Week 2: Fault Liability

WEEK 2 : FAULT LIABILITY English fault liability rules 1. Common law torts and statutory torts There are dozens of torts that are mainly based on fault liability. • common law torts (=judge made torts): tort of negligence (unintentional conduct) and trespass to person torts: battery and assault (intentional conduct required) • statutory torts: Occupiers Liability Acts 2. The tort of negligence - Duty of care: Was there a duty owed by the defendant to the claimant? o Is there a precedent in the case law? o General principle: If someone actively causes foreseeable personal injury or property loss to another, he owes that person a duty of care (=Donoghue v. Stevenson principle). o Caparo test: last resort for novel situations (Caparo v. Dickman 1990) § Foreseeability of type of harm (not the specific damage) § Proximity of relationship between the tortfeasor and the victim § It must be fair, just and reasonable to impose a duty of care The 1st and 2nd requirements reflect Lord Atkin’s speech in Donoghue. The 3rd requirement limits the scope of Lord Atkin’s speech. - Breach of duty: negligent conduct ≠ reasonable person’s conduct - Causation: was the claimant’s damage caused by the breach of duty? - Damage: did the claimant suffer damage? 3. The tort of battery This tort protects the right to physical integrity and personal sphere. - Intentional touching of another person o No usage of force is needed o The touching needs to be intentional, the damage not - Defenses: o Consent defense - Medical treatment can be a battery if no consent is given. There could be implied consent (ex: innocent touching at busy places, sports…) o Self-defense o Necessity 4. The tort of assault This tort protects a person’s security and mental integrity. The basic idea of assault is to cause another the apprehension of an imminent battery. There is no touching involved. The defenses that can be used are self-defense or consent (ex: going to a horror park is giving consent to being scared, which can be seen as assault). French fault liability rules Any act whatever of man which causes damage to another obliges the one by whose faute it occurred to compensate it. (Art. 1240 CC) - Faute ≠ reasonable person’s conduct (personne raisonnable) - Damage caused - Causation between the faute and the damage (lien causal) WEEK 2 : FAULT LIABILITY German fault liability rules A person who intentionally or negligently infringes the life, body, health, freedom, property of another right of another person in an unlawful way is liable to pay compensation to the other party for the damage arising from this. (823 BGB) Requirement for fault liability (unlawful act): - Violation of a special rule (Tatbestand): o § 823 (1): infringement of a right o § 823 (2): breach of a statutory duty o § 826: intentional conduct contrary to social principles - Unlawfulness: the tortfeasor actively did it unless there is a special justification. - Fault: intention or negligence - Damage suffered by the claimant - Causation between the fault and the damage