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TOPIC 4. TORTS
To Stumble Tropezar To owe Deber Ginger Beer (non alcoholic drink) Cerbeza de Genjibre Forceable Puede ser anticipado Harbor Puerto Borstal Trainees Reformatorio Home Office Ministerio del Interior Still-Born Niño que nace muerto Interference Intromision (to enter in another person land or use his goods without justification or permission) Cattle Ganado
1) TORT LAW
Tort law regulates circumstances in which people can:
• Recover compensation for infringement of rights
• Prevent infringement of rights
The scope of application are: Victims of road or factory accidents, owners of land invaded by trespassers, victims of inaccurate newspaper articles, residents irritated by excessive noise from neighbors...
Basis of liability :
• Intention to cause harm (fraud = dolo )
• Negligence or fault
• Strict liability (exceptional in both: UK and US)
Torts were created by common law and equity courts. The origins of tort law in Common law legal systems must be found on two writs, which
provide a specific remedy for a specific type of tort and allowed to bring actions before royal courts:
• Writ for trespass on the case : Indirect harm to persons.
• Writ for trespass : Direct harm to persons.
• Initially, the action for trespass to the person only required
that plaintiffs show or provide evidence that they had suffered a direct harm because of the negligence or the fraud behaviors of the defendant are implicit in the harm.
• In the 1960s, plaintiffs also had to show that the harm had
been caused intentionally = origin of the tort of negligence.
• Since then, torts to persons may be:
■ Non-intentional torts : Action based on the tort of
negligence (harm caused by negligence).
■ Intentional torts (harm caused by fraud): Action for
trespass to the person that can be based on the torts of battery, assault, malicious prosecution, false imprisonment, defamation…
The difference between the two writs is the way to cause harm to persons.
2) NON-INTENTIONAL TORTS TO PERSONS: TORT OF NEGLIGENCE
ELEMENTS :
• Existence of a duty of care. Some kind of relation or proximity
between the victim and the person causing the harm).
• Breach of the duty of care
• Consequential harm. The harm must be the consequence of
breaching the duty of care. From this element we can define 2 elements:
which signifies the introduction of the more modern approach of seeking a single general principle, which may be applied in all circumstances to determine the existence of a duty of care.
In this case, the House of Lords stated the neighbor principle. A duty of care existed when 2 necessary elements appears:
• A person suffered a foreseeable damage because of the
negligent conduct of another person. The test of forceeability is an objective test: We have to analyze if a person in the defendant position will have foreseen that the victim would be injured.
• There was sufficient proximity (in time, space or
relationship) between the person causing harm and the victim (between the plaintiff and the defendant).
Initially courts consider this principle an obiter dictum principle and applied it only to product liability cases; nevertheless from 1970 they expand the scope of application to other cases.
▲ Dorset Yacht Co Ltd. V. Home Office (1970): Seven borstal
trainees employed by the Home Office escaped, took a yacht and collided with the yacht of the plaintiffs. The House of Lords ruled in favor of the plaintiff.
"In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue v. Stevenson [1932] A.C. 562 may be regarded as a milestone, and the well known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion." According to the House of Lords , a general duty of care existed unless there was some justification or valid explanation for its exclusion
▲ Anns v. Merton London Borough Council (1978): Several tenants
discovered some defects in their apartments. The House of Lords ruled in favor of the tenants. The council owed a duty of care to owners and tenants as it had to inspect and to control building processes.
But since the Anns case a series of decisions of the Privy Council and of your Lordships' House, notably in judgments and speeches have emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope.
The House of Lord stated a two-stage test (Anns test):
• Was there a sufficient relationship of proximity between
the plaintiff and the defendant? (Donoghue v. Stevenson) in this case the court refers to the neighbor reason, and it’s affirmative answer to the question. But it is implicit in the passages referred to t the concept of proximity in this additional ingredient is not susceptible of any such precise definition as would be necessary to give it utility as practical test, but amount in effect to little more than convenient label to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.
• Were there reasons that led to the exclusion of the duty
of care? (Dorset Yacht v. Home Office)
This test don’t convinced:
▲ Caparo Industries plc v Dickman (1990): An auditor prepared the
accounts for a company negligently. Caparo relied on the information provided by the accounts and it suffered losses. The House of Lords ruled in favor of the auditor because there was not proximity between Caparo and the auditor.
collided with a motor car, which had been travelling in the opposite direction, but had turned across the path of the cycle in order to enter Glenlockhart Road. The cyclist, who was held by the Lord Ordinary to have been travelling at an excessive speed, was thrown on to the street and sustained injuries from which he died. There is no doubt that the Appellant saw and heard nothing of the cyclist until the sound of the noise created by the impact of the two vehicles reached her senses. At that moment she had her back to the driver's platform and the driver was assisting to get the basket on to her back and the broad leather strap on to her forehead. It may be taken that the distance between the Appellant and the point of impact was between 45 and 50 feet. After the cyclist's body had been removed, the Appellant approached and saw the blood left on the roadway. The injuries alleged to have been sustained by the Appellant are set out in condescendence 4 of the record, as follows: —
"Condescendence 4.—As an immediate result of the “violent collision and the extreme shock of the occurrence " in the circumstances explained, the pursuer wrenched and "injured her back and was thrown into a state of terror" and sustained a very severe shock to her nervous system. "Explained that the Pursuer's terror did not involve any "element of reasonable fear of immediate bodily injury to" herself. The pursuer was about eight months pregnant at "the time, and gave birth to a child on 18th November, ' 1938, which was still-born owing to the injuries sustained "by the pursuer".
PRECEDENT: Donoghue v. Stevenson (1932). THERE IS NOT A FORSEEABLE HARM.
▲ Topp v. London Country Bus [1993] 1 WLR 976: The claim is a
claim for damages arising out of the death of the plaintiff's wife, Mrs. Jacqueline Topp, on 25th April 1988. The basic facts are not in dispute (...). The defendant company runs a bus service in the region of Epsom, and one of its buses was hijacked by a third party (who has never been identified) at about 11 p.m. on the night of the 25th April. Very shortly afterwards the bus, driven by the hijacker, knocked down
and killed Mrs. Topp as she was cycling home from work in Dorking Road Epsom (...).
In accordance with usual practice, the driver, Mr. Green, left the bus in that lay-by at the bus stop at about 2.35 p.m. on 24th April 1988. He left it unlocked, with the ignition key in it. He had then a 40 minute rest period before resuming his duties, driving a different bus. There was an arrangement under which the drivers could spend their rest period in the hospital. The expectation was that another driver, about eight minutes after Mr. Green had left the bus in the lay-by, would pick the bus up and drive the same route. But the other driver, who should have picked the bus up at about 2.43 p.m., did not do so because he was feeling unwell. His shift would have been non-compulsory overtime, and he did not report for his overtime. The bus therefore remained in the lay-by. Mr. Green saw it there later and reported that it was still standing there. Therefore, there is no doubt that the depot knew that the bus was there. But, possibly because of shortage of drivers or available staff, nothing was done to pick the bus up that evening. It was taken by somebody who has never been traced just before 11.15 at night, driven for a relatively short distance until the point where Mrs. Topp was knocked down and killed, and it was abandoned round the corner from there.
In these circumstances, the plaintiff's claim is founded in negligence on the basis that the bus company, knowing that there must be a threat that a bus left ready to be driven away might be stolen and that whoever stole it, a joyrider, might drive dangerously and kill or injure someone else or damage property, was in breach of duty in failing to collect the bus or see that it was locked, without an ignition key and not capable of being driven away.
PRECEDENT: Caparo Industries plc v Dickman (1990). THERE IS NOT A FORSEEABLE HARM.
3) INTERNATIONAL TORTS TO PERSONS: TRESPASS
Most of these torts are actionable per se : Plaintiffs do not have to show harm, but only the intentional interference with their body or liberty.
• Inspired by a malicious personal motive.
This tort is not actionable per se : The plaintiff must prove that proceedings caused harm to his reputation, his person or his properties.
(E.g. The police arrested and prosecuted a man for a theft, even though none of the evidence pointed to that man.
A state’s child protective services took away custody of someone’s children without any evidence that they were unfit parents.)
• Defamation :
• Libel: Defamatory statements by written or printed words,
pictures
• Slander: Defamatory statements by spoken words, sounds, sign
language or gestures.
(E.g. A man accused a woman of adultery.)
4) INTERNATIONAL TORTS TO LAND AND GOODS
Trespass to land :
• Interference with the possession of land without justification or
permission.
• Plaintiffs can bring an injunction or an action for damages.
(E.g. The owners of a development site on which building work was being carried out erected a number of tower cranes that repeatedly overflew the neighbours’ sites.) Trespass to goods or trespass to chattels :
• Interference with the possession of goods of another person without
justification or permission.
• Plaintiffs can bring an injunction or an action for damages.
(E.g. A person ran a key alongside an individual’s car scratching the paint work.)
5) UNIFICATION AND HARMONIZATION OF TORT LAW
Principles of European Tort Law:
• Drafted by the European Group on Tort Law on the basis of several
comparative studies.
• It is a proposal for a comprehensive system of tortious liability for the
future.
• They are meant to stimulate discussion both among academics and
practitioners and to serve as guidelines for national legislators, thereby fostering gradual harmonization
The PETL intend to be applied as guidelines :
a. When parties decide to replace their national dispositive rules by the
PETL
b. When judges do not have national rules to solve difficult cases
c. When legislators have to reform national laws
d. All of the above
The PETL foresee:
a. A list of torts whose occurrence will amount to liability
b. A general clause of liability so the specific situations where
liability arises are established by the case law and academics
c. Procedural rules for the appointment and removal of judges
d. None of the above
According to the PETL, liability may be based on :
c. A liability regime based on fault because it can be considered
a common usage as it is carried out by a significant part of citizens
d. None of the above
1. In order to get the broadest possible acceptability of the PETL, they depart from all existing European tort laws both in content and structure.
FALSE. The group that prepared the PETL did not intend to produce a draft that was so original and innovative that it departed from all existing European tort laws. In order to get the broadest possible acceptability of their proposals, they look at the wisdom and experience of centuries reflected in the current European legal systems.
2. National Supreme Courts are not entitled to quote the PETL in their decisions.
FALSE. The PETL intend to be applied as guidelines when parties decide to replace their national dispositive rules by the PETL, when judges do not have national rules to solve difficult cases, when legislators have to reform national laws, etc.
3. According to the PETL, liability exists when three requirements are met: recoverable damage, causation and fault.
FALSE. There are 3 grounds of liability as it may be based on (1) fault (it makes a person liable for the damage and loss caused by a negligent act or omission), (2) strict liability (it makes a person liable for the damage and loss caused by carrying out an abnormally dangerous activity regardless or fault) or (3) liability for others (vicarious liability).
4. The PETL foresee a list of torts whose occurrence will amount to liability.
FALSE. As Article 1902 of the Spanish Civil Code, Article 1:101 PETL foresees a general clause of liability when states that “a person to whom damage to another is legally attributed is liable to compensate that damage”, so the
case law and academics will establish the specific situations where liability will arise.
5. Since there is not an explicit mention of privacy and reputation, they are not protected under the PETL’s system.
FALSE. Article 2:201 PETL does NOT establish a closed list of protected interests: “In determining the scope of protection, the interests of the actor, especially in liberty of action and in exercising his rights, as well as public interests also have to be taken into consideration”.
6. As Article 2:105 refers to the proof of damage, we can infer that the PETL’s scope of application extends to procedural issues.
FALSE. Article 2:105 PETL states that damage must be proved according to normal procedural standards, which refer to the national procedural laws.
7. The general base of tortuous liability in the PETL is strict liability.
FALSE. According to the PETL, the general rule is liability based on fault (Article 4:101) and strict liability only applies to abnormally dangerous activities and dangerous activities foreseen by national laws (Article 5: and 5:102).
8. The required standard of conduct foreseen by the PETL is the same than that foreseen by Article 1104 of the Spanish civil Code, which states that “The debtor’s fault or negligence consists of the omission of the diligence required by the nature of the obligation that corresponds to the circumstances of the persons, the time and the place. (...) Where the obligation does not express the diligence to be used in its performance, the diligence of an orderly paterfamilias will be required”.
TRUE. The diligence of an orderly paterfamilias refers to the diligence of a reasonable person. The “nature of the obligation” (art. 1104 CC) refers to the nature and value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on, the foreseeability of the damage, the relationship of proximity or special reliance between those involved [art. 4:102 (1) PETL], and the “circumstances of the
FALSE. According to Article 6:101 PETL, parents are subject to a liability regime based on fault. However, there is a reversal of proof since they can be exonerated from liability if they demonstrate that they acted according to the required standard of conduct. Employers are subject to a strict regime since they are always liable for damage caused by their auxiliaries, regardless of whether they ( id est , the employers) acted negligently or not (Article 6:102 PETL).
14. As in the Spanish legal system, the PETL states the liability of an independent contractor when the principal keeps the control of the activity.
FALSE. Unless Spanish legal system, independent contractors are not regarded as auxiliaries and therefore principals are not liable for damage caused by them acting within the scope of their functions [Article 6:102 (2) PETL].
15. Defences generally excluding liability are private defence, necessity, self-help, consent and lawful authority, while in the case of strict liability force majeure and the conduct of a third party are applicable. TRUE [Articles 7:101 (1) and 7:102 (1) PETL]. 16. The general rule in the PETL is that defences only allow judges to reduce the award of damages.
FALSE. The general rule is that defences allow judges to totally exonerate from liability. According to Section 7:101 (3), reduction of liability only applies to extraordinary cases.
17. If there are multiple persons who cause the same damage to the victim, each person is liable for the whole of such damage.
TRUE. According to Article 9:101 PETL, liability is joint and several (solidaria) where the whole or a distinct part of the damage suffered by the victim is attributable to two or more persons and therefore the victim may claim full compensation from any one or more of them.
18. Awards of nominal (symbolic) damages are forbidden by the PETL.
TRUE. According to Article 10:101 PETL, the main purposes of the award of damages consist of fully compensating the victim (reparación integral del daño) as well as of preventing harm.
19. The general principle of compensation lucri cum damno that governs the Spanish tort system is not foreseen by the PETL.
FALSE. Article 10:103 PETL states that in order to establish the award of damages, the benefits obtained by the victim because of the damaging activity must be considered. However, some exceptions exist, as benefits from insurances cannot be deducted from the award of damages.
20. If, in the light of the financial situation of the parties, full compensation is oppressive to the defendant, damages must be reduced.
FALSE. According to Article 10:401 PETL, if in the light of the financial situation of the parties full compensation is oppressive to the defendant, damages “may” be exceptionally reduced.
