Cavendish University ZAMBIA

Student number: 035-173

Module: Conflict of Laws
Assignment 1

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INTRODUCTION
This assessment is concerned with tort under conflict of laws in general; its principles,
its objectives, and its characterization. The primary function of the law of Tort is to
compensate a claimant. It is actionable by both civil and criminal courts. Tort is
another branch of conflict of laws. Just one of the many. A tort falls under private
International law therefore, when a foreign element steps up, it becomes a conflict of
laws. This may result it to become public International law as another state is involved.
This brings about the gist of procedural and substantive law.

DEFINITION OF TERMS
Momentum the force or speed of an object in motion, or the increase in the rate of
development of a process.1

Catastrophe is said to be a notable disaster; a more serious calamity than might ordinarily
be under- stood from the term "casualty." This is with reference to the case of Reynolds
v. Board of Commissioners of Orleans Levee District.2

Paranoid is characterized by or resembling paranoia or paranoid schizophrenia a paranoid

psychiatric patient or characterized by suspiciousness, persecutory trends, or megalomania
behaving in a paranoid manner with accusations of persecutions or extremely fearful.3

DISCUSSION

Negligence
With regards to question 1(a), Molly will be sued for negligence. This is because her
actions of her forgetting about looking after Rhonda led to the catastrophe. Had she
paid attention everything would have not happened. She will be sued by Dilbert and Bob
for damages under negligence.

1
https://dictionary.cambridge.org/dictionary/english/momentum
2
Reynolds v. Board of Com'rs of Orleans Levee Dist., 139 La. 518, 71 So. 787, 791.
3
https://www.collinsdictionary.com/dictionary/english

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Negligence was defined with reference to the case of Donoghue V Stevenson4 where
Lord Aitkin formulates the tort of negligence by stating that a person needs to take
reasonable care, to avoid acts and omissions foreseen to likely injure your neighbour.
With every right is a responsibility. It may also be defined as the failure to exercise
the standard of care that a reasonably prudent would have exercised the same way.

Negligence has three elements namely;

 Duty of care
 Breach of duty
 Resultant damage.5

Under tort, a liability arises when one intentionally or negligently commits an illegal
act and causes damages as a result. General liability is specified by the general
provisions under tort. The four elements are that:-

1. There should be a duty of care owed

2. There should be a breach of duty
3. Injury caused
4. Injury resulted from breach.6

Molly owed a duty of care to everyone at the playground as they were her neighbours.
She breached her duty when she got distracted and her daughter wondered off. The
damage that resulted was Dilbert getting injured and Bob crashing his vehicle.

Furthermore, for remoteness of damage to occur, it must be considered to determine if

a person qualifies for damages to situations involving suffering to personal injury. The
principle of remoteness is there should be sufficient proximity between the act causing
the damage and actual damage suffered.

Following the Wagon Mound no 17 the test for remoteness of damage is that damage must be
of a kind which was foreseeable. Once damage is of a kind that is foreseeable the defendant is
liable for the full extent of the damage no matter whether the extent of the damage is
foreseeable.
4
Donoghue V Stevenson 1932
5
Law of Tort, P.H Winfield, 2011, page 54
6
https://www.britannica.com
7
The Wagon Mound no 1 [1961] AC 388

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Therefore the action here is that Dilbert will sue Molly for negligence. Dilbert
practiced reasonable forcibility therefore he had it in mind by contemplation that his
actions would likely cause him injury ad might amount to causing him injury. The fact
that Bob also hit him gives him way to sue Bob for special damages.

Special damages as a legal term has more than one meaning depending on the area of law
and/or jurisdiction. In tort law, special damages are damages like car dents or medical
expenses that can actually be ascertained, and they are contrasted with general damages,
which refer to damages for things like intentional infliction of emotional distress which do
not have a set monetary cost.8

Nonetheless, Bob will sue Molly for negligence. He was not wrong whatsoever. He
was driving according to the speed limit too. Once more, this is because her actions of
her forgetting about looking after Rhonda led to the catastrophe. Had she paid
attention everything would have not happened. Bob must sue for special damages under
negligence. This is the action he must take or bring before court with regards to his
repair and replacement of damaged property.

As for Laura, she will have an issue with the local authorities handling the case for
over speeding. However, Sherry suffers nervous shock from witnessing the disturbing
part of Laura almost hitting Leonardo. However, it was brief fright. Sherry does not
qualify to sue Laura because her post traumatic stress developed only after she heard
the news of Rhonda.

Besides that, Sherry cannot Molly for emotional distress damages. Also the proximity of
her and the accident is not helping her case. These are designed to compensate you for
the psychological impact your injury has had on your daily life. Sleep loss, anxiety, fear—
these all fall under the umbrella of emotional distress. So, too, do some cases of depression,
anxiety, humiliation, and fear.

Emotional distress is a very subjective type of harm, and it changes from person to person.
There is no hard and fast definition, so if you are experiencing psychological issues after an
accident, note them (more on this in the next section). Those issues may be compensable.
What is distressing to someone else may not be distressing to you, and vice versa.9

8
https://www.law.cornell.edu/wex/special_damages
9
https://www.alllaw.com/articles/nolo/personal-injury/emotional-distress-damages

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As for Leonardo, because of the fact that he already had a mental disorder he does
not qualify under persons who can sue. He is a non-compus mentis person. Even
and though he suffered nervous shock and completely developed fear to come
outside lost his job and livelihood. Sleep loss, anxiety, fear—these all fall under the
umbrella of emotional distress. So, too, do some cases of depression, anxiety, humiliation,
and fear.

The Egg shell skull rule states a final aspect of remoteness of damage is the egg shell (or
thin) skull rule. This means a defendant must take their victim as they find them. Ie if the
victim is particularly vulnerable or has a pre-existing condition resulting in them suffering
greater injury than would be expected in an ordinary person, the defendant remains
responsible for the full extent of the injury.10

Therefore, Sherry and Leonardo both suffered nervous shock but do mot qualify to sue.
This was not foreseeable as per the case Bourhill v Young11, Mr Young had been
negligently riding his motorcycle and was responsible for a collision with car in which he
himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in the process
of leaving a tram about 50 feet away.

C heard the crash and, after Mr Young’s body had been removed from the scene, she
approached and witnessed the immediate aftermath. C was 8 months pregnant at the time of
the incident and later gave birth to a stillborn child. C subsequently brought an action against
Mr Young’s estate, claiming she had suffered nervous shock, stress and sustained loss due to
the negligence of D.

It was held that, D was not liable for any psychiatric harm that C might have suffered as a
result of the accident. It was not foreseeable that C would suffer psychiatric harm as a result
of D negligently causing a loud traffic accident, nor was C sufficiently proximate to the scene
of the crash itself. D, therefore, could owe no duty of care to C.

Jurisdiction
According to 1(b), we are to apply substantive law as the characterization comes to
play because of Molly’s actions. The lex loci delicti commissi comes to play as the
jurisdiction that the courts will use to stand and rule here. This simply means ‘where
the tort was committed is where it is ruled.’
10
https://www.investopedia.com
11
Bourhill v Young [1943] AC 92

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Lex loci delicti commissi means the law of the place where the tort was committed. The term
is commonly shortened as lex loci delicti. This phrase is commonly used in private
international law. This phrase refers to the place of injury or wrong. When a case having
foreign elements comes before a court the court applies private international law. In such
circumstances, lex loci delicti commissi is one of the possible choice of law rules applied to
cases arising from an alleged tort.12

With reference to the case of Philips V Eyre13 , Willes J. said that ‘the civil liability
arising out of the wrong derives its birth from law of the place, and its character is
determined by that law.’ In this case, the concerned facts which were entirely confined
to one jurisdiction it is hard to see how Willes J. could have had in mind the problem
which is here under consideration. The problem has however been more frequently
considered both in England and Canada and Australia in cases of application for leave
to set a writ out of the jurisdiction on the ground that the alleged tort has been
committed within the jurisdiction .

The two vital principles under the above mentioned case is that; for one to file a suit
in England, the condition must be of character and actionable in England. The other is that
the act must mot have been justifiable by the law of the place where it occurred.

Furthermore, the issues which arise in a jurisdictional context and in the choice of
law context are by zero means identical and accordingly, the question which calls for
decision is whether the tort was committed within the jurisdiction and in this scenario
it is. 14

THE RULE OF LEX SITUS

With regards to question 2, I would advise the family to lean by the rule of lex situs.
The term lex situs (Latin which is short for lex rei sitae) refers to the law of the place in
which property is situated for the purposes of the conflict of laws. For example, property may
subject to tax pursuant to the law of the place of the property or by virtue of the domicile of
its owner.

The children, legitimate md illegitimate will all inherit domicile of origin of their
father. Therefore are entitled to inherit the property left. Conflict is the branch of public
12
https://definitions.uslegal.com/l/lex-loci-delicti-commissi/
13
Philips V Eyre 1869 L.R. 4 Q.B. 225
14
The laws of conflict, A.V. Dicey and J.H.C Morris, 11 TH edition volume 2

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law regulating all lawsuits involving a "foreign" law element where a difference in result will
occur depending on which laws are applied. Diplock L.J15 said ‘the proper law for
governing the transfer of corporeal movable property is lex situs.’

With reference to the case of Welch V Tennet16, the House of Lords, bt appeal from
the Court of Session, courts ruled that lex situs governs immovable property under
marriage too. When a case comes before a court and all the main features of the case are
local, the court will apply the lex fori, the prevailing municipal law, to decide the case.

But if there are "foreign" elements to the case, the forum court may be obliged under the
conflict of laws system to consider:

1. whether the forum court has jurisdiction to hear the case; it must then characterise the
issues, i.e. allocate the factual basis of the case to its relevant legal classes; and then
apply the choice of law rules to decide which law is to be applied to each class.17

The lex situs is a choice of law rule applied to identify the lex causae for cases involving title
to, or the possession and use of property. In law, there are two types of property:

 Real property is land or any permanent feature or structure above or below the
surface. Ownership of land is an aspect of the system of real property or realty in
common law systems (immovables in civil law systems and the conflict of laws).
 All other property is considered personal property or personalty in common law
systems (movables in civil law systems and the conflict of laws), and this property
is either tangible or intangible, i.e. it is either physical property that can be touched
like a computer, or it is an enforceable right like a patent or other form of
intellectual property.

Properly speaking, the term lex situs is applied only to immovable property and lex loci rei
sitae ought to be used when referring to the law of the situs of movable property but this
distinction is less common today. The choice of law rules are that immovables, by definition,
do not move and so the identification of the lex situs will not present a problem in the

15
Law of property, Diplock L.J, Page 119, volume 2
16
Welch V Tennet 1991 A.C 639
17
Supra note 11

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majority of cases; because movables may be portable, the lex situs is the law of the state in
which the person is resident at the time the case is heard.18

Conclusion
Foreign law then is relevant neither as having supplied the Obligation’s birth certificate, nor
as being publicly connected with the p1aintifl”s harm. That is not to say that it is not
relevant at all; but the reason is less formal and more founded on fairness. The principle is
that the defendant ought not to be put at a disadvantage by being judged by an unexpected
law. The question remains, however, why a man should regulate his conduct by one law
rather than by another? A question neither of meta- physical jurisprudence like the creation
by law of liabilities, nor of territorial jurisdiction involving a duty to obey, but of human
instinct, or, as an English lawyer might prefer to put it, ‘the expectation of a reasonable
man’. I SUBMIT.

BIBLIOGRAPHY

BOOKS
Law of Tort, P.H Winfield, 2011, page 54

18
https://lawyerment.com/topic/lex_situs/. PDF 2021

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The laws of conflict, A.V. Dicey and J.H.C Morris, 11TH edition volume 2
Law of property, Diplock L.J, Page 119, volume 2
https://lawyerment.com/topic/lex_situs/. PDF 2021

CASES
Reynolds v. Board of Com'rs of Orleans Levee Dist., 139 La. 518, 71 So. 787, 791.
Donoghue V Stevenson 1932
Bourhill v Young [1943] AC 92
The Wagon Mound no 1 [1961] AC 388
Philips V Eyre 1869 L.R. 4 Q.B. 225
Welch V Tennet 1991 A.C 639

WEBSITES
https://dictionary.cambridge.org/dictionary/english/momentum
https://www.law.cornell.edu/wex/special_damages
https://www.collinsdictionary.com/dictionary/english
https://www.investopedia.com
https://definitions.uslegal.com/l/lex-loci-delicti-commissi/
https://www.merriam-webster.com/dictionary/paranoid
https://www.britannica.com