Tort Law Review
, Week 2
Article 1:101 Basic rule
(1) A person who suffers legally relevant damage has a right to reparation from a person who caused
the damage intentionally or negligently or is otherwise accountable for the causation of the
damage.
(2) Where a person has not caused legally relevant damage intentionally or negligently that person is
accountable for the causation of legally relevant damage only if Chapter 3 so provides.
Article 1:101 is not self-sufficient (von Bar, p. 247). Furthermore, article 1:103(a) (Scope of application)
makes it clear that article 1:101(1) must always be made read in conjunction with Chapter 2 (legally
relevant damage), Chapter 3 (grounds of accountability), and Chapter 4 (causation) (von Bar, p. 246).
The grounds of accountability embraced liability on account of intentionally causing damage or
negligence (von Bar, p. 245). Fault-based liability is the umbrella term for intention and negligence while
strict liability is the term used for liability without intention or negligence (von Bar, p. 557).
Article 3:101 Intention
A person causes legally relevant damage intentionally when that person causes such damage either:
(a) meaning to cause damage of the type caused; or
(b) by conduct which that person means to do, knowing that such damage, or damage of that type,
will or will almost certainly be caused.
Intention is defined as the requirement of the mere intention to do the act but that is not sufficient. A
person only acts intentionally if that person acts as he or she meant to act and either means to cause
legally relevant damage (sub-paragraph (a)) or recognizes that it is as good as certain that such damage
will be the consequence of the conduct and nonetheless does not desist from that conduct (sub-paragraph
(b)) (von Bar, p. 569).
,Conduct
A person does not act intentionally if the person does not know what he or she is doing or, while so
aware, is unable to act differently (von Bar, p. 569).
Sub-paragraph (a)
There are two elements of this rule, ‘meaning to cause damage’ and ‘of the type caused’.
A person acts intentionally when the causation of the legally relevant damage is deliberate. The person
liable therefore must know the elements of the applicable concept of damage and have intended to bring
these about (von Bar, p. 569).
Where the person acting has made a mistake about the circumstances of the wrongful nature of the
conduct, the ground of accountability (if any) will be negligence rather than intention (von Bar, p. 570).
Someone who is obliged to intervene (by law) and who is also aware of that, but does nothing to avert the
impending damage, only acts intentionally if he or she remains inactive for that damage to occur (von
Bar, p. 570).
Secondly, to establish intention it is sufficient that the person meant to cause damage of the type brought
about (von Bar, p. 570).
Sub-paragraph (b)
There are two elements of this rule, ‘by conduct which that person means to do’ and ‘knowing that such
damage, or damage of that type, will or will almost certainly be caused’.
A person causes legally relevant damage intentionally only when he or she is meant to act in the way in
which he or she has acted. This excludes acts under duress and unintended incorrect responses (von Bar,
p. 572).
Secondly, the question is asked whether the person acting knew that legally relevant damage would be
caused by the conduct. This gives the judge a certain amount of discretion to do justice in the
circumstances of each case. Where the abnormally high likelihood of damage occurring would be obvious
to everyone and there are no special circumstances present which would justify the interference that the
person in question was not aware of this high likelihood of damage (von Bar, p. 572). A person who
,hopes that damage will not result, but who knows that it is unrealistic in the circumstances, brings about
the damage intentionally (von Bar, p. 571).
Article 3:102 Negligence
A person causes legally relevant damage negligently when that person causes the damage by conduct
which either:
(a) does not meet the particular standard of care provided by a statutory provision whose purpose is
the protection of the person suffering the damage from that damage; or
(b) does not otherwise amount to such care as could be expected from a reasonably careful person in
the circumstances of the case.
Conduct by will
Negligence requires conduct controlled by will (von Bar, p. 580). This relates to omissions and positive
acts (von Bar, p. 581). Unconscious acts are not considered acts controlled by will as in article 3:101
(Intention) (von Bar, p. 580).
Duties of care required by statute
A person acts negligently where they do not behave as prescribed by statute in a given situation if danger
is realized thereby, the prevention of which is the aim of the law for the protection of the injured person
(von Bar, p. 582).
The term statute covers primary legislation and secondary legislation made by central and regional
governments (regulations) and by local authorities (by-laws) (von Bar, p. 582).
The purpose of the statute is to safeguard the injured person from the legally relevant damage which he
has suffered (von Bar, p. 584).
Where the average person under the circumstances must recognize that adherence to a specific statutory
safety requirement does not exclude liability in negligence as the statute leaves a corresponding discretion
to act, a person must use the discretion as a reasonably careful person of the case would have done (von
Bar, p. 583).
,The general duty of care
Conduct is negligent when it does not satisfy the care which must be exercised under the circumstances of
the case by a reasonably prudent person (von Bar, p. 585).
The general precept of not harming another (neminem laedere) by refraining from certain conducts
(positive act) or by doing something (omission) (von Bar, p. 581).
An objective standard
The reasonably careful person is objective as it is not based on the individual’s abilities to act but what is
expected of that person by comparing that of a tortfeasor with that of a reasonable man (bonus
paterfamilias) (von Bar, p. 585).
The question of what reasonably careful conduct means under the circumstances of each case is affected
by several factors beyond conclusive enumerations. The assessment of negligence varies by cases and
legal systems that therefore must remain with the courts (von Bar, p. 585).
, Week 3
Trespass to the Person
Direct intentional acts of interference are dealt with by the tort of trespass but where acts are unintentional
and indirect the action lies in negligence (Bermingham, p. 261). All forms of trespass require direct and
intentional interference and are actionable per se (Bermingham, p. 260). The tort of trespass to the person
has three elements: assault, battery, and false imprisonment.
Assault
Assault is intentionally causing apprehension of an immediate battery (Bermingham, p. 261). The
plaintiff must have a reasonable belief that the defendant has the intention or the ability to carry out the
threat immediately (Bermingham, p. 262).
Battery
Battery is the direct and intentional application of unlawful contact on another person. The tort of battery
protects the claimant’s bodily integrity and dignity (Bermingham, p. 262). The application of any physical
contact is sufficient to force as every person’s body is inviolate. However, bodily contact is not actionable
if it is regarded as falling within a general exception embracing all physical contact which is generally
acceptable in the ordinary conduct of daily life (Bermingham, p. 263).
The intention required in a battery is that the defendant must have intended to commit the act that
constituted the trespass. It was held in the Wilson v Pringle that unless it is self-evident from the act itself,
the plaintiff must show the contact to be hostile (Bermingham, p. 263).
It was held in the Wilkinson v Downton that conduct that amounts to a battery was extended to include
situations where no contact or physical force is used (Bermingham, p. 264). In cases where no contact or
physical force is used, emotional distress is not enough to establish liability for intentionally inflicted
bodily harm.
,False imprisonment
False imprisonment is the intentional restraint on the freedom of movement of another, but it does not
require incarceration or the use of force with no reasonable means of escape (Bermingham, p. 268). If the
plaintiff’s liberty is subject to a reasonable restriction it is not false imprisonment. A mere omission is not
an act to intentionally restrain the plaintiff (Bermingham, p. 270).
The House of Lords held that in cases of false imprisonment the plaintiff doesn’t need to be aware of the
detention. There is no false imprisonment where the detention is carried out under an order of the court
and legally justified. The relevant intention is the intention to detain (Bermingham, p. 270).
Negligence
The act must consist of duty of care, breach, causation, and damage for there to be a successful action in
negligence (Bermingham, p. 24).
Donoghue v Stevenson
The manufacturer of a product (sold in such a way that they reach the ultimate consumer without
intermediate examination) who should know that the absence of reasonable care in the preparation of the
product will result in injury to person or property, owes that consumer a duty of reasonable care.
The neighbor principle holds that reasonable care must be taken to avoid acts or omission which could be
reasonably foreseen to injure your neighbor. A neighbor is a person who is closely and directly affected
by our actions if we are negligent (Bermingham, p. 25).
Duty of care
The test for duty of care is defined in Caparo Industries plc v Dickman. The elements which courts take
into account in determining the duty of care is the foreseeable harm to the claimant, proximity or
neighborhood between the claimant and defendant, and that it is fair, just, and reasonable to impose a
duty of care in this situation (Bermingham, p. 30).
Omissions
In English law, omissions are referred to when there is generally no duty to perform actions to help
someone or to prevent their injury unless special circumstances apply (Bermingham, p. 40).
, The areas of exception are:
(1) a specific or inferred undertaking of responsibility for the claimant by the defendant which is
when a duty is created on the defendant to take positive steps to protect the claimant from loss
(Bermingham, p. 44);
(2) statutory requirements with the purpose of the statute to avoid the harm in question;
(3) relationships.
Breach of Duty
Blyth v Birmingham Waterworks Co describes the standard of the reasonable man as a person doing
something which a prudent and reasonable man would do with exceptions to youth and persons with a
special skill (Bermingham, p. 60).
The cost of running the risk
(1) the likelihood of injury,
(2) the severity of the injury.
The cost of avoiding the risk
(1) importance of the defendant’s purpose,
(2) the practicability of taking precautions against the risk (Bermingham, p. 66).
Wagon Mound (No 2)
The cost of running the risk included the foreseeability of the fire. The court speculated that the spillage
of so much oil must have happened over time and should have been noticed by a reasonable engineer.
Therefore, some risks had to have been seen.
The cost of avoiding the risk included no justification for the spilling of the oil as it was expensive and
illegal. Therefore, the cost of stopping the spillage was low (Bermingham, p. 69).
