FRANCE

FAULT LIABILITY
 GENERAL OBSERVATIONS

- ‘Any act whatever of man, which causes damage to another, obliges the one by whose
faute it occurred, to compensate it.

- Everyone is liable for the damage he causes not only by his act, but also by his
negligence or by his imprudence

- 3 categories of liability
 strict liability for things
 strict liability for acts of other persons
 liability for one’s own act

- to establish liability it is sufficient to prove intention or negligence (faute), damage

(dommage), and causation (lien de causalité)

- faute means that a person has not observed a certain standard of care: hence, faute
liability mainly implies negligence liability
 it suffices that negligent conduct caused damage

- can be established on the basis of the breach of an unwritten pre- existing duty.
Unwritten duties can be derived from regulations, morals, customs, and technical
standards. In most situations, however, the courts use a standard of reference: this
means that a person commits a faute if he does not meet the standard of the good
family father (le bon père de famille or bonus pater familias), the just and cautious
man (l’homme droit et avisé), or the good professional (le bon professionnel )

ENGLAND
ENGLAND
 JUDICIARY

- 1. Court of First instance

 local county court

- 2. High Court

- 3. Court of Appeal

- Highest civil and crimial court: Supreme Court

  General public interest
 Questions of law
 President, Deputy President, 10 Justices, and 5 judges
 Cases decided by majority vote

- Strike-out procedure
 allows the defendant to request the court to dismiss a claim without hearing
the facts
 LEGISLATOR AND JUDICIARY

- Doctrine of Parliamentary sovereignty

- Interpretation of statutes
 Literal interpretation
 Mischief Rule

> emphasis is placed on the purpose of the statute and the intention of
the legislator
 ORIGINS OF TORT LAW

- 3 main sources of liability

 unjust enrichement
 contracts
 tort

- Writ
 one needed a writ in order to file an action

- 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 torts require intention or negligence
 Trespass torts

> Intentional conduct

o Torts in the trespass to the person – assault, battery
o requires the existence of duty of care

> Torts that do not require damage

o Torts in the trespass to the person – assault, battery, fals
imprisonment
o Trespass to the goods or land
 > Self-defence plays a role
 TORT OF NEGLIGENCE

- Consists of 3 elements
 a duty of care
 breach of that duty
 consequential damage

- Duty of Care
 Donoghue v Stevenson

> House of Lords held that the manufacturer’s contractual obligation to

the buyer (here the person who operated the café) did not exclude that
he owed the ultimate consumer (here Ms Donoghue) a duty of care!
 Atkinian neighbor 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
 general duty of care for foreseeable harm
 The Caparo Test

> applies in situations where there is no precedent

> (a) the harm must be reasonably foreseeable;

> (b) there has to be proximity between the claimant and the defendant;

> (c) imposing a duty of care has to be fair, just, and reasonable.
 Assumption of Responsibility

> cases of omission

> liability of public bodies

> liability for pure economic loss

> Heldey Bryne case

o there can be a duty of care in order to prevent third parties
suffering economic loss from negligent statements

> Requirements
o person having an advantage over the claimant
o claimant relying on the assumption, the reliance must be
reasonable
o the assumption does not have to be voluntarily
 o assumption and reliance from direct contact is not neccesary
 Problematic duty situations

> liability for psychiatric injury

o secondary victims need to prove, inter alia, that they have a
close tie of love and affection with the primary victim and
had personally witnessed the accident or its immediate
aftermath

> pure economic loss

o there is no duty of care to prevent another person’s pure
economic loss.

> omissions
o there is no duty to act, unless one of the exceptions
established in the case law applies
o exception: if the defendant has assumed responsibility for the
claimant’s interests
o liability of public bodies
 duty of care is not applied
 TRESPASS TO THE PERSON

- Introduction
 involves direct and intentional interference with a person’s body or liberty.

> Battery, Harassment, Assault, Malicious prosecution, False

imprisonment, Defamation, Breach of confidence

> the claimant does not have to prove damage

o proof of the committed tort is sufficient
o nominal damage afforded
 Letang v Cooper

> fault in the framework of trespass to the person meant intention and
not merely negligence

- Assault and Battery

 Battery: intentional and direct application of force to another person

> Unlawful intentional touching of another

 Assault: an act which causes the claimant reasonable apprehension of the
infliction of a battery on him by the defendant.

> attempt or offer to beat another person without touching him.

 > defendant’s conduct must have created a reasonable apprehension of
an imminent battery

> the threat must be real.

> R v Ireland & Burstow

o assault might be committed by words or gestures alone

- Defences again assault and battery

 The defences against trespass to the person:

> self-defence (battery and assault)

o defence must be proportionate
o threat must be reasonably held

> consent
o if there is consent, there is no battery
o burden of proof: the patient has to show lack of effective
consent by making lack of consent a definitional element of
the intentional tort.

> medical necessity

o if person is unable to give consent
o intervention was in the best interest of the victim

- Defamation
 the torts of libel

> the defamatory statement was in permanent and visible form

 and slander

> a temporary and audible statement is sufficient for liability

 defamatory nature of a statement is decided by the judge and the jury
 test:

> the words tend to lower the plaintiff in the estimation of right-
thinking members of society generally
 Defences of defamation

> absolute privilege of statements made in Parliament

> justification
o statement was correct in all material aspects

> fair comment

o statement is matter of opinion and not of fact
 > qualified privilege
o professional or moral duty to communicate and a public
interest to receive the information
o manner the information was published: reasonable and fair

- Other torts of trespass to the person

 false imprisonment

> defendant liable if he has restricted the claimant’s movement in every

direction and irrespective of whether the claimant was aware of such
a restriction
 malicious prosecution

> the claimant must show that the defendant initiated an unsuccessful
criminal prosecution against him.

> the claimant must show that the proceedings had reached such a stage
that they caused damage to his reputation, his person (imprisonment
or the threat of imprisonment), or his property (costs and court
expenses).
 intentionally but indirectly caused damage

> Rule in Wilkinson v Downton

o liable for intentionally indirectly caused damage

> harassement
o claimant must prove course of conduct
 INTENTIONAL INTERFERENCE WITH LAND AND GOODS

- Trespass to Land
 form of trespass which is constituted by unjustifiable interference with the
possession of land’

> trespasser acted voluntarily and caused the damage directly

> there is trespass to land if a person sets foot on another person’s land
without permission

> throws object that does not belong to him

> trespass implies liability, intention is not required

 Southport Corporation v Esso Petroleum Co. Ltd

> damage was not caused directly, trespass claim was dismissed

> victim relied on torts of negligence and private nuisance

  defences:

> permission

> necessity

> inevitable accident

- Trespass to goods
 Trespass to goods is physical interference with goods that are in possession of
another without lawful justification
 Remedy

> injunction
 strict nature

> intention or negligence is not required

 requires proof of damage

> if owner lodges a claim for damages: negligence or intent is required

 Conversion

> may be committed ‘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

> Liability for conversion is strict

o the defendant need only intend the voluntary act in question
and not necessarily the consequences of that act for the
claimant
 NUISANCE

- Public Nuisance
 A public nuisance is an interference with a public or common right, such as
an obstruction of the highway, can confer a cause of action on a private
individual, although no rights or privileges in land of his have been invaded at
all.

> personal injury

> interest of claimant and defendant must be balanced

 implies an unlawful act or omission causing annoyance to the general public
but the nuisance needs to be so widespread that it would not be reasonable to
expect one person to bring proceedings
 Examples: failing to repair highway, selling food not fit for consumption
  Requires that the damage suffered is special

> not related to general inconvenience

- 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

> covers interference with land but not personal injury

 Examples: producing smoke, smell, noise
 requires repetition
 Hunter v Canary Wharf Ltd

> only persons with a proprietary interest in land have standing to file a
claim for private nuisance.
 Harm must be foreseeable
 Hunter v Canary Wharf

> only covers material damage, loss of amenities, and diminution of the
utility of the land

> inconvenience, annoyance, or illness cannot be recovered

> damages for personal injury are not recoverable in nuisance

 Key issue

> whether the defendant has used his land in an unreasonable way
 Avaliable remedies

> damages and injunction

 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
 OVERVIEW OF OTHER TORTS

- Trespass to the person

- Public and private nuisance

- Violation of statutory rule

 breach of statutory y duty is sufficient for liability
 regulation of health and safety in the workplace

- Vicarius Liability

- Liability for animals

GERMANY
INTRODUCTION

 JUDICIARY

- 0Federal Supreme Court (BGH)

 reviews decisions of the regional courts of appeal

- academics play an equally important role as do the courts

 DOCTRINE

- The commentaries
 detailed analyses of legal provisions

- Tort law text books

FAULT LIABILITY: THE BGB PROVISIONS

 Three General Provisions

- Distinction between fault liability and strict liability

- Strict liability
 someone is liable regardless of whether he acted intentionally or negligently
 he is liable for the risk that occurs

- Fault Liability
 liability for intentional and negligent conduct
 intentional conduct is not necessary condition for liability

> negligent conduct will suffice provided other requirements for

liability are met, such as unlawfulness

- German Tort law mainly operates in the basis of a general fault rule

- 5 Requirements for liability

 (a) the violation of a codified normative rule (Tatbestandswidrigkeit)
 (b) unlawfulness (Rechtswidrigkeit)
 (c) intention or negligence (Verschulden)
 (d) causation (Kausalität)
 (e) damage (Schaden).

- Violation of a codified normative rule

  requires the infringement of a right, such as the rights to life, body, health,
freedom, and property
 the violation of a statutory rule
 intentional unethical conduct, also known as intentional infliction of damage
contra bonos mores
 it is not possible to lodge claim for damages on the sole basis of intention or
negligence

- Specific provisions
 § 824 concerning financial and economic trustworthiness
 § 825 relating to the infringement of sexual integrity
 § 839 covering breach of an official duty
 Requirements for Fault Liability

- Violation of a codified normative rule

 infringement of another person’s protected right
 the intentional infliction of damage contra bonos mores
 the violation of a statutory rule

> Conduct is unlawful

- Grounds for justification

 self-defence (§ 227)
 necessity (§ 228 and 904)
 self-help (§ 229 and 859)

- Fault
 This requirement is fulfilled if the wrongdoer acted intentionally or
negligently
 conduct is deemed negligent if it is contrary to the care required by society.

- indirect infringement
 the breach of a safety duty is decisive in determining unlawfulness

- direct infringement
 in cases of direct infringement (sawing down a tree), this sole fact will suffice
for unlawfulness
 § 823 I: Infringement of a Right

- § 823 I protects life, physical integrity, health, and personal liberty, property and
another right
 general rule of fault liability for cases of death, personal injury, and property
loss
 - If someone infringes protected right
 1. he has fulfilled the codified normative rule of § 823 I
 2. hence, has acted unlawfully (rechtswidrig)

> provided that there is no ground of justification for his conduct

 3. If he has also acted negligently, he will be liable for the damage caused

> not only for the physical damage but also for the consequential
economic loss

- If someone intentionally or negligently infringes one of the protected rights, he has to

compensate all the consequential damage of that infringement incl. economic loss

- Another right
 rights regarding intellectual property
 mortgages
 names
 portraits
 family law-related rights
 § 826 BGB: Intentional infliction of damage - contra bonos mores

- a person liable if he intentionally causes damage to another person in a manner contra

bonos mores, that is, contrary to ethical principles

- acting contra bonos mores implies conduct contrary to the existing economic and legal
order or the ordre public

- Examples:
 provoking a breach of contract, providing someone with incorrect
information, abusing a right, and most types of unfair competition.

- requires that the defendant has acted intentionally

 1. they accept dolus eventualis = accepting the consequences of ones conduct

> it is sufficient that the tortfeasor was aware of the possibility that the
damage would occur
 2. intention need only be present in relation to the primary infringement of the
victim’s interest

> need not have intended all consequential damage

> it is not required that he actually knew the person his conduct would
harm
 Recklessness

> If the tortfeasor was aware that his conduct was reckless
 o sufficient to indicate intent
 Gaps in the BGB and the need for judicial intervention

- the courts are inclined easily to establish the infringement of a protected right

- scope of a contract can be extended to protect third parties

FAULT LIABILITY: JUDGE-MADE SAFETY DUTIES

 Origin, Character, and Place in the legal system

- § 823 I primarily seemed to focus on liability for acts, and the scope of § 823 II
(violation of statutory rule) was not sufficient to deal with all omissions

- in cases of omission, unlawfulness should not be based simply on infringement of a

protected right but also had to be based on the breach of a safety duty

- societal safety duties

- if a person suffers personal injury or property loss as a result of another person’s

omission, the infringement of his right is not sufficient for unlawfulness

- necessary to establish that the defendant has breached a safety duty

 Application

- law requires a very high level of care by the person who owes others a safety duty
 duties are based on fault liability
 decidive whether the harm could have been avoided by any reasonable
precautionary measure

- Safety duties
 organizing a firework display,59 operating a merry-go-round, or carrying out
construction work, medical activities

FAULT LIABILITY: JUDGE-MADE RIGHTS

 Right to Business

- difficulty of liability for pure economic loss

- in cases of unfair competition

- belongs to ‘another right’

- the court must balance the interests of the business with those of the infringing party
 General Personality Right

- providing better protection for human dignity and the right of free development of
one’s personality
 - umbrella for protecting all aspects of the person

- belongs to ‘another right’

- balance of interests

RULES OF STRICTER LIABILITY

 General Observations

- found outside the BGB

- exception: strict liability of the keeper of a luxury animal

- Strict liability for

 damage caused by railways, motor vehicles (1909), aeroplanes (1922), water
contamination (1957), and nuclear damages
 damage caused by genetically modified organisms (GMOs)

- possible to claim compensation for non-pecuniary loss

 Liability for objects

- § 7 Road Traffic Act

 the keeper of a motor vehicle strictly liable for death, personal injury, and
property damage to pedestrians, cyclists, passengers, and drivers
 can only invoke an external cause to escape liability
 contributory negligence leads to lower amount of damagaes

- § 1 I Liability Act
 the operator of a railway, tramway, hover track, or ski lift is strictly liable
 can only invoke external cause or contributory negligence

- § 33 Air Traffic Act

 establishes strict liability for the operator of an aeroplane.

- operators of nuclear power plants (§ 25 ff Nuclear Act, Atomgesetz)

- manufactures of defective products in general and pharmaceutical products

 Liability for Persons

- liability for damage caused by other persons

- liability with a rebuttable presumption of fault

- § 832 liability on any person who is statutorily or contractually obliged to supervise

another
 The supervisor is liable for damage wrongfully caused by the minor unless he
can prove that he complied with his supervisory duty or that the injury would
 also have occurred if that duty had been satisfied.

- § 831 holds the employer liable for damage caused by his employees
 unless he can prove that he was not negligent in selecting, instructing, and
supervising the employee

PROTECTED RIGHTS AND

INTERESTS

INTRODUCTION

 Protected Rights and Interests in Tort Law

- German law requires

- English tort of negligence requires a duty of care

- French requirement of faute

- negligent conduct must be legally wrong or that the damage needs to be legally
relevant
 Protected rights and interests in the legal systems

- Germany
 question is framed in the requirement of unlawfulness
 one of the rights listed in § 823 I BGB is infringed

- England
 primary focus is on the duty of care
 personal injury and property loss more easily trigger a duty of care
 trespass torts

> interests of the claimant are the primary focus

- France
 up to the courts to decide which interests are to be protected and which not
 on the basis of the word dommage
 Protected interests

> the right to bodily safety

> contractual safety obliigations

- European Union
  Directive distinguishes between (covered) material loss as a consequence of
personal injury and property loss, on the one hand, and (not covered) pure
economic loss and non-pecuniary loss, on the other

PROTECTION OF THE PERSON

 The Right to Life

- most fundamental human right

- positive obligations on the State to protect citizens against fatal injuries caused by
third parties

- In France
 this liability will be often strict

- In Germany
 it will be either based on a strict rule,
 on the negligent infringement of a protected right,
 or on the breach of a statutory duty

- English law
 protects life with the tort of negligence
 and the tort of breach of a statutory duty
 and with the trespass tort of battery

- right to claim loss of maintenance and funeral costs

- England and France

 next of kin can claim damages for non-pecuniary loss

THE RIGHT TO PHYSICAL INTEGRITY

 Right to Physical Integrity

- best protected right in tort law

- the pecuniary loss, particularly medical expenses and loss of income, is compensable

- non-pecuniary loss is compensable particularly for pain and suffering

- level of protection of a right differs

- the scope and extent of someone’s right depends on the need to grant other persons
the freedom to act.

THE RIGHT TO PHYSICAL HEALTH

  Right to physical health

- protects people against the consequences of disease, for instance cancer

(mesothelioma), AIDS, or Legionnaire’s disease

- protection by tort law often depends on the possibility of proving causation between
the negligent conduct and the damage

- German law:
 right to bodily integrity and the right to health

THE RIGHT TO MENTAL HEALTH

 Various National Thresholds

- pecuniary loss caused by mental harm is only compensable if it amounts to a

medically recognized psychiatric illness

- can only lie if it is consequential on the infringe- ment of a right to physical integrity
or health.

- First category:
 victims who have also suffered physical harm or were in the zone of physical
danger

- Second category:
 who are not directly involved in an accident but have suffered harm as close
relatives of the primary victim or because they witnessed the accident or its
aftermath
 rescuers, bystanders and family members of the primary victim
 not likely that this category will be given compensation
 FRANCE

- No objective threshold

- distinction between the protection of mental health and mental well-being is more
blurred

- requires that the victim’s mental harm is a direct and certain consequence of the
defendant’s conduct

- mental harm can be compensated if it constitutes damage (dommage)

- indirect victims = rebound victim

 damage suffered must be direct and immediate consequence of the relevant
fault
 must be a connection between the primary victim and the claimant
 > relationship established in person
 GERMANY

- victim’s mental harm is a foreseeable consequence of the defendant’s conduct

- mental harm amounts to a recognized medical condition

- right to compensation for indirect victims

 limited to close relatives
 Their feelings need to amount to a medically recognized illness
 claim is only awarded in the case of a traumatic disorder with consequences
lasting for a certain time
 German law does not require the victim to have witnessed the accident

- has to be foreseeable that someone will suffer some form of mental incapacity as the
consequence of an accident

- not possible to receive compensation for grief and sorrow

 ENGLAND

- victim’s mental harm is a foreseeable consequence of the defendant’s conduct

- mental harm amounts to a recognized medical condition

- whether one person owes another a duty of care to protect him against mental harm

- Requirements victims must fulfill in order to make a claim

 the victim must prove that he suffers from a recognized psychiatric illness as
a consequence of the event
 there needs to be proximity of relationship, which means a close tie of love
and affection with the primary victim

> the relationship needs to be sufficiently close and loving to establish

foreseeability of the psychological damage
 proximity in time and space: the claimant needs to have witnessed the
accident or its immediate aftermath with his own eyes
 psychological harm must be caused by a shock

- for a duty of care to be established it is not only the seriousness of the harm that is
relevant but also the way the harm has occurred.
 RESCUERS

- ENGLAND:
 rescuers only qualify as primary victims if they have been in the zone of
foreseeable physical danger, or reasonably believe that they were

- GERMANY:
  rescuers such as police officers only have a right to compensation for mental
harm if they were directly involved in the accident
 ANXIETY

- anxiety for something that may, but not necessarily will, happen

- FRANCE:
 linient

- ENGLAND:
 once a physical impairment is established (eg after the diagnosis of
mesothelioma), the English courts (like other national courts) award
compensation for non-pecuniary loss that includes the anxiety caused by the
sudden reduction of life expectancy

PERSONALITY RIGHTS

 INTRODUCTION

- Protection of the person

 Protection of privacy
 weakening and distortion of the pro- file of an individual in society
 wrongful disclosure of personal information to the public
 GERMANY

- General personality right

 protected right within the framework of § 823
 rights to privacy and to honour and reputation

- in cases of a serious infringement of the general personality right the victim is entitled
to claim damages for non-pecuniary loss

- courts must balance the claimant’s general personality right and the defendant’s
freedom of expression
 FRANCE

- article 9 CC ‘: everyone has the right to respect for his private life’.

- the mere infringement of the right to privacy entitles the victim to compensation
 not necessary to establish a faute or non-pecuniary loss.

- right to image’
 the press is free to publish images serv- ing the general interest, provided they
respect human dignity.
 ENGLAND
 - English law does not recognize a general liability for invasion of privacy and infringe-
ment of other personality rights

- Protection is found in specific tort

 malicious falsehood
 libel

> (defamation in a permanent form such as a written text),

 slander

> (defamation by spoken words or gestures),

 nuisance
 breach of confience
 assault
 battery
 passing off

- Defamation Act

- Protection from Harassment Act 1997

- Human Rights Act 199

- Article 8 of the Convention

 the right to privacy is protected

- breach of confidence
 cover cases of misuse of private information

> take account of both Articles 8 (the right to respect for private and
family life)

> 10 (the right to freedom of expression)

- Campbell case
 the infringement on her privacy and was not necessary or justified by the
public interest

- the test is whether the affected person has a reasonable expectation of privacy.
 ARTICLE 8 ECHR: CAROLINE VON HANOVER

- provides not only for the right to private life but also to family life

- Article 8: horizontal effect

- protection of private life has to be balanced with the freedom of expression

PROTECTION OF PROPERTY AND
ECONOMIC INTERESTS
THE RIGHT TO PROPERTY

 INTRODUCTION

- interests in objects, either mov- able or immovable, are generally protected

- intangible property rights

- Common law
 distinction is made between protection of proprietary interests in land (real
property) and in movable things (personal property)

- Pure economic loss’

 loss not related to or consequential upon harm to personal injury or property
loss.

- As long as the economic loss is consequential upon the property loss, it is not ‘pure’
and it will be compensated in all jurisdiction

- The wider the interpretation of a property right, the more consequential economic loss
is compensated

- French tort law does not contain statutory obstacles for the recovery of damage to
movable or immovable objects
 The only requirement as regards damage in French law is that it is direct and
certain and that it has affected a legitimate interest
 ARTICLE 1 FIRST PROTOCOL ECHR

- protects the right to property.

 concept of possession

- protects not only tangible property but also some aspects of intangible property, which
most legal systems would consider to be pure economic loss.

- Pye case
 GERMANY

- § 823 I BGB inculdes property rights

 - an infringement can be established if an object
 damaged
 stolen
 remains undamaged but can no longer be used for its intended purpose

- the protection of property includes not only physical damage to an object but also the
loss of use of the object even though the object itself has remained undamaged
 ENGLAND

- the tort of negligence is the main basis for obtaining compensation for damage to
personal property

- tortfeasor owes a duty of care towards persons who may foreseeably suffer property
damage because of his negligent conduct

- loss of use of property

 considered as pure economic loss
 limits property loss to infringement of the physical integrity of the property
 private nuisance (particularly as regards real property)
 public nuisance
 trespass to goods
 conversion

- Spartan Steel pp. 208

- Junior books Ltd. v. Veitchi Co Ltd

- Muirhead v Industrial Tank Specialities Ltd

INTENTION AND NEGLIGENCE

INTRODUCTION

 FAULT LIABILITY: INTENTION AND NEGLIGENCE

- Liability can exist for both intentional and negligent conduct

- fault is sometimes identified with blameworthiness

- subjective test:
 someone is at fault if he can be personally and morally blamed for his conduct

- objective test:
  the reasonable man or the good family father

- highly valued rights

 high level of care is required

- lower valued rights e.g pure economic interests

 lower level of care is required
 in some cases liability only exists in the event of the defendant’s intentional
conduct

INTENTION IN THE LEGAL SYSTEMS

 FRANCE

- barely acknowledges rules which require intentional conduct for liability

- negligence will suffice

- theory of abus de droit

 a person cannot escape liability by hiding behind a subjective right of which
he is the legal holder.
 the exercise of a right can only give rise to liability if the owner of the right
acted intentionally or in bad faith

- The objective theory of abuse of rights is premised on a societal conception of

subjective rights
 they serve a socially useful function

- the subjective theory focuses on the defendant’s motive for exercising his right:
 it sets the thresh- old for required fault much higher than simple negligent
conduct

- the defendant will only abuse his right in cases of malicious intention to harm the
victim
 GERMANY

- For a person to be liable

 must have violated a codified rule (Tatbestand),
 his conduct must have been unlawful (rechtswidrig),
 he must have acted with intention or negligence (Verschulden)

- liability can be based both on intention and negligence

 in § 826 only on intention.

- Intention generally includes dolus eventualis

 the acting person is aware that occurrence of harm is possible and consents to
 the harm

- there must be a knowledge requirement, consist- ing at least in an awareness that the
occurrence of harm is possible

- a voluntary requirement, consisting at least in consenting to the harm if it occurs

- Mistakes of fact generally exclude intention

- § 826 (intentional infliction of damage contra bonos mores)

 only intentional infliction of damage is sufficient to establish liability
 the liability of the tortfeasor is limited to the damage he intended to cause or
which he was aware could occur, and consents to the harm if it should occur.
 ENGLAND

- various torts that require intention

- the highest threshold is set with regard to torts requiring malice

 the claimant must establish that the defendant harboured personal animus:

> this is a distinct requirement for liability going over and above the
need to prove that the prosecution was without reasonable cause.

- tort of deceit
 requires that the defendant knew of the falsity of his statement or was reckless
as to its veracity.
 must be coupled with a deliberate intention upon which to induce the claimant
to rely.

- mental requirement in the tort of battery

 requires that the defendant had intended the unlawful touching but not the
specific consequences
 only has to answer for the direct consequences of the intentional conduct

- torts of false imprisonment, trespass to goods, and trespass to land,

 the ‘intentional’ element is diluted further still.
 These are strict liability torts which are actionable as soon as the requisite
objective conditions are met
 It is sufficient to establish that an unwitting defendant had the intention
simply of performing the immediate voluntary material act which ultimately
amounted to harming the claimant

- defamation
 ‘liability . . . does not depend on the intention of the defamer; but on the fact
of defamation’.
  COMPARATIVE OBSERVATIONS

- in France it applies to the exercise of rights only

- in Germany to liability for damage caused contra bonos mores

 mainly for pure economic loss

- in English law it plays a role: in cases of economic loss, property loss, and personal
injury

- In all countries: include forms of recklessness or acting in bad faith

 protection of the freedom to act.

NEGLIGENCE IN THE LEGAL SYSTEMS

 ENGLAND

- the key requirement for negligent conduct is not the duty of care

- The key requirement is breach of duty

- The breach test focuses on the question whether the defendant exercised sufficient
care towards the claimant
 established by comparing the conduct of the defendant with that of a
reasonable man.

- Blyth v Birmingham Waterworks: objective test

 Negligence is the omission to do something which a reason- able man, guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man
would not do
 it is not relevant whether the defendant personally knew the risk or personally
could have avoided

- Nettleship v Weston
 the courts judge children’s conduct on the basis of the standard of a
reasonable child
 GERMANY

- § 276 I BGB requires fault as either intention or negligence

- § 276 II defines negligence as conduct contrary to the care required in society.

- the question of fault only occurs if it is established that the defendant violated a
codified rule and his conduct was unlawful

- the test for negligent conduct

 not only dealt with under fault but also under unlawfulness
 - If someone directly infringes a protected right in the sense of § 823
 the negligence test takes place under the heading of negligence

- Fahrlässigkeit cannot be established if, even for a careful person, it would not have
been possible to recognize and prevent the risk

- objective standard
 does not apply to the physically impaired and to children
 the typical knowledge and abilities of the professional group or the social or
age group of the tortfeasor that are decisive
 court compares the conduct of a doctor with conduct of a typical doctor
 The person who does not meet this standard acts negligently, even if he
personally cannot be blamed for his conduc
 Shortcomings in knowledge or ability, tiredness, nervousness, excitement, or
dejection are no defences against liability

- burden of proof with regards to negligence is on the claimant

- if unlawfulness follows from the breach of a safety duty or the viola- tion of a
statutory rule and these prescribe the required conduct in a sufficiently specific way,
the burden of proof is shifted to the defendant
 prove with effective certainty that it was not possible to recognize the risk or
to prevent it
 FRANCE

- only requires a faute to establish liability (arts. 1382 and 1383 CC)
 causation + damage

- two elements of faute:

 an objective element focusing on the conduct of the wrongdoer
 a subjective element relating to his personal capacities.
 ojective element covers the external circumstances
 the subjective element the internal circumstances of the wrongdoer

> does not play a role

- If a faute cannot be based on the violation of a statutory rule,

 Either a faute is considered to be the breach of a pre-existing obligation
 conduct that does not meet the standard of le bon père de famille (good
familiy father)

- liability is based on a breach of an existing obligation

 regulations applying to certain professions or sports, morality, custom, and
technical standard
  duty, obligation, conduct contrary to law
 if it is breached, conduct is unlawful

THE REASONABLE PERSON BALANCING RISK AND CARE

 THE ELEMENTS OF NEGLIGENCE

- a comparison of the tortfeasor’s conduct with that of the reasonable man

- where the defendant’s conduct did not meet this standard of care, negligence can be
established.

- the courts can gear the reasonable person up and down at their discretion.

- negligence has an outer (vis- ible) aspect and an inner (invisible) one

- Questions asked
 whether the defendant behaved as a reasonable person would have done in the
same circumstances

> (careful conduct, outer care)

 what knowledge and skills the reasonable person’s is supposed to possess

> (careful person, inner care)

 and whether the defendant’s physical or mental shortcomings could serve as a
defence against liability

- What did the defendant know about the risk and what ought he to have known about
it? And what could the defendant, considering his abilities, have done to avoid the risk
and what ought he to have done to avoid it?
 conditions for liability

- in all 3 legal systems

 the law is found in the facts of the case
 THE FOUR FACTORS OF NEGLIGENT CONDUCT

- the negligent character of the defendant’s conduct has to be established by balancing

the expected risk and the precautions
 balance freedom and protection

- as danger increases, so as precautions

- determining the level of risk

 the seriousness of the expected damage and
 the probability that an accident will happen.
 the level of care can be broken down into:

> the character and the benefit of the conduct and

 > the burden of precautionary measures.

- Leraned Hand Formula: United States v Carroll Towing Co

 strong basis in common law
 Bolton v Stone

> the risk was foreseeable but taking such a small risk did not amount
to negligence

> the risk (probability and seriousness) did not outweigh the costs of
precautionary measures
 BACKGROUND AND PLAN OF THE CHAPTER

- Trust, legitimate expectations, and due care

 three important aspects of establishing negligent conduc

MAGNITUDE OF THE RISK

 SERIOUSNESS OF THE HARM

- The magnitude of a risk is determined by:

 (a) the amount and seriousness of the expected loss
 (b) the probability that the loss will occur

- where there is no risk, no care is required

 England: aithor of damage did not owe duty of care
 Germany: none of the victim’s protected rights have been infringed

- difference exists with cases in which death or personal injury is caused

 causing personal injury simply outweighs the other elements:

> negligence may be established even if the probability of the harm was
very low

> if the burden of precautionary measures was very high (

 in many cases, the sole fact that death or personal injury is caused may lead to
the conclusion that the damage was caused negligently.

- Paris v Stepney Borough Council

 the more serious the damage which will happen if an accident occurs, the
more thorough are the precautions which an employer must take
 PROBABILITY OF THE HARM

- The magnitude of the risk is not only determined by the amount and seriousness of the
expected loss
 also determined by the probability of harm
 - probability has to be established from the perspective of the moment directly before
the harmful event

- it is not the probability that someone will cause harm that is decisive
 but the increase in the probability over the accepted risk level is.
 socially accepted activities e.g driving

> it is not negligent to carry out such activities

- the probability of the harmful event (the accident) which is decisive, not the
probability of the ultimate damage
 sufficient to assess the probability that someone would suffer personal injury
of some form

- Haley v London Electricity Board

 PROBABILITY THAT POTENTIAL VICTIM ACTS NEGLIGENTLY

- people should not assume that others always act carefully

- the probability of the harm has to be assessed in conjunction with the potential
victim’s conduct

- The key issue is when the victim’s negligent has to be taken into account
 f the victim does not have sufficient knowledge of the risk
 underestimate it
 insufficiently able to avoid the risk effectively

PRECAUTIONARY MEASURES

 COSTS, EFFORTS, AND TIME

- negligence is established by balancing risk and care: the bigger the risk, the more
precautionary measures are required

- Precautionary measures are not free

 they will not be required if the risk is too low
 the risk that someone will suffer personal injury induces the courts to require
considerable precautionary measures.

- England, negligence liability is applied to drivers of motor vehicles. pp 242

- Precautionary measures
 can be divided into continuous measures and one-off measures.
 one-off measures

> the costs will generally be outweighed by the magnitude of the risk
 continous measure
 > the costs, time, and effort of taking continuous measures are generally
much higher

> more easily outweigh the magnitude of the risk

- only efficient to take precautionary measures as long as the costs of these measures
are lower than the losses due to accidents
 REDUCING THE RISK

- if eliminating the risk would make the activity impossible to carry out

- it is sufficient to reduce the risk

- risky activities
 strict liability: the driver (or the keeper of the motor vehicle) also has to be
liable for risks that cannot be eliminated

- drugs
 manufacturer is allowed to bring these drugs to the market provided the
benefit of the drug outweighs the remaining side-effects
 adequate warning and information

- the precautionary measures consist of supervision and maintenance

 hospital will generally owe third parties a duty to supervise its patients
 FRANCE: strict liability on, inter alia, the psychiatric hospital

> duty to guarantee that no dam- age will be caused to third parties
 DUTY TO WARN OR TO INFORM

- duty to warn refers to risks of death or personal harm.

- duty to inform refers to other areas but this is not a matter of principle

- No duty to warn or to inform exists when someone is justified in believing that the
potential victim knows about the risk

- A duty to inform can only be at issue if the risk cannot be eliminated in another way,
such as by physical means

- a duty to inform is owed in cases in which an information gap exists

 that is, if someone (the supervisor, the manufacturer) knows about a risk that
the other person (the visitor, the consumer) does not know or is insufficiently
aware of.

- Information has to be provided in such a way that it informs the potential victim in
time.
 The information also has to be understandable and clear about the nature and
 content of the risk, and particularly about the consequences of not following
the instructions.

- A duty to warn does not exist in cases of obvious abuse

OMISSIONS

 GENERAL REMARKS

- there can be liability for an act (by breaching a duty to refrain from such an act; this is
also indicated as misfeasance) and liability for an omission (by breaching an
affirmative duty to act; this is also indicated as nonfeasance

- there is misfeasance if the omission is part of an activity

- FRANCE:
 Genuine omissions (nonfeasance) are considered to be those without an action

> related to risks which are not created by the defendant but by the
victim, third party, by nature, by condition of an object
 ENGLAND

- Stovin v Wise
 the highway authority did not owe road users a common law duty of care.
 policy based argument:

> imposing an affirmative duty restricts the individual’s freedom.

> it is less burdensome to take precautionary measures when carrying

out an activity than having to act in order to take such measures
 moral argument:

> it would be unfair to make an inactive defendant liable.

 economic argument:

> was that people should pay for the costs of their actions, otherwise
there would be no economic incentive to act efficiently
 Generally, no liability for omissions
 Exceptions:

> an affirmative duty is accepted if the defendant has created the risk, if
he has assumed responsibility for the claimant’s welfare, or if he has
a special status
 INDICATIONS FOR AFFIRMATIVE DUTIES

- The key issue for the courts

 whom to attribute the duty to prevent the harm.
- The main indications
 (a) a relationship with the place of the accident;
 (b) a relationship with the movable thing that caused the damage;
 (c) a relationship with the tortfeasor;
 (d) a relationship with the victim
 if none of these relationships exist: pure omission

- someone has specific knowledge of the risks involved (or ought to have known of
them) and that he is able to prevent, remove, or limit those risks.

- victim lacks ability or knowledge to be sufficiently aware of the risk

- Omission cases characterized by difference in knowledge

 between the person who owes an affirmative duty and the potential victim

- Relationship with the place of the accident

 The owner or tenant often has a duty to supervise the safety of a location.
 ENGLAND:

> the supervisor is usually the occupier who owes duties towards the
visitor.
 FRANCE:

> the owner of land or a building owes a duty of care towards the
visitor, towards his neighbour, and towards passers-by
 GERMANY

> related to roads, land, and buildings implies that someone allowing
another person to enter his road, land, or building is obliged to make
it or keep it sufficiently safe.

- Relationship with the movable object that caused the damage

 someone owns or uses the movable object that directly or indirectly caused
the damage
 GERMANY:

> provide for affirmative duties intended to prevent damage caused by a

movable object
 ENGLAND

> duties to prevent damage caused by a movable object are dealt under
tort of negligence
 rules for stricter liability

> for defective products

 > animals

> Germany and France: motor vehicles

- Relationship with the tortfeasor

 rules of vicarious and strict liability apply

> Parents: damage caused by their children

> Employers
 French law: damage caused by others
 If no strict rule applies,

> the supervisor had to breach his duty of car

- Relationship with the victim

 cases in which one person has to supervise and take care of another

> if the other person is not able to protect himself in the normal way

- Affirmative duties are usually not owed by children

 Exception: France children can be the custadian of the thing
 FITTING AFFIRMATIVE DUTIES INTO THE LEGAL SYSTEMS

- GERMANY: no sufficient possibilities for affirmative duties of

 safety duties (Verkehrspflichten) to determine whether an omission was
unlawful

- ENGLAND: affirmative duties are the exception rather than the rule
 with within the framework of the duty of care in the tort of negligence
 The basic rule is that there is no liability for omissions unless one of the
established exceptions applies

> the tortfeasor has created a risk

> duty exists if the defendant has assumed responsibility for the
claimant’s welfare

> the status of the tortfeasor may be a reason to impose an affirmative

duty on him

- FRANCE:
 strict liability rules apply to cases that in other jurisdictions would be treated
as omission cases

CHARACTER AND BENEFIT OF THE CONDUCT

 INTRODUCTION
 - the magnitude of the risk determines the required level of care

- the greater the risk, the higher the level of care

- character and benefit of the defendant’s conduct also has to be taken into
consideration.

- 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

- the character and benefit of the defendant’s conduct plays a role in cases of opposing
fundamental rights and freedoms

- the role of the character and benefit of the defendant’s conduct is obvious when it
comes to negligent conduct of public bodies

- the liability of public bodies differs from the liability of private individuals

- the character and benefit of the defendant’s conduct plays a role in economic
competition between businesses

- the character and benefit of the defendant’s conduct is relevant in sports with an
inherent risk of causing physical harm to opponents:
 players can be liable if they cause damage to another player in a clearly unfair
way
 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: defences

 includes not only grounds of justification such as an Act of God, but also
contributory negligence and limitation of actions,

- civil law: grounds of justification

- GERMANY:
 the ground of justification neutralizes the unlawfulness

- FRANCE:
 the concept of faute itself implies the absence of a ground of justification

- ENGLAND:
 an Act of God is only a defence under the Rule in Rylands v Fletcher
 ASSUMPTION OF RISK

- concept is hybrid
 relates to contributory negligence, defences, grounds for justification and
 negligence

- 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
 Participants do not accept abnormal risks

> an intentional breach of a rule of the game

 key issue can also be identified as to whether the person who caused the
damage played fairly
 GERMANY

> inked this defence to the general principle of good faith

> a violation only gives rise to liability if a player does not act
reasonably

> if he intends to injure the other player, or if he acts unreasonably

dangerously.
 ENGLAND:

> the violation was intentional or grossly negligent

 FRANCE:

> reluctant to allow the defence

> the context of the victim’s conduct (such as playing football) may still
be relevant but the fact that he assumes a risk can no longer be framed
in terms of a partial or complete defence
 CONSENT

- defence of informed consent

 someone gives his consent to allow a certain specific intentional (medical)
treatment

- medical treatment.
 physician does not act negligently if he treats a patient with the latter’s
informed consent (volenti non fit iniuria) provided the consent is given freely
and on the basis of correct and sufficient information.
 the key issue is whether the physician has adequately informed the patient

- duty to inform

NEGLIGENT PERSON
 INTRODUCTION

- negligence refers to two aspects:

 conduct and person
 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

- two elements
 knowledge and skill

> Someone acts below the required standard if he knew the risk or
ought to have known of it, and if he could avoid the risk or ought to
have avoided it.

> person will be negligent if he causes damage although he personally

knew the risk and had the ability to avoid it

> a person will not be negligent if no one on earth knew the risk or
could have avoided it, not even on the basis of the most recent and
available scientific data
 Negligence

> what ought the defendant to have known about the risk and which
abilities should he have had in order to avoid the risk?
o normative question

> 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
 Liability

> look at the situation immediately before the occurrence of the event
that gave rise to the claim
 KNOWLEDGE

- The required knowledge needs to be related to the risk

 it is decisive what the tortfeasor knew or ought to have known about the risk

> the seriousness and probability of the harm

- knowledge is related to the fact that a particular conduct can cause harm of a general
type
 damage to health or property etc.
 does not have to be related to the sequence of events
 sequence does not have to be foreseeable
 - GERMANY:
 ‘It suffices to render the person liable who inflicted the injury if he should
have realised the possibility of a damaging result in general; it need not be
foreseeable what form the damage would take in detail and what damage
might occur.’

> matter of causation

- existence of safety rule

- every person is supposed to know the law

 SKILLS

- I could not help it

- refers to the personal ability to avoid the risk

- skills refer to the precautionary measures that can only be taken by some- one as an
individual

- precautionary measures are considered regardless of someone’s personal skills and

abilities

- the skills to avoid the risk should not relate to the possibility of avoiding the
consequential damage but, in principle, only to the possibility of avoiding the
accident.

- someone cannot act negligently if the risk could not have been avoided by anyone

- even if the risk was unavoidable for everyone, the defendant can still be negligent if
the situation in which the unavoidable risk occurred could have been avoided by
earlier safety measures
 STATE OF THE ART

- When is a risk considered to be known according to the state of the art?

- risks are not discovered from one day to the next

- known and an unknown risk is not always precise

- pp. 263

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
 - the fault proper is decisive and in which liability can only exist if the wrongdoer can
be personally blamed for his conduct

- subjective test is applied in exceptional cases only

 practical problems
 confuses tort and crime
 Liability is not based on moral but on social responsibility.

- too much emphasis on the defendant and his freedom to act

 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

- If the defendant did not act according to the knowledge and skills of the reasonable
person this does not mean that he is personally to blame for his conduct

- The objective test is the basic rule in all legal systems

- The French faute of article 1382 CC is established by using an abstract (objective)

test.
 The best known standards of reference are l’homme droite et avisé and le bon
père de famille.

- Germany assesses negligence (Fahrlässigkeit) in the sense of § 276 BGB by applying

an objective test
 The usual standard of reference has been described as a careful person of
average circumspection and capability

- In the English tort of negligence, an objective test is also applied by comparing the
defendant’s conduct with that of the reasonable person.

STANDARDS OF REFERENCE

 GENERAL REMARKS

- The reasonable person appears in many different ways, depending on the character of
the defendant’s activity

- The standard of reference varies with the social role

- in one situation more knowledge and ability are required than in another.

- no one undertakes activities for which they do not have the proper knowledge and
skills
  PROFESSIONALS

- This professional standard of reference can be differentiated according to the differ-

ences in subdisciplines

- ENGLAND
 ordinary professional
 Maynard v West Midlands Regional Health Authority

> It is not enough to show that there is a body of competent

professional opinion

- GERMANY
 case: doctor was found negligent for undertaking the operation in the first
place

CHILDREN AND THE MENTALLY INCAPACITATED

 INTRODUCTION

- Children under the age of 6 are generally incapable of answering for their behaviour
 FRANCE

> compares the child’s conduct and knowledge with that of an adult
 GERMANY AND ENGLAND

> comparison with ‘a child of the same age’, provided the child has
reached the age of discretion
o 7 in England
o 10 in Germany: possibility of an equity liability
 Age of discretion
 DCFR

> adopts the German and English solution

 rule of strict liability for parents of minors under the age of 14

- mentally incapacitated
 cannot control their behaviour or answer for their acts
 FRANCE:

> objective test

> mental incapacities are no defence against liability

 ENGLAND:

> subjective test

 > restricted to cases where the person has lost all control over conduct
 GERMANY:

> subjective test

> equity liability

o depending on his financial means and the needs of the victim.
 FRANCE

- Article 489-2
 mental disorder is no defence against liability
 applies to minors
 applies irrespective of the cause or duration of the incapacity
 e.g uncunciousness for short period is not a mental disorder

- The standard of reference is not a child of the same age but an adult
 in addition to the child, the parents are strictly liable
 GERMANY

- personal capacities of the tortfeasor (knowledge and skills) are usually judged in the
framework of fault
 intention and negligence
 inner care – tortfeasor’s conduct

- children and mentally incapacitated

 statutory rules apply

- § 827 BGB
 a mentally incapacitated or unconscious person is not cap- able of acting with
intention or negligence if he does not have the discretion to under- stand the
unlawfulness of his conduct or if he is not able to act according to that
knowledge. The burden of proof is on the defendant
 if someone acts unlawfully and causes damage to another per- son in a
temporary state of mental incapacity which he has caused by using alcohol or
drugs, the unlawful act is deemed to establish negligence

> no negligence if the person did not know the effect of the consumed
substance

- § 828 I BGB
 children under the age of 7 are never liable for damage caused by their own
conduct, nor can they be contributorily negligent
 not capable of acting intentionally or negligently
 - child involved in a motor vehicle accident
 protected until the age of 10

- § 828 III
 someone under the age of 18 is not liable if he can prove that he is not capable
of acting intentionally or negligently
 takes the child’s mental development into account

- If the child is capable of acting intentionally or negligently

 conduct is assessed by comparing it with that of a normally developed child
of the same age group

- If the liability of a child of a mentally incapacitated person cannot be established

 obligation to pay damages can be based on equity according to § 829

- compulsory liability insurance (eg for motor vehicles) can be a basis for equity
liability, whereas voluntary liability insurance cannot and can only influence the
amount of damages

- § 829
 Negligence can be denied
 ENGLAND

- tort of negligence,
 liability can be excluded in the case of a mental disorder
 Waugh v James K. Allan,

> claim was dismissed against a lorry driver who had a heart attack
o he no longer had control over himself
 courts generally reluctant to dismiss claims in the case of an attack or a stroke

- Liability of children
 age is not an obstacle to liability
 no defence of infancy as such and a minor is as much liable to be sued for his
torts as is an adult

> uncontested for children around the age of 12

CONCLUDING REMARKS

 COMPARATIVE OBSERVATIONS

- Whereas negligence traditionally focuses on the tortfeasor’s duty, the focus is now
more on the claimant’s legitimate expectations. The question has become: what is the
level of safety the claimant was entitled to expect from the tortfeasor
 - a shift in focus from the tortfeasor’s duty to the claimant’s right

VIOLATION OF A
STATUTORY RULE
INTRODUCTION

 Violation of a statutory rule may, first, have an administrative law or a criminal law impact
 statutory rules play an important role in establishing liability in damages
 move to strict liability

- French and English law: claim based on the violation of a statutory rule does not
require that the defendant has acted intentionally or negligently
 the French faute, the German Rechtswidrigkeit, the English tort of breach of statutory duty
 Statutory rules include every written rule, including administrative orders, enacted by a
governmental body, be it the European Union, a Member State, or a local authority

ENGLAND

 PRIVATE RIGHT OF ACTION: INTRODUCTION

- someone can be liable for breach of statutory duty but not under the tort of negli-
gence and vice versa.

- no tort of careless performance of a statutory duty

- A claim for a breach of statutory duty

 there is a statutory duty,
 that this duty has been breached,
 that this breach has caused damage, that the legislator intended to create a
private right of action
 that the provision aims to protect the victim against the damage he suffered

- the court has to assess whether the legislator intended to confer a private right of
action for damages
 PRIVATE RIGHT OF ACTION: RELEVANT FACTORS

- remedy provided by the statute

  If the statute provides only for criminal sanctions, this indicates that the
legislator did not intend to provide a private action

- if a statute does not provide for any remedy

 action in tort is possible, particularly if the statute protects a limited class of
people

- the adequacy of pre-existing or parallel remedies provided for gives another indication

- the formulation of the statutory provision is relevant

- if the loss likely to be suffered as a result of the breach of a statutory duty is not
recoverable or only on a limited basis
 an indication that there is no private right of action

> e.g pure economic loss

 SCOPE OF THE STATUTORY DUTY

- requires that the legislator intended to create a private right of action and that the rule
aims to protect the victim

- 2 elements
 victim must belong to the group of persons the legislator aimed to protect

> Hartley v Mayoh & Co :rules were intended only to protect the
employees’ safety and not the fire- fighters’ safety
 statutory provision must aim to protect the victim against the type of damage
suffered

> Gorris v Scott: the statute was intended to protect against the spread
of disease and not the animals’ safety

- sufficient for an action for breach of statutory duty

 the claimant suffered harm of the type which the statute aimed to prevent,
even if it did not occur in a way foreseen in the statute
 NEGLIGENCE OR STRICT LIABILITY?

- If a statutory rule contains a private right of action and the duty aims to protect the
victim against the harm, liability depends on the wording of the statutory duty

- Statutory provisions canhold a duty to guarantee a certain result

 someone can be liable for breaching a statutory duty even if he had acted
carefully
 strict liability rules

-
GERMANY

 § 823 II

- someone acts unlawfully and is liable for the ensuing damage if he violates a statutory
rule that aims to protect the claimant against the damage he has suffered

- liability for pure economic loss

 § 823 I does not protect
 § 826 requires the intentional behaviour of the tortfeasor

- main requirements:
 the statutory rule protects individual interests
 the victim must belong to the group of people who are intended to be
protected by the rule
 the infringed interest must be within the scope of protection of the rule
 certain rights are only protected against infringements by certain conduct

- violation of a statutory rule establishes the violation of a codified rule

FRANCE

 violation of a written legal rule constitutes a faute

- unless the defendant can prove a ground of justification

 (a) the statutory rule does not have to intend to protect the victim or the harm he suffered
 (b) the violation of the written rule is sufficient: an additional negligence test is not required.
 scope of the statutory duty:

- Liability for violation of a statutory rule does not require that the rule aims to protect
the victim against the harm he suffered

- rejects the relevance of the scope of the rule

 Statutory duties have an absolute and not a relative character.

- moderated by the requirement of causation:

 causal connection between the loss and the violation of the statutory rule
 If a statutory provision only prohibits an attitude, such as carelessness or negligence,

- the court has to establish the faute in another way

 by establishing the violation of a pre-existing obligation or comparing the
defendant’s conduct with that of le bon père de famille
 Negligence and strict liability

- The required level of care depends on the wording of the statutory rule
COMPARATIVE OBSERVATIONS

 CONFERMENR OF RIGHTS AND PRIVATE RIGHTS OF ACTION: SCOPE AND

CAUSATION

- difference in the various relationships between the violation of a statutory rule and the
general liability rules

- FRANCE:
 violation of a statutory duty is just another way of establishing a faute

- GERMANY:
 § 823 II BGB (violation of a statutory rule) is intended to supplement the
possibilities under § 823 I BGB

- ENGLAND
 breach of statutory duty runs parallel with the tort of negligence and does not
supplement it

- Road traffic accidents:

 in France, the breach of a provision of the Code de la Route amounts ipso
facto and systematically to a tortious faute
 in England the breach of a statutory duty will not be conclusive for the
defendant’s liability under the tort of negligence

- German and French law do not require it to be established that the legislator intended
to provide potential victims with a private right of action in tort
 NEGLIGENCE OR STRICT LIABILITY?

- A statutory rule is strict if it contains an obligation to provide or guarantee a result and

does not require that the defendant acted negligently.

- In France and England, violation of such a statutory duty establishes liability unless
there is a ground of justification

- German requires Verschulden (intention or negligence) in addition to the violation of

a statutory rule, even if the rule only contains a (strict) obligation to guarantee a result

CAUSATION
INTRODUCTION

 GENERAL REMARKS
 - causation rules have all been developed by the courts

- causation is strongly influenced by the other requirements for liability

- causation is closely related to the requirement of negligence

- In the negligence test, the question is how likely it is that harm would be caused by
the negligent conduct

- in causation the question is how likely it is that the damage was caused by the
negligent conduct or by the cause for which the defend- ant is liable.

- foreseeability (knowledge) plays a role in neg- ligence as well as in causation

- Particularly in personal injury cases, this sequence does not have to be foreseeable but
this may be different for other types of harm

- the more negligently someone acts, the easier the courts tend to attribute remote or
unforeseeable consequences

- causation is influenced by the type of loss, more specifically by the character of the
infringed right or interest
 more easily established in cases of death and personal injury

- closely connected to contributory negli- gence

- burden of proof can be shifted

- ENGLAND:
 If the claimant has contributed to the damage this will lead to a reduction in
the amount of compensation to which he is entitled

ESTABLISHING AND LIMITING CAUSATION, FACTUAL AND LEGAL 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
 conditio sine qua non test

- condition without which the damage would not have occurred

- ENGLAND: ‘but for’ test

- would the damage also have occurred if the tortfeasor had not acted in the way he did?

- for the claimant:

 a difficult and sometimes impossible for proving causation if there are two or
more possible causes for his damage

- provides for an all-or-nothing solution

- accepts all events and circumstances as possible causes regardless of whether they are
 a legally relevant or irrelevant cause.

- considers all consequences as equal regardless of whether they are likely or unlikely,
foreseeable or unforesee- able, direct or remote

- The instruments used to limit the consequences

 reasonable foresee- ability, probability, scope of the rule, and the directness of
the consequential damage

- protection of personal injury victims is considered to be of greater importance than the

protection of someone who only suffers property loss or pure economic loss

- considered to focus on factual causation, whereas the issue of limiting causation is

signified by legal causation

- not all causes of the damage are considered relevant, only those relating to negligent
conduct or the cause for which the defendant is liable

CAUSATION IN THE LEGAL SYSTEMS

 GERMANY

- 2 aspects of causation
 causation that establishes liability § 823 I BGB

> liability-founding causation refers to the relation between the conduct

and the infringement of a right

> requires full proof and effective certainty that the defendant’s conduct
caused some form of harm § 286 ZPO
 that determines the extent of liability

> refers to the relation between the infringement of a right and the
ultimate damage

> effective certainty that the accident caused the damage is not
required; it is sufficient if the court has a rational and reasonable level
of conviction of causation between the loss and the damage

- legal causation – adequacy theory

 probability element plays a predominant role
 the defendant is only obliged to compensate harmful consequences that were
reasonably expected or foreseeable or not very unlikely to the objective and
optimal observer
 ‘filter’ in order to establish which consequences should be the burden of the
defendant.
  reasonable expectation
 during the course of the twentieth century, the German doctrine and courts
have developed the scope of the rule theory

- Scope of the Rule

 focuses on the question whether it was the purpose of the violated rule to
protect the victim against the damage he has suffered
 protective scope theory
 quite unlikely consequences can also be attributed to the defendant
 Remote consequences are attributed to the defendant, unless they are the
materialization of the general risks of life

> consequences of the more serious harm will generally be attributed to

the first defendant

- not real causation theories but tools to establish the consequences for which the
defendant has to answer
 ENGLAND

- factual causal connection between the defendant’s negligent conduct and the vic-
tim’s damage
 established on the basis of:

> ‘but for’ test

> ‘balance of probabilities’ test

 whether the damage would have occurred but for the defendant’s act.
 it needs to be more likely than not that the dam- age occurred as the
consequence of the defendant’s act
 liability is established when the probability is over 50 per cent

- Issue of limiting causation

 legal causation or remoteness of damage
 The Wagon Mound (No. 1)

> the harmful consequences were too remote because they were
unforeseeable to a reasonable person

> damage caused by pollution was foreseeable, but damage by fire was
not since it was established not to be foreseeable that fuel oil spread
on water would catch fire

> it is not necessary that the total extent of the damage was foreseeable
 The Re Polemis
 > foreseeability of some damage resulting from allowing a plank to fall
was sufficient for causation

> foreseeability of consequences is often accepted even if they occur in

an unusual way
 Personal Injury cases

> as long as some form of personal injury or harm was foreseeable,

the extent of the damage is no longer relevant

> it is sufficient if the accident which occurred is of a type which

should have been foreseeable by a reasonable careful person . . . ; the
precise concatenation of circumstances need not be
 duty of care is conditional upon there being sufficient ‘proximity’ between the
parties prior to the commission of the tort, and whether it would be ‘fair, just,
and reasonable’ to impose a duty of care

 FRANCE

- Causation must be certain and direct article 1151 CC

- probability of damage seems to have played a decisive role in establishing causation

- the rule’s scope was to protect against personal injury but not against property loss.6
 EUROPEAN UNION

ESTABLISHING CAUSATION: SHIFTING THE BURDEN OF PROOF

 GERMANY

- burden of proof as regards causation is on the claimant

- the claimant proves the relationship between the conduct and the infringement of a
right with effective certainty

- res ipsa loquitur and prima facie evidence,

 refers to the idea that if the facts speak for themselves the court may decide
that causation is so likely that it is assumed unless the defendant can rebut it
or prove the opposite

- reversal rule
 If the claimant has proved that the defendant has acted negligently
 up to the defendant to rebut this assumption or to prove that the accident
would still have occurred if he had not acted negligently.
 FRANCE
 - places the burden of proof upon the claimant

- flexible approach
 allowing the claimant to establish causation by a method of proof by
exclusion
 logic of negative deduction.

> showing that there were no possible causes other than the procedure
itself,

> rebuttable
 legal policy presumption

> irrebuttable
 give the claimant the benefit of the doubt
 ENGLAND

- more likely than not test: causation is established if the probability is over 50 per cent.

- does not accept the reversal of the burden of proof as a rule

- the claimant may rely on the possibility that the court accepts the proven facts as
prima facie evidenc
 causation is so likely that it is assumed unless the defendant can rebut it or
prove otherwise

- ‘material contribution to the damage’ - alternative to the but for test

 beneficial if there is more than one possible cause for the damage

- ‘material contribution to the risk’

 applied if the claimant is not able to prove that the tort has materially
contributed to his damage
 contributed to the risk of suffering damage
 “It is a sound principle that where a person has, by breach of duty of care,
created a risk, and injury occurs within the area of that risk, the loss should be
borne by him unless he shows that it had some other cause’”
 English law does not hold a general reversal rule but it is more victim-friendly
by establishing causation using the ‘more likely than not test and the material
contribution tests

MORE THAN ONE POSSIBLE CAUSE

 COMPARATIVE OVERVIEW

- the victim’s problem is to prove causation by identifying the person who caused the
 damage

- when it is certain that more than one person has caused the same damage
 both defendants can argue that the conditio sine qua non test is not met

> since the damage would have occurred in any event because of the
other tortfeasor’s conduct

- when two independent events did not cause the same dam- age
 each of them is liable only for the damage he caused
 GERMANY

- § 830 I 1 BGB

- when two or more persons have caused injury through an unlawful act which they
committed jointly, they are jointly and severally liable for the damage
 requiring that the participants knowingly and intentionally cooperated to
cause the damage

- § 830 I 2 BGB

- holds tortfeasors severally liable if, independently from each other, they could have
caused the same damage and it cannot be established which one of them has caused
the damage
 intentional cooperation is not required
 FRANCE

- faute collective
 damage caused by more than one possible tortfeasor
 victim does not have to identify all possible tortfeasors
 victim can confine himself to suing just one (insured or solvent) tortfeasor and
recover the total damages from him.

- if 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
 ENGLAND

- joint tortfeasors
 if two persons cause the same damage and they acted with a common design

> each defendant is liable to pay 100 per cent compensation

 the claimant can choose which defendant he wishes to sue

- If the claimant suffers a divisible injury

  each negligent act causes further harm
 each defendant pays only for his share of the injury

- ‘material contribution to the risk’ test

 the tortfeasors are only proportionally liable for the risk they created

-
 ILLUSTRATION: DES

- German and French law provide specific rules to reverse the burden of proof

- English law, the victim may rely on the material contribution test

- (a) that the summoned manufacturers had put DES into circulation during the relevant
period and that they had acted unlawfully by doing so

- (b) that other producers had also put DES into cir- culation during the relevant period
and that they were also liable for doing so; and

- (c) 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

- If these requirements were met, the summoned parties were jointly and severally
liable

SUCCESSIVE CAUSES

 SECOND EVENT WOULD HAVE CAUSED SAME DAMAGE AS FIRST EVENT

- cases in which the events occur succes- sively or in which at least a sequence of
events can be distinguished

- first tortfeasor remains liable for the claimant’s damages even if the second tortfeasor
would have caused the same damage

- GERMANY
 the problem is dealt with under the heading of overtaking causation

- Baker v Willoughby
 held that the damage caused to Baker by the first defendant was not so much
the leg injury as such but his loss of earning capacity, and that loss had barely
increased because of the amputation

- 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

- periodical payments can be adapted to the subsequent developments

 SECOND EVENT INCREASES DAMAGE CAUSED BY FIRST EVENT

- 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

- If the second event is too remote from the first, the second tortfeasor may be solely
liable for the aggravated damage
 if too much time has elapsed between the first and second event

THE LOSS OF CHANCE

 FRANCE

- applied to a lost chance of profit

- it is required that the loss of the chance was real and that the causal connection
between the defendant’s conduct and the loss of the chance was clear.
 ENGLAND

- applied in contrac- tual relationships in relation to financial loss

- not applicable in medical negligence cases

 GERMANY

- refused to apply the tenet of the loss of a chance

- alternatives available
 the claimant’s burden of proof can be relieved on the basis of prima facie
evidence
 the reversal rule may apply

- 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
 COMPARATIVE OVERVIEW

- future damage is based on an estimation of the victim’s future chances in relation to

his (financial) prospects

- French tort law generally acknowledges the possibility of awarding the claim for the
 loss of a chance to win or the loss of a chance not to lose. the tortfeasor is liable for
the amount of damage that corresponds with the loss of the chance he has caused.

- English law applies the rule in cases of financial loss but not in cases of physical
harm, including medical negligence.

- German law only applies an all-or-nothing rule.

- Medical negligence cases:

 ENGLAND: the claimant will get full compensation on the basis of the ‘more
likely than not’ test if the claimant’s loss of a chance was over 50 per cent
 GERMANY: the claimant can only benefit from a reversal of the burden of
proof if the chance of successful treatment was greater than 50 per cent in
cases where the doctor acted grossly negligent

UNEXPECTED AND UNLIKELY CONSEQUENCE

 PRINCIPLE AND CONFUSION

- in French law: direct cause

- English law :foreseeability

- German law: adequacy, scope of the rule, and sphere of risk

- 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 if the
damage was caused after an unlikely sequence of events
 the way somathin occurs is considered irrelevant

TORTFEASOP TAKES VICTIM AS HE FINDS HIM

 the defendant also has to answer for the consequences of the claimant’s vulnerabilities and
predispositions, even if he is extremely vulnerable
 victim may be contributorily negligent if he has not taken reasonable measures to protect
himself against his vulnerability

DAMAGE AND DAMAGES

INTRODUCTION

 OVERVIEW

- he right to get compensation for the harm suffered as a conse- quence of the
 defendant’s negligent or intentional conduct or of a strict cause

PURPOSES

 PREPARATION AND COMPENSATION

- Damage
 a general requirement for liability in damages

- Remedy
 the defendant’s obliga- tion to pay the claimant a certain amount of money in
order to repair the harm done
 If someone suffers personal injury, the tortfeasor has to pay the victim’s costs
of medical treatment and his loss of income and/or loss of earning cap- acity
 RECOGNITION, VINDICATION, AND SATISFACTION

FEATURES OF THE LEGAL SYSTEMS

 FRANCE

- someone has suffered damage,

- damage was suffered in a legitimate interest

- it was certain and personal to the claimant

- damage needs to be very likely

- interpretation of faute which does not focus on the duty of the tortfeasor towards the
victim, as is the case in English law (Section 503), nor on the question of whether the
victim suffered damage as the consequence of the infringement of a protected right, as
is the case in Germany

- the amount of damages as a factual matter which cannot be challenged

- Compensation for non-pecuniary loss may be granted for personal injury,41 for the
death or serious injuries of a loved one (Sec- tion 1206-3), and even for the death of a
beloved animal.
 GERMANY

- there is no right to compensation for non-pecuniary loss unless a statutory provision

so provides.

- § 253 II, allowing damages for non-pecuniary loss in cases of infringement of the
claim- ant’s right to bodily integrity, freedom, health, or sexual self-determination.
 ENGLAND

- provides a broad spectrum of damages:

  pecuniary and non-pecuniary, general and special, nominal and substantial,
compensatory and punitive

- tort of negligence, require that the claimant has suffered a loss

PERSONAL INJURY

 FUTURE DAMAGE

- continuing damage which will mainly consist of lost earnings following from the fact
that the victim is no longer able to work or to work at the same level of income or the
same number of hours

- In England, the non-revisable once-and-for-all award is still the rule

- Germany: adheres to revisable periodical pay- ments which follows from § 843 I BGB

- France: courts are free to choose between a lump sum and a periodical payment
 revision is possible if it is favorable to the claimant

NON-PECUNIARY LOSS

 COMPARATIVE OVERVIEW

- Germany, this head of damage is generally known as immaterieller Schaden

(immaterial damage)

- France: moral damage

 distinguishes between mental suffering, aesthetic damage, loss of leisure

- ENGLAND:
 distinguishes between pain and suffering and loss of amenity

- GERMANY:
 Non-pecuniary loss
 Compensation and satisfaction

- English law generally sets higher thresholds for establishing liability than French law,
once liability is established the sums awarded in the English system are significantly
more generous.
 UNCONSCIOUSNESS

- FRANCE: awards damages for non-pecuniary loss, that is, pain and suffering, as well
as loss of amenity, to victims who are fully unconscious or in a coma

- GERMANY: awards damages for non-pecuniary loss to an unconscious victim

- ENGLAND: provides compensation for loss of amenity but not for pain and suffering
FAMILY TIES

 INTRODUCTION

- third parties may also suffer damage

 e.g the parents, the partner, the children, and other relatives of the victim
 secondary victims, rebound victims

- secondary victim’s loss:

 costs of the funeral
 loss of maintenance
 non-pecuniary loss (grief and sorrow)
 and mental harm

- In all 3 legal systems:

 the tortfeasor of a fatal accident is obliged to pay for the costs of the funeral
or cremation
 have created possibilities for concluding some form of registered partnership
 LOSS OF MAINTENANCE

- § 844 II BGB
 only persons whom the deceased had a statutory duty to maintain have a right
to compensation from the tortfeasor.

> spouse (§ 1360),

> registered partner

> children (§ 1601 ff )

> adopted children (§ 1766)

> Registered partnerships are only possible between persons of the

same sex
 The amount of compensation is generally paid as a periodical payment

> determined by the amount the deceased was obliged to pay, relative to
his income

- ENGLAND
 a right to compensation of the costs of maintenance
 for the spouse and the former spouse, children, stepchildren, and foster
children as well as the partner
 immaterial whether the deceased was obliged to maintain the relative. The
relative also has a right to compensation if the deceased paid for maintenance
 on a voluntary basis

- FRANCE
 case law requires that the infringed interest was legitimate and that the
damage was certain and directly caused
 does not require that the deceased had an obligation to maintain the claimant
but that it is sufficient if he in fact maintained him

- The Draft Common Frame of Reference (DCFR) and the Principles of European Tort
Law (PETL)
 both suggest a right to compensation to the natural person whom the deceased
maintained or would have maintained if death had not occurred
 NON-PECUNIARY LOSS CAUSED BY DEATH OF A LOVED ONE

- If relatives do not have a claim for loss of maintenance

 for example if a child dies as the consequence of an accident, compensation of
non-pecuniary loss will be particularly importan

- Claims for non-pecuniary loss for the loss of a loved one are strongly related to claims
for mental harm owing to such loss

- GERMANY:
 no damages are awarded for non-pecuniary loss following the death or severe
injury of a relative

- ENGLAND:
 the closest relatives of a person who died as the result of an accident for
which another person was liable, are entitled to so-called damages for
bereavement
 damages for bereavement shall only be for the benefit of the spouse,
registered partner, and parents of a minor who was never married
 The list of persons entitled to bereavement damages does not include

> the fiancé(e), unmarried and unregistered partner, or children of the

- FRANCE:
 no limited list of relatives who are entitled to damages
 damages for a so-called perte d’affection are not only granted to the
deceased’s relatives by blood or marriage,127 but also to his fiancé(e),128 his
unmarried partner, and his registered partner
 claim for non-pecuniary loss for the relative of someone who is injured

- .

REDUCING THE AMOUNT OF DAMAGES

  COLLATERAL BENEFITS

- Tort systems try to avoid overcompensating the victim

- courts aim to deduct collateral benefits from an award of damages where this is
appropriate

- The general rule is that payments made to the victim which are intended to be a sub-
stitute for damages, and which are awarded in respect of an identical loss, are deduct-
ible

- char- itable donations are deemed non-deductible

CONTRIBUTORY NEGLIGENCE

 INTRODUCTION

- questions of contributory negligence or risk are of major importance

- the consequence of the victim’s negligence is that he cannot claim com- pensation for
the full loss he suffered:
 the court will reduce the amount of damages

- The key question is whether the claimant ‘did not in his own interest take reasonable
care of himself and contributed, by want of his care, to his own injury’.

- decisive whether the claimant behaved as could have been expected from a reasonable
person in the given circumstances.

- ENGLAND
 reasonable test applies to both defendant and claimant
 defence of contributory negligence

- GERMANY:
 contributory negligence can be established if the claimant has acted
negligently as regards his own interests
 an objective test of the victim’s conduct: the conduct of a careful person of
average circumspection and capability is decisive

- FRANCE:
 contributory negligence (la faute de la victime) can also give rise to a lower
level of compensation and can even leave the victim empty-handed if the
defendant can prove that the victim’s conduct was the only cause of the
damage, which means that it must have been unforeseeable and unavoidable
 CONTRIBUTORY RISK

- other causes for which the claimant has to answer may reduce the amount of the
 damages awarded

- Rules of strict liability for persons and movable objects are relevant

- FRANCE:
 victim’s contributory negligence is not influenced by the strict liability for
things
 only the victim’s fault can amount to contributory negligence
 CHILDREN

- the possibility of invoking contributory negligence against a young victim is limited

- GERMANY,
 children under the age of 7 cannot be contributorily negligent.
 For children under the age of 10, the same holds true for accidents involving
motor vehicles, railways, or ski lifts.
 Children under the age of 18 cannot be contributorily negligent if they have
insufficient understanding of their behaviour
 Unconscious persons and the mentally incapacitated can- not be contributorily
negligent

- ENGLAND
 whether the child ‘is of such an age as reasonably to be expected to take
precaution for his or her own safety’

- FRANCE
 omparing the conduct of the child victim to that of the good family father
 road traffics

> contributory negligence of the child is excluded

STRICT LIABILITY
INTRODUCTION
INTRODUCTION

 SUPERVISING PERSONS

- if someone bears responsibility because he has a duty to supervise objects or

persons
 this in itself does not imply liability
 - Someone is responsible if he owes a duty to supervise objects or persons or if a rule
of strict liability applies to him

- Someone can only be liable if he has breached this duty or if the requirements for
strict liability are met
 LIABILITY FOR LACK OF INFORMATION AND DEFECTIVE INFORMATION

- responsibility for information

- duty to warn can be of pivotal importance

- Incorrect information published in the media can also infringe the honour, reputa- tion,
or privacy of a person

LIABILITY FOR MOVABLE

OBJECTS
INTRODUCTION

 OVERVIEW

- The legal systems hold various strict rules in relation to liability for movable objects
 If no such specific rule exists, liability for damage caused by a movable object
has to be based on the defendant’s fault

- France and Germany also provide for a general strict liability for damage caused by
motor vehicles

- The most harmonized 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 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

- FRANCE:
 1384 al. 1 containing a strict liability regime for things
 special strict liability regimes apply to specific things, particularly for animals,
motor vehicles, and products
 No specific rule applies to liability for damage caused to the environment and,
in these cases, the general strict liability rule is of great importance
 - GERMANY:
 the judicial safety duties are of great importance for liability for damage
caused by movable objects
 animals, products, motor vehicles, and environmental liability)

> covered by specific strict liability regimes

- ENGLAND
 tort of negligence is the tort that will often be applied in cases of liability for
damage caused by movable objects
 does not have a strict liability regime for damage caused by motor vehicles
and only a very limited strict rule for damage caused to the environment

- environmental damage
 law of neighbours

ANIMALS: NATIONAL RULES

 ENGLAND

- The English Animals Act 1971

 Liability regimes in the Animals Act differ according to the type of animal
causing damage
 limited strict liability rules
 in many cases, decided on the basis of tort of negligence

- Strict liability
 applies to damage caused by livestock straying onto another person’s land
 damage caused by dangerous animals which are usually not domesticated in
the British Isles
 damage caused by dogs that kill or injure cattle

- less strict rule

 damage caused by non-dangerous animals under
 s. 2(2): a keeper is strictly liable if the animal has posed a risk of severe
damage, a risk that is attributable to the animal’s abnormal characteristics
‘which are not normally so found except at particular times or in particular
circumstances’ and those characteristics were known to its keeper.

- Generally, 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
 GERMANY § 833 BGB
 - liability regime also varies according to the type of animal causing the damage

- Strict liability
 applies to damage caused by a luxury animal (Luxustier) and

- negligence liability
 with a reversed burden of proof to damage caused by a Nutztie

- A Nutztier:
 is a domestic animal serving the business, income, or prosperity of the
keeper

- Luxustier
 is every other animal that does not serve these economic purposes

- In both rules, the keeper of the animal is the liable person

 the person who has, for his own interest and for a certain duration,
supervision of the animal

- The aim of the statutory rules

 protect against specific animal risks, that is, death, personal injury, and
property damage caused by the specific danger inherent in keeping an animal

- strict liability
 on hunting associations for property damage in their hunting districts caused
by game
 FRANCE: article 1385 CC

- 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

- the animal must be appropriated

- absorbed into the general strict liability for things of article 1384 al. 1
 the custodian (gardien) is liable for the damage caused by the animal, unless
he can prove force majeure
 COMPARATIVE OBSERVATIONS

- in all legal systems strict regimes apply to lia- bility for damage caused by animals

- The English and German systems relate liability rules to the nature of the animal
 English law: potential risk
 German law: luxury and utility animals

- chiildren generally cannot be keepers

- Damage caused by ‘wild’ animals

 not covered by strict nor negligence liability
  no supervisor, keeper or owner
 e.g wild animals running on the street – owner of the premises duty to warn

- German law: risks covered are limited to specific animal risk

- England: abnormal character of the animal

- Defence in all 3 legal system: contributory negligence

MOTOR VEHICLES: NATIONAL RULES

 FRANCE
- LOI BADINTER
 almost absolute liability for road traffic accidents:
 pedestrians, cyclists, and passengers almost always have a right to
compensation for damage caused by an accident in which a motor vehicle
was involved
 The custodian (gardien) or driver of the motor vehicle can only avoid liability
by proving the victim’s intentional conduct or an inexcusable fault
 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

> on the sole ground that the motor vehicle was involved in the accident

> unnecessary to establish that this implication was also the cause of
the damage
 1384 al. 1

> If there has been no contact between the car and the victim, it is
required that the car played an active role
 Article 2

> excludes force majeure and the act of a third party as defences
against liability for personal injury.
 Article 3(1),

> the driver and the custodian of the motor vehicle can only escape
liability if they prove that the victim intentionally sought the damage or
that the victim’s inexcusable fault was the sole cause of the accident.

> inexcusable fault does not apply to per- sons under the age of 16,
persons older than 70, and persons who already have more than 80
per cent disability (Defence of intentional conduct)
 If the driver of a motor vehicle suffers damage from a road traffic accident

> entitled to compensation against the other driver or custodian of a

motor vehicle
  Act only applies to accidents
 GERMANY: ROAD TRAFFIC ACT

- the keeper of a motor vehicle strictly liable for damage caused by the risk of its
operation, unless he can prove an external cause

- The keeper is the person who has supervision of the motor vehicle, the owner

- The strict liability rule does not apply to the driver who is not also the keeper of the
vehicle

- the driver is liable unless he proves that he did not cause the damage intentionally or
negligently
 reversed burden of proof

- .
 ENGLAND

INTERNATIONAL PERSPECTIVE

 COMPARATIVE OBSERVATIONS
 EU LAW

PRODUCTS

 EUROPEAN PRODUCT LIABILITY DIRECTIVE

LEVEL OF HARMONIZATION

 NO HARMONIZATION OF THE LAWS OF DAMAGES

 PREVIOUSLY EXISTING LIABILITY REGIMES

WHEN IS A PRODUCT DEFECTIVE

 RELEVANT PROVISIONS
  CASE LAW

DAMAGE

DEFENCES

 GENERAL OBSERVATIONS
 RISK DEFENCE
 LIMITATION AND EXTINCTION PERIODS

OTHER REQUIREMENTS FOR LIABILITY

DANGEROUS SUBSTANCES, NEIGHBOURHOOD LAW AND ENVIRONMENTAL LIABILITY

 INTRODUCTION

GERMANY

 LAW OF THE NEIGHBORS

 ENVIRONMENTAL LIABILITY ACT AND WATER RESOURCES ACT

ENGLAND

 PRIVATE NUISANCE
 RYLAND V FLETCHER AND BREACH OF STATUTORY DUTY

FRANCE

 TROUBLE DE VOISINAGE
 ARTICLE 1384 AL. 1 CC AND VIOLATION OF A STATUTORY RULE

INTERNATIONAL PERSPECTIVE

 COMPARATIVE OBSERVATIONS
 INTERNATIONAL LAW
 EU LAW
 ARTICLE 8 ECHR

CONCLUDING REMARKS

 COMPARATIVE OBSERVATIONS
LIABILITY FOR IMMOVEABLE
OBJECTS
NATIONAL RULES

 INTRODUCTION

FRANCE

 STRICT LIABILITY FOR COLLAPSING BUILDINGS

 GENERAL STRICT LIABILITY FOR THINGS

GERMANY

 LIABILITY FOR COLLAPSING BUILDINGS

 VERKEHRSPFLICHTEN

ENGLAND

 OCCUPIERS’LIABILITY ACT
 PUBLIC NUISANCE

NEGLIGENCE AND STRICT LIABILITY

 RELATIONSHIP BETWEEN NEGLIGENCE AND STRICT LIABILITY

COMMON ISSUES IN NEGLIGENCE AND STRICT LIABILITY

 LIABLE PERSON
 CHARACTER OF THE PREMISES
 UNAUTHORIZED VISITOR
 NEGLIGENT VISITORS
 PROTECTING VISITORS AGAINST EACH OTHER

ROADS

 ROADS: ENGLAND
 ROADS: FRANCE
  ROADS: GERMANY
 LIABILITY OF HIGHWAY AUTHORITIES

COMPARATIVE REMARKS

LIABILITY FOR OTHER PERSONS