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Damages
TOPIC 1: FUNDAMENTALS OF THE LEGAL DISCOURSE AND OVERVIEW OF
TORT LAW REMEDIES
Structuring legal discourse:
1. Issue first thing to identify (2 lines). After identify if the damaged can get a
comparation or was acting negligently.
2. Rules will be conditioned by the little issues that we said before.
a. Law there’s basically the articles 1902 and 1903 CC. All the rest of the course,
depending on the area, we will have to go to the special law of that area.
b. Case law VERY IMPORTANT!
c. Doctrine
3. Analysis what we did before, we need to apply to the case. We have to connect what
we already discussed to the case.
4. Conclusion
Perspective analysing case: ex ante/ex post
Ex post: determinate liability and legal responsibility what the issue has a already occurred subject of compensation.
Ex ante: not only solves the case but to send a message to found civil individuals that may act in the same way.
The element involved in ex ante and ex post is different.
Internalization I want individuals to internalize the consequences of the contact, and that is the ex ante approach. The idea is if I send these messages the individuals will consider if it’s good for them to do it or not.
What do we mean by tort law?
Under tort there’s contracts that know each other, but parties generally don’t know each other. When we have a contract we are agree of the terms of the relationship, so eventually we know that the contract will reflects de preferences of both parts. So, the problem/challenges that we have are is that they can not negotiate because they don’t know each other. We did not foresee (preveure) and anticipate actions in case of that happens. So the legal system anticipates for us, because an accident it means a lost of social welfare.
- Legal rules that aim at organizing the distribution of the cost of accidents.
- Accidents: undesired events that cause ham to a victim.
- Cost: reduction of social welfare.
- Individuals involved in the accident
- Society as a whole
The areas of law that regulate accidents are criminal and administrative law. The criminal responsibility of the accident is regulated by damages law.
Functions of tort law- several:
1. Delimiting the scope of individual freedom
2. Compensation
- Is tort law a good system to compensate victims? Depend on the tort
✓ Small damages
✓ Mass torts (colza)
- It Is a slow, expensive and costly system
3. Distributive
- Some costs do not depend on circumstances but on categories of individuals.
- Compensation fund.
4. Satisfaction
5. Deterring function
- Punitive damages When we are part of a society it includes a cert level of risk and we have to accept that. The massage of tort law is that you can not increase unreasonable this risk. The only way to have a compensation if we have an accident is the action that I get from the tort place. It is no a good compensation mechanism. Because it’s very expensive and very slow. You need a lot of people and patience, money, errors…
Another mechanism is private insurance (assegurances) that why people have to have it. Or pubic insurance it’s very expensive for the society.
✓ Public
✓ Private
Our tort low only allows you to claim what you lost. And if you have insurance and also a tort system you can coordinate both. You can not go beyond victim’s lost.
Punitive damages have the function of sending a message to potential tort feesers, to say what you will have to pay if you do that. Tat knew of knowing that what are you doing increase the risk of something bad for the society, its illegal and is what it is forbidden and “castigat”. The legal context of civil liability:
In contracts we have more instruments, like a paper = a contract that shows the agreement between the parts. The main differences between contractual liability and non-contractual liability are:
- statute of limitations
- 1964CC
- (^) art. 1968 CC and art 142.5 of Law 30/
- jurisdiction
- limitation of liability: 1102 CC
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Conduct (act/omission) + duty + breach duty + causation + harm. Duty and breach duty do not exist in the strict liability.
- Plaintiff is owed a duty of care
- Defendant breached duty of care
- Plaintiff suffered resulting harm or loss.
With negligence we need a conduct, and a duty of care about the circumstances.
If you don’t breach your duty you are not negligent but you cause the harm. Under the negligence the victim will not be always compensate. Victims will be more protected under the strict liability rules because they always get a compensation. How ever, under a negligence rule, if we are missing duty and breach duty the victim will have to bear this loss.
The omission is only relevant under the negligence.
NEGLIGENCE ELEMENTS:
Duty = obligation imposed by a rule.
Unintentional torts have the challenge of the uncertainty involved with them.
REASONABLE PERSON + FORESEEABILITY:
The standard of care is not uniform. There’s no a standard for what it is a reasonable person.
Determining a “reasonable person” depend on a number of factors:
- Today’s standards for people (by society)
- Professional standards (of conduct)
- Local standards (varying by community)
- Environmental factors at time
Foreseeability:
- To determinate a “reasonable person”, courts use test of foreseeability
- Gross negligence cases where the level of risk is unreasonable high. SUBJECTIVE CIRCUMSTANCES:
Mostly they are link of article 1902 CC.
Hand formula comes from a case the supreme court of USA. Estableix que es el que em de tenir en compte quan el nivell de cuidado que s’havia de tenir no esta establert.
1. Cost of adopting care = B
2. Probability of the accident = p
3. Value of loss = L PL
PL should be compared of B. B< or = PL.
SPECIAL CIRCUMSTANCES:
1. STANDARD OF CARE
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✓ Up to 6/7 years old: no fault, no liability. Their behaviour is irrelevant.
If parents claim on behalf of the child.
✓ Up to 14-15 years’ old
✓ 14-15/18 years old.
2. LIABILITY FOR INDIVIDUAL ACTS OR ACTS OF OTHERS:
Liability for individual acts: duty to compensate Liability for acts of others.
- Parents
- Employers
- Owner of a vehicle for harm caused by a driver
- (^) Public administrations for normal and abnormal functioning of public services.
TOPIC 4: NEGLIGENCE PER SE AND RES IPSA LOQUITUR
Under negligence when there are accidents the court minimizes them.
B P L (loss) expect loss
Expc. Loss calculo la probabilitat. En aquest cas hi ha o,5 possibilitats que sigui 2000 I 0,5 que sigui 0. Doncs faig o,5 X 2000 + 0,5 X 0 = 1000
1. NEGLIGENCE PER SE
NEGLIGENCE STRUCTURE
- Subsidiary?
- Collateral source
- Set off rule
- Subrogation
- Recourse
3. RES IPSA LOQUITUR:
1. The injury is of the kind that does not ordinarily occur without negligence.
2. The injury is caused by an agency or instrumentality within the exclusive control of
the defendant.
3. The injury-causing accident is not by any voluntary action or contribution on the
part of the plaintiff.
4. The defendant's non-negligent explanation does not completely explain plaintiff’s
injury.
The first element may be satisfied in one of three ways:
(a) The injury itself is sufficient to proove blatant or palpable negligence as a matter of law, such as amputation of the wrong limbo r leaving instruments inside body after surgery.
(b) The general experience and observation of mankind is sufficient to support the conclusion that the injury would not have resulted without negligence, such as a hysterectomy (removal of the uterus) performed when the patient consented only to a tubal ligation (clipping of the fallopian tubes for purposes of sterilization).
(c) Expert testimony creates an inference that negligence caused the injury, such as an expert general surgeon testifying that he has performed over 1000 appendectomies (removal of the appendix) and has never caused injury to a patient's liver. He also does not know of any of his surgeon colleagues having inflicted injury to a patient's liver during an appendectomy. The testimony would create an inference that injuring the liver in the course of an appendectomy is negligence.
TOPIC 5: STRICT LIABILITY
Liability regardless of fault.
Exception to the general negligence rule of 1902 CC
Article 1,902 The person who, as a result of an action or omission, causes damage to another by his fault or negligence shall be obliged to repair the damaged caused.
Strict liability – in Spain sometimes referred to as liability for risk.
Prima facie case strict liability.
High likelihood of occurring harm.
Diligence or level of care of the conduct is not relevant.
The driver must pay damages equal to the damage done, so he bears the entire cost. So it is in his interest to take all precautions that are worth taking.
Absolute liability.
Appropriate when only unilateral precaution by the injurer is possible
When bilateral precaution is possible neither rule causes both to take the optimal level of precaution.
When compared with negligence, advantages:
1. Cheaper to apply.
2. Lower administrative costs.
3. Lower burden ofproof for victims.
4. Efficient level of activity.
1. STRICT LIABILITY IN SPANISH LAW:
- Public administrations: law 40/2015.
- Animals 1905 CC.
- Hunting: law 1/1970.
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5. POTENTIAL ERRORS:
NEGLIGENCE:
1. Errors in setting due care standard
2. Errors in damage award
STRICT LIABILITY:
1. Errors in setting damages
2. Errors in failing to hold injurers liable
TOPIC 6: CONTRIBUTORY AND COMPARATIVE NEGLIGENCE
1. DEFENSES TO NEGLIGENCE SUITS:
As you know, it is rare that an accident is caused solely because of one person’s actions
If the plaintiff is partly at fault for his or her injuries, what can the defendant do to reduce his or her liability?
- Comparative negligence defence
✓ Pure comparative negligence
✓ Modified comparative negligence
- Contributory negligence defence Las clear chance doctrine
HARM
Accident + harm + causation
What is compensable is the actual harm, in order to find a claim on the tort one must suffer a
tort, however not all harms are compensable, there are some left out of the scope subject to
compensation, there are some requirements in terms of quantification and evaluation.
The elements we compensate are, the protected goods (bé protegit):
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- Life
- Body injuries
- Health
- Freedom
- Property
They are goods generally protected by the legal system, but harms which derivate from lawsuits
are generally not compensable.
TYPES OF HARM:
1. PROPERTY DAMAGES: the loss of value of the property, and the losses that come
from that. Because this loss of value you are entitled to get a compensation as well as the loss resulting from a value decrease.
2. PERSONAL INJURY: body harm + pain and suffering, dany moral = moral damages
- economic losses, leave from work...
Torts are obligations that arise after one of the parties has suffered a loss. What we are trying to
do is to translate into money things that are not necessarily monetary.
In economics we represent the position of the parties through the utility functions, the level of
happiness we get from different combinations of goods that results in a specific level of well
being, I’m indifferent between the different baskets of the function they equally provide you
well fair. The further we move to the right the higher the level of happiness I get, more is better.
When we suffer harm, the assumption or analytical frame work we are using is to determine
where the person’s position has changed after the accident in the utility function. In order to put
the accident in the same place before the accident, it’s about compensating the person so that
she can jump into the function point she was before the accident.
We can’t always do this. It depends on the type of damages and issues of quantification that in
most cases before court they don’t work well.
The problem is to determine the quantification of pain and suffering damages: what are the two
phenomenon of moral damages?
- The utility function drops.
- There isn’t a symmetrical loss: it’s very difficult to position the victim in the same spot as before, the value the person will assigned to money is different than the one she would have done before. How do we compensate for this change of shape in the utility function? It doesn’t work well, they are generally undercompensated, the instrument is valued differently by the injured party than before the accident had taken place.
It’s not only that the person has a lower utility level in a particular unity of money but in all of them, now she values them differently.
Does every unit of money have the same value for us? You don’t value every euro, each unity of
a euro, you have the same way. There is a decreasing value of utility, the first euros have a
You’d be sick anyways but not so sick or maybe you’d have better chances to recover, or you
wouldn’t have infected anyone else.
Spanish courts have awarded compensation, but it’s much lower than the actual harm the victim
might have suffered. The idea is that the outcome if I had the diagnosis in time wouldn’t be as
bad as it is now but I wouldn’t be healthy either way.
On one side it presents problems in terms of the claimant: the compensation is lower than in the
normal tort but so it is the cost of the claim, you don’t bear the full cost of the procedure, the
cost of burden of proof is lower, so claimants feel encouraged to sue too much. The expected
award is higher than the cost that I incur in terms of getting the claim filed. I have incentive to
file it because I don’t lose much.
On the side if the defendants: overdeterrance, my incentives are with respect to the harm
eventually suffered by the victim.
Beyond 50% of causation is enough as to the burden of proof. in tort cases we need to provide
that the probability of the event happening is higher than 50% chance.
HOW ARE DAMAGES DETERMINED:
In USA is determined by a juror.
In Spain the juror decides causation but it’s the judge who determines how much money is to be
compensated by a compensation grid.
Damages are determined in first instance courts. In the first instance is where the facts and
damages are represented, once we have this judgment all the grounds for appeal are numerus
clausus , the only way to reassess the damages is if there is an error, if there is no error nor
evidence the damages are closed and determined.
Errors:
- Object to compensate is wrong, they asked to compensate something not subject to compensation or not enough compensated.
- Arithmetic: they didn’t calculate well enough the amount of damages. It needs to be based on evidence, but having said this because of the problems of calculating the value, we become more flexible, sometimes what happens is because there’s a strict system of grids, the scope of the judge is many cases is limited and when that happens, the judge says property damage is a 1.000 but he knows is very low and it’s not an accurate representation, the judge awards higher pain and suffering that what the victim might have prove, and therefore are subject to different judicial constraints, one type of damage shouldn’t be accounted on the other.
- Inconsistent: the judge is trying to make the victim full, there are cases where judges award higher compensation, they are limited to award what you requested as a maximum, if it’s higher or different than what the claimant requested then it’s wrong.
- Lack of motivation to support compensation: this cause for reversal needs to be very justified, the supreme court is reluctant to apply it.
- Contradiction with judgement: contradiction between the judgment and the liability routine, an example are product liability, subject to strict liability in Europe, judges talk about care, negligence… product liability sounds a lot like negligence but it’s procedural regime is strict liability not negligence.
- Comparative negligence cases.
COMPLEXITY OF THE CONCEPT OF HARM:
Latent harm – long term, we need to wait, ideally, until the damage stops and then compensate
for the whole harm. The problem is that in many cases is not possible and there is a statue of
limitations, and therefore we can say that the tort system works badly.
1. Jurisprudence refers to continuous harm.
2. Tort law does not compensate well
3. Compensation funds, usually we will use compensation funds that don’t compensate the
harm fully but at least is immediate.
These compensations will mean that we can compensate less than optimally these victims but
with high certainty and in a cheaper procedure.
Massive torts, collective action problem, the total amount of harm is huge but the individual
harm is really small, we need to present a class action and team up efforts with other victims,
however in most cases this won’t be productive.
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