on holding the game where the proximity to the busy road had been considered, then Arya colliding to one of the spectators would have been prevented.
41. A standard duty of care of the ‘reasonably competent’ professional would be followed by the TFC, which they had failed to satisfy. Their negligence leads to multiple claims, which can be brought under the Article 2 of ECHR ‘right to life’. While there were no deaths announced in this case, using Van Colle v Chief Constable of Hertfordshire 2009 2009 AC 225, where they ‘knew or ought to have known of a real and immediate risk to life’ the TFC failed to foresee any potential risk that put the claimant’s life in danger.6
42. Concluding, the claim against Arya for breaching a duty of care would be unlikely to be successful, whereas, the TFC where the duty of care owed to the claimant is clear and had been breached.
43. For the claim between Beric and Joffrey, the defendant faces a possible liability in assault and battery, which have been defined above. (See paragraph 27 and 31)
44. I believe that the claim for assault to be successful that the claimant must ‘reasonably expect’ an immediate battery from Stephen v Myers 1830, in which does not exist in this claim. The claimant had his back against the defendant when Joffrey threw his sword and hits his spinal nerve. Therefore, Beric could not have possibly expected that Joffrey would throw the sword and hit him, otherwise, the claimant would be able to evade it.
45. Hence, the claim for assault against Joffrey would not be successful.
46. Another potential claim against Joffrey made by Beric would be a battery, which is defined in paragraph 31.
47. There is an act of touching from Nash v Sheen, and the touching is direct Scott v Shepherd 1773. Beric suffered cuts into his back which hits his spinal nerve, leaving him paralysed after Joffrey threw his sword towards the umpire after their decision went against the defendant.
48. In my opinion, the action of Joffrey is intentional from Letang v Cooper 1964, as though he may not have intended to throw it to Beric but has the intention to throw it either way towards the umpire. The defendant’s action was also reckless because of the danger of his act but continue to do so.
49. I do not have enough information whether Beric is part of the umpire or he was sat close to the umpire when Joffrey throws his sword to satisfy the element of ‘transferred intention’ Livingstone v Ministry of Defence, though this is not necessarily needed for the claim to be successful.
50. Using the authority of F v West Berkshire Health Authority 1990, the defendant’s act is unwanted because it went beyond the ‘everyday touching’ as Beric did not wish to be hit and left paralysed.
I conclude that:
51. Jorah’s claim against Arya/TFC on the grounds of negligence is likely to be successful as all the elements have been established but unlikely for economic loss.
52. Melisandre’s claim for psychiatric damage is unlikely to be successful unless her close relationship of love and affection would be proven.
53. The TFC are held liable for the damage sustained by Cersei on the grounds of negligence but unlikely for assault or battery.
54. Beric’s claim against Joffrey on the grounds of battery is likely to succeed but not for assault.
55. TFC would be unsuccessful for their defence of the natural event as it could make the claims impossible and left remediless. It does not break the chain of causation because a more safety precaution could have been added and these situations would have been avoided.
1 1 Vera Birmingham & Carol Brennan, Tort Law (5th Edition, Oxford University Press 2016) page 5
2 Paris v Stepney BC 1951 AC 367
3 Vera Birmingham & Carol Brennan, Tort Law (5th Edition, Oxford University Press 2016) page 91
4 Vera Birmingham & Carol Brennan, Tort Law (5th Edition, Oxford University Press 2016) page 105
5 Vera Birmingham & Carol Brennan, Tort Law (5th Edition, Oxford University Press 2016) page 135
6 Vera Birmingham & Carol Brennan, Tort Law (5th Edition, Oxford University Press 2016)