Stefanie Samland
National legal systems on tort liability
General remarks
Under EC law tortious liability is partly codified (Art. 288 II EC-Treaty for breaches by the Community institutions) and partly judge-made (for breaches by member states). Conditions for tort liability are in general the existence of an unlawful act or an omission, and in the latter case a certain duty of care, a damage and a causal link between both. If the case in issue concerns a legislative act where the Community institution had a wide discretion, higher standards are set by the Schöppenstedt test which requires a sufficiently serious breach of a superior rule of law. EC law also knows vicarious liability which means that the Community is also liable for acts of its servants. Regarding compensation, it is to the domestic legal systems to rule the amount and protected interests which can be granted, but by taking into account the principles of comparability and effectiveness, and not in general excluding reparation of pure economic losses. No-fault liability is possible in the field of product liability.
In the following, the national systems on tort liability of the UK, France and Germany shall be examined. It will become obvious that EC law is somewhere in between those systems and contains elements of all three national systems.
English tort law (also similar in other common law countries)
English tort law is not codified, but based on
specific heads of tortious liability which derives from Roman law. Those traditional types of tort are
- various forms of trespass to the person, trespass to land
- nuisance
- trespass to chattels and specific economic torts, such as fraud or deceit
- inducing breach of contract
- passing off
- malicious falsehood
- conspiracy
- intimidation.
These types of tort all have to be committed by intentional conduct, but have different special requirements. They can be relied on cumulatively.
In the 19th century a general head of tort, the
tort of negligence, has been developed. For liability in negligence, the following requirements have to be fulfilled:
- duty of care owed to the group of persons of which the victim was one
- breach of that duty of care
- damage caused by the breach
- damage not to remote a consequence of the breach
- foreseeability.
The tort of breach of statutory duty is also seen as a type of tort of negligence.
The condition of
duty of care is a key element in the English tort of negligence. Firstly, it has to be considered whether the defendant owed a duty of care in general, secondly, it has to be examined whether a duty of care was, in the actual circumstances of the case, owed to the particular plaintiff. This was dealt with in the famous Donoghue v. Stevenson case, within the "neighbour principle". The House of Lords defined neighbours, to whom the duty is owed, as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation." In order to see whether there was a duty of care in relation to the victim, it has to be considered whether the particular victim was a foreseeable victim. This "neighbour principle" became a general principle of English tort law and was later developed up to a three-stages test that asks whether
- the harm was reasonably foreseeable (Donoghue v. Stevenson)
- the relationship between plaintiff and defendant was sufficiently proximate
- it is fair, just and reasonable to impose a duty of care.
These amendments of the "neighbour principle" have been established in the discussion about reparation of
pure economic losses because English law of negligence generally shows a reluctance to protect economic interests. Those interests are merely protected by specific heads of torts which require intentional conduct or by the tort of breach of statutory provisions. One of the most important specific torts in practice is third party interference with a contractual relationship. However, it is possible under tort of negligence, too, to receive compensation for pure economic losses:
- liability for the provision of services, if the claimant relies upon the assumption of responsibility towards the defendant
- liability for false statements - conditions for this type of negligence are given in the House of Lords decision Caparo Industries plc v. Dickman (1990)
- Liability is given if "the defendant giving advice or information was fully aware of the nature of the transaction which the plaintiff had in contemplation, knew that the advice or information would be communicated to him directly or indirectly and knew that it was very likely that the plaintiff would rely on that advice or information in deciding whether or not to engage in the transaction in contemplation."
- "The situation is entirely different where a statement is put into more or less general circulation and may foreseeably be relied on by strangers to the maker of the statement for any one of a variety of different purposes which the maker of the statement has no specific reason to anticipate."
→ proximity between plaintiff and defendant
- liability for omissions under strict conditions
- accepted in White v. Jones (1995)
- A solicitor failed to change a will in favour of the applicants which excluded them of the heritage.
- After the death of the testator they could not claim damages because their was no contract between the applicants and the solicitor.
- The House of Lords held that there was a "lacuna" in the law which was unjust. He referred to other legal systems, in particular to the German contract with protective effect for third parties (Vertrag mit Schutzwirkung zugunsten Dritter) and accepted a tortious liability.
A loss of chance can also be recovered under English law if it is proved by the claimant that he/she had a substantial chance and that the loss was causally linked to the negligence of the dependant. If this is done, a full compensation is possible.
French tort law
The French tort liability finds its source in Art. 1382 and 1383 of the Code civil which provide a liability for tortious acts causing all kinds of damages. There is
no exclusion of protected rights and those two articles declare a liability for intentional acts as well as for negligence. The conditions for liability are
- fault
- damage - actually existing and certain, personal to the plaintiff
- causation.
Similar to that, the French approach does also not exclude any class of protected persons. There does not have to be a specific duty of care towards the plaintiff, the proof of fault, damage and causal link is sufficient for a claim for damages. Regarding public authorities, a no-fault or risk liability exists.
As it comes to compensation, nearly all interests are recoverable because French law provides a system of full compensation (reparation intégrale), also of non-material damages and also to third parties. Liability of a third-party accomplice to a contractual breach and liability for false advice is also known in French tort law.
German tort law
As French law, German tort law is also codified and finds its basis in §§ 823 I, II, 826 BGB. Under the general head of tort in § 823 I BGB
specific interests are protected, so there is no overall liability as it exists under French tort law.
§ 823 I BGB protects
- life, body, health
- freedom
- ownership
- any other rights - here the general right to personality (Allgemeines Persönlichkeitsrecht) and the right to an established and active business (Recht am eingerichteten und ausgeübten Gewerbebetrieb) have been pointed out by the case law.
Besides specific torts provided for in §§ 824, 825, 839 BGB there are two more general heads of tort in the German tort law system. Under those provisions a person is liable in tort if he/she culpably contravenes a statute which is intended to protect another person (§ 823 II BGB) or if he/she intentionally causes harm to another in a manner contra bones mores (§ 826 BGB). Those two provisions does not contain any exclusion of protected interests.
Concerning
economic losses, they can only be granted under § 823 I BGB if they are directly resulting from the personal injury or property damage. Claims for pure economic losses are only possible under the conditions of §§ 823 II, 826 BGB. For a claim under § 826 BGB intentional conduct (will to harm, consciousness is sufficient) is required, only und § 823 II BGB there can be a liability for negligent acts giving raise to a claim for compensation for pure economic losses, provided that the statute in issue can be contravened by negligent behaviour.
Under German law, in contrast to English tort law, an interference with a contractual relationship is not as such a tortious conduct, but can be subsumed under § 826 BGB only when the third party shows a special degree of recklessness towards the contracting party who is prejudiced by the breach of contract that occurs. Liability for false statements (or inaccurate audit) is also possible in German law, under § 826 BGB, as seen in a decision of the Bundesgerichtshof in 1986.
- A bank based its credit given to a company on an advice prepared by the company's tax adviser that - as later found out - contained serious irregularities. One year later the company went bankrupt.
- The tax adviser was held liable because he must have known from general experience that his report might be used to obtain credit from the plaintiff bank.
