Bonus Assignment

Comparative Tort Law – Prof. S.E. Weishaar & Prof. A.J. Verheij
LL.M International Commercial Law (2019-2020)

Niken Astiningrum, S3694534

England

On a rainy and windy day, shortly after lunchtime on 20th April 1937, Mrs. Daniel was
walking with an open umbrella on the pavement. Suddenly, she stepped into a hole, the open
coal cellar of the adjacent house. The coal supplier, working on his own, had opened the
hatch to bring the first sack of coal from his lorry. He had seen the claimant coming, but
turned his back to her in order to grab the sack. In this action he left the uncovered cellar
hatch ungraded for a second. This very moment Mrs. Daniel stepped into the hole, the
supplier shouted a warning but it was too late.

Analysis:

In the English tort of negligence, the key requirement for negligent conduct is not the duty of
care but the breach of duty. The breach test focuses on the question whether the defendant
exercised sufficient care towards the claimant. A breach of duty is generally established by
comparing the conduct of the defendant with that of a reasonable man. The classical
description of this mythical person is by Alderson B in Blyth v Birmingham Waterworks,
decided in 1856: ‘Negligence is the omission to do something which a reasonable 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 generally accepted that the negligent character of the defendant’s conduct has to be
established by balancing the expected risk, on one hand, and the precautions, on the other:
‘As the danger increases, so must the precautions increase.’ This balancing of care and risk
reflects the general task of tort law to balance freedom and protection. The level of risk can
be determined by: (a) the seriousness of the expected damage and (b) the probability that an
accident will happen. And the level of care can be broken down into: (c) the character and the
benefit of the conduct and (d) the burden of precautionary measures.

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A clear illustration of the four-factor approach is the English case of Bolton v Stone in which,
during a cricket match, the ball was hit over a house neighbouring the ground and into a street
where it injured the claimant. During the previous 30 years the ball had been hit into the
street only six times. The House of Lords dismissed the woman’s claim, holding that the risk
was foreseeable but taking such a small risk did not amount to negligence. Lord Reid said:
‘the test to be applied here is whether the risk of damage to a person on the road was so small
that a reasonable man in the position of the appellants, considering the matter from the point
of views of safety, would have thought it right to refrain from taking steps to prevent the
danger.’ Based on the consideration that the risk in this case was very small, the woman’s
claim was dismissed.

However, what happened in Bolton v Stone is not the same with the given case. Referring to
the case, the defendant had seen the claimant coming on his way when he opened the
coal cellar, but he decided to keep the cellar open—a result of his ill judgment that he
might still have some time to warn the claimant about the opened coal cellar. It means that
the defendant was aware of the probability that accident will happen. The defendant is
also expected to understand the damage that can occur to a person who accidentally falls
into the coal cellar.

The conduct of the defendant to let the coal cellar opened is acceptable given the reason that
he was bringing the first sack of coal from his lorry. Nonetheless, it should not hinder him
from taking precautions to stop his work for a while and close the coal cellar and/or warn
the claimant who was coming onto his way, especially the fact that he saw the claimant was
using an umbrella that might lessen her focus on the pavement/ground where she walked. It
could be easily argued that a reasonable man in his position would do exactly the opposite, or
that a reasonable man should take precautions to warn the claimant even though the claimant
was still, for example, ten metres away.

The defendant conduct of belittling the risk that someone may fall into the coal cellar that he
opened is a breach of duty, especially because he had seen the claimant coming on his way.
In this case, the defendant shall be liable to compensate the claimant’s injuries caused by her
fall into the opened coal cellar. Although there are many factors and elements that play a role
and they all vary in weight in order to assess whether someone has acted with due care,
according to the given case, it is hardly possible to justify the defendant’s conduct that causes
the claimant’s fall to his coal cellar.

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France

Mr Popoff fell into the cellar when entering a Café-Tabac owned by Mr. Bouchede. A hatch
had been opened due to the delivery of certain goods.

Analysis:

First of all, Mr. Popoff needs to prove that there is damage due to the fact that he fell into
the cellar when entering Mr. Bouchede’s Café-Tabac. In accordance with Article 1240 of the
French Civil Code that states: “Any human action whatsoever which causes harm to another
creates an obligation in the person by whose fault it occurred to make reparation for it”,
there must be ‘harm’ that Mr. Popoff suffers. If for instance Mr. Popoff did fall into the cellar
but for some reason he did not suffer from any damage, pain, or other form of harm, then he
would not be able to claim for damage for this matter, or to claim that someone is being liable
for his condition.

Should Mr. Popoff suffer from damage, for example, a broken leg, then secondly it must be
established as whether or not that damage is caused by a ‘human action’. In the given
case, it is said that a hatch had been opened due to delivery of certain goods. It means that the
opened hatched was indeed caused by a human action. Someone in Mr. Bouchede’s Café-
Tabac opened the hatch in order to taking care of delivery of certain goods—although it
might not be necessarily Mr. Bouchede himself.

Article 1242 of the French Civil Code states: “One is liable not only for the harm which one
causes by one’s own action, but also for that which is caused by the action of persons for
whom one is responsible, or of things which one has in one’s keeping.” In addition to that,
French law holds employers (commettants) and principals (maîtres) strictly liable for damage
caused by a faute of their employees (préposés) or servants (domestiques) committed in the
course of the function for which they were employed (art. 1242 al. 5). Employers and
principals are strictly liable without any defense apart from the victim’s contributory
negligence. Liability of principals dates from the time when servants lived with their masters
although this is no longer required for the principal’s liability

In such case, whether it was Mr. Bouchede or his employee or his staff who opened the hatch,
the person who will be liable for the damage that Mr. Popoff suffers is Mr. Bouchede,
presuming that the hatch is still located in the the Café-Tabac owned by Mr. Bouchede.

However, if the hatch that was opened is considerably large and should be visible by any
visitor in Mr. Bouchede’s Café-Tabac, then Mr. Popoff might commit negligence himself by
not taking sufficient care whilst walking (assuming that Mr. Popoff does not have anything
hindering his vision or risk judgment of the opened cellar). This could also become a defense
for Mr. Bouchede, that Mr. Popoff contributed negligence to his own accident, which then
makes Mr. Bouchede not liable in the given case.

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Germany

At a primary school in the north of Germany there was an underground emergency exit,
leading to the schoolyard beside the playground, covered by a metal hatch of 70x80cm. The
hatch was not locked; however, it was hidden behind bushes. The emergency exit could also
be reached from outside the school and from the playground. During the summer holidays of
1995, children playing on the schoolyard opened the hatch. Since the hatch was very heavy a
seven-year-old boy lost his balance and fell down the chute (3 meters) leading to severe
injuries.

Analysis:

In Germany, the general rule for tort is regulated under § 823 I and II German Civil Code
(BGB) that state as follows:
(1) A person who, intentionally or negligently, unlawfully injures the life, body, health,
freedom, property or another right of another person is liable to make compensation to
the other party for the damage arising from this.
(2) The same duty is held by a person who commits a breach of a statute that is intended to
protect another person. If, according to the contents of the statute, it may also be
breached without fault, then liability to compensation only exists in the case of fault.

In accordance with the provisions above, it is clear that in this case, injures to a body has
happened to the seven-year-old boy. The next thing that needs to be established is that
whether or not the action that caused injury to the boy is an unlawful action, and is done
either intentionally or negligently by a person.

As a matter of fact, the heavy hatch that was opened by the boy is an emergency exit hatch,
which logically cannot be locked from the outside. The thing that had been done is to cover
the hatch with bushes, hoping that no one will find it or use it not in accordance with its
purpose. It means that there was no intention whatsoever to cause the boy to fall. However, it
still can be an unlawful and negligent act to let a seven-year-old boy discover the hatch.

The most important way to establish unlawfulness is by proving that one of the rights listed in
§ 823 I BGB is infringed. Referring to the case, it is clear that severe injuries have occurred,
which are injuries to the body (and may be health as well) of the boy. It then can be
established that an unlawful conduct has been committed.

As for the negligence, § 276 II of the BGB defines it as conduct contrary to the care required
in society. There might be different opinions on whether or not the action of installing the
heavy hatch as for emergency exit in the school playground is contrary to the care required in
society. A hatch for emergency exit should be easily accessible from the inside, because that
is the very purpose of having an emergency exit. Someone with limited strength should be
able to operate it from the inside to get to the outside. An emergency exit hatch, in my
opinion, should also be opened from the outside, in case a dangerous event had happened and

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the people who got trapped inside do not have sufficient strength to open the hatch from the
inside and need help from rescue team from the outside. If this is the case, then such hatch is
supposed to be sufficiently heavy enough that it shall require at least a full-grown man to
open it from the outside. Or in another words, I would say that the hatch should not be too
light that a mere seven-year-old boy could open it.

Assuming that a hatch with that kind of feature is difficult to get and install, then a warning
sign should be placed around the hatch. Such warning sign should also be written in large
and clear letters that can be understood by children, considering that it is located in a
schoolyard. There might be an argument that hiding the hatch behind the bushes is adequate,
but apparently it is not since a seven-year-old boy could easily get through them and found
the hatch. If warning sign is deemed to be exaggerated as it may attract even more curiosity
from the children, then the bushes have to be kept thick enough that a child cannot
penetrate them. This opinion is provided on condition that the seven-year-old boy is a
normal-postured boy with an attitude or behaviour that is commonly found in boys his age in
Germany. According to these explanations, then negligence had indeed been committed.

In conclusion, the school or the management of the school who have installed the emergency
exit hatch shall be liable for the seven-year-old boy’s injuries as they should have taken
further measure to ensure that a child could not find the hatch or let alone open it.

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