Subject-Matter Index

Breach of confidence

duty of confidence

duty arises when confidential information comes to knowledge of person in circumstances in which has notice or held to agree that information confidential and just, in all the circumstances, to preclude disclosure—no duty of confidentiality if information generally accessible, useless or trivial, or public interest in confidentiality outweighed by public interest in disclosure: In re B (C.A.), 2011–12 GLR 694

mistaken disclosure of confidential documents

defendant not to examine or copy claimant’s confidential documents without authority—claimant entitled to injunction preventing defendant doing so and requiring return of document and destruction of copies: In re BCD Trust (Royal Ct.), 2016 GLR N [7]

Breach of statutory duty. See EMPLOYMENT (Safety—breach of statutory duty)

Conspiracy

between company and owner

company may be liable for conspiring with owner, as separate legal personalities and company fixed with owner’s knowledge and intentions: Vardinoyannis v. Ansol Ltd. (Royal Ct.), 2000–02 GLR 221

elements of tort

agreement may be tacit rather than express, if aware of surrounding circumstances and share same purpose—conspirators need not join simultaneously, but conspirator probably liable only for losses caused after joining—need not participate in every act of conspiracy so long as within common design: Vardinoyannis v. Ansol Ltd. (Royal Ct.), 2000–02 GLR 221

conspiracy to injure requires (i) agreement or combination, (ii) overt acts in furtherance of agreement or combination, and (iii) resulting damage—overt acts may prima facie be lawful, but “lawful means conspiracy” established if predominant purpose to injure—unlawful overt acts suffice to establish “unlawful means conspiracy,” even if causing injury not predominant purpose of acts: IFS Invs. Ltd. v. Manor Park (Guernsey) Ltd. (Royal Ct.), 2003–04 GLR 308

“lawful means conspiracy”. See Conspiracy—elements of tort

“unlawful means conspiracy”. See Conspiracy—elements of tort

Contract or tort

cause of action

availability in Guernsey of action in either contract or tort for professional negligence, based on proximate relationship between parties, precludes reliance on French doctrine of non-cumul to bar action in tort arising out of contractual relationship: Yaddehige v. Credit Suisse Trust Ltd. (Royal Ct.), 2007–08 GLR N [4]

jurisdiction clauses

jurisdiction clause in contract also applies to claim in tort if arises from same facts, involves same parties and alleged breach of duty of care arises from contract—presumption that clause applies to all disputes connected with contract and arising between parties to it: Winnetka Trading Corp. v. Bank Julius Baer & Co. Ltd. (C.A.), 2009–10 GLR 260

Contributory negligence. See Negligence—contributory negligence

Damages

discount rates. See Personal injuries—damages

interest on damages. See Personal injuries—damages

interim payment. See Personal injuries—damages

personal injuries. See Personal injuries—damages

special damages. See Personal injuries—damages

Defamation

pleading

allegation of defamation requires special and careful pleading—to state particulars alleged to constitute tort: IFS Invs. Ltd. v. Manor Park (Guernsey) Ltd. (Royal Ct.), 2003–04 GLR 308

Detinue

remedy

delivery up is discretionary remedy—where plaintiff innocent loser of motor vehicle and defendant innocent purchaser, Royal Court’s order that defendant deliver up vehicle to plaintiff (subject to plaintiff paying defendant sum of money reflecting costs of repairs and improvements) but that defendant given option to elect to pay plaintiff and retain vehicle not set aside on appeal: Hindle v. Kitching (C.A.), 2020 GLR 1

Double actionability. See CONFLICT OF LAWS (Tort—double actionability)

Duty of care. See Negligence—duty of care

Foreign tort law. See CONFLICT OF LAWS (Application of foreign law—foreign tort law)

Forum conveniens. See CONFLICT OF LAWS (Jurisdiction—forum conveniens)

General damages. See Personal injuries—damages

Immunity from suit. See PAROCHIAL ADMINISTRATION (Parish officers—immunity from suit)

Independent advice. See Negligence—duty of care

Interest on damages. See Personal injuries—damages

Jurisdiction clauses. See Contract or tort—jurisdiction clauses. CONFLICT OF LAWS (Jurisdiction—exclusive jurisdiction clauses), (Jurisdiction—non-exclusive jurisdiction clauses)

Law applicable. See Negligence—law applicable. Personal injuries—damages

“Lawful means conspiracy”. See Conspiracy—elements of tort

Limitation of liability. See SHIPPING (Collisions at sea—limitation of liability)

Medical negligence. See Personal injuries—medical negligence

Misuse of private information

elements of tort

improper disclosure of information known to be (or on notice that may be) private when acquired—no existing confidential relationship required but to be unconscionable for person acquiring information to disclose it: Ozannes v. Dinning (C.A.), 2003–04 GLR 491

Negligence

contributory negligence

injured plaintiff not contributorily negligent if guilty only of momentary inattention in stressful work conditions while otherwise taking reasonable care—contributory negligence more likely if plaintiff consciously does something wrong, disobeys instructions or wilfully takes greater risk than required: Stone v. Hickman (C.A.), 2007–08 GLR N [23]

duty of care

advocate preparing will owes duty to testator—no duty owed to testator’s children who would have benefitted if will not made: Dorey v. Ashton (C.A.), 2023 GLR 113

vendor of land for development owes no duty of care to inexperienced purchaser to ensure accuracy of representations about outline planning permission—not in special relationship of skill and confidence—purchaser should obtain independent advice before entering contract: Long Port Properties Ltd. v. Trinity Inv. Ltd. (Royal Ct.), 2000–02 GLR 319

law applicable

Guernsey tort law largely based on English law—English availability of action in either contract or tort for professional negligence, based on proximate relationship between parties, precludes reliance on French doctrine of non-cumul to bar action in tort arising out of contractual relationship: Yaddehige v. Credit Suisse Trust Ltd. (Royal Ct.), 2007–08 GLR N [4]

negligent misstatement

no duty of care unless special relationship of skill and confidence—vendor of land for development owes no duty of care to inexperienced purchaser to ensure representations about outline planning permission accurate—purchaser should obtain independent advice before entering contract: Long Port Properties Ltd. v. Trinity Inv. Ltd. (Royal Ct.), 2000–02 GLR 319

professional negligence. See Personal injuries—medical negligence. ADVOCATES (Professional negligence). BANKING (Banker’s negligence). FINANCIAL SERVICES (Financial advisers—professional negligence)

public authorities. See ADMINISTRATIVE LAW (Administrative misfeasance—maintenance of highway)

Non-cumul. See Contract or tort—cause of action

Nuisance

elements of tort

basis of English law of nuisance being obligations between neighbouring landowners may suggest that Guernsey law of nuisance still open to influence by coûtume and civil law principles (as basis of Guernsey land law)—doctrine of voisinage nevertheless not adopted: Birnie v. States (Royal Ct.), 2015 GLR N [5]

elements set out for litigation concerning nuisance caused by construction operations: Birnie v. States (Royal Ct.), 2015 GLR N [5]

Passing off

use of name

undesirable for issue of similar trading names of parties operating out of Guernsey and with similar marketing campaigns to be litigated—matter best determined by experienced intellectual property and competition mediators: Healthspan Ltd. v. Healthy Direct Ltd. (Royal Ct.), 2003–04 GLR 193

Personal injuries

acknowledgement of liability

may be acceptable for defendant not to acknowledge liability if, although strong evidence of defendant’s negligence, party’s expert witness concludes not liable, since unusual to pay no attention to expert evidence: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

damages

accommodation—damages awarded for accommodation may include agency and legal fees, running costs, costs of adapting accommodation to plaintiff’s needs, and purchase of household equipment—deduction to be made equivalent to rent or purchase of house for which plaintiff would have paid if not suffered injury: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

case management costs—damages may be awarded for necessary and reasonably executed case management duties—cost of care team leader for plaintiff with complex needs may be included—may also include cost of extra carer if needed for certain activities, e.g. swimming: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

future care costs

discount rate for accelerated payment in lump sum—since carers’ earnings main component of care costs, same detailed method of calculation to be followed as for future loss of earnings in Guernsey: Simon v. Helmot (P.C.), 2011–12 GLR 517

discount rate for accelerated payment in lump sum—since carers’ earnings main components of care costs, same detailed method of calculation to be followed as for future loss of earnings in Guernsey: Helmot v. Simon (C.A.), 2009–10 GLR 465

future loss of earnings

discount rate for accelerated payment in lump sum—courts to assume plaintiff will invest lump sum in UK index-linked gilts—to start calculation on basis of average gross redemption yield on unredeemed gilts for one year before trial—to be adjusted to produce net real rate of return in Guernsey by reference to taxation at Guernsey rates and different between UK and Guernsey rates of price inflation—final adjustment to be made to compensate plaintiff for excess of average earnings inflation over price inflation: Helmot v. Simon (C.A.), 2009–10 GLR 465

Simon v. Helmot (P.C.), 2011–12 GLR 517

discount rate for accelerated payment in lump sum—not to assume future stability of UK 2.5% gross redemption yield—different yield to be anticipated when markets stabilize in future and meanwhile Guernsey courts to re-examine current gross redemption yield on UK index-linked gilts on case-by-case basis: Helmot v. Simon (C.A.), 2009–10 GLR 465

Simon v. Helmot (P.C.), 2011–12 GLR 517

expert evidence of relationship between future inflation and earnings, if unchallenged, not to be disregarded merely because based on general economic theory yielding only general data (i.e. not specific to Guernsey)—impossible to stigmatize as imprecise since imprecision inevitable in future prediction: Simon v. Helmot (P.C.), 2011–12 GLR 517

to avoid future similar factual litigation, courts to assume that rate of price inflation in Guernsey will exceed that in UK by 0.5% and that Guernsey rate of average earnings inflation will exceed rate of price inflation by 2%: Helmot v. Simon (C.A.), 2009–10 GLR 465

Simon v. Helmot (P.C.), 2011–12 GLR 517

general damages—court to follow English case-law and Judicial Studies Board guidelines—when assessing quantum, to take into account, inter alia, nature and extent of injuries, pain suffered and psychological impact: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

gratuitous care

can recover fair and reasonable value (e.g. commercial value) of care by family, but must be necessary consequence of injuries—no compensation for mere companionship, as care to be clearly beyond ordinary family life: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

reasonable for carer to give up employment, e.g. if plaintiff in hospital in England and care aids recovery—damages to reflect lost income and may reflect pay increase in line with RPI inflation, but may not include bonus: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

Guernsey courts to follow English practice if appropriate, as Guernsey tort law based on English, but taking account of legal and economic differences—Guernsey courts limited to award of lump sum damages--desirable to consider legislation allowing periodical payments, or develop Guernsey common law to permit structured settlements including component of periodical payments for future earning-related losses: Simon v. Helmot (P.C.), 2011–12 GLR 517

Guernsey courts to follow English practice if appropriate, as Guernsey tort law based on English, but taking account of legal and economic differences—Guernsey courts limited to award of lump sum damages because no legislation allowing periodical payments; no statutory discount rate; Guernsey rate of price inflation higher than English; income tax rates lower in Guernsey; statistical information about prices and income less complete and less reliable in Guernsey: Helmot v. Simon (C.A.), 2009–10 GLR 465

holiday expenses—if cost of plaintiff’s holiday greater as result of injuries, court may award damages for expenses, less what plaintiff would have paid if had not suffered injury: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

interest on damages—Guernsey courts to continue to follow English practice in awarding interest on special damages in personal injuries and clinical negligence cases—calculated as one-half of rate payable on Short Term Investment Account in England (currently one-half of 6%) from date special damages incurred: Buckley v. Ronez Ltd. (Royal Ct.), 2009–10 GLR 120

interim payment

not authorized by specific law or express provision in Royal Court Civil Rules 1989—no inherent jurisdiction to order interim payment because substantive not procedural matter—desirable to change law to allow interim payments, especially if difficult to assess total damages in advance or final hearing date distant: Angenent v. Pring (Royal Ct.), 2005–06 GLR 1

ordering interim payment not appropriate exercise of court’s power to foster evolutionary growth of common law: Angenent v. Pring (Royal Ct.), 2005–06 GLR 1

multipliers and discounts

generally to follow English authorities, but not. if conflict with Guernsey law—fundamental principle that plaintiff be compensated as fully as possible for losses—multiplier calculated following Ogden actuarial tables—discount rate starting point is 2.5% in accordance with English case-law, but deductions for difference between Guernsey and English RPI inflation and reduction in return on index-linked securities: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

negative discount (or “adjustment”) permissible as increasing rather than reducing number of years used as multiplier—may be needed to ensure that lump sum award remains large enough to meet losses to be incurred in future: Simon v. Helmot (P.C.), 2011–12 GLR 517

single discount rate for accelerated payment inappropriate for calculating all future losses in lump sum—non-earnings-related discount rate (currently 0.5%) legitimately different from discount rate for earnings-related future losses (currently reduced by further 2% to account for excess of earnings inflation over price inflation): Helmot v. Simon (C.A.), 2009–10 GLR 465

single discount rate for accelerated payment inappropriate for calculating all future losses in lump sum, since different losses accrue in different ways—non-earnings-related discount rate legitimately different from discount rate for earnings-related future losses, since latter dependent on relationship between future inflation and future increase in earnings: Simon v. Helmot (P.C.), 2011–12 GLR 517

paid-for care—in assessing quantum, to consider loss flowing from injuries, but damages to reflect reasonable hourly rate of pay—rate to take into account nature and difficulty of work, loneliness and isolation of carers, and availability of pension or benefits—award to include social security contributions made by plaintiff and reasonable travel costs—not reasonable for carer to fly regularly from England and always to use taxis if other transport available: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

trust administration expenses—may be awarded if reasonably incurred—fact that wealthy individuals advised to employ trust company’s services not reason to award plaintiff trust company expenses: Helmot v. Simon (Royal Ct.), 2009–10 GLR N [16]

extension of time. See CIVIL PROCEDURE (Pleading—amendment)

injury in collision at sea. See SHIPPING (Collisions at sea—limitation of liability)

jurisdiction

expense and difficulty of hearing complex personal injury claim arising in Sark justifies Royal Court’s exercising parallel jurisdiction to hear case. if parties or witnesses resident outside Sark: Matthews v. Monaghan (Royal Ct.), 2000–02 GLR 53

medical negligence

under Law Reform (Tort) (Guernsey) Law 1979, s.8, court may allow claim for injury caused by medical negligence to proceed out of time—to consider s.8 factors and strength of plaintiff’s case—court may allow application if material fact, e.g. availability of specialist to give diagnostic examination before surgery, no longer provable but claim nevertheless has slim chance of success: Mourant v. Ferguson (Royal Ct.), 2003–04 GLR N [30]

medical reports. See EVIDENCE (Expert evidence—expert witnesses)

Possession. See Trespass to land—possession by plaintiff

Public authorities. See ADMINISTRATIVE LAW (Administrative misfeasance—maintenance of highway)

Sources of Guernsey tort law

English law

although Guernsey tort law largely based on English law, law of nuisance still open to influence by coûtume and civil law principles (as basis of Guernsey land law)—English law of nuisance based on obligations between neighbouring landowners may be inappropriate for Guernsey—doctrine of voisinage nevertheless not adopted: Birnie v. States (Royal Ct.), 2015 GLR N [5]

Trespass to goods

burden of proof

plaintiff to establish commission of trespass and burden than shifts to defendant to show reasonably necessary: Ogier v. Paint (Magistrate’s Ct.), 2009–10 GLR N [5]

reasonable justification

defence if Constable satisfies burden of showing that goods (e.g. apparently abandoned vehicle) constituted real and imminent danger to public and removed by reasonable means to avert danger: Ogier v. Paint (Magistrate’s Ct.), 2009–10 GLR N [5]

Trespass to land

possession by plaintiff

elements of possession—“factual possession” of physical control and custody, coupled with “intention to possess,” i.e. intention to exercise such custody and control on own behalf and for own benefit: Les Banques Holdings Ltd. v. Good (Royal Ct.), 2007–08 GLR N [24]

exclusive possession of land not required to support action for trespass—possession may be divided between several parties and party with better right to possession may bring action: Les Banques Holdings Ltd. v. Good (Royal Ct.), 2007–08 GLR N [24]

right to use land

plaintiff with possession may grant another person right to use land—possession not necessarily conferred by grant of right to use: Les Banques Holdings Ltd. v. Good (Royal Ct.), 2007–08 GLR N [24]

“Unlawful means conspiracy”. See Conspiracy—elements of tort

Vicarious liability

course of employment

plaintiff may choose not to assert vicarious liability of tortfeasor’s employer if wishes to proceed against tortfeasor personally for act committed in course of employment: Ogier v. Paint (Magistrate’s Ct.), 2009–10 GLR N [5]

customs officers

States and Customs & Immigration Department not vicariously liable for torts of customs officers committed during law enforcement activities—officers remain personally liable and subject to action for damages Le Huray v. States (Royal Ct.), 2011–12 GLR 61

States vicariously liable for torts of customs officers, who exercise law enforcement powers (arrest, detention, etc.) only by delegation from Chief Revenue Officer or Department—no exercise of original authority even when engaged in joint law enforcement operations with police: Le Huray v. States (C.A.), 2011–12 GLR 396

police officers

States and Home Department not vicariously liable for torts of police officers who, though public servants, carry out operational duties (e.g. arrest, detention and charge) as independent officials exercising original authority under law and not as employees—officers remain personally liable Le Huray v. States (Royal Ct.), 2011–12 GLR 61

Le Huray v. States (C.A.), 2011–12 GLR 396

test for liability

“control” and “organization” tests for whether employer liable for torts of employee superseded by “multiple factor” approach—to assess all aspects of relationship and identify its economic reality before assigning liability: Le Huray v. States (Royal Ct.), 2011–12 GLR 61