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J - Comparative Tort Law > Systems of Liability > Flashcards

Systems of Liability Flashcards

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1
Q

What are the main positions of the three countries?

A
  • French position is compensation, strict liability, and distributive justice.
  • German position is intermediate, fault liability but distributive justice.
  • English position is focus on conduct, and does not address strict liability.
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2
Q

What are the pros of comparative law?

A
  • Useful instrument for understanding other systems.
  • Puts own legal system in perspective.
  • Can offer new ideas or fresh perspectives.
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3
Q

What are the cons of comparative law?

A
  • Translation issues.
  • Must look at national systems in context.
  • Close link to cultural values.
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4
Q

What are the three categories of liability in France?

A
  1. Liability for one’s own acts (arts. 1240 to 1241).
  2. Strict liability for things (arts. 1242 to 1244).
  3. Strict liability for acts of other persons.
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5
Q

In France, what are there special rules for?

A

Animals, road traffic accidents, products, buildings, minors, and employees.

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6
Q

What are the characteristics of the Cour de Cassation?

A

Law (not fact), short decisions, one decision (no dissents), legal writers interpret.

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7
Q

What are the three elements of fault liability in France?

A
  1. Fault (intention of negligence).
  2. Damage.
  3. Causation.
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8
Q

How is fault demonstrated in France?

A
  1. Violating statutory rule.
  2. Breach of unwritten pre-existing duty.
  3. Criminal fault.
  4. Abuse of right (intention to harm).
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9
Q

Is fault or strict liability the general rule in France when it comes to personal injury or property loss?

A

Strict liability – fault is like a security net.

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10
Q

What provisions states that strict liability is the rule in France?

A

Article 1242 of the Code Civil.

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11
Q

What are the two defences to strict liability in France?

A
  1. Unforeseeable and unavoidable external cause of damage.
  2. Contributory negligence.

However, voluntary assumption of risk is not a defence.

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12
Q

___ is important for determining responsibility for “thing” in France.

A

Custodianship.

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13
Q

How do you determine contribution to damage in French law?

A
  1. Contact with moving thing.
  2. Contact with non-moving thing.
  3. Indirect contact.
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14
Q

What are the characteristics of the Bundesgerichtshof?

A

Dissenting opinions not allowed, anonymous, legal scholars play a big role.

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15
Q

What are the five requirements for fault liability in German law?

A
  1. Violation of a codified normative rule.
  2. Unlawfulness.
  3. Fault (intention or negligence).
  4. Causation.
  5. Damage.
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16
Q

What are the three general provisions in German law?

A
  1. Infringement of a right (s. 823(1)).
  2. Violation of a statutory rule (s. 823(2)).
  3. Intentional unethical conduct (s. 826). `
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17
Q

Infringement of a right in German law is broadly conceived, with what exception?

A

Pure economic loss.

18
Q

What does intentional unethical conduct contra bonos mores in German law require?

A

Acceptance of the consequences or recklessness.

19
Q

How can unlawfulness in German law be rebutted?

A

Self-defence, necessity, self-help.

20
Q

What is the breach of a safety duty in German law?

A

A form of judicial intervention where a codified normative rule resulted in undesirable cases with indirect infringement.

21
Q

What are the three situations where judicial intervention was necessary in German law?

A
  1. Breach of safety duty.
  2. Pure economic loss.
  3. Personality rights.
22
Q

How is pure economic loss dealt with in Germany?

A

Weigh against freedom of expression.

23
Q

What are personality rights in Germany?

A

Privacy, honour, reputation.

24
Q

What special provisions are there in German law?

A
  • Luxury animal.

- Dangerous activities.

25
Q

What are the defences to strict liability in Germany?

A

External cause and contributory negligence.

26
Q

What happens in cases of liability for persons (children and employees) in Germany?

A

A rebuttable presumption.

27
Q

What is the defining feature of the law in England?

A

Cases and precedents – stare decisis. Higher courts are binding in lower courts. Some legislation supplants common law.

28
Q

What are some characteristics of the United Kingdom Supreme Court?

A

Dissents allowed, decision based on majority, leave must be granted, strike-out procedure for efficiency.

29
Q

How is legislation interpreted in England?

A

Golden rule, purposive approach, mischief rule.

30
Q

What is the mischief rule?

A

Purpose emphasized more than words – no unreasonable interpretation.

31
Q

What legislation has quasi-constitutional status in England?

A

Human Rights Act.

32
Q

Is damage required in English law?

A

Not always, can have nominal damages.

33
Q

What are the three requirements of negligence in English law?

A
  1. Duty of care.
  2. Breach of duty.
  3. Consequential damage.
34
Q

Donoghue v Stevenson

A
  • Relationship of sufficient proximity.
  • No more privity of contract in tort law cases.
  • Categories of torts never closed.
35
Q

Anns v Merton London Borough

A

Duty of care is owed to everyone unless there is a good reason not to.

36
Q

Caparo v Dickman

A

Novel duty of care test:

  1. Harm must be reasonably foreseeable.
  2. Relationship of proximity.
  3. Imposing duty of care must be fair, just, and reasonable.
37
Q

What is the fear with expanding the duty of care?

A

Opening of floodgates, far-reaching consequences and desire to return to traditional, small-scale categories of distinct and recognizable situations.

38
Q

Hedley Byrne v Heller

A

Assumption of responsibility:

  1. Holds themselves out to be expert.
  2. Relied on.
  3. Assumption doesn’t have to be voluntary.
  4. Direct contact (although not always).
39
Q

How does the Hedley Byrne Test interact with the Caparo Test?

A

Apply both tests. Generally, the Hedley Byrne Test is applied first.

40
Q

What are some problematic duties in English law?

A
  • Psychiatric injury – require close tie of love and affection and witness injury.
  • Omissions – no duty unless created the risk, assumed responsibility, or status gives rise to duty.
  • Pure economic loss – exceptions are assumed responsibility or inaccurate information.
  • Public authority liability – opening of floodgates and hampering services.

J - Comparative Tort Law (13 decks)

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