Material Regulations and Jurisdictions in Spanish Tort Law: A Comparative Analysis - Prof., Apuntes de Derecho Civil

¡Descarga Material Regulations and Jurisdictions in Spanish Tort Law: A Comparative Analysis - Prof. y más Apuntes en PDF de Derecho Civil solo en Docsity! Material regulations, procedural systems and competent jurisdictions in Spanish tort law Juan Antonio Ruiz Universitat Pompeu Fabra, Law School Dret Civil IV May 4, 2008 Four different material regulations  Four substantive bodies of rules of Tort Law 1. Civil: regulated in arts. 1902-1910 Civil Code 1889 (CC) and in other special laws (for example, RDL 1/2007 de 16 de noviembre, por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias.) The Civil Code includes tort claims by one individual against another. The basic standard of liability in civil law is fault or negligence (culpa, Fahrlässigkeit), albeit with some exceptions. Four different material regulations  Four substantive bodies of rules of Tort Law 4. Labor, regulated in arts 1902 and 1903 CC in relation to legal rules governing industrial accidents, sickness and civil liability of the employer for workplace accidents suffered by her employees. In this situation non-compliance with publicly- imposed safety rules, would be deemed negligent per se. Four different material regulations  Four substantive bodies of rules of Tort Law In order to decide whether to use civil Tort Law or administrative Tort Law, the relevant factor is the private or public nature of the tortfeasor; in order to decide whether to use criminal or labor law, the relevant factor is the labelling of the harmful act as a crime or misdemeanor or as a mere workplace accident. Four different procedural systems Each of these groups of material rules just mentioned is correlated with a specific procedural system: 1. Civil: Law 1/2000, 7 January, Civil Procedure Act (LEC); 2. Administrative: Law 29/1998, 13 July, Administrative Court Act (LJCA); 3. Criminal: Royal Decree of 14 September 1898, Criminal Procedure Act (LECr.); 4. Labor: Royal Legislative Decree 2/1995, 7 April, Labor Procedure Act (LPL). Four different competent jurisdictions If the tortfeasor is a civil servant or an agent serving the Public Administration, and the damage is the consequence of the normal or abnormal functioning of public services, the competent is the Administrative Jurisdiction. This is established in art. 9.4 LJCA that, in a wide sense, reserves the judges and courts of the administrative order:   «Those claims that arise in relation to State liability of Public Administrations and the personnel in their employment or any type of relationship stemming from this. Should private subjects have contributed to the harm, the plaintiff would also present their claim against them before this jurisdictional order ». Four different competent jurisdictions Art. 2 LJCA repeats this principle:   «The administrative jurisdiction shall deal with those matters concerned with: (…) e) State liability of Public Administrations, whatsoever the nature of the activity or the type of relationship it stems from. It is not possible to sue Public Administrations, on those grounds, before the civil or labor jurisdiction». Four different competent jurisdictions If the tortious act may be classified as a crime or misdemeanor, the criminal jurisdiction is the competent to decide on the criminal liability of the wrongdoer, and also on the civil liability of the criminal or the liability of whoever is held vicariously liable. This is what art. 23.1 LOPJ states:   «In criminal law the finding out of the causes of the crimes and misdemeanors committed within Spanish territory or committed on board Spanish ships or aircrafts shall correspond to Spanish jurisdiction, without prejudice to that foreseen in international treaties to which Spain is a party ». Nevertheless, the injured party may choose the civil jurisdiction to deal with the civil liability arising from crime (art. 109.2 Criminal Code). Four different competent jurisdictions Spanish Supreme Court, 1st Chamber, January 15, 2008 (RJ 2008/1394) Vid: www.indret.com Responsabilidad por accidente de trabajo, infracción de normas laborales y jurisdicción competente . Comentario a la STS, 1ª, 15.1.2008 (RJ 2008\1394; MP: Encarnación Roca Trías). Carlos Gómez Ligüerre Problems of this system Diversity of rules applicable to the same group of accidents Diversity of rules and problems of procedure and competence when the accident has been caused by private individuals and public bodies The civil action for damages resulting from criminal behavior Collateral Source Rule Accumulation or deduction of the amounts awarded: accumulation in civil and administrative jurisdictions, and deduction in criminal and labor ABC OF A TORT LAW CASE Claim Answer to the claim First Instance Judicial Ruling Court of Appeals CAUSE IN FACT: FACTUAL ANALYSIS  EQUIVALENCIA DE LAS CONDICIONES Every action related with the production of a harm has the same causal contribution to the final result. Thus, any of them can be considered as cause of the damage. Problem: infinite number of causes Case law: STS, 1ª, 20.3.1996: ski station is not liable for the hepatitis c virus transferred to a person in a hospital in which this person was attended after an ski accident. CAUSE IN FACT: FACTUAL ANALYSIS  BUT-FOR TEST  The defendant’s conduct is a cause of the event if it would not have occurred but for that conduct; conversely, the defendant’s conduct is not a cause of the event, if the event would have occurred without it.  Prosser (1984), p. 265: “An act or an omission is not regarded as a cause of an event if the particular event would not have occurred without it.” CAUSE IN FACT: FACTUAL ANALYSIS Problems: 1. Excessiveness: there are ordinarily too many causes, that is to say, any thinkable harm is always preceded by a potentially infinite number of events without any of them the harm would have not occurred. 2. Roughness: scientific theories work out very diverse and complex systems of hypotheses, most of them irreducible to the misleading simplicity of the ‘but-for’ causation test. PROXIMATE CAUSATION: LEGAL ANALYSIS  Consequently current legal doctrines distinguish between the factual research about the causes of harm (cause in fact) and the normative decisions about who has to be held liable for the harm caused (proximate causation or scope of liability). “Once is established that the defendant’s conduct has in fact been one of the causes of the plaintiff’s injury”, proximate causation doctrines seek to respond the question “whether the defendant should be legally responsible for the injury” and the answers are drafted “in terms of legal policy” (Prosser (1984), 272-273). a) Foresight Test (Causalidad adecuada)  The defendant’s conduct is relevant if and only if it is not improbable that any reasonable actor in the same circumstances would have foreseen it as a cause of harm.  Foreseeability: limit liability to the consequences of an act that could reasonably be foreseen rather than every single consequence that follows. Otherwise, libility could be unlimited.  Spanish Supreme Court: “conexión natural, adecuada y suficiente entre la acción y el daño sufrido” (Civil); “Nexo directo, inmediato y exclusivo” (Cont-Adm). a) Foresight Test (Causalidad adecuada)  STS, 1, 9.10.1999: passenger died of a sudden heart attack in a cruise. The vessel had no medical device to attend the passenger.  STS, 2, 9.6.1969: Collision between a car and a gas truck. Gasoline to a drain pipeline, where the victim was welding.  STS, 1, 15.12.1981: truck collision against a building out of specifications. Building collapsed. No possibility of new building.  Freak accidents: Palsgraf. Students. Tractor and fire. d) Bilateral Care (Principio de confianza)  A harm can no be charged to that person who acts trusting in the diligent behavior of the others.  Some accidents are only preventable by the defendant, because only the defendant’s care is able to affect the existence or seriousness of the risk of harm (Unilateral Care). But life is richer than models: in social interactions, most risks of accident are at least to a point avoidable by the defendant and by the victim, that is to say, in most cases, the victim could have also done something to eliminate or to bring down the risk of suffering harm. A good rule to encourage a richer and happier life for everybody and the growing division of labor which this would make possible is to exclude any liability of those defendants which acted on the assumption that the potential victim would have observed due care (or at least would not have behaved foolishly) when interacting with them.  Construction compqany that broke the telephone cable that was 1 meter under instead of 3. e) Breach of Statutory Duties (Ámbito de protección de la norma) The goal of the statutory duty broken by the defendant was different from preventing the damage. STS, 1, 22.2.1946: Sunday was by law a free day in a Factory. The employer obliged the workers to work on a Sunday. An explosion of a powder magazine close to the factory damaged the workers. STS, 1, 17.5.2007: students f) Provocation (provocación)  Damages can be charged to that person creating a dangerous situation that caused damages to third parties.  Damages suffered by a by-stander while police prosecuted a criminal running away.