17. Functions of tort law, grounds for liability

Question 1

What is tort law?

Answer 1

• In basic private law terms, “torts” are considered among the sources of legal obligations
• encompasses those situations in which a victim suffers for a harm, relevant in economic terms, and wants someone else to compensate his loss
• The fundamental content of the tortfeasor (wrongdoer)–injured party (victim) relationship is the duty to provide relief for the harm suffered by the latter (by way of payment of a pecuniary sum, or through material restoration of the status quo)

Question 2

What is tort liability?

Answer 2

• commonly referred to as non-contractual liability, thus distinguishing it from liability that arises from non-performance (breach) of previously defined contractual duties
• An act by one individual (which could be considered in our cases as “negligent”) causally linked to a harm suffered by another individual (both physically or regarding personal property)

Question 3

4 main questions that make up elements of tort law

Answer 3

1. Why shifting harm from one individual to another?
   * The function(s) of tort law
2. At what condition?
   * The elements of liability in tort
3. Which kind of “harms” are eligible for compensation?
   * The scope of tort law
4. How to compensate?
   * Remedies

Question 4

The functions of tort law

Answer 4

three main functions:

1. Compensation (distributive justice)
2. Sanction / reaction of public authorities (retributive justice)
3. Deterrence / prevention of future damages (efficiency)

Question 5

Distributive justice

Answer 5

• requires that the allocation of goods among people is organized and ensured in accordance with the relative merits of the parties because:
  
  • It would be unjust not to ensure a restoration of an original allocation of wealth in favor of a party who has been deprived of his resources after the damage has occurred
• ex post approach

(goes back to Aristotle)

Question 6

Retributive justice

Answer 6

• requires that those who commit wrongful acts should be proportionally punished, even if punishing them would produce no other good. The concept was developed with regard to serious crimes, but may also apply to civil wrongs.
• The obligation to restore the damage caused is the proportionate reaction of the legal system to the tort committed by the tortfeasor
• ex post approach

(Nozick)

Question 7

Deterrence

Answer 7

consider legal rules as instruments to steer behavior of individuals. By imposing liability, tort law is meant to influence the conduct of rational agents (both potential tortfeasors and victims)

efficient for the overall system to prevent the occurrence of accidents (and connected damages) by imposing the expected costs of damages on potential tortfeasors

ex-ante approach

Question 8

When do we use retributive justice?

Answer 8

If the goal of tort law is to punish the tortfeasor, a basic principle of the system should be the requirement of her/his fault (nullum crimen, nulla poena sine culpa)

Question 9

When do we use distributive justice/deterrence?

Answer 9

If the goal of tort law is to compensate the victim, or create incentives not to cause accidents, then liability arises notwithstanding the absence of any subjective elements of intention or negligence supporting the tortfeasor’s conduct

Question 10

Grounds for liability

Answer 10

• Fault
• Vicarious liab
• Strict liab

Question 11

Cases for Fault

Answer 11

cases in which a tortfeasor acted wrongfully and has to compensate for the damage that resulted from the wrongful behavior (liability for one’s own fault)

Question 12

Cases for vicarious liab

Answer 12

cases in which someone is liable for the damage that was wrongfully caused by a different tortfeasor (liability for a tortfeasor’s fault)

behaviour of a person

Question 13

Cases for strict liab

Answer 13

cases in which a tortfeasor is liable for the damage caused by an animal or by an object for which the tortfeasor is responsible (strict liability)

Question 14

Condition for tort liability and fault

Answer 14

• Fault = wrongful act for which an agent can be blamed
• The parameter of fault has been considered an essential condition for tort liability for many centuries
• “It is not the damage which obligates compensation, but the fault “

Question 15

2 main types of faulty behaviour (subjective)

Answer 15

• Intentional behaviour: the harmful event which is the result of the act or omission is foreseen and desired by the agent as a consequence of his own act or omission
• Negligence: the event, even though foreseeable, is not desired by the agent and occurs because of carelessness, imprudence, lack of skill or failure to observe laws, regulations, orders or procedures

Question 16

Criteria relevant to assess fault

Answer 16

• Breach of a duty of care (common law tradition - case made law)
• Statutory intepretation (civil law tradition)

Question 17

US vs Carroll Towing (facts)

Answer 17

1. The case was the result of the sinking of the barge Anna C that took place on January 4, 1944 in New York Harbor
2. Before the accident, the Anna C was moored at Pier 52 on the North River along with several other barges.
3. On the day of the accident the tug Carroll was sent to remove a barge from the Public Pier.
4. In the process of removing the barge, the line between the barges at Pier 52 and the barges at the Public Pier was removed.
5. After the removal of the line, the barges at Pier 52 broke free.
6. This resulted in the sinking of Anna C.
7. The United States, lessee of the Anna C, sued Carroll Towing Co., owner of the Carroll in an indemnity action

Question 18

US VS Caroll Towing (Judgement)

Answer 18

to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions

Burden = costs related to the prevention

Cost of injury: damage that will occur

• If (Burden < Cost of injury × Probability of occurrence), then the accused will not have met the standard of care required
• If (Burden ≥ Cost of injury × Probability of occurrence), then the accused may have met the standard of care

Question 19

Statutory interpretation

Answer 19

differs from the common law approach in that the basic rules for tort liability are formulated in statutes and that these rules appear to be relatively uniform

• there must be an act or an omission that unlawfully violated a legally protected interest
• the unlawful act or omission must have caused damage of a type that qualifies for compensation

Question 20

Fundamental elements of vicarious liab

Answer 20

• Relationship between tortfeasor and vicariously liable person
• Connection between this relationship and the tort committed

E.g.

• Liability of employers
• Liability of parents
• Liability of school teachers
• Liability of subjects who control activities of impaired persons

Question 21

Vicarious liab in civil law

Answer 21

Liability of a person with a duty of supervision

(1) A person who is obliged by operation of law to supervise a person who requires supervision because he is a minor or because of his mental or physical condition is liable to make compensation for the damage that this person unlawfully causes to a third party. Liability in damages does not apply if he fulfils the requirements of his duty to supervise or if the damage would likewise have been caused in the case of proper conduct of supervision.
(2) The same responsibility applies to any person who assumes the task of supervision by contract

Question 22

Vicarious liab in common law

Answer 22

In principle, liability in tort depends on proof of personal breach of duty.

To that principle there is at common law only one true exception, namely vicarious liability. Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other

Question 23

Century Insurance Co. Ltd v. Northern Ireland Road Transport Board (Facts)

Answer 23

1. Davison was driving a petrol tanker for his Transport Board. While petrol was being pumped from his truck into the underground tank of a petrol station, he lit a cigarette and threw the match on the ground.
2. The match ignited some material left on the ground. The fire caught up with the tanker and the ensuing explosion caused significant damage to property.

Has Davison acted in course of his employment in lighting his cigarette?

Question 24

Century Insurance Co. Ltd v. Northern Ireland Road Transport Board (Judgement)

Answer 24

The act was done in the course of the employment. The conduct must be examined in the light of surrounding circumstances and must not be taken in isolation.

Question 25

Strict liability

Answer 25

happens that a victim suffers damage without anyone deserving blame for it. Normally, this victim has to bear the damage personally, but sometimes there are reasons to shift the damage from the victim who suffered it in the first place to someone else

exceptional rules of fault

deals not directly with the fault but rather the source of risks => no matter if there’s a fault or not

Question 26

Movement towards strict liability

Answer 26

• Rise of accidents in the course of industrialization in the 19th century
• Fairness
• Possibility to recover damages (Best insurer)
• Prevention of damages
• Economic efficiency (Internalization of Externalities)

Question 27

Strict liability in civil law

Answer 27

dictates special rules in particular cases, introducing forms of tort based on the risk principle and strict liability

• Article 2050 c.c. Liability arising from exercise of dangerous activities
• Article 2052 c.c. Liability for damages caused by animals
• Article 2054 c.c. Liability arising from circulation of vehicles

Question 28

Strict liability in common law - case law

Answer 28

• Under UK Common Law cases of strict liability are rare
• One famous example is Rylands v. Fletcher (1868) LR 3 HL 330

Question 29

Strict liability in common law - statutory alw

Answer 29

UK Statutory Law cases of strict liability are relatively common

e.g.

• Nuclear Installations Act 1965
• Animals Act 1971
• Product Liability (in Consumer
• Protection Act 1987)

Question 30

Rylands v. Fletcher (Facts)

Answer 30

1. Rylands employed contractors to build a reservoir on his land in connection with the operations of his mill.
2. The reservoir was not strong enough to bear the pressure of the water when filled.
3. Water from it leaked into Fletcher’s mine workings nearby and flooded them.
4. There had be no negligence on the part of Rylands. He employed for the work a competent engineer and competent contractors.

Is Rylands liable?

Question 31

Rylands v. Fletcher (Judegement)

Answer 31

Ryland is liable

He acted without negligence though

No requirement of negligence if:

a) A person brings something on his or her land and collects and keeps it there

b) This is done for his or her own purposes
c) The thing in question is likely to do mischief if it escapes d) The damage done is a natural consequence of the escape