Tort Law Overview
Tort law = rules that determine under what conditions persons are liable outside
contract.
Fundamental structure
1. Fault = wrongful conduct (act or omission) by tortfeasor
- Unlawfulness/wrongfulness (objective)
- Culpability (subjective)
2. Causality = harm is caused by fault
- Factual causality
o C.s.q.n. + but for test
- Legal causality
3. Harm = injury to an interest
- Protected interests/damage damages/other remedy
Can use/apply multiple grounds simultaneously concurrence
In principle victims bear the burden of proof for all elements of a tort
All jurisdictions recognize a ground of liability that uses a general standard/vague
norm to determine what conduct is wrongful negligence ENG, general norm
providing compensation in case of fault (including negligent conduct) FRA,
fragmented approach e.g. §823 I + verkehrspflichten GER
Approaches to determine what is negligent conduct: conduct of a reasonable person,
external rules or standards, tools to help lawyers apply reasonable person test e.g.
Learned Hand formula (p. 16)
Omissions can happen in three forms:
1. Negligent conduct in permissible activity/ misfeasance
2. Tortfeasor neglects to fulfil his duty to act in a certain way / nonfeasance
3. Pure omission / nonfeasance
Causation = factual causation + legal causation (length of causal chain:
foreseeability, remoteness, adequacy + scope of the rule) victims have been
enables to establish causation by prima facie evidence, reversal of burden of proof,
proof by exclusion
Intervening causes are acts intervening the causality chain (may be
attributable to third party or victim) §9.4.
Proportionality: damage can consist of loss of a chance or proportional liability
§9.5
Joint and several liability = both tortfeasors are liable for entire damage, but
victim does not have to sue both tortfeasors together (except for force
majeure, contribution is neglible or contributory negligence to reduce amount
of damages) §9.3 + Summers v Tice in England.
Harm and damage
Harm = an infringement or injury
Resulting damage = losses or disadvantages suffered by the victim
, Award of damages by the court = monetary compensation for the damage
Heads of damage = specific kinds of loss that the victim suffered factual and legal
causality are required between fault and harm to grant remedy + between fault and
head of damage if victim wants to obtain an award of damages.
Remedies can consist of damages, orders, declarations of rights and property related
remedies.
Categories of damage
Compensatory damages = damages to compensate loss
- Damages for material damage/pecuniary damages (incl. losses, loss of
profit, monetary interests) courts tend to calculate/use expert valuation
- Damages for immaterial damage/non-pecuniary loss (incl. mental injury,
pain, and suffering) Schmerzengeld + courts tend to rely on precedent
Non- compensatory damages = only common law (civil law all damages are
compensatory in nature) punitive damages/exemplar damages, gain-based
damages, nominal damages
future damages and loss of a chance require a particular technique for calculating
Personal injury = bodily harm
Property damage = damage to tangible object
Pure economic loss = other kind of harm (non-physical) not resulting from
personal injury or property damage often not compensated (e.g. in §823 I
BGB or tort of negligence)
Personal injury and property damage can lead to economic loss (economic loss
following from ….)
§11. 2 Assessment of damages: 1) identify all heads of damage, 2) check whether
there is a causal connection between each of the heads of damage and the wrongful
act, 3) assess each head of damage to a certain amount of money, 4) apply
corrections if necessary (contributory negligence, deducting collateral benefits, duty
to mitigate losses, mitigation for reasons of equity)
Quite often damages are not paid by tortfeasor, but by an insurance company or
specific funds. This is for example compulsory for motorized vehicles, certain social
security cases more info §11.5 + p.30-31 notes
Breach of statutory duty only applies when there is a statutory duty that is not in itself
a tort (typical rules of criminal and administrative laws) and that duty has been
breached
Subjective fault (person is responsible for their actions) is often presumed
(reasonable person test) accountability + assessment of liability/degree of
intentionality
3-fold categorisation of intentionality:
Negligence = the harm was not intended by the actor
Intention = knowingly acting and knowing of the consequence
Malice = aiming at the harm/goal is to cause harm
(also recklessness)
, different approaches for mentally disturbed persons and children
What can the defendant argue? Deny that conditions are met (burden of proof),
argue different interpretation of the law, & defences (grounds of justification)
Defences (tortfeasor is not liable due to ….) generally recognized around the world
Contributory negligence
Permission/consent
Assumption of risk
Force majeure
Necessity
Self-defence
Illegality
Statutory duty
Order by legitimate authority
for definitions/summary Ch. 12 / p.38-39 notes
+ another bar to liability = prescription (claimant waits too long to file a claim) +
defendant may be limited by prior contractual agreement + for particular cases there
are statutory limitations to liability
Personal interests
Personal injury = bodily harm: illness, death, injuries, mental harm (in cases of
personal injury/mental harm causality is often difficult to establish because of
uncertainty regarding prior medical condition of the victim + medical outlook
for recovery)
Damage to personality right = reputation, right to freedom, privacy
Property and economic interests
Property damage: destruction, repair, loss of value, replacement, temporary
unavailability
Economic loss: loss of income, loss of profit, harm to earning
capacity/goodwill, additional costs, ‘pure’ economic loss
notion of balance: harm to an interest is allowed, as long as it does not overstep
the ‘fair balance’ between interests
Information may be any form of expression or communication that is meaningful to
others (the public), and it typically only causes pure economic loss or infringement of
intangible interests such as privacy
General Data Protection Regulation 2016/679 protects the violation of privacy EU
wide.
ISP = Internet Service Providers liability (platforms such as YouTube, TikTok, etc.)
rules established to remove liability of ISPs if they did not know about the infringing
content on their platform (such as EU Directive 2000/31)
ECHR art 8: family life/privacy and art 10: freedom of expression ECtHR von
Hannover v Germany shows tension of these rights
Distinction in property
Tort law = rules that determine under what conditions persons are liable outside
contract.
Fundamental structure
1. Fault = wrongful conduct (act or omission) by tortfeasor
- Unlawfulness/wrongfulness (objective)
- Culpability (subjective)
2. Causality = harm is caused by fault
- Factual causality
o C.s.q.n. + but for test
- Legal causality
3. Harm = injury to an interest
- Protected interests/damage damages/other remedy
Can use/apply multiple grounds simultaneously concurrence
In principle victims bear the burden of proof for all elements of a tort
All jurisdictions recognize a ground of liability that uses a general standard/vague
norm to determine what conduct is wrongful negligence ENG, general norm
providing compensation in case of fault (including negligent conduct) FRA,
fragmented approach e.g. §823 I + verkehrspflichten GER
Approaches to determine what is negligent conduct: conduct of a reasonable person,
external rules or standards, tools to help lawyers apply reasonable person test e.g.
Learned Hand formula (p. 16)
Omissions can happen in three forms:
1. Negligent conduct in permissible activity/ misfeasance
2. Tortfeasor neglects to fulfil his duty to act in a certain way / nonfeasance
3. Pure omission / nonfeasance
Causation = factual causation + legal causation (length of causal chain:
foreseeability, remoteness, adequacy + scope of the rule) victims have been
enables to establish causation by prima facie evidence, reversal of burden of proof,
proof by exclusion
Intervening causes are acts intervening the causality chain (may be
attributable to third party or victim) §9.4.
Proportionality: damage can consist of loss of a chance or proportional liability
§9.5
Joint and several liability = both tortfeasors are liable for entire damage, but
victim does not have to sue both tortfeasors together (except for force
majeure, contribution is neglible or contributory negligence to reduce amount
of damages) §9.3 + Summers v Tice in England.
Harm and damage
Harm = an infringement or injury
Resulting damage = losses or disadvantages suffered by the victim
, Award of damages by the court = monetary compensation for the damage
Heads of damage = specific kinds of loss that the victim suffered factual and legal
causality are required between fault and harm to grant remedy + between fault and
head of damage if victim wants to obtain an award of damages.
Remedies can consist of damages, orders, declarations of rights and property related
remedies.
Categories of damage
Compensatory damages = damages to compensate loss
- Damages for material damage/pecuniary damages (incl. losses, loss of
profit, monetary interests) courts tend to calculate/use expert valuation
- Damages for immaterial damage/non-pecuniary loss (incl. mental injury,
pain, and suffering) Schmerzengeld + courts tend to rely on precedent
Non- compensatory damages = only common law (civil law all damages are
compensatory in nature) punitive damages/exemplar damages, gain-based
damages, nominal damages
future damages and loss of a chance require a particular technique for calculating
Personal injury = bodily harm
Property damage = damage to tangible object
Pure economic loss = other kind of harm (non-physical) not resulting from
personal injury or property damage often not compensated (e.g. in §823 I
BGB or tort of negligence)
Personal injury and property damage can lead to economic loss (economic loss
following from ….)
§11. 2 Assessment of damages: 1) identify all heads of damage, 2) check whether
there is a causal connection between each of the heads of damage and the wrongful
act, 3) assess each head of damage to a certain amount of money, 4) apply
corrections if necessary (contributory negligence, deducting collateral benefits, duty
to mitigate losses, mitigation for reasons of equity)
Quite often damages are not paid by tortfeasor, but by an insurance company or
specific funds. This is for example compulsory for motorized vehicles, certain social
security cases more info §11.5 + p.30-31 notes
Breach of statutory duty only applies when there is a statutory duty that is not in itself
a tort (typical rules of criminal and administrative laws) and that duty has been
breached
Subjective fault (person is responsible for their actions) is often presumed
(reasonable person test) accountability + assessment of liability/degree of
intentionality
3-fold categorisation of intentionality:
Negligence = the harm was not intended by the actor
Intention = knowingly acting and knowing of the consequence
Malice = aiming at the harm/goal is to cause harm
(also recklessness)
, different approaches for mentally disturbed persons and children
What can the defendant argue? Deny that conditions are met (burden of proof),
argue different interpretation of the law, & defences (grounds of justification)
Defences (tortfeasor is not liable due to ….) generally recognized around the world
Contributory negligence
Permission/consent
Assumption of risk
Force majeure
Necessity
Self-defence
Illegality
Statutory duty
Order by legitimate authority
for definitions/summary Ch. 12 / p.38-39 notes
+ another bar to liability = prescription (claimant waits too long to file a claim) +
defendant may be limited by prior contractual agreement + for particular cases there
are statutory limitations to liability
Personal interests
Personal injury = bodily harm: illness, death, injuries, mental harm (in cases of
personal injury/mental harm causality is often difficult to establish because of
uncertainty regarding prior medical condition of the victim + medical outlook
for recovery)
Damage to personality right = reputation, right to freedom, privacy
Property and economic interests
Property damage: destruction, repair, loss of value, replacement, temporary
unavailability
Economic loss: loss of income, loss of profit, harm to earning
capacity/goodwill, additional costs, ‘pure’ economic loss
notion of balance: harm to an interest is allowed, as long as it does not overstep
the ‘fair balance’ between interests
Information may be any form of expression or communication that is meaningful to
others (the public), and it typically only causes pure economic loss or infringement of
intangible interests such as privacy
General Data Protection Regulation 2016/679 protects the violation of privacy EU
wide.
ISP = Internet Service Providers liability (platforms such as YouTube, TikTok, etc.)
rules established to remove liability of ISPs if they did not know about the infringing
content on their platform (such as EU Directive 2000/31)
ECHR art 8: family life/privacy and art 10: freedom of expression ECtHR von
Hannover v Germany shows tension of these rights
Distinction in property
