Euro tort : an unnecessary step in the march towards unification?

Transcription

1 Naam: Kim Wiersma ID-nr.: i Master: Nederlands recht, Profiel privaatrecht Begeleider: Prof. mr. G.E. van Maanen Aantal woorden: Euro tort : an unnecessary step in the march towards unification?

2 Table of Contents Page Chapter 1 Introduction 4 Chapter 2 The basic norm and general conditions of liability Introduction 2.2 Principles of European Tort Law: article 1: Basic norm and definitions Damage Material harm Immaterial harm Legally protected interests Causation Scope of liability Compensation Attribution The Netherlands: article 6:162 BW Basic norm and definitions Wrongfulness Violation of a right Violation of a statutory duty Violation of a rule pertaining to proper social conduct Damage Causation Scope of liability Compensation 30 1

3 2.3.7 Relativity Attribution 2.4 England: tort of negligence Common law and equity Tort of negligence Duty of care Acts leading to physical damage Omissions and acts leading to pure economic loss Breach of duty Fault Damage Compensation Causation Scope of liability Conclusion 46 Chapter 3 Other bases of liability Introduction 3.2 Strict liability PETL The Netherlands England Vicarious liability PETL The Netherlands 62 2

4 3.3.3 England Conclusion 67 Chapter 4 A uniform European Tort Law? Introduction 4.2 Pro and con 4.3 Conclusion 76 Chapter 5 Conclusion 78 Bibliography 79 3

5 Chapter 1 Introduction For several years now, steps have been taken to harmonise the laws of the European countries. One of the steps in this march towards unification has been the formation of the Principles of European Tort Law (PETL) by the European Group on Tort Law. In May of 2005 these principles have been presented in Vienna. The PETL are meant as a proposal for a comprehensive system of tortious liability for the future and they should lay the foundation for discussing a future harmonisation of the law of tort in Europe 1. In this respect, several questions come to mind, namely: 1. To what extent are the principles compatible with the laws of the different European countries, in other words: can these principles be used as the foundation for harmonisation? 2. In relation to the first question: if incompatibilities exist, to what extent are these acceptable? 3. In relation to the second question: is a common European law of tort(s) even desirable and/ or necessary? To answer these questions I will compare the PETL with the tort laws of two countries. These countries are: the Netherlands as a representative of the civil law and England as a representative of the common law. In Chapter 2 I will give an overview of the basic norm and the general conditions of liability in the various legal systems. Chapter 3 will elaborate on bases of liability other than fault, namely risk based -liability and vicarious liability. In this chapter I will also compare the three systems. Furthermore, I will give an overview of the ongoing discussion about the desirability and necessity of a uniform European (tort) law and give my own opinion about the matter (Chapter 4). The conclusion will follow in Chapter

6 Chapter 2 The basic norm and general conditions of liability 2.1 Introduction Is there a basic norm, a general principle of tortious liability, in all systems? What constitutes a tort? Is it enough that any kind of conduct results in damage, or is something more required, like an infringement of a specific right or the conduct being wrongful? In how far is the attribution of liability dependent on fault? Do the terms mean the same in every system? Is e.g. conduct the same in England as in the Netherlands and what kinds of damages are eligible for compensation? These questions will be the subject of this chapter. 2.2 Principles of European Tort Law: article 1: Basic norm and definitions The PETL have a basic norm and it is formulated in art. 1:101. It states 2 : 1) A person to whom damage to another is legally attributed is liable to compensate that damage. 2) Damage may be attributed in particular to the person a) whose conduct constituting fault has caused it; or b) whose abnormally dangerous activity has caused it; or c) whose auxiliary has caused it within the scope of his functions. According to the commentary, the term conduct refers to acts as well as omissions. Person in this article means either a legal or a natural person. 3 This indicates that e.g. a company can also be liable in damages for commit- 2 European group on tort law, Principles of European Tort Law, p. 2 3 Idem, p. 20 (Koziol) 5

7 ting a tort. A legal person can only act in practice through its organs; in case of a company, the actors are usually board members. Thus, a company can be held liable for the actions of its board members. This kind of liability has to be distinguished from vicarious liability discussed in chapter 3: the action of the board member is seen as the act of the company, thus falling under the scope of art 1:101 subsection 2 (a), whereas, in case of vicarious liability, the tort is seen as the act of the auxiliary, but the tort is attributed to the person he works for, as provided for in art. 1:101 subsection 2 (c) Damage What is meant by damage in article 1:101? Apparently, not all kinds of harm can be recuperated, since, according to art. 2:101, only recoverable damage can be compensated by tort law. Recoverable damage is material (1a) or immaterial harm (1b) to a legally protected interest (2). 4 The notion of damage in this article is thus not a natural one but a legal one; they involve a negative variation in the injured party s protected sphere. 5 Let us take a closer look at the aforementioned criteria Material harm Material harm is described by article 10:201. It involves pecuniary damages, i.e. a diminution of the victim s patrimony caused by the damaging event. 6 Article 10:201 is a very general provision, which is applicable only if none of the more specific articles (10:202 and 203) apply. According to the commentary, this will most likely be the case when there is a violation of pure economic interests or contractual relationships. Because this article has to be 4 European group on tort law, op.cit., pp. 2 & 24 (Koziol) 5 Idem, p. 27 (Koziol) 6 Idem, p. 9 6

8 read in conjunction with article 2:102, the damage is only recoverable insofar as the violated interests enjoy protection according to art 2:102. The damage is generally determined as concretely as possible, i.e. with respect to the specific situation of the actual victim, but it may be determined abstractly when appropriate (art. 10:201). In the abstract method, the amount of damage is determined by looking at what the normal damage of a normal victim in abstracto would have been. 7 The articles 10:202 and 10:203 are linked to article 10:201 over which they prevail insofar and to the extent as their rules apply. 8 If the damage involves the loss, destruction or damaging of an object, the recoverable damage is the diminution in its value. The object must be a corporeal moveable or immoveable object, so rights and intangible goods are excluded. The value is determined by the market price which would be paid for the object by an independent third person. The diminution can be determined by the cost for this or a comparable (damaged) thing on the market or by the market cost of repair or by the costs of replacement (in case of total destruction or loss). The victim is in general free to choose either repair or replacement, but he is entitled to claim the higher amount from the tortfeasor only if it was reasonable to choose the more expensive option. Consequential loss may also be eligible for compensation (art. 10:203). 9 In case of personal injury, which includes injury to bodily health (not including death) and mental health amounting to a recognised illness, it can also involve loss of income, impairment of earnings capacity and reasonable expenses. A mere emotional disturbance is not enough to be recognised as injury to mental health. Also, the expenses must be reasonable, i.e. they must be necessary for the medical treatment and the treatment can be expected to be effective. 7 European group on tort law, op.cit., pp (Magnus) 8 Idem, pp. 167 & 170 (Magnus) 9 Idem, pp (Magnus) 7

9 In case of death, some persons can recover loss of support/ maintenance by the victim (art. 10:202) Immaterial harm Immaterial harm is regulated in chapter 10 section 3 of the PETL. Although the PETL do not provide for a definition of immaterial harm, one can deduce from the fact that damage has to be either material or immaterial, that the harm is immaterial if it does not lead to a diminution of patrimony. Therefore, immaterial damage (also known as non pecuniary damage) can be defined as loss which is not damage to a person s assets, wealth or income and which is consequently incapable of being quantified in any objective financial manner by reference to a market. 11 In particular, article 10:301 mentions as non- pecuniary damage, the suffering of personal injury (to bodily or mental health but not including death) or injury to human dignity, liberty or other personal rights (these last three are covered by the more general term grievance ). This list is not exhaustive, but it is widely accepted that these are the prime areas in which awards for non pecuniary loss are made. 12 Not only primary victims can be compensated for non pecuniary damages, but also secondary victims. This follows from the last sentence of article 10:301 subsection 1, which states that non pecuniary damages can also be the subject of compensation of persons having a close relationship with a victim suffering a fatal accident or very serious non fatal accident. Thus, it appears that mere bereavement can be compensated under the PETL. In the assessment of the damages, all circumstances of the case, including the gravity, duration and consequence of the grievance, have to be 10 European group on tort law, op.cit., pp (Magnus) 11 Idem, p. 28 (Koziol) 12 Idem, p. 174 (Rogers) 8

10 taken into account. The degree of the tortfeasor s fault is to be taken into account only where it significantly contributes to the grievance of the victim (art. 10:301 sub. 2). In cases of personal injury, non pecuniary damage corresponds to the suffering of the victim and the impairment of his bodily or mental health (art. 10:301 sub. 3). 13 Damage must be proved according to normal procedural standards. These are the standards which the national courts apply when assessing the exact amount of damage. Where it is too difficult or too costly to prove the precise amount, the court is allowed to estimate it Legally protected interest The other criterion for awarding damages under article art. 2:101 is that there has to be an infringement of a legally protected interest. Which interests deserve protection and to what extent, is further elaborated in article 2:102. According to this article, not all interests deserve the same amount of protection. The scope of protection of an interest depends on its nature; the higher its value, the precision of its definition and its obviousness, the more extensive its protection (art. 2:102 sub 1). An interest is obvious when third persons have reason to be aware of their existence and range. Rights to life and property are more obvious than pure economical interests. 15 Life, bodily or mental integrity, human dignity and liberty enjoy the most extensive protection (art. 2:102 sub. 2). Extensive protection is granted to property rights, including those in intangible property (2:102 sub 3). Protection of pure economic interests or contractual relationships may be more limited in scope. In such cases, due regard must be had especially to the proximity between the actor and the endangered person, or to the fact that 13 European group on tort law, op.cit., pp (Rogers) 14 Idem, pp (Magnus) 15 Idem, p. 29 & 31 (Koziol) 9

11 the actor is aware of the fact that he will cause damage even though his interests are necessarily valued lower than those of the victim (2:102 sub 4). Proximity means the closeness of the relationship between the parties. There can be e.g. proximity because of a contractual relationship or because of the nature of the activity. Pure economic loss is a financial loss that is neither consequential upon personal injury of the claiming victim nor upon the infringement of the victim s property. The term value has two meanings. On the one hand it refers to the hierarchy between interests; e.g. the right to human life is ranked higher than ownership of an object. On the other hand the term refers to hierarchy between interests of the same kind; ownership of a watercolour painting from HEMA that is being widely distributed is ranked lower than ownership of a painting by van Gogh. 16 The scope of protection may also be affected by the nature of liability, so that an interest may receive more extensive protection against intentional harm than in other cases (2:102 sub 5). 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 (2:102 sub 6). It is clear from these provisions that the determination of the scope of protection necessitates a weighing of opposing interests. On the one hand, there s the victim s interest to enjoy protection, and on the other hand, there s the tortfeasor s interest to enjoy the greatest possible freedom. 17 The provisions of article 2:102 are interconnecting factors. The fact that one of the protected interests has been infringed is by no means a guarantee that the damages resulting from this infringement will be awarded. The extent of protection depends on whether one or more of a number of factors are given, also on the weight of these factors and their combination with 16 European group on tort law, op.cit., pp. 29 & 32 (Koziol) 17 Idem, pp. 29 & 33 (Koziol) 10

12 other factors. Therefore, it may be possible for an interest to enjoy no protection at all if opposite interests prevail Causation A more or less implicit component of a tort is causation: the link between the damage and the act. According to art. 3:101, the conduct is a cause of the victim s damage if, in the absence of the activity, the damage would not have occurred. This criterion is also known as the conditio sine qua non (csqn) or the but for-test. The criterion is thus used as a prerequisite for liability, meaning that if the damage does not directly follow from the act, there is no liability. 19 This is the test if there is only one cause for the damage. But what if there are multiple causes? The most important distinction the PETL makes is that between concurrent causes (art. 3:102) and alternative causes (art. 3:103). In case of concurrent causes there are multiple activities which lead to the occurrence of damage at the same time and each activity has caused the entire loss or would have caused it, if one disregards the other activity/activities. An example: If a person is poisoned with a slow working venom, that takes effect after 24 hours, causing severe paralyses, but several minutes before the 24 hours have elapsed, he is also poisoned by someone else with a fast working poison that will cause severe paralyses within minutes. Both poisons cause damage at the same time, i.e. at the moment the 24 hours have elapsed, and both poisons would have caused the entire damage, i.e. severe paralyses, independently of the other poison. If there are concurrent causes, the PETL solve this by regarding each activity as a cause of the damage. Consequently, every person that is liable for a respective activity is liable in full. 20 In case of alternative causes, 18 European group on tort law, op. cit., pp. 31 & 33 (Koziol) 19 Idem, pp (Spier) 20 Idem, pp (Spier) 11

13 there are also multiple activities and each of the activities would have been sufficient to cause the damage, but there is uncertainty which of the several activities has caused the victim s loss in full. An example: When a group of hooligans throws rocks at a shop window, causing it to break, but it can t be determined which rock actually broke the window. A variation to the problem of alternative causes is the situation where there are, next to multiple causes, also multiple victims. In this case there is a causal link between the damage suffered by a number of victims, but it is impossible that the entire damage of all victims has been caused by each single tortfeasor. Both situations are solved by the doctrine of proportional liability. This means that each activity is regarded as a cause to the extent corresponding to the likelihood that it may have caused the damage. So the person liable for the respective activity has to pay the corresponding share Scope of liability To determine the extent/scope of liability the csqn test is used also. This means that, after it has been established that an activity is a csqn of a loss, it has to be determined whether and which losses can be attributed to the conduct. So, it does not follow from the mere existence of a conditio sine qua non-relation between a loss and an activity, that all subsequent losses have to be compensated by the tortfeasor. 22 Article 3:201 deals with this subject and according to this article, the scope of liability depends on a series of relevant factors. These factors are: A) The foreseeability of the damage to a reasonable person at the time of the activity, taking into account in particular the closeness in time and space between the damaging activity and its consequences, or the magnitude of the damage in relation to the normal 21 European group on tort law, op. cit., pp (Spier) 22 Idem, p. 59 (Spier) 12

14 consequences of such an activity. This is the most important factor, since it is applied in many legal systems. It is the general belief that you cannot easily be liable for unforeseeable damages (unless there are aggravating circumstances). The test of foreseeability is an objective one: not the question whether the tortfeasor has foreseen the damage is the yardstick, but whether a reasonable man in the same circumstances could have foreseen it. 23 B) The nature and the value of the protected interests, with article 2:102 as a yardstick to determine the hierarchy of interests. The more highly an interest is valued, the wider the scope of attribution will be. 24 C) The basis of liability as formulated in article 1:101 is also a factor to be considered. A wider attribution may be appropriate in case the liability is based on fault than in case of strict liability. However, other relevant factors must also be taken into account. 25 D) The extent of the ordinary risks of life. This concept is quite vague. It deals with the question in how far someone has to take into account the possibility of damages, but also the question whether the tortious act increased the risk of damage to the victim. 26 E) The protective purpose of the rule that has been violated. This means that only losses that are specifically protected by a certain rule, and losses following from interests that are specifically protected by a certain rule, are liable for compensation European group on tort law, op. cit., pp (Spier) 24 Idem, p. 62 (Spier) 25 Ibid. 26 Idem, p (Spier) 27 Idem, p. 63 (Spier) 13

15 The factors have to be weighed against each other to determine the scope of liability. This is the task of the courts and thus this article gives them a considerable discretion Compensation In the text above, there is a lot of mention of compensating the victim for his losses, but what exactly is meant by compensation? This question is dealt with in Title VI of the PETL. The first form of compensation is that of the payment of damages to the victim. This form is mentioned in article 10:101 which states: Damages are a money payment to compensate the victim, that is to say, to restore him, so far as money can, to the position he would have been in if the wrong complained of had not been committed. 29 This article is a general norm and it covers all situations where a tort victim is entitled to damages. The starting point is that of full compensation, since the victim has to be restored to the pre-tort situation. The damages can be reduced, however, if in light of the financial situation of the parties full compensation would be an oppressive burden to the defendant (art. 10:401). 30 The scope of the damage is determined by the comparing the present position of the victim with the hypothetical position the victim would have been in but for the tort. Since it is a hypothetical situation, events which have or would have affected the victim s position have to be taken into consideration. The difference between the two situations is thus the yardstick by which the recoverable loss is measured. The damages are awarded in a lump sum or as periodical payments as appropriate with particular regard to the interests of the victim (art. 10:102). The advantage of a lump sum is that it clearly and definitely ends the relationship between the 28 European group on tort law, op. cit., p. 61 (Spier) 29 Idem, pp (Magnus) 30 Idem, p. 179 (Moréteau) 14

16 tortfeasor and the victim. The advantage of a periodical payment is that it can be adapted to a worsening or improvement of the situation. 31 The second form of compensation is restoration in kind, as stated in article 10:104. This kind of compensation can be claimed by the injured party instead of damages, and only as far as it is possible and not too burdensome to the other party. Restoration in kind means that the liable person has to restore the original state without the damaging event (in as far as possible). 32 This rule is the exception to the general rule of art. 10:101, but the victim is free to choose either (provided that the conditions of art. 10:104 are satisfied) Attribution Damages can, according to article 1:101, be attributed to a person in three ways, namely: A) Liability based on fault. Fault is considered the basic condition of tort liability. It means that the damage has been caused by the conduct of a person, who is to blame for this damaging event. 34 When is a person to blame for conduct resulting in damage? Art. 4:101 explains this condition of liability. It says that a person is liable on the basis of fault for intentional or negligent violation of the required standard of conduct 35. Intent is seen as the wilful violation of the standard, whilst negligence is explained as omitting to act with the necessary care and circumspection as it can reasonably be expected. 36 Other degrees of fault in-between intent and negligence are also recognised (such as gross and medium negligence) but, ac- 31 European group on tort law, op. cit., pp. 2, (Magnus) 32 Idem, p. 159 (Magnus) 33 Idem, p. 160 (Magnus) 34 Idem, p. 64 (Widmer) 35 Idem, p. 68 (Widmer) 36 Idem, p. 70 (Widmer) 15

17 cording to the comment, these are more relevant in the context of the assessment of damages rather than the justification of liability. 37 The term required standard of conduct is further explained in article 4:102. This is the standard of the reasonable person in the same circumstances, and depends, in particular, on 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, as well as the availability and the costs of precautionary or alternative methods. 38 The reasonable person is somebody who does not unscrupulously follow his own goals, but who also takes into consideration the interests of others. The standard of behaviour is determined according to the specific circumstances of the case. This is thus an objective standard of conduct to which everybody has to conform, independently of his individual capacities. The capacities of a certain category of persons the tortfeasor represents will, however, be taken into consideration. E.g. if the tortfeasor is a doctor who negligently causes damage in the line of his profession, the standard of conduct is that of a reasonable doctor in the same circumstances. 39 The standard of conduct that is required in a specific situation is sometimes prescribed by rules of law (art. 4:102 sub. 3). This is e.g. the case with provisions for road traffic. In this case, it has to be examined if the rule in question has the character of a protective statute in the sense that it is effectively aimed at protecting the right that was infringed by the person whose fault is being determined European group on tort law, op. cit., p. 66 (Widmer) 38 Idem, p. 75 (Widmer) 39 Idem, p. 76 (Widmer) 40 Idem, pp (Widmer) 16

18 Let us now take a look at the relevant factors for the assessment of the standard of conduct. The first factor, the nature and value of the protected interest involved, obviously refers to the hierarchical overview of protected interests in article 2:102. Again, the higher an interest is valued, the higher the reasonable standard will be set and, consequently, the sooner one will have failed to meet the required standard. 41 The second factor, the dangerousness of the activity, in relation with the third factor, the expertise to be expected of a person carrying it on, covers every element of an activity which requires a certain special knowledge or skill that a regular person does not possess. A person who does not possess said skills or knowledge should thus refrain from the activity. The standard increases exponentially with the dangerousness of the activity. 42 If, despite all suitable caution, a person was not able to foresee (the fourth factor) the consequences of his actions, he cannot be held liable. The relationship between the persons involved (the fifth factor) also has to be taken into consideration. The attention one has to pay with regard to the other person s interest increases where there is a closer proximity between the parties. In the field of liability for services where damages are mostly purely economic in nature, proximity may generate a certain reliance which has to be met. 43 The last factor consists of two elements. First there s the availability of precautionary or alternative methods. If the actor can choose another, less dangerous way of pursuing his interest, he should choose this alternative, provided that this is possible and reasonable. The other element is the costs of precautionary or alternative methods. One does not have to take precautions or an alternative method if the costs are unreasonable. Appar- 41 European group on tort law, op. cit., pp (Widmer) 42 Idem, pp (Widmer) 43 Idem, p. 78 (Widmer) 17

19 ently, costs become unreasonable from the moment in which they exceed the expenses which would be caused either by the direct compensation of damage or by paying insurance premiums for a corresponding coverage. 44 As said, the personal capacities of the liable person are not taken into consideration. However, the standard may be adjusted when due to age, mental or physical disability or due to extraordinary circumstances the person cannot be expected to conform to it (art. 4:102 sub. 2). This is a very flexible article, leaving much room for the courts to limit the harshness of the objective standard of conduct, where it would lead to inequitable results. 45 When it has been established that a person s conduct constituting fault leads to the attribution of damages, he can still (partly) escape liability in case he can raise one of the defences mentioned in Title IV of the PETL. The tortfeasor can either raise a defence based on a justification of his conduct (art. 7:101), or based on contributory conduct or activity of the victim (art. 8:101). The justifications in article 7:101 take away the illegitimacy of the conduct. This implies that in order for there to be a tort, the conduct has to be wrongful or unlawful to begin with. The first justification is that of self defence: the defence of one s own protected interest against an unlawful attack (art. 7:101 sub 1 a). The defence has to be legitimate, proportionate and immediate if it is to serve as a justification. In determining whether these criteria are met, all circumstances of the case have to be taken into consideration. Of particular importance are: the scope of the endangered interest on the one hand and the interest of the attacker which is actually harmed, the nature of the threat as well as the question to what extent the threat was 44 European group on tort law, op. cit., pp (Widmer) 45 Idem, pp (Widmer) 18

20 real. 46 The second justification is that of necessity (art. 7:101 sub 1 b). It is almost the same as the defence under sub a, with this difference that the victim did not threaten the attacker s interest but another source of immediate danger, which left the attacker no other choice but to infringe the interest of the victim in order to ward off this danger. 47 Another, closely related, concept is that of self help (art. 7:101 sub 1 c). Self help is the action to restore one s legitimate interests, where the infringement has happened in the past. It is limited to the situation where official help from authorities is not available in due time. 48 The possibility mentioned in art. 7:101 sub 1 d deals with the consent or assumption of risk by the victim. Requirements for this form of justification are that the victim was aware of the risk and nevertheless voluntarily exposed himself to it. 49 The last justification is that the harm was caused whilst fulfilling a legal duty, or acting within the limits of some authority or permission to act given by law (art. 7:101 sub1 e). This is only a justification when the actor does not exceed or otherwise violate the lawful authority. 50 Whether liability is excluded depends upon the weight of the abovementioned justifications on the one hand and the conditions of liability on the other (art. 7:101 sub 2). In extraordinary cases, liability may instead be reduced (art. 7:101 sub 3). The defence of contributory conduct is regulated by art 8:101, which states: (1) Liability can be excluded or reduced to such extent as is considered just having regard to the victim s contributory fault and to any other matters which 46 European group on tort law, op. cit., (Koch) 47 Idem, pp (Koch) 48 Idem, pp (Koch) 49 Idem., p. 125 (Koch) 50 Ibid. 19

21 would be relevant to establish or reduce liability of the victim if he were the tortfeasor. (2) Where damages are claimed with respect to the death of a person, his conduct or activity excludes or reduces liability according to paragraph (1). The article means that a victim cannot claim compensation from a tortfeasor, of the part of the damage for which the victim himself is responsible. This can be the case both in situations where the victim caused part of the damage, as well as situations where the victim failed to mitigate the damage. 51 Several conditions must be fulfilled before contributory conduct or activity can apply. In the first place, in case of contributory conduct, the victim must have tortious capacity (art. 4:102 para. 2), and in case of contributory activity, the victim must exercise actual or economical control of the activity. Secondly, the victim must have failed to exercise reasonable care or must have performed a specifically dangerous activity. A specifically dangerous activity is one that would give rise to strict liability of the victim if he had been the tortfeasor. In the third place, the neglect in self protection or the specifically dangerous activity must have been a cause of the damage suffered by the victim. The contributory conduct or activity of the victim normally leads to a reduction of the sum of damages that would be otherwise awarded if the victim had not contributed to the damage or to its aggravation. 52 B) Strict liability. This kind of liability is independent of fault. The PETL deals with strict liability in Chapter 5. Article 5:101 states that a person is strictly liable for damages that are characteristic to the risk presented by an abnormally dangerous activity, and resulting 51 European group on tort law, op. cit., p. 132 (Martín-Casals) 52 Idem., pp (Martín-Casals) 20

22 from this activity. 53 This kind of liability is further elaborated in paragraph C) Vicarious liability. This kind of liability is also known as liability for others. The subject is covered by Chapter 6 of the PETL, which distinguishes between liability for minors or mentally disabled persons (article 6:101) and liability for auxiliaries (6:102). 54 This form of liability is discussed in paragraph The Netherlands: article 6:162 BW Basic norm and definitions The text of the basic norm in article 6:162 of the Dutch Civil Code (BW) states: 1. A person who commits a wrongful 55 act towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof. 2. Except where there is a ground of justification, the following acts are deemed to be wrongful: the violation of a right, an act or omission violating a statutory duty or a rule of unwritten law pertaining to proper social conduct. 3. A wrongful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion. Although the term would imply otherwise, a wrongful act can be either an act or omission. An omission will, however, usually only lead to a tort 53 European group on tort law, op. cit., p. 104 (Koch) 54 Idem, pp. 112,113,115 (Moréteau) 55 I have chosen the term wrongful in stead of the term unlawful, because I believe this first term to be more accurate. The term wrongful does more justice to the case law of HR 31 January 1919, NJ 1919, p. 161 (Lindenbaum /Cohen) 21

23 where the infringed obligation conduced to an action. 56 The term person is used to mean either a natural or legal person. Again, a legal person acts through its organs and thus a tort committed by an organ of a legal person is seen as a tort committed by that legal person Wrongfulness In order to be held liable for the damages of an act, the act (or omission) has to be wrongful. According to paragraph 2 of article 6:162, there are three ways in which one can commit a wrongful act, namely by (i) the violation of a right, (ii) the violation of a statutory duty or (iii) the violation of a rule of unwritten law pertaining to proper social conduct. Let us take a closer look at these three violations Violation of a right The violation of a right means the violation of another person s subjective right, i.e. a competence that is derived from a legal norm. The most important subjective rights are personality rights and property rights. Personality rights consist (amongst others) of the right to bodily integrity, to freedom and to the protection of the personal walk of life. Absolute rights consist of the right of ownership, but also real rights that are derived from the right of ownership and intellectual property rights. 58 In which case is there a violation of a subjective right? Some subjective rights are more concrete than other. According as the subjective right that has been violated is formulated more precisely and concretely, the 56 Asser, Hartkamp, Mr. C. Asser s handleiding tot de beoefening van het Nederlands burgerlijk recht 4, deel III De verbintenis uit de wet, nr. 27, Spier, et.al., Verbintenissen uit de wet en schadevergoeding, nr. 14 (van Maanen) 57 Spier, et. al., op. cit., nr. 17 (van Maanen) 58 Asser, Hartkamp, op. cit., nr. 35, Spier, et. al., op. cit., nr. 34 (van Maanen) 22

24 sooner the infringement thereof will be enough to base the wrongfulnessjudgement on. However, where a subjective right is formulated more vaguely and generally, a weighing of interests will have to take place in which unwritten norms will also be of great importance. 59 Several solutions to determine the violation of an interest can be distilled from case law: A. The first approach is to only consider violations that are intentional or direct (as opposed to negligent or indirect), to be wrongful violations. The mere fact that there has been a violation, when it has been committed intentionally or directly, will be enough to satisfy the criterion of wrongfulness. Where the violation has been committed negligently or indirectly, the violation will only be wrongful if it doesn t stand the additional test of being tried against unwritten rules of proper conduct. 60 B. The second approach is to try the conduct against other criteria, before it is considered to be a (real) violation. The question whether there is a violation is dependent on an assessment beforehand in the context of unwritten norms of proper social conduct. 61 C. A third approach is found in an extra assessment in the context of unwritten norms of proper social conduct, áfter it has been established that there has been a violation Violation of a statutory duty In general, every conduct that violates a statutory duty is considered to be wrongful. The term statute means every generally binding legal instruction 59 Spier, et. al., op. cit., nr. 35 (van Maanen) 60 Spier, et. al., op. cit., nr. 36 (van Maanen) 61 Spier, et. al., op. cit., nr. 37 (van Maanen) 62 Spier, et. al., op. cit., nrs (van Maanen) 23

25 that has been given out by the proper authorities. 63 Categories that fall under this type of wrongful act are, e.g., violations of penal rules, violation of specific instructions and the violation of criminally sanctioned safety instructions. 64 In exceptional circumstances, an additional assessment in the context of unwritten norms of proper social conduct may be required to determine the wrongfulness of the behaviour. This may, e.g., be the case where the law is out of date Violation of a rule pertaining to proper social conduct Proper social conduct refers to conduct that contravenes the proper standard of care in social intercourse with regard to another person s body or property. A person should be aware that he is part of a society and thus he should, in the performance of his activities, take into account the interests of others. He should weigh his interests against those of others and in doing so, he must be guided by what is perceived as proper according to societal standards. Thus the standard of care is an objective one. It is determined by the knowledge and experience that the actor, according to his social status, should possess. This is a general standard for every member of the group to which the actor belongs. 66 What that proper standard is in a certain case, is determined by rules of unwritten law. 67 Because it is a rule of unwritten law, it is usually difficult to determine what the specific rule is and whether or not it has been violated in the situation in question. Case law doesn t clarify things either, since judges never specify which rule has been violated. In stead, they usually give the general judgement that the conduct in a certain case has violated a 63 Asser, Hartkamp, op. cit., nr Spier, et. al., op. cit., nr. 25 (van Maanen) 65 Spier, et. al., op. cit., nr. 28(van Maanen) 66 Asser, Hartkamp, op. cit., nrs. 51 e -51g 67 Asser, Hartkamp, op. cit., nrs

26 rule of unwritten law. Case law is thus very casuistic. Nevertheless, some general norms, the violation of which may lead to a tort, can be distilled from case law: A. The most important category is that of the violation of a traffic or safety norm. It is a violation of the proper standard of care in social intercourse with regard to another person s body or property, to needlessly call into life a greater danger for another, than that which a normal person should be apprehensive of. 68 In determining whether this is the case in a certain situation, regard should be had to: 1. The probability that another person will not be as careful or attentive as they should be; 2. How great the chance is, that that will lead to accidents; 3. The seriousness of the consequences; and 4. The difficulty of taking the necessary safety measures. 69 These criteria are then weighed by the judge to determine whether or not there has been a violation. How high the standard of care is set, is very much dependent on the circumstances of the case. In sports and games situations, a violation will not easily be accepted. Also, common household accidents will not easily lead to the violation of a safety norm. Since people need to be able to behave in a normal way without having to fear for liability, in this last category of cases, when there s really nobody to blame, the Hoge Raad (highest court of the Netherlands, also 68 Asser, Hartkamp, op. cit., nr HR 5 November 1965, NJ 1966, 136 (Kelderluik/Cellar Hatch) 25

27 HR) determined that there wasn t a violation, but an unfortunate concurrence of circumstances. 70 B. Violation of a norm serving to protect against pure economic loss. This can be the situation in (among others) one of the following cases: 1. All forms of illicit competition; Abusing a position of authority situated in a monopoly; The stimulation by a union to strike is wrongful as provoking non fulfilment, unless the strike is aimed at a goal that justifies the non fulfilment of their contractual obligations by the employees; 4. To prejudice creditors. 73 C. Violation of a norm serving to protect against immaterial damage. An example of this is the violation of one s honour or good name Damage What is meant by damage? Damage is the diminution or detriment in an object. 75 Articles 6:95-96 BW determine which kinds of damages are eligible for compensation. Article 6:95 distinguishes property damage and other detriment as compensable damages. Other, in this context, means immaterial, thus the distinction is that between material and immaterial damages. 70 HR 11 December 1987, NJ 1988, 393 (Bushalte/ Bus stop), HR 9 December 1994, NJ 1996, 403 (Zwiepende tak/ Swishing branch) 71 Asser, Hartkamp, op. cit., nrs Asser, Hartkamp, op. cit., nr Ibid. 74 Asser, Hartkamp, op. cit., nr. 51e 75 Spier, et. al., op. cit. nr. 200 (Hartlief) 26

28 Article 6:96 explains what property damage is. This term has to be understood as both suffered loss and lost profits. A distinction that can be made within the concept of property damage is that between damage to an object, damage to a person and pure economic loss. 76 The second paragraph of article 6:96 explicitly mentions several categories of costs that are eligible for compensation, since these categories could give rise to doubt. These are: a) Reasonable costs for the prevention or reduction of damage, which could be expected as a consequence of the event on which the liability is based; b) Reasonable costs for the determination of damage and liability; c) Reasonable costs for the acquisition of satisfaction outside the law. As said, immaterial damage (like physical pain, mental suffering, fear and so on) can also be compensated, however, only in so far as is determined by law (art. 6:95 BW). The victim only has a right to the compensation of immaterial damages (aside from some incidental provisions) in the three cases that are mentioned in article 6:106 BW and for an amount that has to be determined according to reasonableness (art. 6:106 para. 1). The first case is the one where the liable person intended to cause immaterial damage to the victim (art. 6:106 para. 1 sub a). In this case, any kind of immaterial damage is compensable. The case mentioned in sub b is that where the victim suffered physical damage, his good name or honour was injured or he suffered another injury to his person. This does not include the immaterial damage a person suffers because of the fact that a relative is injured or killed (bereavement). 77 In case of injury to the legacy of a deceased person, several people mentioned in sub c of article 6:106, have a right to compensation. This is, however, subject to the provision that the deceased person 76 Asser, Hartkamp, Mr. C. Asser s handleiding tot de beoefening van het Nederlands burgerlijk recht 4, deel I De verbintenis in het algemeen, nrs , Spier, et al., op. cit.,nrs (Hartlief) 77 There is, however, a proposition of law which allows a claim for bereavement to a certain amount. See proposition nr at : 27

29 himself would be able to claim damages for the injury to his reputation or honour, if he were alive. 78 Other people than the victim may also have a right to compensation under the articles 6:107, 6:107a or 6:108 BW. In case of physical or mental injury, article 6:107 obliges the tortfeasor to compensate (besides the damages the victim suffered) the expenses a third person incurred for the benefit of the victim. This is, however, subject to the provisions that the third person did not incur these expenses with regard to insurance and that the victim could have claimed these expenses from the tortfeasor if he had incurred them himself. Article 6:107a gives the employer of the victim a right to damages for having to continue to pay wages whilst the victim is unable to work because of physical or mental damage, caused by a tort. The amount of the damage is limited to the amount the tortfeasor would have to pay, if there hadn t been an obligation to continue to pay wages. Furthermore, the amount is reduced with the amount the tortfeasor has to pay to the victim himself under article 6:107a. Article 6:108 gives several people (like the spouse and minor children) the right to compensation of damages for the loss of substinence and the costs of undertaking in case of death of the victim Causation From the words as a consequence in article 6:162 it follows implicitly that there has to be causation between the damage and the conduct. This causation is stated more clearly in art. 6:98 BW, which says that only damages that are connected to the event the actor is liable for, can be compensated to the extent these damages can be attributed to him, taking into account the nature of liability and the nature of the damage. In Dutch law, there is thus 78 Asser, Hartkamp, op. cit., nrs Asser, Hartkamp, op. cit., nrs

30 also a conditio sine qua non-test, however this is but a minimum requirement. In determining whether the event can be attributed to the actor, all circumstances of the case have to be evaluated. The two criteria in article 6:98 (the nature of the liability and the damage) are only examples. Circumstances that can also be taken into account are e.g. the measure of reproach (intent or negligence), the foreseeability of the damage and discounted and non discounted risks. 80 Only the case of alternative causality is regulated by law. Article 6:99 deals with this subject, and it is solved by placing the burden of proof on the actors. If it is determined that the whole of the damage could have been caused by either actor, but it is uncertain which event has actually caused it, the actors have to prove that the event they are responsible for did in fact not cause the damage. If they fail to prove this, they are liable for the whole of the damage. So no proportional liability as in the PETL. The problem of concurrent causality is not explicitly regulated by law, but it is assumed that in this case, where it is determined that two or more events could have caused the damage independently of the other, every actor is liable for the whole of the damage. 81 Recent case law, however, has accepted proportional liability in asbestosis cases where the cause of the victim s cancer could also be attributed to his heavy smoking (HR 31 March 2006, RvdW 2006, 328) Scope of liability Article 6:98 is also used to determine the scope of liability. This is the same test as stated above in determining the causation: conditio sine qua non and the weighing of other factors by the court. This is known as the doctrine of attribution according to reasonableness. How much weight has to be attrib- 80 Asser, Hartkamp, op. cit., nrs Spier et. al., op. cit., nrs (Hartlief) 29

31 uted to each factor is not clear. A well known professor (Brunner) tried to distil some additional rules of causality from the case law of the Hoge Raad: 1. Attribution of liability is justified sooner, where the consequence, according to rules of experience, is more likely (foreseeability); 2. Attribution of liability is justified sooner, where the consequence is less far removed from the wrongful conduct; 3. A generous attribution of damages caused by death or physical injury is justified, where safety or traffic norms, constructed with the purpose to prevent accidents, are violated; 4. A more generous attribution is justified, where the measure of reproach to the damaging event is greater; 5. Damage caused by death or injury is attributed sooner than damage to an object, damage to an object sooner than damage consisting of extra costs and expenses and damage by loss of wealth sooner than loss of profit; 6. Attribution may be justified sooner, where the liable person is conducting a business, than where he is a private person or practicing a profession Compensation Repair in article 6:162 is has to be understood as compensate. The starting point is that of full compensation; the victim s position has to be restored to the position he was in before the wrongful act. To determine the amount of the damage, the current position of the victim is compared to the (hypothetical) situation that the tort didn t occur. Just as under the PETL, events which have or would have affected the victim s position have to be 82 Spier, et. al., op. cit., nr. 218, Asser, Hartkamp, op. cit., nr. 433 ff. 30