18. Objective elements, scope of protection

Question 1

3 objective elements

Answer 1

1. Injurer
2. Causal relationship
3. Damage

Question 2

Injurer

Answer 2

Activity / behavior (intentional or negligent)

In tort law legal effects are connected to conducts conscionably and voluntarily kept by a person => He who caused a damage is not liable, when he acted unconscionably and involuntarily, unless his unconscionableness and involuntarity were due to his own negligence

e.g. when you’re drunk

Question 3

Causation

Answer 3

linking the event triggering the liability of the defendant with the damage suffered by the victim

Question 4

Causation - 2 main approaches to the problem

Answer 4

1. “but for” causation (conditio sine qua non): it requires that the damage would not have occurred in the absence of a given activity or event. (basic question framework: What would happen without the action of the injurer?). BUT: Applying this parameter, the scope of causal chain could be extended almost ad infinitum (too general)
2. “adequate cause theory”: conduct of the injurer is adequate cause of the damage if it is in general apt: (question framework: what would happen with the action of the injurer -> more specific)

• (i) to produce a result such as happened
• (ii) to significantly increase probability of such result happening

Question 5

Edelweiss (Facts)

Answer 5

1. Two ships (Edelweiss; HH9) moored side by side in a lock.
2. The ships’ operators were asked to specify the width of their vessels before the water level was lowered in the lock, in order for the harbor’s personnel to organise the mooring operations safely.
3. The HH9 operator mistakenly understated the width information, so that, in the following operation, the two vessels became stuck in the lock.
4. The rescue activity were improperly executed by the lock personnel, and in the course of it Edelweiss was submerged and sank.
5. Insurer of Edelweiss sued the insurer of HH9 for damages in tort
6. (The wrong width information being the «but for» causation of the accident)

Question 6

Edelweiss (Judgement)

Answer 6

• Plaintiff’s claim was dismissed on the ground of the «adequate cause» theory.
• (The mistake by the lock personnel being the adequate cause for the damage)
• The assumption that the fault of the HH9 operator directly caused the injury is not correct. «But for causation» goes far too large in imposing the full burden of consequences of each such cause on the person who initiated it.
• «Adequate causation» is meant to allow individual events that are conditions for a result – in the logical sense that the result would not have happened but for them – to be eliminated from causation in the legal sense.

Question 7

Damage

Answer 7

compensable losses relevant in tort liability do not cover any kind of harm

Question 8

Compensable damage example

Answer 8

Firm A deliberately avoids to install the technical measures prescribed by the law in order to control pollution. This creates an emission of toxic pollutants which spoils the field of a neighboring farm

Question 9

Non-compensable damage example

Answer 9

Mr. Johns is very idle and postpones the renovation that his property would need. This creates protests by his neighbors who complain that his spoiled building ruins the decorum, and the public view, of their street

Question 10

2 types of tort-law systems

Answer 10

• Rule-based (Typical) approach in tort law: Legal systems characterized by a series of causes of action delineated by the law. E.g. Common law tradition / German system
• Principle-based (Atypical) approach in tort law: formulation of an abstract rule providing a comprehensive discipline of tort liability. E.g. French / Italian systems

Question 11

German civil code

Answer 11

A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.

Question 12

French civil code

Answer 12

principle-based approach

broad formula

• Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.
• Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence.

Question 13

Legal notion of compensable damages in rule-based

Answer 13

limitation of the legal interests that can be protected by tort law is set ex ante by the law

Question 14

Legal notion of compensable damages in principle-based

Answer 14

this limitation derives from case-law interpretation of the general clause introducing tort liability

Question 15

Commonalities in western legal notion of compensable damages

Answer 15

all the western legal systems allow for compensation of (e.g.):

• physical injuries
• personality and privacy rights
• damage to property

i.e. absolute rights in civil law tradition

if we have these damages we have tort liability

Question 16

Progress of tort liability in Italy

Answer 16

the award of damages for economic losses deriving from relative rights

E.g.
• Court of Cassation, Third Civil Division, 4 July 1953, n. 2085

• Associazione calcio Torino v. Soc. A.L.I.
• Court of Cassation, Joint Civil Divisions, 26 January 1971, n. 174 • S.p.a. Torino calcio v. Romero

Question 17

Court of Cassation - Associazione calcio Torino v. Soc. A.L.I (Facts)

Answer 17

1. On 4 May 1949, an aircraft (Italian Airlines), carrying the entire Torino football team, crashed into the walls at the back of the Basilica of Superga, on the hill of Turin, with 31 victims.
2. Torino soccer team sued the airline asking compensation for the extinction of its credit rights with football players caused by their death in the air crash.

Question 18

Court of Cassation - Associazione calcio Torino v. Soc. A.L.I (Judgement)

Answer 18

• Legal relations between Torino an its players were based on contractual/relative rights.
• Because plaintiff was not suing for injury to some asset falling within the protected category of “absolute subjective rights”, liability was denied

Question 19

Cassazione - S.p.a. Torino calcio v. Romero (Facts)

Answer 19

• Luigi Meroni was a famous Italian professional footballer who played as a winger for Torino.
• On 15 October 1967, Meroni died at the age of 24, hit by a car driven by Mr. Romero.
• Torino soccer team sued Romero asking compensation for the extinction of its credit rights with the football player.

Question 20

Cassazione - S.p.a. Torino calcio v. Romero (Judgement)

Answer 20

• After 18 years that separate the two cases which present strikingly similar issues and fact patterns, the Court of Cassation reverses itself.
• Relative rights may be protected through tort law