- •Contents
- •Abbreviations
- •Table of Cases
- •1 INTRODUCTION
- •102 Aim and Focus of the Book
- •2 EUROPE
- •202 European Convention on Human Rights
- •3 FRANCE
- •301 Introduction
- •4 GERMANY
- •401 Introduction
- •402 Fault Liability: The BGB Provisions
- •404 Fault Liability: Judge-Made Rights
- •405 Rules of Stricter Liability
- •5 ENGLAND
- •501 Introduction
- •502 Origins of Tort Law
- •503 Tort of Negligence
- •506 Nuisance
- •507 Overview of Other Torts
- •6 IUS COMMUNE
- •601 Overview
- •602 From Old to New Ius Commune
- •604 Common Law and Codified Law
- •605 Rules of Fault Liability
- •606 Rules of Stricter Liability
- •608 The Role of Rights
- •609 Various Policy Approaches
- •611 Competing roles of the EU Institutions
- •701 Overview
- •702 The Right to Life
- •703 The Right to Physical Integrity
- •704 The Right to Physical Health
- •705 The Right to Mental Health
- •706 Personality Rights
- •707 Wrongful Conception (Wrongful Birth)
- •709 The Right to Property
- •802 Intention in the Legal Systems
- •804 Negligence in the Legal Systems
- •806 Magnitude of the Risk
- •808 Omissions
- •810 Knowledge and Skills
- •811 Subjective and Objective Tests
- •901 Introduction
- •902 England
- •10 STRICT LIABILITY
- •1001 Introduction
- •1004 Strict Elements in Negligence
- •11 CAUSATION
- •1104 England
- •1109 Successive Causes
- •1110 The Loss of a Chance
- •1111 Principles and Confusion
- •1112 Tortfeasor Takes Victim as He Finds Him
- •12 DAMAGE AND DAMAGES
- •1201 Overview
- •1202 Purposes
- •1206 Family Ties
- •1208 Contributory Negligence
- •1210 European Convention on Human Rights
- •1211 Business and Human Rights
- •13 INTRODUCTION
- •1301 Supervising Persons and Objects
- •1401 Overview
- •1402 National Rules
- •1404 National Rules
- •1408 When is a Product Defective?
- •1409 Damage
- •1410 Defences
- •1412 Introduction
- •1414 England
- •1501 Introduction
- •1504 England
- •1601 Overview
- •1605 Supervising the Mentally Incapacitated
- •1606 National Rules
- •1702 National Rules
- •18 LIABILITY OF PUBLIC BODIES
- •1801 Overview
- •1804 England
- •1806 No Liability for Lawful Acts
- •1807 The Right to Life: Article 2 ECHR
- •Bibliography
- •Index
13
INTRODUCTION
1301 SUPERVISING PERSONS AND OBJECTS
Human responsibility may relate to our own conduct, to the responsibility that we choose to take on for other people, things, and events, and to the responsibility that society thrusts upon us.1 Part III of the book will deal with categories of liability that are related to someone’s responsibility as a supervisor over persons or things: for example, supervisors of movable objects (Chapter 14), of premises, grounds, and roads (Chapter 15), and of other persons (Chapter 16). In each of these categories, both negligence and strict liability rules may apply. The chapters will provide analyses of the various rules and cases in the different legal systems in comparable situations. It will be shown that in comparable situations usually different rules apply in the three legal systems. This is because in France in many situations a strict liability rule applies, whereas in England rules of strict liability are rare. Areas where in all three systems rules of strict liability apply are in fact limited to the liability for animals (Sections 1402-1403) and defective products (Sections 1406-1411), the latter being the consequence of the European Directive.
An important question that arises in all these areas is who qualifies as a supervisor of a movable object (Chapter 14), an immovable object (Chapter 15), or another person (Chapter 16). In strict liability rules, this person is generally indicated by the rule itself. For instance, in France the custodian (gardien) is strictly liable for damage caused by a thing (chose) in the sense of article 1384 al. 1 CC (Section 303) and in Germany the keeper (Halter) of a motor vehicle is strictly liable for the damage caused by its operation (Betriebsgefahr) in the sense of § 7 StVG (Section 1404-2). This means that it is generally the person who is able to influence the magnitude of the risk or who is able to take out insurance cover for his liability is considered to be the ‘supervisor’, that is, the person who is strictly liable if a specific set of facts occurs.
In case of negligence liability, however, there is no specific person indicated as supervisor. The answer to the question who owes the duty to supervise movable objects, immovable objects, or other persons depends on the circumstances of the case. Think of someone who suffers damage because of the missing handrail of a staircase. In principle,
1 A.M. Honoré, Responsibility and Fault (Oxford: Hart, 1999), 125–129.
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the supervisor (ie the person who owed the duty) will be the one who has a special relationship with the building, for instance because he is the owner, the tenant, or the operator, and for that reason is able and authorized to influence the magnitude of the risk by taking precautionary measures. Persons who do not have a special relationship with the building, for instance visitors, generally do not owe a duty of care to potential victims, even if they could have influenced the magnitude of the risk. The same applies, for instance, to children, even if they live on the premises where the dangerous situation occurs. Both visitors and children are usually not even authorized to interfere.
Th e question as to who is the supervisor particularly occurs in omission cases. As has been pointed out, liability for omissions is equally related to someone’s special relationship with the movable object, the movable object, the potential victim, or the potential tortfeasor (Section 808-2). The following chapters are, however, not restricted to liability for omissions and will include situations where someone actively causes damage. Also in these cases, the question of who is the responsible supervisor may occur. For example, when a motor vehicle causes damage several persons may be identified as such: the owner, the keeper (eg the leaseholder), or the driver who is neither.
It is important to note that if someone bears responsibility because he has a duty to supervise objects or persons, this in itself does not imply liability. Someone is responsible if he owes a duty to supervise objects or persons or if a rule of strict liability applies to him. Someone can only be liable if he has breached this duty or if the requirements for strict liability are met.
In some instances, there is no responsibility to supervise an immovable or movable thing or another person but society may nonetheless thrust a responsibility upon us. In these situations, the question arises whether someone can be obliged to come to another person’s aid, even though he does not bear any responsibility for the perilous situation or for the person who is in danger. These so-called rescue or emergency cases will be analysed in Chapter 17.
Finally, Chapter 18 is devoted to the liability of public authorities which is a category of liability of growing importance throughout Europe, particularly due to the intertwining of the development of national law with the case law of the European Court of Justice and the European Court of Human Rights.
1302 LIABILITY FOR LACK OF INFOR MATION AND FOR DEFECTIVE INFOR MATION
In addition to the categories mentioned in the previous section, another important category is responsibility for information, which is one of the key features in modern society. In order to take decisions, we need information about our physical safety, our health, risks to our property, and our financial means and opportunities.
Lack of information impairs one’s ability to make decisions of the fully rational kind postulated in economic discourse . . . In many instances uncertainty will cause people
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to take decisions different from what they would have been under circumstances of abundant information. As information becomes subsequently available, such decisions may appear in retrospect to have been erroneous. They entail a loss or a failure to obtain a gain which it would have been possible to avoid with better information. Uncertainty is generally a source of disutility and information is the antidote to it. In most cases efficiency will be enhanced by moves which improve the flow of information in society.2
Hence, whereas animals constituted hazards in rural society, motor vehicles constituted those in motorized society, and defective products and environmental pollution those in industrialized society, it is inaccurate information and lack of information that constitute hazards in the information society.
Th e need for timely, adequate, and reliable information plays a role in many areas. A duty to warn can be of pivotal importance (Section 807-3), for instance within the framework of product liability (Section 1408-1), or liability for damage caused by immovable objects (Section 1506-4). In many of these cases, the duty to warn has to be balanced with the victim’s duty to be attentive and careful (Section 806-3). Other important areas in this respect are medical services (the duty of a doctor to inform a patient about the impact of a treatment) and financial services (the duty of a bank to inform a client about the risks of an investment and the duty of an auditor to provide correct information about a company’s accounts).
Animportantquestioninthisrespectiswhetherthepersonprovidingtheinformation ought to have known that the recipient would rely on it and that the receiver of the information was entitled to do so.3 See, for example, Article 2:207 DCFR which virtually codifies the extended Hedley Byrne rule (‘assumption of responsibility’) in the English tort of negligence (see Section 503-4):
Loss caused to a person as a result of making a decision in reasonable reliance on incorrect advice or information is legally relevant damage if: (a) the advice or information is provided by a person in pursuit of a profession or in the course of trade; and (b) the provider knew or could reasonably be expected to have known that the recipient would rely on the advice or information in making a decision of the kind made.
An important illustration on an EU level of liability for timely, adequate, and reliable information is the Prospectus Directive, holding that the public offer of securities requires the prior publication of a prospectus. According to Article 5(1),
the prospectus shall contain all information which, according to the particular nature of the issuer and of the securities offered to the public or admitted to trading on a regulated market, is necessary to enable investors to make an informed assessment of the assets
2 Ejan Mackaay, Economics of Information and Law (Montreal: Groupe de recherche en consommation, 1980), 115.
3 See eg S. Banakas, ‘Liability for Incorrect Financial Information: Theory and Practice in a General Clause System and in a Protected Interests System’, ERPL 7 (1999), 261–286 and more generally Christian Witting, Liability for Negligent Misstatements (Oxford: Oxford University Press, 2004).
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and liabilities, financial position, profit and losses, and prospects of the issuer and of any guarantor, and of the rights attaching to such securities. This information shall be presented in an easily analysable and comprehensible form.4
Incorrect information published in the media can also infringe the honour, reputation, or privacy of a person. See, for example, the Caroline von Hannover case in Section 706-5, and the Branly case in Section 808-3. Think also of the case of a person sentenced for a crime where the commentator of the published report omits to mention that the sentence is provisional.5 In addition, organizations and companies may suffer damage from the publication of incorrect information, for example in the case of negligently conducted consumer testing or where a tourist information office omits to include a hotel in a list of recommended hotels.6
A topical issue in this respect is the liability of an internet service provider for defamatory or otherwise wrongful information contained on a website to which the service provider has provided access. Does the internet service provider have a duty to take precautionary measures to limit, terminate, or prevent damage caused by that wrongful information? The answer to this question is negative and also here EU law has left its trace. Article 13(1) of the E-Commerce Directive holds that service providers are not liable for the information on websites to which they provide access on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
According to Article 15, a service provider does not have an obligation to monitor the information it transmits or stores but it may be required to terminate or prevent an infringement as soon as it receives information in that regard.7
Hence, where the rural society led to strict liability for animals, motorized society to strict liability for motor vehicles, and the industrialized society to strict liability for defective products and environmental pollution, the information society provides for a development in the opposite direction, by holding the internet provider liable only for subjective fault: only if the provider is factually aware of the illegal content (not simply
4 Directive 2003/71/EC of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC. See Commission Regulation (EC) No. 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements.
5 Seine 19 April 1967, D. 1968. 253, comm. P. Voirin. 6 Civ. 2e 7 February 1963, Bull. civ. II, no. 132.
7 Directive 2000/31/EC of 8 June 2000 (Directive on electronic commerce). See BGH 23 September 2003, MDR 2003, 92, ETL 2003, 192 (Fedtke): the provider has a duty towards the person affected if it has positive knowledge concerning the illegal content and the technical ability to remove the content without an unreasonable amount of effort. See also BGH 25 October 2011, NJW 2012, 148, ETL 2011, 256 (Wagner-von Papp and Fedtke).
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if it ought to know about it) does it have a duty to act (see Section 811-1 on the subjective test). This is thus an instance of liability being restricted rather than expanded, as has been the general tendency over the last century.8
8 See for a discussion of the various aspects Patrick Van Eecke, ‘Online Service Providers and Liability: A Plea for a Balanced Approach’, CMLR 48 (2011), 1455–1502.