Exam summary tort law

English tort law  Always tell why other torts do not apply, so cut out categories from the beginning, but don’t jump to a tort directly.
First dismiss all the other ones

French law  1240 always mention that there might be a statutory duty, but that would require more research


Fault based liability  basics

Negligence  England, France, Germany

Breach of statutory duty  England, Germany, France (+EU law)

English torts

Wrongfulness Germany

Wrongfulness France

Strict liability

,FAULT BASED LIABILITY:
Fault-based-liability  liability of one’s own fault




 Wrongfulness/ Fault
 An act or behavior from the tortfeasor that should not have been committed
 2 Elements:
o 1. Wrongfulness  Objective side to look at the tort, meaning that the tort, legally, should not have been committed
o 2. Culpability  Subjective side of the tort, legally speaking, it is to determine whether the act can be attributed to the person (some
torts require special form of culpability: intention)

 Causality
 The harm is caused by the fault, wrongful action must have caused harm (i.e. driving through traffic light and not causing accident is not a
tort)

o Factual causation (condicio sine qua non: establishing a legal causation

 What would have happened if the act would not have occurred? (“But-for” test in English law)

o Legal causation: limits the extent of liability by not awarding compensation to losses which are too loosely connected to the wrongful act
 remoteness or foreseeability (England)
 direct and immediate consequence (France)

,  attributability of damage to the fault (Germany/The Netherlands)
 proximate cause (U.S.A.)


 Harm
 Interest of the victim has been injured
 Material (pain, injury, damage to property etc.)
 Immaterial (psychological damage etc.)

, Negligence  England, Germany, France
It could be argued that this would lead to (tort of) negligence, on the basis of ……..

England Germany France
Requirements: (Found in Eric Tjong Tjin Tai 5 Schritte zu Negligence (1. Tatbestand, 2. 3 Schritte zu Negligence (Faute, Damage,
p.51/52)  As they have been established/ Rechtswiedrigkeit, 3. Verschulden, 4. Causality, Causation)
mentioned in the Robinson Case v Chief 1. Faute (art. 1240 and 1241 Cc)
5. Damage)
Constable of West Yorkshire Police case.

1. the existence of a duty of care, 1. Tatbestand: Violation of codified normative  Reasonable man test: (Van Dam Section
804)
rule (objective fault)
 Wenn PERSONAL INJURY/  §823 I BGB (: infringement to the right of
A reasonable person have/ would not have
PROPERTY DAMAGE, dann Donoghue life, health, personal liberty, or another right ……  skills and knowledge of the
and Stevenson  always starting point for fault defendant)
liability)
 Wenn PURE ECONOMIC LOSS, dann  §826 BGB (if intentionally)
 4 factor test, for whether of duty of care has
Hedley Byrne & Co Ltd v. Heller &
been breached (In the first requirement of
Partners Ltd 2. Wrongfulness (Rechtswiedrigkeit) show the tort of negligence): (From Tutorial 4)
how above provisions breached (objective fault)
2. a breach of that duty,
 Identified provision, what was the harm 1) probability of causing harm
2) seriousness of expected harm
4 factor test, for whether of duty of care has 3) burden of precautionary measures
been breached (In the first requirement of 3. Verschulden – 5 criteria + §276 BGB (act 4) character and benefit of the conduct
the tort of negligence): (From Tutorial 4) contrary to care required by society) (subjective
fault) 2. Damage
1) probability of causing harm
2) seriousness of expected harm  Material/ Immaterial
1) Reasonable man test: (Van Dam Section 804)  Personal injury + property damage + pure
3) burden of precautionary measures
economic loss