Who’s paying for all of this?! Thor: the Dark World Part 1

(This guest post was written by Christopher Chan, who is currently studying for his Master of Laws at University College London.  He is an aspiring barrister in London, England looking to practise in the areas of insolvency and restructuring.)

In the final act of Thor: the Dark World, our hero faces off against Malekith in a bid to save the world from total darkness. Predictably, the supervillain is no match for the God of Thunder, but the real victim of the clash is the University of Greenwich. The battle that ensued on the campus of this historical institution resulted in an astronomical amount of property damage. Since the event giving rise to damages occurred on English soil, the applicable law for a claim would be English tort law. This will be the first part of an analysis looking at whom the University of Greenwich (“the Claimant”) may sue under the tort of negligence for loss suffered. The second part will consider whether it may be more sensible to sue S.H.I.E.L.D. as the employer of our superhero.

 

A claim in negligence

When an ordinary citizen harms another, whether it is an injury to the body or damage to one’s property, a private claim can be made under the tort of negligence for compensation. To succeed in a claim of negligence, the Claimant will have to prove a number of elements to satisfy the Court.

The first element is the existence of a sufficient connection between the Claimant and the defendant. This is known in law as owing a duty of care, which is another way of saying one owes a responsibility to another person. In establishing this connection, the traditional principle the English Courts have used is the neighbour principle. This tells us that people must take reasonable care not to injure others who could foreseeably be affected by their action or inaction (Donoghue v Stevenson [1932] UKHL 100).

But it is not enough that a duty was present, the defendant must have breached that duty as well. An objective standard is used in assessing whether the duty has been breached, which means that the Court will not consider particular character traits of the defendant. The defendant will be measured against the standard of the reasonable person who is undertaking the task or activity in the course of which the negligence is said to arise.

Next, it must be shown that the breach caused the loss suffered by the Claimant. In proving this element, the Claimant will have to show that but for the acts of the defendant, the injury suffered would not have occurred. It must also be demonstrated that where there is a chain of events that led to loss, nothing new occurred that would break that chain. This latter consideration is a test of legal causation.

Finally, after all of the above elements have been proven, the defendant may still escape liability if he/she can mount a sufficient defence. An example would be where the Claimant had voluntarily placed itself into a situation where harm might result; the Claimant is said to have voluntarily assumed the risk that resulted in the loss suffered.

 

Malekith – Causation in law

Let us assume that the ruler of the Dark Elves left an estate for the Claimants to claim against. A duty of care is presumed to arise because the two parties are close together, just like two drivers on a road. Establishing that this duty has been breached will be fairly simple given Malekith’s smashing entrance onto the university grounds. But for the defendant crashing his mother ship into the Old Royal Naval College, the property damage that resulted would not have occurred and so causation is also proved.

Can Malekith be said in law to have caused the entirety of the damages suffered by the Claimant, or just the loss resulting from the parking of his mother ship on George Square? Legal causation is a bit trickier to determine because although the entirety of the damage can be strictly said to have occurred because of Malekith’s conduct, some of the resulting loss may have been caused by a new event that interrupted the chain of causation. Indeed, it was the arrival of Thor and the ensuing battle that caused the majority of the damage. If the defendant can prove that the superhero’s appearance broke the chain, then the extent of his liability will be limited. We turn next to what the addition of the God of Thunder to the factual matrix means for the Claimant’s action.

 

Thor – Duty of care owed by public authorities

Our protagonist poses an interesting case given that he may be considered a rescuer, which means that his arrival would not break the chain of causation for the claim against Malekith. This is because the intervention of a rescuer is considered by the Courts to be a foreseeable, natural and probable result. Even if the rescuer were careless in his rescue, it’s unlikely that the Court would allow Malekith to use this as an excuse for the damage.

But what about claiming against Thor for the property damage? The role that our hero plays parallels situations involving the police, which is a public authority. In general, a public authority can owe a duty of care, but for policy reasons no such duty would be imposed (Smith v Chief Constable of Sussex Police [2008] EWCA Civ 39). The UK Courts have maintained a consistently strong stance prohibiting the imposition of a duty on police on the basis that they should be given discretion in how to conduct their operations. This is a hot topic of contention in the UK, with cases being appealed to the European Court of Human Rights on a number of occasions (Osman v The United Kingdom Case No 87/1997/871/1083).

The strength of the Claimant’s case against Thor will therefore hinge on whether the defendant is considered to have acted in a public or private capacity. If the former were to be assumed, then it would be unlikely for a negligence claim to succeed for policy reasons. However, if Thor were considered to have acted in a private capacity, the Courts will likely find him liable in negligence for the property damage caused, albeit leniency afforded to him for acting as a Good Samaritan rescuer.

 

Jane Foster / Erik Selvig / Darcy Lewis / Ian Boothby – Additional parties

It may be hard to raise a claim against the God of Thunder due to the difficulties involved in traveling to Asgard. Rather, it may be more sensible for the Claimant to sue the Asgardian Prince’s companions instead.

There should not be a problem for the Claimant in recovering from any of these four parties; none of the elements that need be proved show signs of any contentious points arising. However, there may be practical reasons why the Claimant would not wish to pursue a claim. For one, the public policy defence available to Thor may also be applicable to his companions. A more simple reason would be that any damages recovered from the defendants would be nominal, reflecting only a fraction of the substantial loss suffered. There are no indications in the Marvel films that would suggest that these particular defendants own a considerable amount of personal assets. The property damage they helped cause would have likely reached millions of pounds; it is improbable that even the combined assets of all four defendants would amount to a few hundred thousand pounds.

 

Conclusion

The chances for the University of Greenwich to win a lawsuit look grim. Malekith is certainly liable for at least a part of the property damage suffered by the Claimant, but suing him will be difficult. We’re not sure if the supervillain has left an estate for the Claimant to recover from, and then there are the practical difficulties of traveling to the realm of Svartalfheim to serve a claim form.

Travel difficulties are equally applicable to the situation with Thor. What’s more, the God of Thunder may escape liability entirely if the Courts accept that he was acting in a public capacity. Ms Foster, Mr Selvig, Ms Lewis and Mr Boothby can also rely upon this defence, but for financial reasons, the Claimant would unlikely want to sue them anyway.

However, all is not lost for the university; they may still be able to sue S.H.I.E.L.D. under the doctrine of vicarious liability. In the second part of my analysis, I will be looking at the strength of the Claimant’s case against Thor’s employer.

33 responses to “Who’s paying for all of this?! Thor: the Dark World Part 1

  1. Thor is not employed by SHIELD, though. Even in the case of the Battle of New York and formation of the Avengers, he never became employed by them, rather simply assisting them in dealing with a rogue Asgardian national (by adoption) and his allies. There’s also the factor that negligence, even on the part of private actors (which *might* apply to Thor given that he wasn’t following Odin’s orders at the time so may not have been an Asgardian agent) could be hard to prove when they have the defense that failure to act on their part would have allowed Malekith to destroy the entire universe, including the university and its grounds.

  2. Martin Phipps

    Suing SHIELD may be moot given that SHIELD accepted responsibility for the “clean up” (in the Agents of SHIELD series) which depending on your definition of “clean up” may include repairs. We have to assume that SHIELD has massive financial resources due to patents (for flying cars, invisible planes, etc.) and that they would have lawyers who would be authorized to settle these claims out of court.

    • SHIELD does seem to have considered themselves obligated to assist in clean-up efforts at Greenwich, else Coulson’s Crew as then constituted would not have been assigned to run that operation. The exact legal mechanism is unclear, but I expect there was a treaty clause somewhere in the mix.

  3. Oliver Neukum

    It would seem to me that Malekith was a foreign invader. So shouldn’t this be treated as war damage?

  4. Wouldn’t legal causation (but for the acts of the defendant, the injury suffered would not have occurred) protect Thor et. al. After all Malekith’s goal was destruction of the entire universe. This, presumably, would include the university, so any damage to it would have happened anyway had they not intervened. Given that they didn’t cause any damage that wouldn’t have happened anyway (due to Malekith), can they be sued at all?

    Or would this require actually demonstrating the probability that Malekith would have succeeded sans intervention?

  5. Nicholas Bramsby

    Oliver – yeah probably but that’s just not pragmatic is it?
    Martin – well yes they’ll probably want to settle out of court but you’re not gonna get them to settle without suing them on some grounds are you…
    Scott – even if he wasn’t employed and was just assisting (as a self-employed person if you will) then there might be sufficient control to say he’s under a contract for services as opposed to contract of service. Which may bring him again under vicarious liability regardless.

    and Chris the Author – what about contributory negligence?

    • The Avengers are consultants – glorifed contractors. Contractors tend to indemnify the person contracting them against lawsuits. Given that at this point SHIELD’s legality is dubious and the Avengers are being funded by one Tony Stark, there’s no way saying SHIELD are vicariously liable for anything Thor does is going to fly, especially since they don’t order him here and part of the plot is ‘don’t let SHIELD know!!’

      • At the time of Malekith’s attack, SHIELD’s legality was still deemed solid enough for them to send Coulson and company on that clean-up detail. Stark – near as can be determined – was probably still working the details of getting the Avengers up and running, including whatever “hunting licenses” they needed to have straightened out.

      • Martin Phipps

        ” Stark – near as can be determined – was probably still working the details of getting the Avengers up and running”

        This was pre-Winter Soldier and Stark wasn’t in charge: Fury was. Now Captain America is supposedly in charge. For now.

      • Yes, Dwight, they sent people, but that doesn’t mean they were on solid ground. A lot of people can function in disaster areas as volunteers, assisting with clean up and working with aid organisations, but not be employed by the aid organisations. As far as we know, they didn’t have to be SHIELD to be there; it was just Coulson being nice.

  6. Peter Leegwater

    Note I have not yet seen the movie.

    Although suing Malekith’s estate in Svartalfheim may be problematic, I expect there is remaining wreck of the mothership. Unless that was completely destroyed, the wreck has both material and scientific value. Who would become the owner of the wreck? Could the University claim part of (the value of) the wreck as compensation, even if there is no estate of Malekith to sue?

    • “Unless that was completely destroyed, the wreck has both material and scientific value. Who would become the owner of the wreck?”

      You’ve hit the nail on the head. SHIELD was more than happy to settle with the University and get access to the wreck.

  7. Terry Washington

    Hmm- given that Thor is not simply a God of Thunder but also a Prince(and heir apparent of Asgard’s ruler odin) he can arguably claim “diplomatic immunity”(just as his fellow Avenger T’Challa can as King of Wakanda) also he might not have any assets worth going after(at least on Earth). Strange that the idea of suing a superhero for injuries and damages sustain by a bystander is the issue here- I am currently working on a novel which deals with they very subplot. Two visiting Russian super types inadvertently cause a crowd to form around them and a rookie NYPD cop fires at them- the bullets richochet off Airstrike’s armor and injure a number of bystanders including one Anna Kapplebaum- who not only sue the NYPD for damages but the two Russians!

    • That depends on whether his state is recognized by the state in the relevant nation. If it isn’t, a court isn’t going to try to compel the state to recognize it by deciding that he has diplomatic immunity. That’s traditionally the right of the executive (and possibly legislative) branch of government.

      And even if it is recognized (in this case by the U.K.) as a legitimate nation-state, I’m not sure that being a member of the royal family is enough. It’s possible that he’d need to be there officially for some work that would gain diplomatic immunity. For that matter, did he even legally enter the United Kingdom?

      Now of course the government would probably wave away any legal proceedings so long as someone who wasn’t them was paying for the damages (plus I believe Thor was helping save the world at the time), but Thor might be less immune than thought.

      • Terry Washington

        It’s true that Asgard is not a member of the UN and has no diplomatic relations with any Earth nation( but neither does Wakanda)- does this mean that King T’Challa has no right to diplomatic immunity as the Black Panther?

        The only time diplomatic immunity does not apply if it involves war crimes or crimes against humanity(see Omar al Bashir) such as genocide or if the person in question is out of power for some reason ( pace Augusto Pinochet, former Chilean strongman)

      • Possibly. A lot of people across the world have declared themselves to be the ruler of this or that state that isn’t recognized anywhere. Some of them (see Somaliland and Puntland) have actually done a better job than many states that are recognized. They aren’t automatically granted special diplomatic protections. So, based on legal issues alone*, Thor does not necessarily have any protection while on a nation on Earth, nor does T’Challa necessarily have it if the nation he is in decides that he never was a diplomatic figure recognized by their state**.

        And on war crimes and the like, that’s a far more complex subject, largely because the legal question runs into the political reality of who has guns and money. See for example the excellent example of Sudan’s Bashir, who managed to get out of South Africa after a court ordered him to stay (and it’s been rumored that South African peacekeepers in Sudan were threatened to compel Bashir’s unofficial release). So I’m not going to even try to go further than that, beyond to say that I’m not certain such things will take away diplomatic immunity absent someone with even more guns and money saying it does.

        *Note that this is not taking into account the comics where at various times it’s been said that a character has an embassy or other customary trappings of being an agent of recognized state. We’re just looking at the movie.
        **Of course if your state does originally recognize someone as some kind of official figure with protection from a recognized nation-state, well so long as no new government takes power there and revokes his status the most you might be able do is demand that this person be removed immediately.

      • James Pollock

        “For that matter, did he even legally enter the United Kingdom?”

        According to whom? Asgard claims dominion over Midgard, so, by Asgard law, Thor is presumably authorized to go anywhere on Midgard that he pleases.
        You know, kind of the way that European powers drew lines on the map, and (mostly) honored them amongst themselves, but generally didn’t consult the people who were already living there.

      • Terry Washington

        Power Trumps- even symbolically. A few years ago somebody wanted to sue Prince Charles for some reason when he was visiting the US but as a putative head of state (ie Heir To The Throne) the suit was dismissed!

        And the Prince unlike Thor is only a prospective head of state!

      • Appealing to imperialist norms long since abandoned isn’t going to help him if he angers the United Kingdom and they decide to make an issue of it. Then he can either choose to run, submit to the authority of the local police or fight. Regardless of whether the first or third choice is made, that’s still an inherently illegal action from the viewpoint of the government of the United Kingdom and isn’t going to stand in any court on Earth.

        And we’re abandoning any version of the diplomatic immunity argument if Asgard claims sovereignty over Midgard*, because then either you view him as someone invading your nation or you view him as someone who can’t be a diplomat with their immunity because he’s not in a foreign nation in the first place. If an American diplomat grabs a gun and shoots someone in an American base, he’s not going to be allowed to claim that he’s got immunity from American law.

        *And while it’s been a while, I don’t remember them doing that in the films. The closest would be Thor interfering with Loki’s transfer in Avengers, which is a hazy one because it obviously revolves around an Asgardian political figure.

    • James Pollock

      ” he can arguably claim “diplomatic immunity”

      Not so much. Diplomatic immunity is something the host company grants, or doesn’t grant, at its discretion; it is not automatic. One of the reasons the United States withdrew troops from Iraq was that the agreement granting American troops operating under U.S. authority immunity from Iraqi law was expiring, and the Iraqi government didn’t seem keen on extending it.

      What he MIGHT have is “sovereign immunity”. Odin claims dominion over Midgard, though he seems to be extremely laissez-faire in its actual governance. As a representitive of the crown (of Asgard), it seems that a competent court of Asgard (one that has jurisdiction over Thor, as a British court probably does not) might be reluctant to attempt to bind the Crown Prince of Asgard.

      • Terry Washington

        And how shall we serve process on the God Of Thunder and prince of Asgard? That would be only less easy than serving process on the Hulk( “Hulk not like puny process server so Hulk SMASH puny process server!”) In addition to the declaration of virtual diplomatic immunity- see my point about attempts to sue Prince Charles for some reason during a visit to the US in real life, we must ask if Thor has any assets worth seizing or sequestering on Earth-probably not )

      • James Pollock

        “we must ask if Thor has any assets worth seizing or sequestering on Earth-probably not”

        If Thor himself is on Earth, then so is his most significant asset: Mjolnir. Whether its enchantment is subject to judicial process is untested, even in the comics, I think. (He CAN lose it… Beta Ray Bill was more worthy… but can a judge order the enchantment to allow a different wielder?)

  8. More to the point, weren’t Jane Foster, Erik Selvig and Darcy Lewis working for SHIELD? Jane was given her stuff back at the end of Thor so she could “continue her work” and when Loki showed up in the Avengers and kidnapped Selvig (who was clearly working directly under Fury’s supervision) they moved her to a more distant site where she would be “safe”. Also, the equipment they were using in Thor: The Dark World was provided by SHIELD. So once Thor left at the end of the movie and Jane Foster, Erik Selvig and Darcy Lewis were left on site wouldn’t the authorities have identified them as SHIELD agents whom Thor had been working with?

    • Nathaniel Krinsky

      I dunno. While they were certainly working *with* SHIELD, I’m not sure you can say that they were working *for* SHIELD. Certainly, they were *not* SHIELD agents.

      Side note: Darcy’s a grad student; would that not suggest that Jane and Selvig are working on behalf of a university?

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  10. Hey everyone. This article is the first I’ve ever written/posted online before. I’m loving the discussion and passion that it is creating, cheers!

    So in writing the article, I was working within two primary limiting factors: simplicity and length. I tried to dumb down a lot so that it could be read by someone without a legal background and there were many things that were deliberately left out to keep the piece short. So for example, I cut out head of state immunity completely, though it would certainly be (as some of the comments already point out) an important consideration.

  11. In the MCU, at the time of Thor 2, SHIELD is portrayed as being under the auspices of the World Security Council. I contend that SHIELD’s public v private position would depend on the status of the WSC (which is as least *implied* to be connected to the UN, even if its members possess the capacity to act unilaterally).

    This is all so much easier in the comics, where the Avengers is an established organisation, complete with membership cards (and are explicitly NOT affiliated with the UN – They were for a while, charter and all, but that went sideways after the Blood Ties crossover)

    • Martin Phipps

      In the comics, the Avengers always answered directly to either the US or the UN and there was obviously some sort of treaty that allowed them to operate in other countries. Latevaria obviously would not have signed any such treaty so the Avengers couldn’t simply invade Latevaria to go after Doctor Doom. Genosha was also a problem in the comics.

      In the movies, it is more complicated. SHIELD grew out of the SSR which was clearly a US government organisation. There is a treaty that allows SHIELD to operate in other countries: this was stated on the Agents of SHIELD series. However, it turns out that Hydra was working within SHIELD all along. How do the Avengers continue to operate in other countries after the fall of SHIELD? I guess countries tolerated the Avengers going into their own countries to clean up their own messes (Hydra and Ultron) but after the devastation in Africa and Sokovia, will the world want the Avengers to continue operate with impunity? I suppose that is precisely the question the Avengers will be facing soon.

    • Terry Washington

      Just because Asgard is NOT an internationally recognized polity(ie by the United Nations) does NOT void the claim of diplomatic immunity that Thor could make. After all neither Wakanda(ruled by Thor’s fellow Avenger T’ Challa aka The Black Panther), the Kree, Skrull or Shi’Ar Empires are similarly recognized ( the governments and general publics of Earth are not even aware of the existence of all three intergalactic empires although most superheroes such as the Avengers, FF and X-Men are) by the UN. My guess is that Tony Stark will pick up the tab for the damage but on the “down low” via the Maria Stark Foundation!

      • Martin Phipps

        Back in 2008, Stark didn’t even know who SHIELD was and now he is supposed to pay their bills? (Granted, he assumed responsibility for the Avengers after Winter Soldier but at this point in time SHIELD should have been paying HIM.)

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  13. James Pollock

    “Just because Asgard is NOT an internationally recognized polity(ie by the United Nations) does NOT void the claim of diplomatic immunity that Thor could make.”

    Diplomatic immunity isn’t something you just get. It’s something your government has to ask for, and then it is either granted or not by the host country. The host country extends it (or not) as a courtesy to governments they recognize. For example, the hereditary ruler of North Korea is absolutely a head of state, and would not be entitled to diplomatic immunity. North Korea does not have an embassy in Washington. I believe we do currently accept a diplomatic party from North Korea in New York, for the United Nations, though I’m not sure they actually have any sort of diplomatic immunity.

    Think of it this way… if the leader of ISIS were to show up at the airport in Washington, D.C…. is he going to have diplomatic immunity?

    • Terry Washington

      ISIS may CALL itself a state but nobody recognizes it as such. If the Skrull Empress, Majestrix Shi’ar Lilandra Neramani( or the late Lilandra Neramani as she is now), the Black Panther was to turn up at the UN and ask to address the General Assembly(a right granted only to heads of state) would we refuse on the grounds that nobody recognizes their states. True, King T’Challa has an Embassy or Consulate in New York which suggests the US at least tacitly recognizes it, but how many others do so. Or to use another real life example, the PA(Palestinian Authority) is recognized officially by many governments (including the Holy See’s) but NOT by the United States or Israel- does that void diplomatic immunity for the PA’s representatives?

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