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J - Comparative Tort Law > Intention and Negligence > Flashcards

Intention and Negligence Flashcards

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1
Q

Which country does not recognize intentional conduct?

A

France – negligence is enough.

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2
Q

What is the one exception to the rule that France does not recognize intentional conduct?

A

Abuse of right.

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3
Q

What is abuse of right?

A

Intention to harm.

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4
Q

What is the objective theory of abuse of right?

A

Failure to exercise activity with societally useful function.

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5
Q

What is the subjective theory of abuse of right?

A

Malicious intention.

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6
Q

What is the theory of abuse of right that is supported by the Cour de Cassation?

A

Subjective theory of abuse of right.

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7
Q

What is the process for bringing a claim in Germany?

A
  1. Violation of codified normative rule.
    - Infringement of a right.
    - Violation of a statutory rule.
    - Intentional unethical conduct, or intentional infliction of damage contra bones mores.
  2. Unlawfulness.
  3. Fault.
  4. Causation.
  5. Damage.
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8
Q

What are the two requirements to negligence in German law?

A
  1. Knowledge.

2. Voluntariness.

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9
Q

When is the distinction between negligence and intention important in German law?

A

Section 826 of the Bürgerliches Gesetzbuch.

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10
Q

What are the levels of intention in English law?

A
  • Motive to injure.
  • Deceit.
  • Intending action but not consequences.
  • No intention.
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11
Q

What are the requirements for negligent conduct in France?

A
  1. Fault.
  2. Damage.
  3. Causation.
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12
Q

What are the relevant provisions in France with regard to negligent conduct?

A

Articles 1240 to 1241 of the Code Civil.

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13
Q

What are the objective and subjective element to fault in French law?

A

Conduct of the defendant is objective, while the personal capacities of the defendant are subjective.

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14
Q

What are the two ways to establish fault in France?

A
  1. Breach of a pre-existing obligation.

2. Standard of a good family father.

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15
Q

What are the requirements for fault in Germany?

A

Intention or negligence.

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16
Q

What is negligence in Germany?

A

Acts contrary to the care required in society – average circumspection and capability.

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17
Q

What case in Germany illustrates the need to be able to recognize and perceive risk?

A

Slipping on a lettuce leaf in a supermarket.

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18
Q

What is an objective standard to negligence?

A

Looking at the typical knowledge and abilities of that group.

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19
Q

Who is the burden of proof on in a negligence claim in Germany?

A

Burden is typically on the claimant, but there is the Reversal Rule in cases where there is a safety duty.

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20
Q

What is the standard against which a person’s conduct is measured in English law? What case does it come from?

A

Conduct of a reasonable person (Blyth v Birmingham Waterworks).

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21
Q

How do circumstances inform the English standard of a reasonable person?

A

Children are compared to children, those responding to emergencies are compared to those responding to emergencies.

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22
Q

What is outer and inner care?

A

Outer care is how that person behaved, inner care is knowledge and skills possessed by that person.

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23
Q

What are some factors to consider in assessing whether precautions taken were reasonable?

A
  1. Level of risk.
    - Seriousness of damage.
    - Probability it will happen.
  2. Level of care.
    - Character and benefit of conduct.
    - Burden of precautionary measures.
24
Q

When assessing the level of risk, what are two things that need to be considered?

A
  1. It is the increase over normal risk that is relevant.

2. It is the probability of an event occurring that is relevant, not the provability of the harm occurring.

25
Q

Haley v London

A

Blind person falling into hole. Statistics can be used to demonstrate level of risk.

26
Q

How should one assess the probability of a victim acting negligently?

A
  1. No sufficient knowledge of risk.
  2. Inclined to underestimate.
  3. Unable to avoid risk.
27
Q

What does the Hockey Rink case stand for? How can it be compared to the case of Bolton v Stone?

A

In the Hockey Rink, it was determined that one-off measures will be outweighed by the magnitude of risk. Bolton v Stone, however, talked about how it was such an unlikely occurrence that a fence was unnecessary.

28
Q

In what situations is it impossible to reduce risk?

A
  1. Activity would be impossible (sports).
  2. Prescription drugs.
  3. Precautionary measures are supervision and maintenance (mentally incapacitated).
29
Q

What are some things that must be kept in mind when it comes to warning of risks?

A
  • Warning is only an issue if the risk cannot be otherwise eliminated.
  • Information has to be provided in a way that informs victims in time.
  • Pictures should be included for children.
  • Warnings are not necessary for well-known risks (drinking coolant, stairs in the Netherlands being steep).
30
Q

What case states that public bodies are not required to fulfill affirmative duties?

A

Stovin v Wise.

31
Q

Who can owe an affirmative duty?

A
  1. Those with relationship to the place (occupiers’ liability).
  2. Those that have a relationship with a movable thing (vehicle owners).
  3. Those that have a relationship with the defendant (supervising children or employees).
  4. Those who have a relationship with the victim (supervising children in schools or prisoners).
32
Q

In what country are affirmative duties owed by children?

A

France.

33
Q

How are omissions considered in France?

A

Under fault, the same as positive actions.

34
Q

How are affirmative duties considered in Germany?

A

They are safety duties.

35
Q

In what situations are affirmative duties owed in England?

A
  1. Defendant created the risk.
  2. Defendant assumed responsibility.
  3. Defendant owed affirmative duty (prison).
  4. Control (young offenders) – see Home Office v Dorset Yacht.
36
Q

When is the character of the activity considered?

A
  • Opposing fundamental rights – see Hannover v Germany.
  • Public bodies.
  • Economic competition – see Competition Act.
  • Sports.
37
Q

Why is consent important in medical malpractice cases?

A

Even if it is to protect someone’s health, the right self-determination prevails.

38
Q

What is the state-of-the-art defence?

A

No one knew about the risk – see Roe v Minister of Health.

39
Q

When is a subjective standard used to measure someone’s conduct?

A

Children and rescuers.

40
Q

What is the objective standard used to measure someone’s conduct in France?

A

Good family father.

41
Q

What is the objective standard used to measure someone’s conduct in Germany?

A

Someone of average circumspection and capability.

42
Q

What is the objective standard used to measure someone’s conduct in England?

A

Reasonable person.

43
Q

What is the standard of reference for measuring a physician’s conduct?

A

The standard of the ordinary professional (Bolam v Friern).

44
Q

How is children’s conduct assessed in France?

A

Same as adults.

45
Q

How is children’s conduct assessed in Germany?

A

Child of the same age, no liability under 7 (or 10 for traffic accidents, 18 if not capable of understanding). Rebuttable presumption.

46
Q

How is children’s conduct assessed in England?

A

Child of same age, age of discretion.

47
Q

How is mental incapacitation assessed in France?

A

Same as with a person who does not suffer from mental incapacitation.

48
Q

How is mental incapacitation assessed in Germany?

A

See if they are capable of acting with intention or negligence.

49
Q

How is mental incapacitation assessed in England?

A

Considerably more relaxed, a temporary mental disorder can excuse liability (for instance, a heart attack – see Waugh v Allan).

50
Q

What is the requirement for breach of a statutory duty in France?

A

Does not have to be intended to protect victim – violation of written rule sufficient.

51
Q

What is the requirement of breach of a statutory duty in Germany (section 823(2))?

A
  1. Provision is protective – protects individual interests.
  2. Victim belongs to the group that was intended to be protected.
  3. Infringed interest is within the scope of protection.
52
Q

What is the requirement for a breach of a statute in England?

A
  1. Belongs to the group the legislator aimed to protect (Hartley v Mayoh – firefighter case).
  2. Protects from the type of damage suffered (Gorris v Scott – sheep on a ship case).
53
Q

What is strict liability?

A
  • Performs balancing function.
  • No longer requires proof.
  • Loss-spreading.
  • Fairness.
  • Efficient settlement of claims.
54
Q

How did insurance contribute to strict liability?

A

Made it possible.

55
Q

What are three variations of strict liability?

A
  1. With an extra debtor (joint and several liability) – for example, with employees (except in Germany).
  2. Defective object – condition and safety of a thing.
  3. Limited defence – think absolute liability in cases of car accidents in France due to Loi Badinter.
56
Q

What are some examples of strict elements making its way into negligence?

A
  1. Increasing level of required precautionary measures (for example, in personal injury cases).
  2. Increasing level of knowledge or ability (for example, doctors).
  3. Amending or shifting the burden of proof (for example, in Rylands v Fletcher cases where the only defence is Act of God).

J - Comparative Tort Law (13 decks)

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