Tort Law

Front 1

Main principle of Tort Law

Back 1

Everyone must in principle bear his own damage

Front 2

Functions of tort law

Back 2

1. Realisation of compensatory justice

2. Fair and efficient distribution of damage over society

3. Prevention of damage

Front 3

Compensatory / Retributive justice

Back 3

Requires that the wrongdoer compensates the damage
= fault liability

Front 4

Fault liability

Back 4

Somebody did something wrong / was at fault,
and thereby caused damage:
must compensate

Front 5

Strict liability

Back 5

Somebody is liable for a damage he did not cause.

Breakthrough in extra-contractual liability.

Front 6

Reasons for introducing strict liability

Back 6

1. Fairness
2. Economic efficiency
3. Possibility to recover damages
4. Prevention

Front 7

Tortfeasor

Back 7

A person who committed a tort

Front 8

Grounds for tort liability / Three categories

Back 8

1. Tortfeasor acted wrongfully
– fault liability

2. Sb. is liable for a damage that was wrongfully caused by a tortfesor
– liability for a tortfeasor’s fault

3. Liability for damage caused by an animal or object for which the tortfeasor was responsible
– strict liability

Front 9

Fault

Back 9

1. Is a wrongful act

2. for which an agent can be blamed

Front 10

Tort law deals with cases in which

Back 10

a victim suffered a damage and wants compensation

Front 11

Questions in Tort law

Back 11

1. Why the damage should be shifted?

2. Under what conditions should sb else compensate?

3. Which damages qualify?

Front 12

Negligence as a tort

Back 12

- Person breached a legal duty to take care of other persons and their interests

- this breach resulted in damage to someone towards whom care was due

Front 13

Liability under the tort of negligence
/ 4 conditions – common law/

Back 13

1. There was a duty of care
2. This duty was breached
3. There is damage
4. for which the tortfeasor is responsible

Front 14

Precautionary measure is required if
/common law/

Back 14

Its costs are less than the costs of a possible accident

Front 15

Learned Hand formula

Back 15

Liability exists when

B < PL

Front 16

Conditions for fault liability
/civil law/

Back 16

1. An act or an omission unlawfully violated a legally protected interest

2. Thereby causing damage of a type which qualifies for compensation

Front 17

Unlawful act or omission
/civil law /

Back 17

- Infringes a right, or
- Violates a legal duty, or
- Violates an unwritten norm that specifies what is required in society

unless there is a ground for justification

Front 18

Insolvency

Back 18

Unable to meet debts or discharge liabilities; bankrupt

Front 19

Adage

Back 19

A saying that sets forth a general truth and that has gained credit through long use

Front 20

Indemnify

Back 20

To protect against damage, loss, or injury; insure

Front 21

Cellar hatch
Precautionary measures – aspects

Back 21

- degree of probability that 1. the required attention and care could be disregarded and 2. that this might lead to accidents
- gravity of the consequences of such accidents
- burden of adequate precautions

Front 22

Ex post determination

Back 22

- for a particular case, only with an eye for the damages as they occurred
- best allocation of existing damages

Front 23

Ex ante determination

Back 23

- best result for the given case and all similar future cases
- will no incorporate all the details of the present case
- with an eye for future cases too - prevention

Front 24

Efficiency standard

Back 24

The rule that allocates liability should be formulated in such a way that
- the total amount of the expected costs
- for the potential tortfeasors and potential victims of damage
- is made as small as possible
- division between the parties is only relevant in this sense

Front 25

Vicarious liability

Back 25

Employers’ liability for damages caused by their employees.

(Under certain circumstances – there exists a special relation at least in theory, that allows for influence over the tortfeasor’s behaviour)

Front 26

Basic requirements for vicarious liability

Back 26

1. Employee was at fault

2. Employer had sufficient power of direction and control

3. Harm was caused in the course of employment

Front 27

Course of employment
/ one definition /

Back 27

Broadly comprises all acts done concomitantly to the accomplishment of the tasks which were entrusted to the employee.

Front 28

Vicarious liability / Advantages

Back 28

1. Victim is protected against insolvency (Deep pocket theory)
2. Employer benefits from the behaviour of the employee
3. Damages might not be bearable for the employees or the children

Front 29

Strict liability / Common feature

Back 29

The person who becomes liable
is somehow responsible for
or benefits from the fact
that there is a possibility of faultless damages

Front 30

Strict liability / Criteria for defective products

Back 30

1. more protection for the injured
2. incentive to improve safety
3. better options for insurance
4. fewer problems in determining liability – saving procedural costs

Front 31

Rules of Interpretation / Construction

Back 31

1. Literal
2. Golden (unless absurdity/narrow, or against public policy/wide)
3. Mischief
4. Purposive approach
5. Teleological approach (spirit of the legislation)

Front 32

Rules of Language

Back 32

1- Ejusdem generis

2- Noscitur a sociis

3- Expressio unius est exclusion alterius

Front 33

Dutch traffic liability
(Fault into a kind of strict)

Back 33

1. Burden of proof shifted
2. Limitation on what counts as a valid excuse

Front 34

Contributory negligence

Back 34

The damage to the victim is not only caused by the damage-causing act or event, but also by the negligent or wrongful behaviour of the victim himself