Tort Law
6
G.E. van Maanen and Jaap Hage
6.1 The Domain of Tort
Donoghue vs Stevenson, [1932] AC 562
On August 26, 1928, Mrs. May Donoghue visited a bar in Paisley, Scotland. The owner of
the bar poured part of a bottle of ginger beer on top of her ice-cream; her friend poured on
the remainder. On doing so, they saw the remains of a snail in a state of decomposition.
Mrs. Donoghue later claimed to have contracted gastro-enteritis from drinking the bottle,
and therefore she wanted to be compensated financially by Stevenson, who had
manufactured the bottle.
This case between Mrs. Donoghue, who allegedly suffered damage from drinking
from a bottle that contained spoiled ginger beer, and Stevenson, who produced this
bottle, has become a classic of tort law. Tort law deals with cases in which a victim
suffered damage and wants someone else to compensate the damage.
Main Principle of Tort Law At first sight, it may seem strange that if people
suffer damage, someone else must compensate them. In fact, this would be an
exception to the main principle of tort law: Everyone must in principle bear his own
damage.
That everyone bears his own damage and that therefore nobody else must
compensate it is the starting point, the main principle of tort law. One might see
the field of tort law as dealing with the question when we must make exceptions to
this principle. In this connection, several questions pop up:
G.E. van Maanen
Maastricht University, Maastricht, The Netherlands
J. Hage ( )
Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht,
The Netherlands
e-mail:
J. Hage and B. Akkermans (eds.), Introduction to Law, 101
DOI 10.1007/978-3-319-06910-4_6, Ⓒ Springer International Publishing Switzerland 2014
,102 G.E. van Maanen and J. Hage
1. Why should the damage that a victim suffered under certain circumstances be
shifted to a different person at all?
2. What are the conditions under which a victim’s damage must be compensated by
another person?
3. If damage is to be compensated, which damage qualifies for compensation?
These three questions will be answered in Sects. 6.2, 6.3–6.6, and 6.7, respec-
tively. But first, two preliminary issues need to be dealt with.
6.1.1 Contract Law and Penal Law
Tort law must be distinguished from both contract law and criminal law. Unlike
contract law, tort law deals with situations where there is no preexisting contractual
relationship. If such a contractual relationship does exist, compensation of damage
is usually dealt with by the law of contract.
Moreover, unlike criminal law, tort law does not aim at punishing wrongful
behavior, but seeks for ways to compensate the damage that is often caused by
wrongful acts. So tort law differs from criminal law in that it does not focus on
punishment but on the compensation of damage, and it differs from contract law in
that it does not deal with the damage that results from the nonperformance of contracts.
6.1.2 Tort and Torts
The expression “tort law” suggests that tort law is a homogeneous field of law, with a
few rules that regulate compensation for all kinds of damage. To some extent, this
suggestion is correct, but not completely. Tort law can be applied to very heterogeneous
topics, such as bodily harm, manslaughter, insult, libel, infringement of privacy,
trespass on one’s property or into one’s home, damage to one’s goods, violation of
copyright, unlawful competition, collapsing buildings, unhealthy food, and so on. What
all these situations have in common is that an event caused damage to a victim and that
there may be reason to let someone else compensate this damage. For the rest, however,
there seems to be little similarity concerning the above-mentioned situations.
Law of Torts It would therefore be quite possible to develop rules for each of
them, and these rules could be fine-tuned to the various cases and the differences
between them. Actually, this is what happened in common law. It has developed
rules for several kinds of torts. For this reason, the rules about the different
situations were originally called the law of torts (plural).
Negligence However, with the Donoghue v. Stevenson case, a development has
started in common law in which one particular tort, the tort of negligence, has come
to dominate an important part of the field. Negligence as a tort is assumed if
someone breached a legal duty to take care towards other persons and their interests
and this breach resulted in damage to someone towards whom care was due. This
, 6 Tort Law 103
development has changed the “law of torts” into “tort law,” but the field of tort law
still exhibits the traces of the old situation in which there were separate rules for the
different torts.
Does this mean that tort law in the common law tradition is very different from
that in the civil law tradition? Not really. In the common law tradition, there are, as
a starting point, different kinds of torts, but the doctrine of negligence has now
created a tendency to treat these different kinds of torts more similarly.
Civil Law In the civil law tradition, there are not as many kinds of torts as far as
legislation is concerned. However, the application of the relatively few rules has
been differentiated between different kinds of wrongful acts by means of judicial
decisions in which the relatively uniform tort law has been interpreted.
For instance, in the case of wilful causation of damage such as physical mistreatment,
liability is more easily assumed than in case of an accident. The liability for inherently
dangerous activities tends also to be greater than for events which cause damage by way of
coincidence. These distinctions could not be found originally in legislation, but were based
on case law. However, relatively recently, some of these developments from case law have
been codified. We return to this point in Sect. 6.7.
Since the relatively uniform rules have been interpreted differently for different
kinds of wrongful acts, the case law in the civil law tradition created a greater
differentiation than appears to be the case on the basis of legislation only. The result
is that the difference between the civil law and the common law tradition is mainly
one of style.
6.2 The Functions of Tort Law and the Grounds of Tort
Liability
6.2.1 Functions of Tort Law
The rules of tort law can, to some extent, be explained by the fact that tort law
fulfills several functions, which sometimes overlap. These functions include
– the realization of compensatory justice,
– the realization of a distribution of damage over society that is both fair and
efficient,
– the granting of compensation to people for damage caused by someone else,
– the prevention of damage.
6.2.1.1 Fault Liability
If one person does something wrong and thereby causes damage to another person,
compensatory justice (also called “retributive justice”) requires that the wrongdoer
compensates the damage. This kind of compensation makes sense only when the
person who caused the damage was at fault (did something wrong for which he can
be blamed), and therefore this kind of liability is called “fault liability.”
6
G.E. van Maanen and Jaap Hage
6.1 The Domain of Tort
Donoghue vs Stevenson, [1932] AC 562
On August 26, 1928, Mrs. May Donoghue visited a bar in Paisley, Scotland. The owner of
the bar poured part of a bottle of ginger beer on top of her ice-cream; her friend poured on
the remainder. On doing so, they saw the remains of a snail in a state of decomposition.
Mrs. Donoghue later claimed to have contracted gastro-enteritis from drinking the bottle,
and therefore she wanted to be compensated financially by Stevenson, who had
manufactured the bottle.
This case between Mrs. Donoghue, who allegedly suffered damage from drinking
from a bottle that contained spoiled ginger beer, and Stevenson, who produced this
bottle, has become a classic of tort law. Tort law deals with cases in which a victim
suffered damage and wants someone else to compensate the damage.
Main Principle of Tort Law At first sight, it may seem strange that if people
suffer damage, someone else must compensate them. In fact, this would be an
exception to the main principle of tort law: Everyone must in principle bear his own
damage.
That everyone bears his own damage and that therefore nobody else must
compensate it is the starting point, the main principle of tort law. One might see
the field of tort law as dealing with the question when we must make exceptions to
this principle. In this connection, several questions pop up:
G.E. van Maanen
Maastricht University, Maastricht, The Netherlands
J. Hage ( )
Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht,
The Netherlands
e-mail:
J. Hage and B. Akkermans (eds.), Introduction to Law, 101
DOI 10.1007/978-3-319-06910-4_6, Ⓒ Springer International Publishing Switzerland 2014
,102 G.E. van Maanen and J. Hage
1. Why should the damage that a victim suffered under certain circumstances be
shifted to a different person at all?
2. What are the conditions under which a victim’s damage must be compensated by
another person?
3. If damage is to be compensated, which damage qualifies for compensation?
These three questions will be answered in Sects. 6.2, 6.3–6.6, and 6.7, respec-
tively. But first, two preliminary issues need to be dealt with.
6.1.1 Contract Law and Penal Law
Tort law must be distinguished from both contract law and criminal law. Unlike
contract law, tort law deals with situations where there is no preexisting contractual
relationship. If such a contractual relationship does exist, compensation of damage
is usually dealt with by the law of contract.
Moreover, unlike criminal law, tort law does not aim at punishing wrongful
behavior, but seeks for ways to compensate the damage that is often caused by
wrongful acts. So tort law differs from criminal law in that it does not focus on
punishment but on the compensation of damage, and it differs from contract law in
that it does not deal with the damage that results from the nonperformance of contracts.
6.1.2 Tort and Torts
The expression “tort law” suggests that tort law is a homogeneous field of law, with a
few rules that regulate compensation for all kinds of damage. To some extent, this
suggestion is correct, but not completely. Tort law can be applied to very heterogeneous
topics, such as bodily harm, manslaughter, insult, libel, infringement of privacy,
trespass on one’s property or into one’s home, damage to one’s goods, violation of
copyright, unlawful competition, collapsing buildings, unhealthy food, and so on. What
all these situations have in common is that an event caused damage to a victim and that
there may be reason to let someone else compensate this damage. For the rest, however,
there seems to be little similarity concerning the above-mentioned situations.
Law of Torts It would therefore be quite possible to develop rules for each of
them, and these rules could be fine-tuned to the various cases and the differences
between them. Actually, this is what happened in common law. It has developed
rules for several kinds of torts. For this reason, the rules about the different
situations were originally called the law of torts (plural).
Negligence However, with the Donoghue v. Stevenson case, a development has
started in common law in which one particular tort, the tort of negligence, has come
to dominate an important part of the field. Negligence as a tort is assumed if
someone breached a legal duty to take care towards other persons and their interests
and this breach resulted in damage to someone towards whom care was due. This
, 6 Tort Law 103
development has changed the “law of torts” into “tort law,” but the field of tort law
still exhibits the traces of the old situation in which there were separate rules for the
different torts.
Does this mean that tort law in the common law tradition is very different from
that in the civil law tradition? Not really. In the common law tradition, there are, as
a starting point, different kinds of torts, but the doctrine of negligence has now
created a tendency to treat these different kinds of torts more similarly.
Civil Law In the civil law tradition, there are not as many kinds of torts as far as
legislation is concerned. However, the application of the relatively few rules has
been differentiated between different kinds of wrongful acts by means of judicial
decisions in which the relatively uniform tort law has been interpreted.
For instance, in the case of wilful causation of damage such as physical mistreatment,
liability is more easily assumed than in case of an accident. The liability for inherently
dangerous activities tends also to be greater than for events which cause damage by way of
coincidence. These distinctions could not be found originally in legislation, but were based
on case law. However, relatively recently, some of these developments from case law have
been codified. We return to this point in Sect. 6.7.
Since the relatively uniform rules have been interpreted differently for different
kinds of wrongful acts, the case law in the civil law tradition created a greater
differentiation than appears to be the case on the basis of legislation only. The result
is that the difference between the civil law and the common law tradition is mainly
one of style.
6.2 The Functions of Tort Law and the Grounds of Tort
Liability
6.2.1 Functions of Tort Law
The rules of tort law can, to some extent, be explained by the fact that tort law
fulfills several functions, which sometimes overlap. These functions include
– the realization of compensatory justice,
– the realization of a distribution of damage over society that is both fair and
efficient,
– the granting of compensation to people for damage caused by someone else,
– the prevention of damage.
6.2.1.1 Fault Liability
If one person does something wrong and thereby causes damage to another person,
compensatory justice (also called “retributive justice”) requires that the wrongdoer
compensates the damage. This kind of compensation makes sense only when the
person who caused the damage was at fault (did something wrong for which he can
be blamed), and therefore this kind of liability is called “fault liability.”
