Fault and Strict Liability in French Civil Law: Articles 1382, 1383, and Specific Rules, Study notes of European Union law

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Week 1 4 European Tort Law p. 3-22 4 France - European Tort Law p. 51-72 4 FAULT LIABILITY (ARTS. 1382 AND 1383 CODE CIVIL) 5 GENERAL RULE OF STRICT LIABILITY FOR THINGS (ART. 1384 AL. 1 CODE CIVIL) 6 Fact of the thing 7 Custodian 8 SPECIFIC RULES OF STRICT LIABILITY FOR THINGS 8 GENERAL RULE OF STRICT LIABILITY FOR PERSONS (ART. 1384 AL. 1 CODE CIVIL) 9 SPECIFIC RULES OF STRICT LIABILITY FOR PERSONS 9 Introduction to Law- Chapters 1, 2, 3, 6 10 Chapter 3- Fields of Law 10 Chapter 6- Tort Law 13 Week 2 15 Germany- European Tort Law p. 73-92 15 FAULT LIABILITY: THE BGB PROVISIONS 16 Requirements for fault liability 16 § 823 I: Infringement of a right 17 § 826 I: Intentional infliction of damage contra bonos mores 17 FAULT LIABILITY: JUDGE-MADE SAFETY DUTIES 18 FAULT LIABILITY: JUDGE-MADE RIGHTS 18 RULES OF STRICTER LIABILITY 19 Liability for objects 19 Liability for persons 19 England- European Tort Law p. 93-125 19 TORT OF NEGLIGENCE 21 The Caparo test 21 Assumption of responsibility / Hedley Byrne principle 22 Relationship between Caparo test and assumption of responsibility 22 TRESPASS TO THE PERSON 23 Assault and battery 23 Defences against assault and battery 23 Defamation 24 Other torts of trespass to the person 24 INTENTIONAL INTERFERENCE WITH LAND AND GOODS 25 Trespass to land 25 Trespass to goods 25 Conversion 25 1 NUISANCE 25 Public nuisance 26 Private nuisance and the rule in Rylands v Fletcher 26 Week 3 26 Requirements for Liability: Protected Rights and Interests pp. 167-193 26 THE RIGHT TO LIFE 27 THE RIGHT TO PHYSICAL INTEGRITY 27 THE RIGHT TO PHYSICAL HEALTH 27 THE RIGHT TO MENTAL HEALTH 28 1. France 28 2. Germany 28 3. England 29 Rescuers➢ 29 Anxiety➢ 29 PERSONALITY RIGHTS 30 Protection of property and economic interests pp. 202-208 31 THE RIGHT TO PROPERTY 31 Week 4 32 Protection against pure economic loss pp. 208-217 32 Intention or Negligence pp. 225-269 34 INTENTION 34 NEGLIGENT CONDUCT 35 THE REASONABLE PERSON BALANCING RISK AND CARE 36 The four factors of negligent conduct to be balanced 37 MAGNITUDE OF THE RISK 37 PRECAUTIONARY MEASURES 38 Reducing the risk 38 Duty to warn or to inform 38 OMISSIONS 39 CHARACTER AND BENEFIT OF THE CONDUCT 40 Defences and grounds of justification 41 NEGLIGENT PERSON 41 Knowledge and skills 41 SUBJECTIVE AND OBJECTIVE TESTS 42 STANDARDS OF REFERENCE 42 Week 5 43 Liability in emergency cases pp. 520-529 43 Pure omissions: a duty to rescue 43 Causation pp. 307-345 45 Factual and legal causation 46 2 ● The highest civil and criminal court in France is the Cour de Cassation, it has jurisdiction to review all decisions of lower criminal and civil courts ● Only deals with questions of law and not of fact ● It has a commercial, a social, and a criminal chamber ● If a Chamber of the Cour de cassation rejects an appeal, the lower court’s decision becomes final; if the Chamber quashes the decision of the lower court, it can refer the case to a different lower court with remand for further review of factual issues in light of the decided points of law. However, the lower court is not bound by the Chamber’s decision → can still appeal to Plenary Assembly of Cour de Cassation ● Courts decisions are concise and rather abstracts, narrowly formulated judgements are essential to ensure a uniform interpretation of the law in which the law appears to be self- evident ● French civil procedure law maintains a strict principle of anonymity that prohibits disclosing individual diverging or dissenting opinions ● The Procureur Général of the Cour de cassation plays a special role; not only is he the highest ranked prosecutor in France but he also advises the Cour de cassation in criminal and civil law cases regarding the content and the legal background of the case ● The courts of first instance are the Tribunal d’instance, the Tribunal de grande instance, the Tribunal de commerce, and the Conseil des Prud’hommes (labour law). Decisions of these courts can be brought before the Cours d’appel (courts of appeal) ● The lower courts are neither bound by the decisions of the Cour de cassation nor by their own decisions but decisions of Cour de Cassation have strong authoritative power and are rarely deviated from ● Cases of liability of public authorities are competence of administrative courts. The highest administrative court is the State Council (Conseil d’État). Administrative courts hear all cases against public bodies such as the State, departments, State-owned companies, and institutions such as hospitals Doctrine ● Decisions are often concise and apodictic and therefore not always abundantly clear ● Generally, the approach of French legal writers is practical rather than theoretical FAULT LIABILITY (ARTS. 1382 AND 1383 CODE CIVIL) ➔ Article 1382/1240 CC: “Any act whatever of man, which causes damage to another, obliges the one by whose faute it occurred, to compensate it” ◆ Does not play an important role in the area of liability for accidents but applies if no strict rule is applicable, for example when it comes to omissions or negligent misrepresentation ➔ 1383/1241 CC: “Everyone is liable for the damage he causes not only by his act, but also by his negligence or by his imprudence” ◆ Applicable to all areas of liability ◆ Fault liability based on articles 1382 and 1383 has a simple structure: 1. to establish liability it is sufficient to prove intention or negligence (faute), ● Mainly implies negligence liability 5 ● Does not include the requirement of a duty of care; it suffices that a negligent conduct caused damage ● A person commits faute when: 1) violates a statutory rule (absolute scope, protect each person who suffers damage cause by its violation); 2) breach of an unwritten preexisting duties (courts use as standard of reference the good family father, the cautious man or the good professional); 3) Non-intentional criminal faute automatically implies a civil faute (so a right to compensation can be claimed); 4) intentional abuse of rights 2. damage (dommage), 3. and causation (lien de causalité). Abuse of rights ● If someone abuses his right, for example by using his property right to harm another person, this constitutes a faute under Articles 1382 and 1383 CC ● “Abuse of a right” connected with “abuse of freedoms”, where freedom means to be able to do all that does not harm others, therefore, when does the valid exercise of a right degenerate into an abuse? ● In this area faute often implies intentional conduct or an act in bad faith, however in some cases it suffices that the defendant’s conduct was different from that of a reasonable man ○ Courts often refer to intention to harm ○ To fraudulent fault ○ To bad faith or to culpable levity of conduct ● Case: Clément- Bayard ○ One neighbour built a 16 m fence with metal spikes to damages his neighbour hot air balloons → abuse of property rights ○ Nowadays disputes between neighbours are mostly dealt under strict liability GENERAL RULE OF STRICT LIABILITY FOR THINGS (ART. 1384 AL. 1 CODE CIVIL) ● If a claimant unsuccessfully invokes Article 1384, a judge can consider the applications of Article 1382 and 1383 ● Dominant position of rules of strict liability in France ● French law contains 2 general rules of strict liability: a strict liability rule for things emanating and one for persons generated from court decisions ● 1384(1), now 1242(1) “One is liable not only for the harm which one causes by one’s own action, but also for that which is caused by the action of persons for whom one is responsible, or of things which one has in one’s keeping.” ● Case: Teffaine (1896, industrialisation, increase of accidents in the workplace, difficult to prove employer’s faute) ○ The Cour de cassation read article 1384 al. 1 in an innovative light. The provision holds that a person is liable not only for the damage he causes by his own act, but 6 also for that caused by the acts of persons for whom he is responsible or by things under his supervision → Cour de cassation used the provision to create a liability regime for rebuttable faute for damage caused by a chose (thing). This meant that the custodian of a thing (le gardien de la chose), for instance an employer owning a dangerous machine, was liable for the damage caused by the thing, unless he could prove that he did not commit a faute ○ Since the decision, the gardien de la chose is liable for the damage caused by the fait de la chose (act of the thing) ○ Custodian has two defences: ■ Unforeseeable and unavoidable external cause of the damage, which could be due to: ■ Force majeure ■ Act of third party ■ Act of the victim ■ Victim’s contributory negligence (if successful, it reduces the amount of compensation payable) ○ The custodian cannot invoke the claimant’s assumption of risk, a defendant cannot oppose the victim’s assumption of risk under article 1384 al. 1 CC. ○ The defendant’s conduct is generally not relevant and the focus is completely on strengthening the claimant’s position to obtain damages ○ Inspired by ‘theorie du risque”: a person who benefits from an activity that involves a risk should bear the burden of the damage caused by the risk Fact of the thing ● Liability on the basis of article 1384 al. 1 requires the act of a thing (fait de la chose). This implies that a thing (chose) must have contributed to the realisation of the damage ● A ‘thing’ includes all inanimate objects (choses inanimées), irrespective of whether they are defective, natural or artificial, dangerous or not dangerous, and movable or immovable ● Establishing the act of a thing (Fait the la chose) ○ If there has been contact between the claimant or his property and a moving thing: not necessary for the custodian to have contributed in any way to the action of the chose ○ If there has been contact between the claimant or his property and a non- moving thing, the claimant has to prove that in some way the thing was instrumental in causing the damage → if the thing ‘behaved’ in an abnormal way, was defective or in an abnormal position ○ Case: Mme Cadé ■ Fell and lost conscience in the changing room of a swimming pool with her arm resting on a heating pipe which caused her injury. The Court held that the swimming pool had neither committed faute, nor was the pipe in an abnormal position ○ If there has been no contact between the claimant or his property and the thing, article 1384 al. 1 may apply but here the claimant has to prove that the chose was the cause of his damage 7 ■ Craftsman are not liable if they can prove that they could have not prevented the act ■ Teachers: not strict but negligence liability regime, claimant has to prove that the damaging act was caused by the teacher’s fault, improdence or negligent conduct (A teacher at a public school (ie a school run by the State or the municipality) cannot be held personally liable for damage caused by one of his pupils: only the State is liable towards the victim). Introduction to Law- Chapters 1, 2, 3, 6 Chapter 3- Fields of Law Fields of law Law is not homogeneous but consists of different fields of law that deal with different legal fields. → First division: Public Law and Private Law - Public law is that part of the law in which the government as such plays a central role. ‘Effectuation of the public interest by state action,’ meaning that state qua state is a party to litigation. - 1) Criminal Law (prosecution and punishment of criminals) - 2) Constitutional Law (state organisation and division of government powers, democracy, legislation, relation between central and local government agents) - 3) Administrative Law (interactions between government agents and civilians or private organisations) - Public International Law (between States and international organisations) - Private law is that part of the law in which the government as such does not play a role. Deals with relations between citizens. The area of the law in which the sole function of government is the recognition and enforcement of property rights - 1) Property Law and 2) Contract Law (sales, ownership, mortgages) - 3) Tort Law (compensation for damages (eg.physical or psychological) when there is no contract) - 4) Family Law (marriage, adoption etc) - 5) Law of commerce (transports of goods) - Private International Law, determines which laws are applicable if a case falls under more than one jurisdiction. - European Union Law - Unclear distinction between private and public: treaties between the member States of the European Union resemble public international law. On the other hand, institutions of the EU make laws themselves that deal with the relationship between citizens and companies within the EU and resemble private law. → Second division: Substantive and Procedural Law - Substantive law consists of rules that give people rights and determine people’s duties - Procedural law provides the rules for court procedures and for the organisation of the judiciary, through which compliance with duties and respect for rights can be eventually enforced. 10 - There are branches of procedural law for each of the major branches of substantive law. There exist rules for civil, criminal and administrative procedure. → Functional Fields of Law - Fields of law that have traits of both private and public law and/or both substantive and procedural law are called «functional» fields of law because they are characterised by the function they fulfil rather than by belonging to one of the main areas of law. Legal Subjects - To whom the legal rules apply, who is addressed by the rules of a certain field of law - “Natural persons”, are human beings - right to privacy, freedom of expression, freedom of religion, and a right to physical integrity - “Legal persons”, are organisations - physical integrity? - in private law, can perform juridical acts (own property, contract) Rules, Operative Facts, and Legal Consequences → Structure of Rules - Rules have a conditional structure: - Condition part, which states when the rule is applicable - Conclusion part, which indicates what the consequences are when the rule is applied → Operative Facts - When the facts of a case match the conditions of the rule and therefore the legal rule is applicable, those facts are called operative facts → Legal Consequences - A fact can only be an operative fact if a rule attaches legal consequences to it Duties, Prohibitions, and Permissions Having a duty means being obligated to do something. A duty always has two elements: the agent to whom it is addressed and the action to perform. - Duty-Imposing Rules : Some rules impose duties only on certain agents because of a particular status of the agent, others impose duties on everybody. The last are called “mandatory rules”. - Content of Duty : the action the agent is obligated to do or to abstain from doing. The last is called a prohibition, a duty to refrain from doing something. - Permissions : usually intended as absence of prohibition. However, law has a function for permissive rules to make an exception to what is generally forbidden. Permissions are also often granted through juridical acts. - Permission is different from competence - Competence is a precondition for the intentional creation of a legal consequence by means of a juridical act - Permission has to do with the kind of action, juridical or ordinary, one is allowed to do - Competence to perform an action can be more easily restricted by legislation, whereas permission often requires prohibitions and sanctions 11 Competences and Immunities An agent exercises a competence by performing the juridical act for which the competence is required. A juridical act might have legal consequences on the legal position of the agent or of someone else related to the act. - Immunity , means being immune get your legal position modified by an agent lacking competence - In private law legal subjects are immune to have their legal position modified by other legal subjects, while being competent to modify their own - In public law, public officers have to competence to modify the legal position of their citizens Rights Different kind of rights: - Rights against a person (rights in personam or claims) - Rights on an «object» (rights in rem or property rights) - Human or fundamental rights. Claims and Obligations Personal rights or claims usually belong to the field of private law, used as a counterpart for obligation. - Obligation in the narrow sense (counterpart to the claim) is different from Obligation in the broad sense (reciprocal obligation between debtor and creditor) - Obligations and Duties in civil law tradition differ. Obligations mean that for every obligation there is a person, the debtor, obligated to do in favour of another person, the creditor. Duties, indeed, are not directed to someone else. - Legal positions attached to a claim might be the transferability of the claim, the competence to enforce the claim. Finally a claim holder is in the legal position to have the competence to waive his right. Having a claim involves the presence of the obligation and the competences. Property Rights - “Rights regarding an object”, property rights are the relations between the right holder and the object of the right (the property) - eg. ownership, copyright, mortgage - Property rights can be potentially invoked against everyone. “Erga omnes”, a right to follow the object wherever it is. - A property right generally involves prohibitions against everyone but the owner, who, indeed, owns permissions on the object and competence to transfer his rights to someone else. Fundamental Rights Human rights (freedom, bodily integrity, privacy, health care, schooling, employment), usually rights against governments that are explicitly stated in the constitution. - The Right to Bodily Integrity , like relative rights, are also rights against a specific legal subject. However, unlike relative rights, the right to bodily integrity does not belong to an obligation and does not originate from a specific event. The right holder is immune from being taken is right away, he can give temporary permission and he cannot transfer his right to someone else 12 ● Corrective/ Compensatory/ Retributive justice involves rectifying something that has gone wrong. ○ Damage must be remedied to restore the initial position, typically by the person who caused the damage. ○ Furthemore, the act must be attributable to the person who is held liable for the damage. ○ Liability to compensate depends on the wrongness of the act and it is typically fault liability. ● Distributive justice involves the distribution of goods and damages over a group of persons. ○ Under distributive justice, compensation does not necessarily restore the status quo, but can be used to achieve a fair distribution of wealth over society. Week 2 Germany- European Tort Law p. 73-92 History ● German Civil Code 1900 ● Political masterpiece of Otto von Bismarck to transform a collection of small states into an industrialised nation ● Not only a symbol of german unity but also dictated by an economic necessity given that the economy increasingly operated on a supra-regional level ● Germany is a federal state composed of states (Lander) with limited powers in comparison to the federal government ● BGB was drafted in 26 years, criticised as being too abstract and doctrinaire. However, the abstract level of the BGB’s provisions has contributed to its flexibility and lasting practicability as it has given the courts sufficient space to develop the law as required from both a social and economic point of view. Civil Code ● Provisions on liability and damages can be found in the second book of the BGB, the one on the law of obligations ● Rules of strict liability have been added over the years thanks to the judicial work of the highest courts, but have been embodied in separate Acts. ● Additions have kept German tort law up to date with social and economic developments Judiciary ● Until WWI the Reichsgericht was Germany’s highest civil and criminal court ● Now it is the Federal Supreme Court/ Bundesgerichtshof ● BGH has to guarantee justice in individual cases and to ensure the uniform application and development of the law. The BGH reviews decisions of the regional courts of appeal (Oberlandesgerichte) and certain divisions of the lower regional courts (Landgerichte). ● BGH decisions are extensive and take into account not only the legal problems, case law and academic literature, but also the state of affairs in the area of law at issue. ● Less personal than English Supreme Court judges’ decisions: more objective style and no dissenting opinions ● Parties appear anonymously ● Fundamental rights protected under German law have greatly influenced tort law ● Germany also has a Federal Constitutional Court: declares and nullifies legislative, executive and judicial acts because unconstitutional 15 Doctrine ● German commentaries are masterpieces of detailed analyses of legal provisions ● But there exist many textbooks as well ● A strong tendency within the German doctrine is to try to reconcile the pragmatic approach of the BGH with the BGB system ● An advantage is that if a legal question arises, it is very likely that a German author has already carefully discussed it FAULT LIABILITY: THE BGB PROVISIONS Three general & three specific provisions for fault liability ● Distinction between fault and strict liability ● Fault: liability for intentional as well as negligent conduct ● Strict: someone is liable regardless of whether he acted intentionally or negligently ● In the area of fault liability a middle position between France and Germany was chosen ○ Not general rule because there was a need for unity and it would have created too much uncertainties and lack of boundaries ○ Result in three general rules: 823 I, 823 II, 826. ○ And three specific provisions: §824 concerning financial and economic trustworthiness; §825 relating to the infringement of sexual integrity; and §839 covering breach of an official duty Requirements for fault liability ● Each provision contains 5 requirements for liability: 1. the violation of a codified normative rule a. Meaning one of 823 I (infringement of a right, such as the rights to life, body, health, freedom, and property), 823 II (violation of statutory rule), 826 (intentional unethical conduct, also known as intentional infliction of damage contra bonos mores) b. Not possible to file a claim for damages only on the basis of intention or negligence, violation of a codified rule has to be established c. Requirement which aims to limit the scope of fault liability 2. Unlawfulness a. By infringing another person’s protected right (§ 823 I), by violating a statutory rule (§ 823 II), or by intentionally inflicting damage contra bonos mores (§ 826). b. Unlawfulness can be rebutted by invoking a ground of justification: i. self-defence (§ 227) ii. necessity (§ 228 and 904) iii. self-help (§ 229 and 859) c. In the case of an indirect infringement, the breach of such a safety duty determines unlawfulness d. In cases of indirect infringement the difference between unlawfulness (breach of a safety duty) and negligence (conduct that is contrary to the care required by society) is not obvious 3. Fault a. Fulfilled if the defendant acted intentionally or negligently 4. Causation 5. Damage 16 § 823 I: Infringement of a right ● § 823 I protects life, physical integrity, health, and personal liberty as well as property and ‘another right’ → Rule of fault liability that applies to all cases of personal and property damage ● If a person infringes it, he has acted unlawfully if he has no justification for his conduct ● If the person also acted negligently he will be liable not only for the physical damage but also for the consequential economic loss ● German courts tend to interpret the rights protecting against death and personal injury in a broad manner ○ Case of a man’s frozen sperm destroyed without his consent resulted in damages for non-pecuniary loss for the infringement of his right to bodily integrity ○ Case of driver found liable for brain damage caused to unborn child because of a collision with the pregnant woman ○ Psychological damages surpassing levels of grief and distress are also considered health injury ● Property right leads to damages not only when the property is damaged or destroyed but also when it remains undamaged but can no longer be used in its intended manner ● “Another right” means rights regarding intellectual property (patents, trademarks, and copyrights), mortgages, names, portraits, and family law-related rights, such as the right to parental care ● The provision does not cover liability for pure economic loss § 826 I: Intentional infliction of damage contra bonos mores ● § 826 holds a person liable if he intentionally causes damage to another person in a manner contra bonos mores ○ acting contra bonos mores implies conduct contrary to the existing economic and legal order or the ordre public ○ Eg. provoking breach of contract, providing incorrect information, unfair competition etc. ○ Constitutional human rights are increasingly used as a benchmark for conduct between citizens ● § 826 requires intentional conduct (in a broad manner) ○ Courts accept dolus eventualis: it is sufficient that the tortfeasor was aware of the possibility that the damage would occur even if he did not wish for them to occur ○ Intention need only be present in relation to the primary infringement of the victim’s interest, not all the consequences it causes ○ Sometimes also accept recklessness: If the tortfeasor was aware that his conduct was reckless, the courts tend to deem this to be sufficient to indicate intention Gaps in the BGB and the need for judicial intervention ● BGB offers limited possibilities for compensation for pure economic loss, thus judge-made rules throughout the years have brought to: 1. They easily establish the infringement of a protected right in the sense of § 823 I, because if someone intentionally or negligently infringes one of the protected rights, he has to compensate for all the consequential damage of that infringement— including economic loss—provided that there is a sufficient causal connection between the conduct and the harm. 2. Creation of a right to business (pure economic loss due to negligent conduct 3. Scope of contract can be extended to protect third parties 17 ● Highest civil and criminal court in the whole UK (except criminal in Scotland) is the Supreme Court, which replaced the House of Lords (with Constitutional Reform Act 2005) ● Composed of a President and 10 Justices, case decisions are awarded on majority ● Legal, practical, cultural and policy observations are present in judges’ legal opinions ● The issues involved must be of general and public rather than individual importance, and questions of law must be at issue rather than questions of fact. ● Strike-out procedure: allows a defendant to request the court to dismiss a claim without hearing the facts ● Cases are expensive and time consuming (days, weeks, even months) Legislator and Judiciary ● Although the judiciary develops the common law, it remains subservient to Parliament, the sovereignty of which is one of the United Kingdom’s constitutional cornerstones: parliamentary sovereignty ● Not a civil code but a number of statute containing very detailed and specific provisions, to reduce the freedom of courts to interpret (literal interpretation is the rule, yet golden and purposive interpretation are also adopted) ● Since the 1998 Human Rights Act statutory provisions can be deemed incompatible with it and courts are obliged to take the ECtHR case law into account Doctrine ● Academics are not as important as in France and Germany ● Casebooks are very popular (case law and not rules provide guidelines) ORIGINS OF TORT LAW Writs ● To file an action in court one needed a writ, which could only be obtained from the head of the judiciary, the Lord Chancellor. ‘ ● Where there was no writ there was no right.’ ● Restricted number of writs ● If the claimant used the wrong writ, the claim was dismissed, no access to common law courts ● Claimants starting directing their claims directly from the king: development of equity, now regarded as torts ● Over time, the writs were given their own names and different torts, each with their own requirements came into existence, such as assault, battery, nuisance, and negligence, some are named after the case and some is not even clear why they are torts ● Now we have a collection of torts rather than a single principle Torts ● The focus is on finding the right ‘cause of action’, usually a common law tort, but could also be a statutory tort or an equitable wrong ● Definition of tort: ‘Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.’ ● Most important tort: negligence ● But there exist also trespass (to the person as in assault, battery and false imprisonment, to goods and to lands), nuisance torts and others ● Most torts require either intention or negligence TORT OF NEGLIGENCE From specific duties to Lord Atkin’s speech 20 ● Courts developed the tort of negligence into a general liability rule ● Tort of negligence consists of 3 elements 1. A duty of care 2. A breach of the duty of care 3. A damage ● Definition: “Negligence as a tort is the breach of a legal duty to take care which results in damage to the claimant” ● Duty of care implies the existence of some relationship between the claimant and the defendant ● Case: Donogue v Stevenson ○ Ginger beer with partially decomposed snail causes Ms Donogue stomach pain and emotional distress. She claimed damages from the manufacturer and the House of Lords held that the manufacturer owed a duty of care to the ultimate consumer for latent defects the consumer was not able to detect ○ From Lord Atkin's speech “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” ● Atkin’s neighbour principle: someone owes a duty of care to everyone who, by negligent conduct, can suffer foreseeable damage provided there is sufficient proximity between the wrongdoer and the victim Rise and fall of the general duty of care ● Atkin’s general duty of care for foreseeable harm was applied in Anns v Merton London Borough Council ○ Case on whether a local authority owed future owners of a building a duty of care when it investigated the builders’ compliance with building regulations ○ Lord Wilberforce in the case established that the duty of care consists of 2 parts 1. Establishing a sufficient relationship of proximity between the wrongdoer and the victim 2. If there is any consideration which may reduce the scope of the duty of care ○ This was ultimately replaced by the Caparo test The Caparo test ● Only applies in situations when no precedent can be relied on ● Three requirements 1. The harm must be reasonably foreseeable 2. There has to be proximity between the claimant and the defendant 3. Imposing a duty of care has to be fair, just and reasonable ● Reluctance of English court to interpret the “duty of care” in a broad manner: due to the fear of having too many claims and to the inclination of the English system to protect the freedom of people to act over the interest of the victim (which is instead th case in France) Assumption of responsibility / Hedley Byrne principle ● Relevant in cases of omission, liability of public bodies and liability for pure economic loss ● Requires: 1. A person represent himself out (expressly or impliedly) as having some kind of advantage/skill/knowledge over the claimant 2. The claimant must have relied on this assumption and the reliance must be reasonable 3. The assumption does not have to be voluntary 21 4. Assumption and reliance will usually (but not necessarily) follow from direct contact between the claimant and the defendant ● Case: Hedley Byrne ○ Advertising agency asked a bank for information on one of its clients, the bank gave wrong information and the Hedley Byrne agency suffered damages when the client went bankrupt shortly thereafter ○ Atkin principle applied: duty of care to prevent third parties suffering economic loss from negligent statements, if there is a special relationship between the person owing the duty and the ones damaged. ● Case: Henderson v Merrett Syndicates Ltd ○ Significance: assumption of responsibility is no longer confined to statements and can also be applied to provision of services. ● Case: Smith v Eric Bush ○ Significance: shows that the assumption of responsibility does not have to be voluntary ○ In the case a surveyor acted negligently and wanted to escape liability through a disclaimer that the building society he worked with had given to the claimant. The court held that the surveyor, despite his refusal of responsibility, owed a duty of care to the purchaser of the house ● Case: White v Jones ○ Mr Barratt wanted to reinsert his daughters in the will, yet it took Mr Jones (the solicitor) a month to give him a new appointment. Mr Barratt died 3 days before the appointment and the court held that the daughters could received damages because Mr Jones owed them a duty of care Relationship between Caparo test and assumption of responsibility ● Not rivals rules but complementary ● Assumption of responsibility is usually the first choice as it is more specific ● Eg. in Customs and Excise the court considered the 2 tests interrelated ○ Tax authorities obtained a freezing order for the bank account at Barclays of a company that had not paid VAT. Barclays knew about the order, yet the company took the money from the bank nevertheless. Tax authorities claimed compensation from Barclays for pure economic loss under negligence. The Court refused. Problematic duty situations ● Atkin’s principle is unproblematically applied when: person’s death, personal injury or property loss ● Controversial when it comes to liability for psychiatric injury, pure economic loss, omissions, and liability of public bodies ○ Psychiatric harm is easy to establish for a direct victim, more difficult for secondary victims (eg. witnesses) ○ Omissions: no duty to act unless the defendant has created the risk, has assumed responsibility for the claimant’s welfare or his status gives rise to such a duty ○ Usually, there is no duty of care to prevent another person’s pure economic loss. However, there are 2 exceptions: 1) if the defendant has assumed responsibility for the claimant’s interests, 2) a duty of care to provide accurate information 22 ○ Significance: trespass adapted by Human Rights, in this case Article 10 and 11, freedom of expression and assembly ● Trespass can also be committed by entering into another person’s airspace, however it is not trespass if an aircraft flies several hundred feet above a house (unless something falls into the land from an aircraft) ● Defences 1. Permission 2. Necessity 3. Inevitable accident ● Claimant has an action for recovery of land and a supplementary one for loss of profit he has suffered. Additionally he/she may use reasonable force to eject a trespasser. Trespass to goods ● Physical interference with goods that are in possession of another without lawful justification. ● The main remedy is an injunction, which enables an owner to stop unauthorised use of his properties or possessions ● Strict tort: intention or negligence not needed unless the owner claims damages ● It is actionable per se Conversion ● ‘by wrongfully taking possession of goods, by wrongfully disposing of them, by wrongfully misusing them, by wrongfully destroying them or simply by wrongfully refusing to give them up when demanded.’ ● Unlike trespass, which is founded on possession (a fact), the tort of conversion is founded on property—that is, a denial of the claimant’s legal title. ● Liability is strict, the defendant only needed to intend the voluntary act and not the consequences NUISANCE ● A private nuisance primarily covers interference with land but not personal injury, whereas a public nuisance claim can also be for personal injury. Public nuisance ● Public nuisance implies an unlawful act or omission causing annoyance to the general public ● The nuisance needs to be so widespread that it would not be reasonable to expect one person to bring proceedings ● Public nuisance further requires that the damage suffered is ‘special’. This means that the damage is not related to general inconvenience and is distinct from that of the general public. ● A public nuisance claim for special damages generally requires negligent conduct but this is presumed and it is up to the defendant to prove that he did not act negligently. Private nuisance and the rule in Rylands v Fletcher ● Private nuisance is an act that is not trespass and interferes with a person in the enjoyment of his land or premises or a right he has over the land of another person ● Eg. producing smoke, noise, or smells ● It must be continuous or happened several times ● Only people with a proprietary interest on the land can file a claim for private nuisance 25 ● Private nuisance is strict ● The harm caused must be foreseeable ● Not every type of damage is recoverable under private nuisance which only covers material damage, loss of amenities, and diminution of the utility of the land, but not inconvenience, annoyance or illness (which fall under the tort of negligence) ● The available remedies are damages and an injunction (the most common). ● Rule in Rylands v Fletcher: ○ If someone kept something dangerous on his land, and this dangerous thing escaped, he was strictly liable for the consequences of the escape. ○ Other rulings have added that the damage suffered must be a reasonably foreseeable consequence of the escape OVERVIEW OF OTHER TORTS ● The Occupiers’ Liability Acts set out the duties an occupier of premises owes to his visitors or, indeed, trespassers ● The Consumer Protection Act 1987 implements the European Directive on liability for defective products (strict liability rule) ● Liability for breach of a statutory duty (usually strict, but can also be negligence-based or in between) Week 3 Requirements for Liability: Protected Rights and Interests pp. 167-193 INTRODUCTION Protected rights and interests in tort law ● Negligent conduct must be legally wrong or damage must be legally relevant ● Connection between negligence/duty of care and protected interests: the required level of care corresponds to the value of the infringed right or interest. This means the more an interest is valued, the higher the care required. Protected rights and interests in the legal systems ● In germany infringement of protected rights as listed under 823 I BGB proves unlawfulness ● UK primary focus is on duty of care and rights serve to trigger it more easily. Physical integrity and freedom under the tort of trespass are usually not framed as rights ● France determines protected interests on a case-by-case approach on the basis of dommage (1382 CC) PROTECTION OF THE PERSON THE RIGHT TO LIFE ● Article 2(1) ECHR “everyone’s right to life shall be protected by law” ○ States have an obligation to protect citizens from both acts and omissions ○ States are required to take positive actions to protect individuals ● France: strict liability ● Germany: strict rule, either negligent infringement of a protected right OR breach of a statutory duty ● UK: tort of negligence, breach of a statutory duty, trespass tort of battery 26 ● Aim of tort law in relation to the right to life is to prived relatives (mainly partners and children) with a right to claim loss of maintenance/ funeral costs (provided that certain conditions are fulfilled) → mainly pecuniary costs ● UK and France allow next of kin to claim damages for non-pecuniary loss ● Sometimes compensation may be awarded to employer THE RIGHT TO PHYSICAL INTEGRITY ● Partially protected under Article 2 ECHR (if caused by immediate and life-threatening criminal act of a third party) and Article 3 (if caused by torture, inhuman or degrading treatment or punishment) ● Generally strict liability is established OR tort of negligence ● Causation easy to establish ● Substantial damages: in cases of injury the pecuniary loss, particularly medical expenses and loss of income, is compensable as is non- pecuniary loss, particularly for pain and suffering. ● NOTE: level of protection, namely the scope and extent of a protected right, depend on the activity in which the physical harm happened ○ Sports: different to get compensation for physical injury if risk is inherent to the sport ● CASE LAW:Legal status of sperm: if someone’s stored sperm is destroyed does it have to do with physical integrity or property? ○ For Germany it has to do with bodily integrity because it provides damages for non- pecuniary loss (as opposed to property which does not) and has the purpose of being reintegrated into the human body. ○ The UK reached the same result in a case where men’s sperm was destroyed because of failed storage: Court ruled that they were entitled to compensation for psychiatric injury or actionable distress that was the foreseeable consequence of the breach of the hospital’s promise to the men that the sperm would be stored at freezing temperature. THE RIGHT TO PHYSICAL HEALTH ● Protects people against the consequences of disease ● No sharp distinction with right to physical integrity: a damage to a person’s body constitutes impairment to health ● However, it is difficult to prove causation between the negligent conduct and the damage ● France and Germany consider an infection as an impairment of normal bodily functioning even if it does bring pain or change ● Different in the UK: Pleural plaque case ○ Employees had been exposed to asbestos and developed pleural plaques on the membrane of the lung which indicated an enhanced risk of developing asbestosis or mesothelioma. The House of Lords dismissed the claims, considering that pleural plaques did not constitute actionable damage, particularly since they were neither visible nor disfiguring nor the first stage of an asbestos-related disease. THE RIGHT TO MENTAL HEALTH ➢ Various national thresholds ○ In order for feelings of discomfort to be actionable, a certain level of discomfort needs to be reached, such as grief and sorrow, pain and suffering, unconsciousness, or psychiatric problems, such as a post- traumatic stress disorder, neuroses, or psychoses 27 ● The BGH later decided that in cases of more serious infringement of the personality right the victim is entitled to claim damages for non-pecuniary loss ● Balance between freedom of expression and general personality right ● 823 II also protects since personality rights are also found in statutes 2. France ● Statutory basis: Art. 9 CC ‘everyone has the right to respect for his private life’. ● Infringement of a right to privacy= compensation ● No need to establish faute or non-pecuniary loss → strict liability? Or is faute test incorporated in the infringement test? ● Before 1970 infringements of privacy were treated under art. 1382 CC, no general personality rights provision ● In line with ECtHR in the Caroline von Hanover France also believes that the press is free to publish images which serve the public interest, provided they respect human dignity 3. England ● Right of privacy is not itself a principle of common law ● To be protected under other torts: malicious falsehood, slander, libel etc. ● Or through statutory provisions eg. Defamation Act 1952 or Human Rights Act 1998 (art. 8 ECHR right to privacy) ● First landmark case acknowledging that English law protects privacy: Campbell case. However, no distinct tort for the infringement of privacy was created but based it on breach of confidence ● Breach of confidence now covers not only cases of misuse of private information but also takes into account of both Articles 8 (the right to respect for private and family life) and 10 (the right to freedom of expression) ECHR ● The fundamental question is whether the disclosed information is “private”. According to Lord Nicholls, the test is whether the affected person has a reasonable expectation of privacy. This expectation differs between an ordinary member of the public and a celebrity. ➢ Article 8 ECHR: Caroline von Hanover ○ Article 8: protection of private life and family life [not only against the state (vertical effect) but also against citizens/companies/media (horizontal effect)] ○ The Court has extended the protection of private life to activities of a professional or business nature since it is during work that they have the most opportunities to have relationships with the outside world ○ States have a positive obligation to secure respect for the private life of their citizens ○ Caroline Von Hanover ■ BGH: right to privacy only if she is in a secluded place out of the public eye ■ ECtHR: even in a public context, some interactions may fall within the scope of private life. Furthermore, the decisive factor in the balance between a right to private life and freedom of expression should lie in the contribution that the publication makes to a debate of general interest. It is an essential feature of democracy that the public be informed, however in this case no contribution to public debate was present. 30 Protection of property and economic interests pp. 202-208 THE RIGHT TO PROPERTY Introduction ● Proprietary interests in movable and immovable objects ● Consequential economic loss (different from pure economic loss): The wider the interpretation of a property right, the more consequential economic loss is compensated. France ● Does not contain statutory or systematic obstacles for the recovery of damage to movable or immovable objects. ● Requirements: damage must be direct and certain and must have affected a legitimate interest Article 1 First Protocol ECHR ● Protects “possession” ● A person cannot be deprived unless in the public interest and subject to principles of international law/ OR to secure payment of taxes, contributions, fines ● Includes claim to patents, shares, goodwill, building licence, planning permit etc. ● Not only tangible but to some extent also intangible property: Not only existing possessions but also assets over which the claimant has a reasonable and legitimate expectation of obtaining a property right ● When it comes to deprivation of possessions and national property law the ECtHR accords states with a wide margin of discretion: eg. Pye v Graham on adverse possession of land in the UK Germany ● § 823 I BGB includes property under the protected rights ● Infringing it in a unlawful or negligent way gives rise to liability ● If an object is damaged/ stolen/ cannot be used for the original purpose permanently or temporarily even if undamaged ● Broad interpretation of infringement of property to compensate narrow interpretation of pure economic loss England ● Distinction between proprietary interests in land (real property) and in movable things (personal property) ● Tort of negligence as general rule: it is assumed that the tortfeasor owes a duty of care towards the person who may suffer property damage because of his negligent conduct ● Property loss = physical damage to the property ○ Contrary to German Law, loss of USE of property falls under pure economic loss: actionable under torts of private and public nuisance as well as trespass to goods and conversion ● Case: Spartan Steel 1973 → significance is that it shows the difference between consequential economic loss and pure economic loss compensation: when is economic loss a consequence of property loss and when is it pure economic loss? ○ Spartan Steel received electricity via cable from the eElectricity Board. Spartan did not own the cable. Martin&CO with an excavator negligently damaged the cable that ran to Spartan Steel, and caused them 15 hours of lost electricity. There were 4 melts, Spartan recovered for damage to the melt (consequential economic loss) but not for the profits for the inability to sell the melt (pure economic loss) 31 Week 4 Protection against pure economic loss pp. 208-217 Introduction ● Pure economic loss= financial loss which does not follow from death, personal injury or damage to objects ● Defined as intangible damages in tort ● Reluctance to award compensation for pure economic loss ● Compensation complicated because: ○ Policy considerations due to political views: 1) open the floodgates: would generate too many claims & 2) put a too heavy burden on the tortfeasor and courts ○ Technical considerations ● None of the three systems has developed general criterias for compensation of pure economic loss, there are some control mechanism but it is an area in which court decisions depend on the circumstances of the case France ● Pure economic loss is not distinct from other types of damages in France, yet in practice there are stricter limits ● Requirement of faute: ○ Standard is whether one complied with the principles of loyalté, honnêteté et bonne foi (loyalty, honesty and good faith) ● Damage: ○ “Personal, certain and legal” ● Causation ○ “Directly caused”. Damage has to be a direct consequence of the tortious conduct and not merely a hypothetical or indirect consequence. Germany ● § 823 II and § 826 ● § 826 for intentional infliction of conduct contra bonos mores: ○ eg. losses because of breach of contract, incorrect information, unfair competition ○ Need to show intentionality, however sometimes dolus eventualis suffices for liability ● Since the other two articles did not provide enough protection the “right to business” was added under § 823 I BGB: ○ Protects businesses against unlawful interference ○ However also offers limited protection against pure economic loss because does not include professions and the infringement of the right has to be direct ● Courts provided a third way for compensation for pure economic loss: contract with protective effect for third parties ○ Eg. Applies in the area of liability of auditors towards third parties ○ CASE: An investor bought shares after a compulsory ‘statutory’ audit. Accounts showed a surplus of 2.5 million DM but the business had a deficit of 11 million DM. Investor filed a claim against the auditor. The court ruled that the principle of the contract with protective effect for third parties could be applied. ○ CASE: Testator wants to appoint daughter as the only heir. Attorney delayed the work. Testator dies. Daughter can claim damages from the attorney as the contract between the last and the testator also protected a third party, namely the daughter. England: tort of negligence 32 ● Nonetheless requiring intentional or reckless conduct for liability implies a protection of the freedom to act. This also applies in the in the area of liability of public authorities, where governmental liability generally requires a qualified fault eg. faute lourde or bad faith ● When someone caused damage intentionally he is usually held liable also for remote consequences, except in Germany under § 826 where liability is limited to the damages the defendant intended to cause. NEGLIGENT CONDUCT Negligence in the legal systems England ● Key requirement= breach of duty ○ Did the defendant exercise sufficient care? ○ Established by comparing the conduct of the defendant with that of a prudent or reasonable man (established in Blyth v Birmingham Waterworks) ○ Objective test: defendant personal knowledge or ability to avoid the risk do not matter, nor does his judgement, but only the caution that an ordinary man would observe ○ When it comes to children his conduct is analysed on the basis of the standard of a reasonable child ○ A more subjective test is applied in emergency situations Germany ● § 276 II defines negligence as conduct contrary to the care required in society ● The test for negligence is dealt with both under fault and unlawfulness ○ Direct infringement of a right under § 823 I deal with the question of whether the conduct was negligent under fault ○ Indirect infringement of rights generally deals with negligence under unlawfulness ● Outer care vs Inner care (personal knowledge and ability of the tortfeasor to prevent the risk) ○ Negligence is established through an objective test: not the tortfeasor’s personal knowledge and abilities that are decisive, but the typical knowledge and abilities of the professional group or the social or age group of the tortfeasor. ○ Lack of knowledge, tiredness etc. usually do not work as defences. ● Burden of proof is generally on the defendant unless unlawfulness follows from breach of statutory duty or violation of statutory rule even if the rules describe the required conduct very well France ● Liability requires faute, damage and causation ● Faute has two elements: 1. Subjective element: personal capacities of wrongdoer/ internal circumstances → almost disappeared 2. Objective element: conduct of wrongdoer/ external circumstances ● How do you establish faute? ○ Violation of statutory rule ○ Breach of pre-existing duty → sources include regulations applying to professions, sports, morality, customs, technical standards. IF NO PRE-EXISTING DUTY CAN BE DERIVED, THE DEFENDANT’S CONDUCT IS COMPARED TO “BON PERE” ○ Conduct does not met the standards of “bon père de famille” 35 ● Some consider the pre-existing duty useless: not the duty that constitutes faulty conduct but the faulty conduct that constitutes faute THE REASONABLE PERSON BALANCING RISK AND CARE The elements of negligence ● In all legal systems there is a comparison of the factual conduct of the tortfeasor with the normative conduct of the reasonable man or the pater familias. ● Personal capacities, knowledge and abilities, are weighted against those of a reasonable man ● Lack of personal capacities cannot be used as defence ● If the defendant's conduct did not meet this standard of care, negligence can be established. ● This can also be found in: ○ Article 3:102(b) DCFR ○ Article 4:102(1) PETL “The required standard of conduct is that of the reasonable person in the circumstances, and depends, in particular, on the nature and value of the protected interest involved, the dan- gerousness of the activity, the expertise to be expected of a person carrying it on, the fore- seeability of the damage, the relationship of proximity or special reliance between those involved, as well as the availability and the costs of precautionary or alternative methods” ● To establish negligence 1. whether the defendant behaved as a reasonable person would have done in the same circumstances (careful conduct, outer care) 2. what knowledge and skills the reasonable person is supposed to possess (careful person, inner care) 3. whether the defendant’s physical or mental shortcomings could serve as a defence against liability ● Elements of person and conduct of the tortfeasor are very much intertwined. ● Establishment of negligence is a matter of ius in causa positum “law found in the facts of the case” The four factors of negligent conduct to be balanced ● Negligent conduct is established by balancing expected risk and precautions/care ● Level of risk is determined: 1. the seriousness of the expected damage and 2. the probability that an accident will happen ● Level of care is determined: 3. the character and the benefit of the conduct (not found in United States v Carroll Towing Co) 4. the burden of precautionary measures ● Factors derived from the CASE: United States v Carroll Towing Co ○ Case leading to the Learned Hand Formula ● The English case of Bolton v Stone shows how the four factors work: during a cricket match, the ball was hit over a house neighbouring the ground and into a street where it injured the claimant. The risk was so small that it did not amount to negligence. ● Formulae are helpful because: ○ Finding function= give judges the tools to develop outcome of the case ○ Justification function= to help the judge explain the reasons for his judgement ● In another case the English court established that failure to carry out a risk assessment could never be the direct cause of an injury, but liability should follow if such an assessment would have resulted in precautions that would have avoided the injury. Background and plan of the chapter 36 ● Trust is an important societal factor ● Trust, legitimate expectations, and due care are three important aspects of establishing negligent conduct ● Courts are often inclined to approach the required level of care from the claimant’s perspective and to take into account his legitimate expectations MAGNITUDE OF THE RISK ● Negligence is established by balancing risk and care: the bigger the risk, the more precautionary measures are required ● The magnitude of a risk is determined by: (a) the amount and seriousness of the expected loss and (b) the probability that the loss will occur → the higher the consequences will be Seriousness of the harm ● NO RISK = NO CARE REQUIRED ● Seriousness and amount of the loss depend on the circumstances of the case ● In cases of death or personal injury negligence may be established even if the probability the harm would happen was low and the burden to prevent it very high Probability of the harm ● Probability is relevant only insofar as it exceeds the socially accepted level of risk ● Probability that the harmful event will happen and that someone would be injured from it (all other factors/ consequences do not matter) ● Case-law: Haley v London Electricity Board ○ Blind man fell into a hole in the pavement and lost his sense of hearing → an accident to a blind person could have been expected with a reasonable degree of probability ● Even if probability is low, negligence can still be established if the harm is serious or if the costs of precautionary measures are very low Probability that potential victim acts negligently ● We should not assume that others will always act carefully, instead we should guard our own interests ● Eg. in case of children they might not have sufficient knowledge of the risk, be inclined to underestimate it or be unable to avoid it efficiently → thus victim’s negligence has to be taken into account ● Manufacturer have to protect customers from their negligent count by taking all precautionary measures to counterbalance customers’ underestimation of risks or carelessness PRECAUTIONARY MEASURES Costs, effort and time ● Precautionary measures cost time, money and effort ● Case-law: Bolton v Stone ○ Case of building a high fence around a cricket field to protect people outside from being hit by a ball ○ Significance: If risks are low precautionary measures are not required ● Precautionary measures are required in cases of personal injury ● Precautionary measures can be divided into continuous measures and one-off measures ○ One-off: ■ Magnitude of the risk will outweigh the costs 37 ○ based on the relationship a person has with a building or land, with a movable thing, or with the potential victim CHARACTER AND BENEFIT OF THE CONDUCT Introduction ● the character and benefit of the defendant’s conduct can play a role on a specific level within the framework of defences and grounds of justification (eg. doctors infringing bodily integrity can be justified by the patient’s consent) ● Character and benefit of the conduct play a role in cases concerning fundamental rights and freedoms, eg. right to privacy and freedom of expression (publication of politicians information as opposed to Caroline Von Hannover) ● Liability of public bodies as opposed to private individuals, public bodies act in the general interest ● Competition: the defendant’s freedom to compete is of such a high value that it usually outweighs the competitor’s interest to be protected. The defendant is only liable if he caused the damage in an unfair way ● Relevant in sports including risks: however, players can be liable if they cause damage to another player in a clearly unfair way, for instance by grossly and negligently violating the rules of the game. Defences and grounds of justification ● If someone has intentionally or negligently caused damage he might still be able to contest his liability because of the specific character and benefit of his conduct. In common law, these are usually known as defences, whereas in civil law, grounds of justification ● Eg. force majeure, external causes etc. Assumption of risk ● In sports cases, assumption of risk is generally considered to be a defence against liability but not if the tortfeasor has grossly violated a rule of the game. Participants only accept the ‘normal’ risks of the game—risks which are inherent in the game’s character—provided they are sufficiently clear beforehand. Participants do not accept abnormal risks (risque anormal), such as an intentional or manifest breach of a rule of the game. ● Germany: If the defendant has acted intentionally or grossly negligently, he cannot in good faith invoke the defence of assumption of risk.However, the sole fact that a player caused harm to an opponent by breaching a rule of the game is not sufficient for liability. ● England: English law explicitly requires that the violation was intentional or grossly negligent. A violation only gives rise to liability if a player does not act reasonably, mainly if he intends to injure the other player, or if he acts unreasonably dangerously ● France: reluctant in allowing the defence of assumption of risk Consent ● Informed consent given freely and on the basis of correct and sufficient information ● Plays an important role in the framework of medical treatments 40 NEGLIGENT PERSON Knowledge and skills ● If it is established that the defendant’s conduct was negligent, the question has to be answered whether his personal capacities met the required standard ● Personal capacities comprise two elements: knowledge and skills ● What ought the defendant to have known about the risk and which abilities should he have had in order to avoid the risk? ● Someone can be liable on the basis of negligence even though he personally did not know the risk and personally could not have avoided it Knowledge ● It is decisive what the tortfeasor knew or ought to have known about the risk—that is, the seriousness and probability of the harm but not the sequence of events ● Knowledge does not only refer to the existence of a risk but also of a safety rule ● When there is a doubt that there is a risk, investigation and research is required and impossibility to do so is not a defence against negligence, as the person still needs to be cautious Skills ● refers to the personal ability to avoid the risk, and is closely related to the element of the burden of precautionary measures that can be taken by an individual ● skills to avoid the risk should not relate to the possibility of avoiding the consequential damage but only to the possibility of avoiding the accident. ● someone cannot act negligently if the risk could not have been avoided by anyone, however he can act negligently if he could have avoided the damage by earlier safety measures State of the art ● Defence of state of art ● If harm could only have been prevented on the basis of the knowledge and technique which no one possessed at the time of the accident, the state of the art defence can successfully be invoked ● Eg. English case of Roe v Minister of Health ● With regards to the speed and scale of dissemination of the outcome of legal research, substantial differences exist to establish the time from which a certain risk is supposed to be known SUBJECTIVE AND OBJECTIVE TESTS Subjective test ● A subjective test implies that the court takes the tortfeasor as it finds him: it establishes whether the defendant personally knew the risk and whether he personally had the skills to avoid it. ● Applied only in exceptional cases because 1) difficult to establish what the defendant knew or was able to do 2) tort and not criminal law: the focus of tort law is on the damage 3) tort does not focus on moral judgement of the defendant’s conduct Objective test ● Objective test it takes a normative approach and decides what the defendant ought to have known about the risk and what skills he ought to have had to avoid it ● use of standards of reference, usually the reasonable person and the bonus pater familias. 41 ● Applied in all jurisdictions: ○ France: establishes faute Article 1382 CC with reference to l’homme droite et avisé and le bon père de famille ○ Germany: establishes negligence in the sense of § 276 BGB with reference to a careful person of average circumspection and capability ○ England: establishes the tort of negligence with respect to a reasonable person ● The objective test implies the application of the faute sociale. Social life requires that people meet proper standards of knowledge and skill. A more subjective test is still applied to children and the mentally incapacitated and in rescue cases STANDARDS OF REFERENCE General remarks ● The standard of reference varies with the social role and circumstances of the case ● People may trust that no one undertakes activities for which they do not have the proper knowledge and skills ● In emergency situations impulsive errors of judgement will not automatically be classified as negligence, a more subjective test will be applied unless the defendant has caused the emergency himself or is professionally prepared for such situations, in which cases an objective test will be applied Professionals ● In England ○ Bolam test: the level of professional standard is “the ordinary professional” ○ Others argue that the professional has to be “good” ○ The difference between ordinary or average and good is, for instance, that the ordinary or average professional will not always read the professional literature, whereas the good professional will do so in time. ● Germany ○ Doctor deemed to have acted negligently not realising that he was not sufficiently skilled to carry out the surgery and for not consulting a colleague → does not have to do with lack of skills ● Problem is when within a certain discipline, differences of opinion exist in relation to the accuracy of an analysis, a diagnosis, a treatment, or a therapy Week 5 Liability in emergency cases pp. 520-529 Pure omissions: a duty to rescue ● Can a situation of emergency bring two or more persons into such proximity that it creates a special relationship between them? ● Legal systems reluctant to transform a moral duty into a legal duty ● Nonetheless both Germany and France acknowledge a criminal duty to rescue, violation of which leads amounts respectively to a breach of § 823 II and faute under article 1382 CC National rules France 42 ● CASE of Corr v IBC Vehicles: employee got severe head injuries following an accident at work, became depressed and committed suicide. Court held the employer liable towards the widow as the suicide was a coincidence of the accident. ○ Contributory negligence: Lord Atkin ‘reduction is related to the claimant’s causal contribution to the occurrence of the accident or to the amount of the damage’ ○ Type of loss: The more severe the infringed right or interest, the more likely it is that causation will be established ● Lack of general rules on liability makes it hard to compare jurisdictions: ○ Eg. Cable cases & loss caused to people and businesses depending on the delivery of gas or electricity: ■ England → did the person who damaged the cable owe the victim a duty of care? ■ Germany → did the author of the damage infringe one of the rights protected by § 823 I? ■ France → requirement of causation Factual and legal causation ● Establishing causation ○ Whether a causal connection can be established between the negligent conduct or the strict cause, on the one hand, and the loss, on the other. ○ All jurisdictions apply the conditio sine qua non test/ but for test → “Would the damage also have occurred if the tortfeasor had not acted in the way he did?” ● Limiting causation ○ Limited because it is hard to prove causation if there is more than one possible causes of damages or in case of consequential damages ○ Problem! conditio sine qua non test to establish liability accepts all events and circumstances as possible causes regardless of whether they are a legally relevant or irrelevant cause ○ Another problem! The test considers all consequences as equal regardless of whether they are likely or unlikely, foreseeable or unforeseeable, direct or remote. ● Thus national courts apply certain limits: ○ reasonable foreseeability, probability, scope of the rule, and the directness of the consequential damage ○ Policy considerations play a role: eg. protection of personal injury victims trumps pure economic loss ➔ The conditio sine qua non test is generally considered to focus on factual causation, whereas the issue of limiting causation is signified by legal causation Causation in the legal systems 45 Germany Adequacy theory (legal causation) ● Two aspects of causation in Germany: 1. causation that establishes liability (liability founding causation) → factual causation ● §823 I BGB: liability-founding causation refers to the relation between the conduct and the infringement of a right and requires full proof and effective certainty that the defendant’s conduct caused some form of harm 2. causation that determines the extent of liability (liability-specifying causation) → legal causation ○ Refers to the relation between the infringement of a right and the ultimate damage ○ Not certain but rational and reasonable causation between loss and damage How to limit the attribution of the consequences for which the accident is a conditio sine qua non ? ● Adequacy theory: ○ Defendant is only obliged to compensate for harmful consequences that were reasonably expected or foreseeable or not very unlikely to the objective and optimal observer. ○ Probability element: if an event has enhanced the objective possibility of a consequence of the kind that occurred. In making the necessary assessment attention should be paid to a. all the circumstances recognisable by an ‘optimal’ observer at the time the event occurred b. additional circumstances known to the originator of the condition ● Case of person jumping out of the window: court concluded that the claimant’s decision to jump in order to avoid physical confrontation was, indeed, within the scope of reasonable reactions to the husband’s extremely aggressive behaviour. Scope of the rule ● The scope of the duty theory focuses on the question whether it was the purpose of the violated rule to protect the victim against the damage he has suffered ● Applied within the framework of ○ § 823 II BGB (breach of statutory duty) ○ § 839 (governmental liability) ○ § 823 I as regards safety duties, the right to business, and the general personality right → restricts causation to damages to protected interests ● Eg. scope of the duty to take care of road safety does not include protection against pure economic loss eg. delay at work ➔ Scope of the rule theory seems more appropriate than the Adequacy theory with its element of foreseeability, to limite the consequences of strict liability ● On the basis of the scope of the rule theory, unlikely/remote consequences can also be attributed to the defendant unless they pertain to the “sphere of risk” of life ○ Eg. second event increasing the damages of the first ● Tortfeasor cannot invoke the particular vulnerabilities of the victim: he has to take the victim as he finds him. 46 England ● Factual causation between tortfeasor’s conduct and victim’s damage is established with the “but for” test: needs to be more likely than not (and not certain like in Germany) that the damage occurred as the consequence of the defendant’s act → liability is established if probability > 50% ● MAIN FOCUS IS ON FORESEEABILITY ● “I a reasonable man had foreseen any damage as likely to result from his act, he is liable for the direct consequences suffered by the claimant” ○ Case-law: Re Polemis - Court of Appeal held that foreseeability of some damage resulting from allowing a plank to fall was sufficient for causation ● Since The Wagon Mound (No. 1), it is decisive whether a reasonable man could have foreseen that damage of some type would ultimately be suffered, not necessary that the total extent of this damage was foreseeable ● Nonethless, foreseeability of consequences is often accepted even if they occur in an unusual way, particularly in personal injury cases ● The foreseeability test is even applied in cases of strict liability, such as in the Rule in Rylands v Fletcher and in cases of nuisance → controversial because usually foreseeability is connected with negligence ● Other tests are also used, eg. scope of rule theory “consider the nature of the loss against which the legal rule in question is designed to keep the claimant harmless” ● Causation issues are further limited by the prerequisite of “duty of care” France ● Art. 1151 CC: causal connection needs to be certain and direct ● Rarely restricts to the scope of liability and very often a causal link is established ● In strict liability: adequacy theory and the foreseeability requirement play a role at the defence level. ○ In relation to the defence of an external cause (cause étrangère). Such a cause can be established if the event was external, unforeseeable, and unavoidable (externe, imprévisible, insurmountable); this includes a faute of the victim or a faute of a third party, provided that the faute was an external cause for the defendant. ● The scope of the rule theory is rarely applied and almost only when it comes to personal injury cases ● Causation serves to limit claims for third parties suffering damage resulting from a person’s personal injury ○ Eg. Concert organiser who tried to claim money from the person liable for the accident which caused the singer to cancel the concert. The Cour de cassation deemed his damage to be indirect and dismissed the claim. ESTABLISHING CAUSATION Shifting the burden of proof ➔ The basic rule in all jurisdictions is that the burden of proof as regards causation is on the claimant. However, the jurisdictions take different starting points for what the claimant has to prove. 47 ● Victim does not have to identify all tortfeasors, as he can claim all damages from one ● If a collective faute is established, the defendants may prove that the conduct of a third party (including the victim) yields an external cause (cause étrangère) which was unforeseeable and unavoidable (imprévisible et irrésistible). If they cannot prove this, they are bound in solidum, which means that they are each fully liable towards the victim but each has a right of recourse towards the other tortfeasor(s). England ● If two persons cause the same damage/ indivisible injury and they acted with a common design, they are joint tortfeasors. They both have to pay 100 per cent of compensation. Claimants can choose which defendant to sue, usually the one with more money. ● If the claimant suffers a divisible injury, where each negligent act causes further harm, each defendant pays only for his share of the injury ● If the ‘material contribution to the risk’ test applies, the tortfeasors are only proportionally liable for the risk they created. ➔ Illustration: DES ◆ If damage can be caused by two or more events for which different persons are liable, and it is certain that the damage can only have been caused by one of them, the question is how to help claimants get evidence. ◆ DES was a defective drug which was put onto the market by a large number of manufacturers (including pharmacists who were also allowed to produce DES) and which caused damage to a large number of claimants ◆ Dutch supreme court ruled that: 1. that the summoned manufacturers had put DES into circulation during the relevant period and that they had acted unlawfully by doing so 2. that other producers had also put DES into circulation during the relevant period and that they were also liable for doing so 3. that the claimant had suffered damage as a consequence of using DES but that it could not be established from which manufacturer the DES used was obtained ➔ then all manufacturers would be held severally and jointly liable SUCCESSIVE CAUSES ● Events occur successively and a sequence of events can be distinguished 1. Second event would have caused same damage as first event a. First tortfeasor remains liable for the claimant’s damages even if the second tortfeasor would have caused the same damage b. The first tortfeasor will generally have a right of recourse against the second tortfeasor c. Germany= overtaking causation & England= case of Baker v. Willoughby ➔ If no one is liable for the second event: ◆ French law holds the first tortfeasor liable towards the claimant regardless of the character of the second event. ◆ German law and English law only hold the first tortfeasor liable until the second event if the latter cause is in the claimant’s own sphere and has to be attributed to him 50 ➔ It also depend on whether the damages by the first tortfeasor have been paid as a once lump-sum or periodically, and whether they can be reviewed (as in France) 2. Second event increases damage caused by first event a. If the second event would not have caused the same damage but has aggravated the claimant’s damage, the first tortfeasor will be jointly liable with the second tortfeasor if the second event can be attributed to the first event b. If the second event is too remote from the first, the second tortfeasor may be solely liable for the aggravated damage LOSS OF A CHANCE ➔ Eg. doctor wrongfully fails to diagnose a patient with a certain illness, treatment can only begin later, the patient’s chances to recover or to live longer. ➔ Loss of chance will hold the doctor liable for the percentage of the patient’s lost chance to recover. France ● Loss of a chance of profit ● Loss of a chance of preventing a loss (eg. may be due to failure to provide medical treatment or information ) ● Only jurisdiction which recognises awarding the claim for the loss of a chance to win or the loss of a chance not to lose ● Loss has to be real and the causal connection between defendant’s conduct and loss is clear ● Loss will be estimated in a percentage and the defendant will have to pay that percentage of the damage → this may result in French law being less generous than English and Germany where damages are awarded in full England ● Mostly applied to contractual relationships in relation to financial loss ● However, not applicable in physical harm cases, such as medical negligence cases in which the patient has lost a chance to be cured or to survive ○ Hotson v East Berkshire Area Health Authority: lost chance of 50 per cent or less will result in 0 per cent compensation, and the lost chance of more than 50 per cent in 100 per cent compensation. Germany ● BGH has always refused to apply loss of a chance ● However, there are some ways to mitigate the claimant’s burden of proof: 1. Prima facie evidence 2. Reversed rule 3. Another reversal rule: a. if a doctor acts with gross negligence and this was the adequate cause of the damage, the burden of proof is reversed if the treatment provided a chance of recovery of more than 50 per cent. It is then up to the doctor to prove that his negligence was not the cause of the damage. If he succeeds, the patient will receive no compensation at all, but, if he fails, the doctor will be fully liable. b. Also applicable to other persons owing a safety duty Comparative overview 51 ● Loss of chance is closely connected to “future damages” UNEXPECTED AND UNLIKELY CONSEQUENCES Principles and confusion ● How legal systems limit the harmful consequences for which the tortfeasor has to answer. ● Particularly in England and Germany, the courts are also inclined to discuss causation matters explicitly on a policy level. Policy considerations play a very important: the court decides the outcome it wishes to reach on the basis of policy considerations as to what would be fair, just, and reasonable in the given case. 1. First, personal injury consequences for the claimant will be more easily attributed to the defendant’s conduct than consequences in the sphere of property damage and pure economic loss → Germany and England easily compensate consequential economic loss but not pure economic loss / France makes the requirement of causation for pure economic loss much stricter 2. Second, if someone’s conduct can cause personal injury of some type, it is not relevant how the harm eventually occurred. In such cases, causation can also be established even if the damage was caused after an unlikely sequence of event 3. Third, the eggshell skull rule implies that the tortfeasor has to take the victim as he finds him. He also has to compensate the consequences of the claimant’s specific vulnerabilities “Tortfeasor takes victim as he finds him”- Lord Parker ● In England, the maxim “the tortfeasor takes the victim as he finds him” is considered to be an exception to the reasonable foreseeability test, whereas in Germany it is seen as a consequence of the adequacy theory. ● Defendant also has to answer for the consequences of the claimant’s vulnerabilities and predispositions, even if he is extremely vulnerable ● Obviously, the victim may be contributorily negligent if he has not taken reasonable measures to protect himself against his vulnerability ● The most reluctance to apply the principle exists vis-à-vis the victim’s psychological vulnerability Week 6 Strict liability pp. 297-306, 397-401, 490-493, 502-516, 372-382 Introduction ● Liability without fault, meaning without intention or negligence ● Does not look at the tortfeasor’s conduct ● Yet negligence still plays a role in strict liability (and strict liability plays a role in negligence) Background of strict liability ● If fault liability does not lead to a satisfactory result, strict liability is often provided as a solution ● Generally apply to damage caused by movable objects representing a higher than average risk/ or that are inherently and inevitably dangerous: eg. motor vehicles, animals, or defective products such as drugs ● Advantages include: ○ The claimant no longer has to prove that the defendant acted negligently 52 ● Areas in all three systems where strict liability rules apply are limited to liability for animals and defective products (due to European directive) ● Who qualifies as a supervisor of an object or a person? ○ In strict liability it is usually indicated in the rule and in France is guardian whereas in Germany is the keeper ○ In negligence liability there is no specified supervisor but it depends on the circumstances of the case. Very relevant question in omission cases since omissions depends on the special relationship with the movable object, the movable object, the potential victim, or the potential tortfeasor ● Just because someone is responsible, it does not mean he is liable! Liability for lack of information and for defective information ● Lack of information impairs one’s ability to make decisions of the fully rational kind ● Timely, adequate, and reliable information plays a role in many areas: eg. liability for products, liability for immovable objects, duty to warn with respect to medical and financial services ● Whether the person providing the information ought to have known that the recipient would have relied on it to take a decision and whether the recipient was entitled to do so are also important questions to establish liability (See Hedley Bryne rule) ● Incorrect information published in the media can also infringe the honour, reputation, or privacy of a person (eg. Caroline von Hannover case) ● Does the internet service provider have a duty to take precautionary measures to limit, terminate, or prevent damage caused by that wrongful information? ○ subjective fault: only if the provider is factually aware of the illegal content does it have a duty to act Liability for other persons pp. 490-493 ● If the person who actually caused the damage is not a sufficiently solvent debtor, if he is untraceable or does not have sufficient liability insurance coverage ● Can be either strict liability or negligence liability ○ Negligence-based liability for others is directly related to the issue of liability for omissions. Liability for omissions is generally accepted if the defendant has a special relationship with potential tortfeasor: in this case the obligation to supervise another person follows from the special relationship someone has with the person who actually caused the damage. Liability for employees pp. 502-516 NATIONAL RULES Germany: § 831 BGB ● Anyone who has employed another person for a task is liable for the injury unlawfully caused by that other person in accomplishing the task → employment contract is not required for liability to exist ○ Employer = principal ○ Employee = subordinate or servant dependent on the instruction of the principal ● Negligence liability with reversal burden of proof ○ Employer is not liable if he exercised reasonable care in the selection, instructions and supervision of the employee ○ Or if the damage would have also been caused if he had exercised such reasonable care 55 ● For liability of the employer to be triggered, the employee must have committed a Tatbestand under § 823 I and II BGB, meaning that his conduct was, in principle, unlawful ● If the employee has acted with due care the employer is not liable ● If the employee has acted intentionally or negligently, he will be jointly and severally liable with the employer ● The employee’s conduct has to fall within the scope of his duty: immediate relationship between the activity he has been instructed to perform and the act causing the damage ● Defence of decentralised exoneration for employers of big companies ● Employer have a right of recourse if the employees as acted intentionally or with gross negligence / employee have a right of recourse if they pay the damages but have not acted intentionally Germany: Bypassing § 831 BGB ● Malcontent as it should not be relevant whether an employer has exercised due care ● Courts therefore bypass § 831 and apply: 1. § 31 BGB is applied if the employer is a legal body 2. § 823 for organisational negligence: an employer has negligently failed to organise his business in a proper manner. 3. The employer has a duty to indemnify the employee if the latter is personally liable for the damage caused. The employer has to pay for the damage wrongfully and negligently caused by his employee which, however, is usually covered by the company’s liability insurance 4. The courts have construed the contractual rule of strict liability for damage caused by others (§ 278 BGB) broadly 5. Lastly, in specific circumstances special rules of strict liability apply to employer France ● Art. 1384(5) holds employers (commettants) and principals (maîtres) strictly liable for damage caused by a faute of their employees (préposés) or servants (domestiques) com- mitted in the course of the function for which they were employed ● Liability is irrebuttable: No defence allowed except contributory negligence ● A contract is not required, broad interpretation of courts extending to friendly and gratuitous service to another ● The employer’s and principal’s liability requires a faute of the employee as well as damage and causation (art. 1382) ○ This implies that the employee also needs to be personally liable for the damage he caused ○ This implies that the employee and employer are usually jointly and severally liable ○ However, in Costedoat, the court decided the employee is not personally liable if he acted within the scope of duty (did not exceed the limits of the task for which he was commissioned by his employer) ● Another requirement is the relationship between the employee’s conduct and his job which is also interpreted very broadly ○ ‘the employer (commettant) can be exonerated only if the employee (préposé) acted outside the functions for which he was employed, without authorisation, and for purposes foreign to the tasks entrusted to him’ ● A legal body can also be held liable if its organs commit faute England ● The employer is strictly liable for damage caused to third parties by his employees ● Three requirements: 1. author of the damage has to be an employee 56 ● Vicarious liability does not require a labour contract ● What counts is the level of independence: however, what about cases where an employee is very independent but works for the benefit of a principal? 2. he must have committed a tort ● This implies that liability of the employee is a prerequisite for the employer’s vicarious liability which implies that employer and employee will be jointly and severally liable for the damage of the victim 3. this must have occurred ‘in the course of the employment’ ● For years it has been ‘if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master’ (Case-law Rose v Plenty) ● In Lister it was substituted with “an employer is now considered to be liable in respect of those of the employee’s act which had a ‘close connection’ with his employment”. COMPARATIVE OBSERVATIONS General remarks ● Article 340(2) TFEU regarding liability of EU institutions and servants ● All systems have developed rules connected to liability of legal bodies: concerned with conduct by persons in the corporation who have a central and leading management function. ● Given the growing complexity of organisations and businesses the focus has shifted from the individual employee’s conduct to the organisation’s conduct which is liable for damage unlawfully caused by conduct which can be attributed or identified to the organisation. Rationales for employer’s liability ● The employer is generally better able to make good the damage ● Initially meant to protect the claimant against the employee’s insolvency, now meant to protect the employee ● Nonetheless, in the majority of cases, employer and employee are jointly liable for the damage caused by the employee Conditions for employer’s liability ● Liability rules apply only to relationships of subordination (factual criterion) and not to relationships with independent contractors → however sometimes employer may be held liable for non-employees ● Employment contract is not necessary thus employment liability may also apply outside labour relationships ● Subordinate if bound to follow instructions from someone else ● English judge Cooke J: “one may look at who controls, supervises the risk, and is the best insured” ● The employee’s conduct has to be sufficiently related to the employee’s tasks, however: ○ Difficult to establish whether such a connection exist → France is the strictest as it only requires an object link between the employee’s act and work ○ Employer can still be held liable even if the employee acts contrary to instructions given by the employer (Milkman case in England) Reduction on damages and contributory negligence pp. 372-382 COLLATERAL BENEFITS ● To avoid overcompensating the victim, courts aim to deduct collateral benefits from damages awarded 57 ● The most harmonised European liability regime applies to defective products where Directive 85/374/EEC provides for strict liability for manufacturing defects and for an objective negligence liability for design defects → liability rests on the manufacturer and not on the keeper even if the product has been put on the market. ● Strict liability generally applies in all three jurisdictions when it comes to damages to the environment → liability rests primarily on the polluter, and not on the owner or keeper of the polluted area ● Liability for animals and motor vehicles does not generally rest on the owner of the movable object but on le gardien (France), der Halter (Germany), or the keeper (England). These are persons who have factual control over the movable object, such as the driver when it comes to motor vehicles. ● Instead, liability for immovable objects usually rests on the owner of the premises or building. ANIMALS National rules France ● article 1385 CC holds the owner or the person who uses the animal strictly liable for damage caused by the animal provided there is a sufficient causal connection with the damage; the liable person cannot invoke force majeure ● Overtime absorbed into 1384(1) where the gardien is liable for the damages caused by the animal unless he can prove force majeure Germany ● Strict liability applies to damages caused by a luxury animal not serving economic purposes ● Negligence liability with a reversed burden of proof applies to damage caused by a Nutztier, a domestic animal serving the business, income, or prosperity of the keeper ● The keeper is the person who has, for his own interest and for a certain duration, supervision of the animal and is usually liable ● The rule is meant to protect death, personal injury and property damage caused by the danger inherent in keeping an animal England ● The English Animals Act 1971 ● Strict liability rules are very limited in scope, thus many cases are decided on the basis of the tort of negligence ● Strict liability applies in cases of livestock straying onto another person’s land, damage caused by dangerous animals which are usually not domesticated, damage caused by dogs that kill or injure cattle (better protected than humans), or animals which are not dangerous per se but have abnormal characteristics. ● Liability is on the keeper of the animal: this is the owner or the person who has actual power over the animal. The keeper can avoid or restrict liability by proving assumption of risk or contributory negligence. Comparative observations ● Strict liability rests on the keeper who can be the owner but it may also be another person who, for a certain duration, becomes the supervisor of the animal, which means he has actual control over it and uses it for his own purpose ● The fact that someone does not qualify as the keeper does not rule out that his liability can be based on the general rules of negligence liability 60 ● Wild animals that cause traffic accidents → public authorities may have a duty of care to inform or warn ● All jurisdictions allow the defendant to invoke the victim’s contributory negligence which also holds for risk acceptance, which generally also leads to a reduction in the amount of damages MOTOR VEHICLES National rules France: Loi Badinter ● Almost absolute liability when a motor vehicle is involved ● The victim of a road traffic accident in which a motor vehicle is involved has a right to compensation against the driver and the gardien. ● The victim is entitled to compensation on the sole ground that the motor vehicle was involved in the accident (implication du véhicule) ○ unnecessary to establish causation ○ Applies even if the car was properly parket ○ Even there was no contact between the car and the victim, however then the car has to have played an active role ○ Even if some time has elapsed between the cause and the accident ● The custodian (gardien) or driver of the motor vehicle can only avoid liability by proving the victim’s intentional conduct (victim intentionally sought the damage he suffered) or an inexcusable fault (faute inexcusable) was the sole cause of the accident. ○ Defences such as force majeure or act of a third party are not included. ○ Faute inexcusable: intentional faute of exceptional gravity without valid reason has exposed him to the danger ○ Faute inexcusable does not apply to under 16 yo, over 70 yo or people with more than 80% disability ● If the driver suffers harm he is entitled to compensation if he has not committed faute, otherwise the compensation may be reduced or extinguished. ● The Act only applies to accidents and not to intentionally caused damage ● It is usually the liability insurance system for road accidents which pays compensation (eg. in Belgium) Germany: Road Traffic Act ● § 7 Road holds the keeper of a motor vehicle strictly liable for damage caused by the risk of its operation, unless he can prove an external cause ○ External cause has to be unforeseeable and unavoidable (no negligence consideration included) ○ Compensation can be reduced by invoking contributory negligence of the victim who has to be at least 10 yo ● Someone who borrows a vehicle for a couple of days is not the keeper, unless he rents it ● The strict liability rule does not apply to the driver who is not also the keeper of the vehicle → The driver is jointly liable with the keeper of the motor vehicle ● § 18 StVG holds the driver is liable unless he proves that he did not cause the damage intentionally or negligently (Verschulden) → negligence liability with a reversed burden of proof. ● If the driver who is not the keeper suffers damage because of a vehicle’s defect, he can only invoke negligence under § 823 I and § 823 II ● § 7 StVG applies to damage caused by the risk of the operation (Betriebsgefahr) of the motor vehicle, particularly the risks caused by the speed and the mass of the vehicle 61 ● The provision also applies if traffic noise causes personal injury or property damage ● There is a compensation cap for damages that can be claimed under strict liability when it comes to death or personal injuries ● It is possible to claim compensation for non-pecuniary loss under a strict liability rule England: Tort of negligence ● Very strict interpretation of negligence: courts require a high standard of care from drivers of motor vehicles, especially towards pedestrians and cyclists ● Differs from France and germany in two aspects: ○ Difference in the burden of proof ■ Reversal burden of proof shifts the burden to provide evidence that he did not act negligently on the defendant, whereas res ipsa loquitur (generally applied in England) only implies that if the defendant does not adduce evidence, the claimant has proved his case, otherwise evidence has to be evaluated to see whether there is negligence. ■ Breach of statutory rule is not allowed, however an exception can be found in case-law London Passenger Transport Board v Upson ○ Allows for contributory negligence defence ■ Difficult for children below 7 yo Week 7 Damage and damages pp. 346-371 PURPOSES Reparation and compensation ● legal systems provide the possibility of an injunction in order to prevent or halt the infringement of the claimant’s rights ● Reparation can be either 1. In kind: to restore the status quo ante 2. In monetary compensation: sum paid should be equivalent to losses as well as lost profits Recognition, vindication and satisfaction ● Recognition that the victim’s right has been infringed and vindication happens through damages ● A symbolic sum of money may be awarded or not, recognition of the infringement may also consist in a court declaration → this happens when money cannot compensate the damage ● In German law, damages for non-pecuniary loss (Schmerzensgeld) are considered to have a double function: compensation (Ausgleich) and satisfaction (Genugtuung) for the infringement of his right Punishment and prevention ● Focus is on the defendant’s behaviour to deter him from future wrongdoing ● Especially relevant in cases of infringement of personality rights eg. reputation and privacy ● Usually high sums of money are awarded ● In England ○ The various functions of compensation, vindication, punishment, and deterrence come together is defamation 62 ● Highly contextual: depend on the nature of the injury, age of the victim, victim’s strength and expected future development ● Either awarded as a non-revisable once-and-for-all award ○ It is the rule in England ○ Sometimes awarded in Germany under § 843 III ○ It is the rule in France and can be decided by the courts → revision is possible only if advantageous to the claimant ➔ Advantage is that the case is closed and put in the past ➔ Disadvantage may be under or over compensation of the victim ● Or in a periodical payment which is often reversible and adaptable to changing circumstances ○ Sometimes awarded in England if the continuity of payments can be ascertained with security ○ It is the rule in germany under § 843 I BGB NON-PECUNIARY LOSS ● Personal injury not only causes pecuniary (material) loss but also non-pecuniary (immaterial) loss, such as pain and suffering, loss of amenities, loss of life expectation and disfigurement ● Amounts of damages is usually based on amounts awarded in similar cases France ● Dommage moral, loss of being ● French law distinguishes between mental or physical suffering, aesthetic damage and loss of leisure → For each of these heads of damage separate sums are awarded. ● Low threshold for establishing liability but low sum of damages awarded Germany ● Distinguishes between non-pecuniary damages awarded for compensation and those awarded for satisfaction ● Allow both lump-sum award and periodical payment award ● More generous system in terms of damages awarded England ● Distinguishes between pain and suffering and loss of amenities (ability to enjoy life) ● Heil v Rankin increased damages for more serious injuries ● As of 2013 general damages for (i) pain, suffering and loss of amenity in respect of personal injury, (ii) nuisance, (iii) defamation and (iv) all other torts which cause suffering, inconvenience or distress to individuals, will be 10 per cent higher than previously. ● Higher threshold for establishing liability but high sum of damages awarded Unconsciousness ● French law awards damages for non-pecuniary loss, that is, pain and suffering, as well as loss of amenity (préjudice d’agrément), to victims who are fully unconscious or in a coma. ● In the same way, the German BGH awards damages for non-pecuniary loss to an unconscious victim ● English law provides compensation for loss of amenity (to which an objective test applies aimed at vindicating the victim’s infringed right) but not for pain and suffering (to which a subjective test applies and it is presumed that the victim is not in any pain) FAMILY TIES ● Loss of life is not compensable but relatives may claim pecuniary loss if 65 1. they are financially dependent on the deceased/ loss of maintenance 2. mental harm 3. non-pecuniary loss 4. Funeral costs ● Funeral and cremation costs are recognised in all three jurisdictions ● Questions emerge as to who the relatives are: Only married? Only heterosexual couples? Loss of maintenance Germany ● § 844 II BGB provides that only persons whom the deceased had a statutory duty to maintain have a right to compensation from the tortfeasor. These are the spouse (§ 1360), registered partner (§ 5 Lebenspartnerschaftsgesetz), children (§ 1601 ff ), and adopted children (§ 1766). ● Only if the deceased person had a legal duty to maintain ● Thus not applicable to stepson/daughter or unmarried/unregistered couples ● Duty to maintain begins from the day of the marriage ● Registered partnerships are only possible between persons of the same sex ● Generally a periodic payment determined on the amount the deceases paid according to his income England ● Right to compensation of the costs of maintenance for the spouse and the former spouse, the parents, children, stepchildren, and foster children as well as the partner, provided he or she has lived with the deceased for at least two years. ● This includes officially registered relationship between two people of the same sex. ● It does not matter whether the deceased has a legal duty of maintenance or did so voluntarily France ● French law does not require that the deceased had an obligation to maintain the claimant ● the employer and the business partner can claim damages for the loss caused by the death of their employee or business partner if causation between loss faced by the employer/business partner and accident is established so that the employer becomes a primary victim ● French family ties do not need to be of a formal kind ● Registered partnerships for same-sex couples are allowed IN ALL SYSTEMS ● The tortfeasor can invoke the deceased’s contributory negligence against the persons claiming compensation for the costs of maintenance. Non-pecuniary loss caused by the death of a loved one ● Non-pecuniary loss such as sorrow and grief Germany ● Does not allow for non-pecuniary loss following the death or severe injury of a relative England ● Closest relatives (spouse, registered partner, and parents of a minor who was never married) of a person that died as a result of another person being liable are entitled to bereavement damages France ● Damages are granted not only granted to the deceased’s relatives by blood or marriage, but also to his fiancé(e),his unmarried partner, and his registered partner, everyone provided they have an affectionate relationship with the victim 66 ● French law also acknowledges a claim for non-pecuniary loss for the relative of someone who is injured. If someone, as the consequence of an accident, is in a state of unconsciousness or in a coma, the parents, brothers, and sisters have a right to compen- sation for their non- pecuniary loss. 67