Prof. Dr. Alexander Trunk

ClassIntroduction to the Common Law

Summer term 2020

http://www.eastlaw.uni-kiel.de

16.04.2020 Introduction. Overview: UK,

Commonwealth

30.04.2020 Overview: U.S. Law

14.05.2020 Contract law

28.05.2020 Tort law

11.06.2020 Property law + trust

25.06.2020 Company and partnership law

09.07.2020 Civil procedure + insolvency law

CommonL 04

Part 1 (of 9)

Tort Law

Introduction:

Tort law in the legal system

Three basic concepts (and subject-matter

areas) in private law:

• Contract contract law

• Tort tort law

• Property property law

Tort law in the Common Law legal family

Definitions:

• Wikipedia: A tort, in common law jurisdiction, is a civil wrong

that causes a claimant to suffer loss or harm, resulting in legal

liability for the person who commits a tortious act.

• Wikipedia: A civil wrong is a cause of action under the law …

Tort, breach of contract and breach of trust are types of civil

wrong. Something that amounts to a civil wrong is said to be

wrongful. A wrong involves the violation of a right because

wrong and right are complementary terms.

The law that relates to civil wrongs is part of the branch of the law

that is called the civil law. A civil wrong is capable of being followed

by what are called civil proceedings. … The law of England

recognised the concept of a "wrong" before it recognised the

distinction between civil wrongs and crimes (which distinction was

developed during the thirteenth century).

Central issues of

comparative tort(s) law

• What is a tort? (notion)

• Where are torts regulated? (sources,

system)

• What are the prerequisites of tortious

liability?

• Which are the legal consequences of a

tort?

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Part 2 (of 9)

Torts law (overview)

• System of the law of torts and

damages (in a historic and comparative

perspective)

• Torts law – criminal law

• Separate torts – general clause (deliktische

Generalklausel)

• Establishment of liability [„cause of action“]:

torts, contract etc. – compensation of

„damages“

Some important issues

• General clause or separate torts? Common law torts:

trespass, conversion, fraud, negligence, defamation,

privacy etc. – system and general or specific requirements

• Typical case groups: cable cases, product liability,

business torts, medical malpractice, media tort liability,

traffic accidents, environmental damage, …

• Strict liability v. fault-based liability

• Defenses

• Liability for auxiliary persons (vicarious liability)

• Damages in tort law

• Tort law and procedure. Remedies

• Relationship between tort and contractual liability

• Relationship between tort law and insurance

Separate torts – structural overview

• Trespass, conversion, fraud (deceit), nuisance, negligence,

defamation (libel and slander), invasion of privacy etc.

• System: nominate torts – innominate torts

• Intentional torts• Against persons: trespass as „battery“ or „assault“, false imprisonment,

infliction of mental distress

• Against immovable or movable things: trespass to land, trespass to

chattels, conversion

• Negligence (as a tort)

• Varied subjective elements: defamation, nuisance

• Strict liability: Rylands v. Fletcher, product liability

• Typical case groups: cable cases, product liability, business

torts, medical malpractice, media tort liability, traffic accidents,

environmental damage, …

See also EU directives (e.g. product liability)

Additionally relevant:

+ Strict liability

+ Statutory claims (may be

regarded as separate or as add

ons to common law torts)

Canada

Restatement (Second) of Torts (1965-1979)

Division 1 Intentional Harms to Persons, Land, and Chattels

Division 2 Negligence

Division 3 Strict Liability

Division 4 Misrepresentation

Division 5 Defamation

Division 6 Injurious Falsehood

Division 6A Privacy

Division 7 Unjustifiable Litigation

Division 8 Interference with Domestic Relations

Division 9 Interference with Advantageous Economic Relations

Division 10 Invasions in Interests in Land other than in Trespass

Division 11 Miscellaneous Rules

Division 12 Defenses

Division 13 Remedies

U.S. tort law (structural overview)

Starter case:Donoghue v. Stevenson (UK, A.C.

and H.L.1932)

1932

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Part 3 (of 9)

Legal Sources of Tort Law

- Jurisprudence

- Statutes

Jurisprudence

• UK

• US

• Canada

• Australia

• India

• Ireland

• …

Some leading cases

UK:- Donoghue v. Stevenson

- Spartan Steel

- Rylands v. Fletcher

US:- Greenman v Yuba

Power Products Inc.

- NY Times v Sullivan

- Pavesich v New

England Life Insurance

(based on article by

Brandeis and Warren)

U.S.

• Restatement 2d on Torts,

4 vol. (1965 – 1979)

• Restatement 3rd on Torts

• Products Liability (1998)

• Apportionment of Liability

(2000)

• Liability for Physical and

Emotional Harm (2009 and

2012)

Restatement (Second) of Torts (1965-1979)

Division 1 Intentional Harms to Persons, Land, and Chattels

Division 2 Negligence

Division 3 Strict Liability

Division 4 Misrepresentation

Division 5 Defamation

Division 6 Injurious Falsehood

Division 6A Privacy

Division 7 Unjustifiable Litigation

Division 8 Interference with Domestic Relations

Division 9 Interference with Advantageous Economic Relations

Division 10 Invasions in Interests in Land other than in Trespass

Division 11 Miscellaneous Rules

Division 12 Defenses

Division 13 Remedies

„Wrongful life“ jurisprudence

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Part 4 (of 9)

Statutes (overview)

• UK: e.g. Consumer Protection Act 1987 (based on EU Product

Liablity Directive 1985); Defamation Act 1952, …

• Canada: basically common law, Québec: Civil Code

• Australia: Australian Consumer Law 2010 (uniform law), includes

e.g. product liability

• U.S:

• Federal Statutes (e.g. Federal Tort Claims Act)

• Uniform Laws (e.g. Apportionment of Tort Responsibility Act)

• U.S. states, e.g. California Civil Code, Louisiana Civil Code.

Wrongful death and Survival statutes, Workers compensation

statutes, no-fault statutes, …

UK

U.S.

Louisiana Civil Code

CHAPTER 3 - OF OFFENSES AND QUASI OFFENSES

Art. 2315.

A. Every act whatever of man that causes damage to another obliges him

by whose fault it happened to repair it.B. Damages may include loss of consortium, service, and society, and shall be recoverable by the

same respective categories of persons who would have had a cause of action for wrongful death of an

injured person. Damages do not include costs for future medical treatment, services, surveillance, or

procedures of any kind unless such treatment, services, surveillance, or procedures are directly

related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid

by the owner on the repair or replacement of the property damaged. [Amended by Acts 1884, No. 71; Acts

1908, No. 120, §1; Acts 1918, No. 159, §1; Acts 1932, No. 159, §1; Acts 1948, No. 333, §1; Acts 1960, No. 30, §1; Acts

1982, No. 202, §1; Acts 1984, No. 397, §1; Acts 1986, No. 211, §1; Acts 1999, No. 989, §1, eff. July 9, 1999; Acts

2001, No. 478, §1]

Louisiana

Québec Civil Code 1991CHAPTER III: CIVIL LIABILITY

DIVISION I: CONDITIONS OF LIABILITY

§ 1. — General provisions

1457. Every person has a duty to abide by the rules of conduct incumbent on him,

according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to

another by such fault and is bound to make reparation for the injury, whether it be bodily, moral

or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act,

omission or fault of another person or by the act of things in his custody.

1458. Every person has a duty to honour his contractual undertakings.

Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the

other contracting party and is bound to make reparation for the injury; neither he nor the other

party may in such a case avoid the rules governing contractual liability by opting for rules that

would be more favourable to them.

DIVISION II: CERTAIN CASES OF EXEMPTION FROM LIABILITY

1470. A person may free himself from his liability for injury caused to another by proving that the

injury results from superior force, unless he has undertaken to make reparation for it.

Superior force is an unforeseeable and irresistible event, including external causes with the

same characteristics.

Québec

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Part 5 (of 9)

Sources of information

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Part 6 (of 9)

Separate torts – structural overview(repetition from supra)

• Trespass, conversion, fraud, nuisance, negligence, defamation

(libel and slander), invasion of privacy etc.

• System: nominate torts – innominate torts

• Intentional torts• Against persons: „trespass“ in the form of battery or assault, false

imprisonment, infliction of mental distress

• Against land and movable goods: trespass (sometimes even unintentional) to

land, trespass to chattels (sometimes even intangibles), conversion

• Negligence (as a tort)

• Varied subjective elements: defamation, nuisance, …

• Strict liability: Rylands v. Fletcher, product liability, …

• Typical case groups: cable cases, product liability, business

torts, medical malpractice, media tort liability, traffic accidents,

environmental damage, …

Separate torts – requirements

• „General“ (frequently used) requirements:intent/negligence [as a category of fault]/mixed,

causality, injury/harm (distinguish from damages),

[no] defences, vicarious liability, …

• Specific requirements:

e.g. possession, duty of care, malice, abuse of

process, scope of employment

Intentional torts

Trespass and conversion

Negligence

Tort of negligence was developed in England since Heaven v.

Pender, Trading as West India Graving Dock Company (C.A.,

1883): formulation of requirements: duty, breach, damage

The tort of negligence is today regarded as the

most important and broadly used tort in the

Common Law legal family.

Sourcehttps://www.biicl.org/files/763_introduction_to_english_tort_law.pdf

Lord Denning

(Alfred Thompson

Denning)

1899 - 1999

Analysis of the case

• Basis for claim: „negligence“

• Different damages: damage to metal, lost profit for

sale of that metal, other lost damage (4 further

melts could not be done)

• Establishment of liability: „duty“ or „remoteness of

damage“ relevant?

• Which damages should be compensated?

• Policy analysis: balancing of interests/value-based

considerations, e.g. reasons for damaging act,

expectations of damaged person, who can carry

damage more easily, relation to contractual liability

(of other person), who can insure, risk of abuses.

United States

US: Restatement (Second) of Torts (1965)

Division 1 Intentional Harms to Persons, Land, and Chattels

Division 2 Negligence

§ 281 Statement of the Elements of a Cause of Action for

NegligenceThe actor is liable for an invasion of an interest of another, if:

(a) the interest invaded is protected against unintentional invasion, and

(b) the conduct of the actor is negligent with respect to the other, or a

class of persons within which he is included, and

(c) the actor's conduct is a legal cause of the invasion, and

(d) the other has not so conducted himself as to disable himself from

bringing an action for such invasion.

Division 3 Strict Liability

Division 6A Privacy

…

Prerequisites (U.S. perspective):

1. Duty of care: The defendant had a duty [to whom?] (to

either commit an act or refrain from committing an act)

2. Breach of duty and standard of care: The defendant

breached this duty (was "negligent" in his or her duty).

Standard of a reasonable person.

3. Causation: The defendant's breach of duty caused the

plaintiff's injury(ies)

4. Remoteness: The defendant's actions were the

proximate cause of the injuries (in other words, the

defendant should have foreseen the dangers of his or her

action or inaction)

5. Damages: The plaintiff suffered actual damages (such

as the cost of rehab, lost wages, pain and suffering, etc.)

„Varied“ subjective elements

Nuisance

Defamation

• Defamation = statement that injures a third party's

reputation. The tort of defamation includes both libel

(written statements) and slander (spoken statements).

• Elements:

• a false statement purporting to be fact

• publication or communication of that statement to a third person

• fault amounting to at least (!) negligence

• damages or some harm caused to the person or entity who is the

subject of the statement.

Invasion of privacy

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Part 7 (of 9)

Strict liability

Common law:- Conversion: taking of a chattel with the intent of exercising over it a position

inconsistent with the real owner's right of possession". In the UK, no fault is

required (strict liability)

- Rylands v. Fletcher rule (1868) basis for various tort claims on environmental

damage

- Strict liability of keepers of wild animals for injuries caused by wild animals or

even by domestic pets if they are known to be dangerous, or by fires they have

started

- Product liability (in most U.S. states, see also Restatement Torts 2d and 3rd)

- Sometimes mentioned as case of strict liability: Vicarious liability of employers:

liable for the torts committed by its employees, during the course of their

employment.

Statutes:- Product liability (in UK, Ireland, Australia [for consumers!], …)

- Environmental Protection Act UK 1990 (based on EU directive)

- Car accident legislation (in some U.S. states; in other U.S. negligence required)

- …

Rylands v. Fletcher (H.L., 1868)

Anyone who brings something onto his land which is not naturally there

is strictly liable if the thing escapes and injures someone. People are

strictly liable for injuries caused by wild animals they keep, or even by

domestic pets if they are known to be dangerous, or by fires they have

started.

From Wikipedia:Rylands employed contractors to build a reservoir, playing no active role in its construction.

When the contractors discovered a series of old coal shafts improperly filled with debris,

they chose to continue work rather than properly blocking them up. The result was that on

11 December 1860, shortly after being filled for the first time, Rylands' reservoir burst and

flooded a neighbouring mine, run by Fletcher, causing £937 worth of damage (equivalent

to £88,700 in 2019).

§ 519 Restatement of Law (Torts) 2d (1965)

(1) One who carries on an abnormally dangerous

activity is subject to liability, although he has

exercised the utmost care to prevent such harm.

General clause on strict liability

in the Restatement 2d on Torts

Product liability

Basic aspects in comparison

• UK:

• Starting point: contractual liability (breach of warranty) only between parties of

contract - Winterbottom v. Wright, 1842

• 2d step: negligence, Donoghue v. Stevenson, H.L. 1932: Manufacturer owed a duty of care

to pub visitor, which was breached, because “reasonably foreseeable that failure to ensure the product's safety

would lead to harm to consumers”. Also required “proximity” existed.

• Today: EU Product Liability Directive 1985 + Consumer Protection Act 1987 (Part

1): strict liability. Other liability under traditional tort or contract law is possible

• Canada: negligence (or contract claim if available)

• Australia: negligence (or contract) and/or Statutes: „Australian Consumer Law

(ACL)“ of 2010 (= uniform law): strict liability, cases described differently from U.S. or UK

• U.S.:

• Starting point: negligence (MacPherson v. Buick Motor Co., 1916 (Cardozo J.)

• 2d step (since Greenman v. Yuba Power Products Inc., Cal., 1963: Traynor, J.: economic

considerations: consumer expectations + risk-benefit analysis): tendency towards strict

liability – manufacturing defects, design defects, inadequate warnings or instructions

• Today: Restatement 2d on Torts and Restatement 3rd on Torts (Product Liability): confirming strict liability and developing special provisions on e.g. component parts, prescription

drugs and medical devices, food, and used products.

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Part 8 (of 9)

Some further issues

• Defenses, e.g. constitutional guarantees, contributory

negligence

• Liability for auxiliary persons (vicarious liability)

• Tort law and procedure: e.g. proof (res ipsa loquitur

etc.), jury in U.S.

• Remedies (damages, injunctions, restitution), e.g.

punitive damages, treble damages etc.

• Relationship between tort and contractual liability:

choice of claimant or priority of contract?

• Relationship between tort law and insurance: e.g.

fault v. no-fault approaches and links with insurance

Vicarious liability: The classic statement of the law until the

recent cases was the formulation in Salmond, Law of Torts : a

wrongful act is deemed to be done in the course of the

employment:

If it is either(1) a wrongful act authorised by the master, or (2) a

wrongful and unauthorised mode of doing some act authorised

by the master. However, frequently when citing the principle of

vicarious of liability practitioners stop there.

Whereas, the whole statement by Salmond needs to be

considered: he continued:It is clear that the master is responsible for acts actually authorised by him: for

liability would exist in this case, even if the relation between the parties was

merely one of agency and not one of service at all. But a master, as opposed

to the employer of an independent contractor is liable even for acts which he

has not authorised, provided they are so closely connected with the acts

which he has authorised that they may rightly be regarded as modes -

although improper modes - of doing them.

Source:https://www.toppr.com/

guides/legal-

aptitude/law-of-

torts/legal-remedies-in-

tort/

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Part 9 (of 9)

International impact

of Common Law tort law?

Chapter I General Provisions

Chapter II Constituting Liability and Methods of Assuming Liability

Chapter III Circumstances to Waive Liability and Mitigate Liability

Chapter IV Special Provisions on Tortfeasors

Chapter V Product Liability

Chapter VI Liability for Motor Vehicle Traffic Accident

Chapter VII Liability for Medical Malpractice

Chapter VIII Liability for Environmental Pollution

Chapter IX Liability for Ultrahazardous Activity

Chapter X Liability for Harm Caused by Domestic Animal

Chapter XI Liability for Harm Caused by Object

Chapter XII Supplementary Provision

Article 2 Those who infringe upon civil rights and interests shall be subject to the tort

liability according to this Law.

“Civil rights and interests” used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honor, right to self image, right of privacy, marital

autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right to use a

trademark, right to discovery, equities, right of succession, and other personal and property rights and interests.

Chapter II Constituting Liability and Methods of Assuming Liability

Article 6 One who is at fault for infringement upon a civil right or interest of another

person shall be subject to the tort liability.

Tort Law of the People’s Republic of China of 2009

DCFR Book VI Non-contractual liability arising out of damage

caused to another

Chapter 1: Fundamental provisions

VI. – 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.

VI. – 2:101: Meaning of legally relevant damage

(1) Loss, whether economic or non-economic, or injury is legally relevant damage if:

(a) one of the following rules of this Chapter so provides;

(b) the loss or injury results from a violation of a right otherwise conferred by the law; or

(c) the loss or injury results from a violation of an interest worthy of legal protection.

(2) In any case covered only by sub-paragraphs(b) or (c) of paragraph (1) loss or injury

constitutes legally relevant damage only if it would be fair and reasonable for there to be

a right to reparation or prevention …

Section 2: Particular instances of legally relevant damage

VI. – 2:201: Personal injury and consequential loss

(1) Loss caused to a natural person as a result of injury to his or her body or health and

the injury as such are legally relevant damage.

Discussions and legislative activities

E.g. privacy, wrongful life, discrimination,

product liability …

Particular approach: economic analysis of

tort law