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Tort law
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Notes from all Tort Law lessons from Global Law.
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LECTURE 1● Donoghue v Stevenson 1932:
○ D drank a bottle of ginger beer and became sick because there was a snail inside
of it.
○ D lived in Glasgow, traveled to Glen Lane, met up at Wellmeadow Cafe with her
friend. Her friend ordered an ice cream on which you pour ginger beer, for D.
○ Shopkeeper opened the bottle (which had not been opened since it left the
manufacturer, S), and poured it. A snail came out of the bottle, D developed
stomach flu, and self nervous shock (but she could have overreacted).
○ D claimed damages from S. Stevenson was the manufacturer of the beer.
○ D did not have a contract with the proprietor.
○ The bottles were sold by the proprietor though, (shopkeeper), and then the friend
of D poured her beer. So, who is guilty?
○ D did not have a lot of money tho, she could litigate under a reduced fee. Falling
ill, was more important for her, since she did not have the money to take proper
care of it.
● Court procedure:
○ Claimant/plaintiff (=victim) claim to the judge, and the defendant (=tortfeasor or
other) defends it to the judge. This happens through submissions, evidence and
law.
○ The victim goes to the court to make the other person do something, which he
does not want to do voluntarily, therefore the court comes into action. → the
claimant wants to claim something from the defendant!
● Lord Atkin → manufacturer owes the consumer a product that was taken care of (with no
snails inside!). The bottle itself was opaque(=ondoorzichtig), therefore, the shopkeeper
or the friend could NOT have seen the snail before giving it to D.
● Facts: snail in bottle, shock, gastro-enteritis, manufacturer could prevent (was careless),
and manufacturer made it impossible to check the content of the beer (opaque bottle!).
● Law: duty of care (manufacturer to consumer), breach of duty, harm as consequence
(shock etc.), and relationship of duty, customer has to rely on diligence manufacturer.
● Decision: award of damages (obligation to pay damages)!
❏ The model of torts:
❏ Legal decision-making starts with the facts and the law, which will eventually
make up the decision.
❏ Sources of law and sources of obligations:
, ❏
❏ Statute law → has been enacted by the government.
❏ Case law → rules which the courts have decided upon.
❏ Tort law: Ground of liability (wrongfulness) → causality → harm (ALL 3 need to be
fulfilled!)
❏ Ground of liability: S(manufacturer) had a snail in his ginger beer bottle, which is
wrong and should not have happened, because it came in D’s drink. A wrongful
act done by the defendant, S!
❏ Causality: wrongful act CAUSED harm
❏ Harm: the shock etc. that D suffered from
❏ The claimant needs to prove his claim, the defendant basically does not need to do
anything, unless the claimant has proven his point.
❏ Facts (+supporting concepts) + rule (relevant criteria) and exceptions = consequence
(obligation)
❏ Donoghue v Stevenson:
❏ Snail in bottle, shock, gastro-enteritis, manufacturer could prevent
❏ Duty of care (manufacturer to consumer: should prevent), breach of duty:
wrongfulness (ground of liability)
❏ Harm as consequence (shock etc): harm & causality
--------------------------------------------------------------------- +
❏ Award of damages (obligation to pay damages)
❏ Spanish law:
❏
,➢ French law:
○ Art 1240 Cc: “Any human act which causes damage to someone else obliges the
person by whose fault it occurred, to compensate it.”
○ Fault implies wrongfulness.
○ Disadvantage system: hard to understand and apply it, for ex. ‘When is there a
fault?’
➢ English law:
○ Negligence
○ Breach of statutory duty
○ Trespass
○ Conversion
○ Defamation
○ Infringement on (IP) rights
➢ Specific tort: battery
➢ Direct application force to person, Intentional → causality → bodily harm
➢ German law:
○ Most complex system
○ Protected interests: German approach
■ Action wrongfulness → causality → list of protected interests
○ List of protected interests instead of ‘harm’, since ‘harm’ is unclear. The court can
expand that list, but since it’s been expanded, it started to look almost the same
as the French one.
○ Also, German law has made a list of actions that are understood as
‘wrongfulness’, which the French did not do. ‘Notion of fault’
■ General rule: § 823 BGB
■
➢ US torts:
○ Tort law varies from state to state. Tort law is a common law subject, a published
court opinion becomes a precedent. Tort law is a matter of state law, meaning
that each state has developed its own set of precedents.
, ○ Restatement = summarizes case law, however, NOT binding authority, BUT
highly persuasive
○ Torts → 2nd restatement, Products liability → 3rd restatement
■ 3 main types of tort liability:
■ Intentional torts = civil liability, harms caused by the defendant (like:
battery, assault, trespass, false imprisonment, conversion). Intentional
invasion of the plaintiff’s legally protected interest.
■ Negligence = common basis for tort suits, liability for harms for which the
defendant is at fault, bc he/she was careless. An unreasonable (but
unintentional) interference with the plaintiff’s legally protected interest.
■ Strict liability = few exceptional situations, liability for the defendant. The
law assigns the costs of the consequences of the defendant’s activity to
the defendant. (ur a boss, but ur employee does smth wrong, u can be
liable for his mistake)
○ Intentional torts & negligence both based on the wrongdoing/fault of the
defendant.
○ Wrongful death/ survival action = victim of the tort dies. NOW, even if the
defendant or the victim dies, you can still sue. If there are dependent people
involved, and their financial support person (victim for ex.) dies, they can sue in
their right for loss of financial support and companionship.
○ Prima facie case = at first sight → in order for the plaintiff to win, he has to prove
intent, causality, and harm of the wrongful act.
● Defences and grounds of justification
○ Force majeure (=external cause, could not have been foreseen)
○ Necessity
○ Self-defence
○ Statutory duty (=obliged by law to do something, so it cannot be considered
wrongful)
○ Order by legitimate authority (= if police tells u to drive on the left side of the road,
while that is normally considered ‘illegal’)
○ Permission / consent (=like medical treatment, cutting a patient, while normally
not lawful, however he consented to surgery)
○ Assumption of risk (=paragliding, you assume the risk of getting harmed, and
thereby cannot hold the instructor liable)i
○ Contributory negligence (=damage was caused primarily by the plaintiff)
○ Prescription / statute of limitations (= if the plaintiff waits too long with starting his
claim, he will no longer get a remedy in court)
● Remedies
○ Award of damages (=money)
○ Court order (=defendant acts or refrains from certain actions, and this is ordered
by the court)
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