COMPARATIVE TORT LAW

Definition
A tort, is a civil wrong that causes someone else to suffer loss or harm resulting in legal liability for
the person who commits the tortious act.
The person who commits the act is called a “tortfeasor”. Although crimes may be torts, the cause of
legal action is not necessarily a crime, as the harm may be due to negligence which does not amount to
criminal negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to
prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the
actions or lack of action was the legally recognizable cause of the harm.
Every legal system knows of tort law as a substantial part of its law. Even countries like New
Zealand, which have almost entirely abandoned tort law with respect to personal injury cases and have
replaced it with a social insurance scheme, still retain it for cases of damage to property and economic
interests. Tort law is therefore an indispensable part of law; it is that branch of law which provides
remedies for civil wrongs, in particular where one party has caused damage to the other.
But, unlike contractual liability, tort liability arises irrespectively of any prior agreement between the
parties that the damage should be made good; liability in tort does not depend on whether the
tortfeasor (a person doing wrong action) has, by the prior conclusion of a contract, agreed to its
sanctions. Tort law fixes general duties which bind every member of a society.
Aims
Tort law pursues no single aim but a number of aims.
1- One of its main aims is to provide for the compensation of losses which unavoidably
occur in
society and which tortfeasors cause to others. The general aim is compensation of the victim’s full
loss. (This compensatory aim has decreased in importance, though by no means entirely vanished)
2- Besides the aim of compensation of losses there are, however, further aims. Tort law
also aims at the prevention of damage and knows of specific remedies in this respect, in
particular injunctions. Prevention works both in the direction of general prevention towards
the public at large and as special prevention that the single tortfeasor will in future avoid the
sanction of damages.
3- In some legal systems it also aims punishing the tortfeasor by the civil sanction of
money payment to the victim (‘punitive damages’)
4- Sometimes also the tortfeasor will be stripped of the gain which he made by the tort.
Functions
Tort law’s most prominent function is to draw the borderline between liability and non-liability. It
fixes by law the conditions under which those who have caused damage have to compensate those
who have suffered it. The regular starting point is that the victim himself must bear the loss unless
there is good reason to shift the loss onto another natural or legal person:
Tort law has a certain deterrent effect in all legal cultures and systems. By establishing general duties
and liability for their breach, tort law influences the conduct and activities of
Persons. But even where there is normally not much time for well planned acting, as in traffic
accidents, serious research has revealed that the consciousness of one’s own personal liability on the
one hand or of the fact of being insured on the other has an impact on driving behaviour.
The economic analysis of law has highlighted the fact that tort law has also an economic function
which relates to the wealth of society as a whole. By granting or excluding compensation tort law
gives economic incentives either to potential tortfeasors or to potential victims to avoid damage.
According to this theory efficient, i.e. economically rational and reasonable, incentives should be
given so that, for instance, expenditure for preventing harm should not exceed the compensation costs
for the expectable damage. For this reason the so-called ‘Learned Hand formula’ (named after a US
judge) defines negligence as the failure of a person to invest so much for preventive measures as
equals the amount of damages multiplied by the probability of the entrance of the damage
Interests
Tort law defines the general field in society in whose borders a person can freely act without being
threatened by impending sanctions even if damage to others is caused. By this it fixes at the same time
those ordinary risks of life which the victim has to bear itself. On the other hand, tort law defines the
protected sphere of the victim whose violation is not permitted and obliges the tortfeasor to
compensate the ensuing damage.
Setting tortious liability standards therefore means always a balancing of the interests of tortfeasors in
their freedom of acting against the interests of victims in the integrity of their protected rights.
History
Even the earliest written legal texts of mankind, such as the Codex Hammurabi (about 1700 BC)
contain rules on tort cases (on the Codex Hammurabi, see Edwards, 1904). But the sanctions provided
there were mainly those of revenge and private punishment. The victim was allowed to do the
tortfeasor the same damage as the victim had suffered (talion-kısas).
Roman law, in particular the Lex Aquilia (probably 286 BC) developed the idea of compensation of
damage as a substitute for private revenge and talion and required regularly intent, in certain cases
negligence, for liability. Nonetheless, claims for private penalty and claims for damages existed side
by side.
Modern tort law has its foundations in the age of enlightenment. The basic idea and justification of
tort liability then was, and still is, that the tortfeasor should bear the loss which he caused another
person only if he neglected the necessary diligence which could be expected of a reasonable person,
namely if such a person could and would have foreseen and avoided the damage. In essence, the
misapplication of the free will makes a person liable. This idea fitted well with, and supported, early
and then rapidly growing industrialization since it excluded or at least limited liability for new and
unforeseeably dangerous activities whose risks could not be fully controlled, as was the case with
exploding steam engines, derailing trains or other massive accidents connected with technical
progress. Only in the second half of the 19th century did the idea gain ground that the author of a
permitted but particularly dangerous risk should compensate such losses which resulted from the
specific risk irrespective of fault. In the 20th century the concept of strict liability became a strong
additional second pillar of the system of extracontractual liability.
General conditions of tortious liability
a) Causation
Each legal system requires as necessary though not sufficient further conditions for tortious liability
that there is damage and a link of causation between the tortfeasor’s activity and the damage of the
victim.
The basic concepts of causation do not differ very much: in principle, causation requires that the
damage should not have occurred in the absence of the damaging activity (for a comparative survey,
see Spier, 2000; von Bar, 1999, 2001, vol. II, pp. 411ff.). However, the more the link between the
activity and its consequence is indirect and distant the more policy considerations have to be applied
regarding whether or not causation (and liability) should be accepted. Among those considerations
rank the foreseeability of the damage, the magnitude of the damage, the value of the violated right or
interest and the protective purpose of the violated rule or duty.
 b) Damage:
. It is one of the elements on which legal systems differ widely (for a comparative survey, see
Magnus, 2001; von Bar, 1999, 2001, vol. II, pp. 1ff.). The damage governs the extent of
compensation. And though the aim of full compensation is common ground, the evaluation of the
damage and the calculation of damages are far from being uniform.
In particular,
- the assessment and compensation of permanent physical damage and future losses,
- the recognition and compensation of immaterial damage,
- compensation of pure economic loss etc. vary remarkably among different legal
systems.
Damage being the central element of tort law, it is, however, no surprise that here in particular the
differing views on the aims and functions of tort law and of the justified scope of tort liability play a
role.
3- Fault (kusur)
Wrongful intention (Kast) and Negligence (ihmal): Fault Wrongful intention-based liability means in
most cases liability for negligence. The general concept of negligence is rather similar everywhere: the
tortfeasor must have neglected a duty of care which a reasonable person under the same circumstances
would have observed and the observance of which would have avoided the damage. The standard of
conduct is very flexible. It always depends on the respective situation in which care is necessary and
could be expected; and this question is decided by the courts from an ex post viewpoint. In principle
the standard is also an objective one. The tortfeasor must generally conform to the average standard;
personal shortcomings regularly do not excuse.
Strict liability
The general idea that a person who creates, and benefits from, a particularly dangerous risk should
compensate losses which result from this very risk is today widely accepted and also part of
international conventions like the Conventions on Civil Liability for Nuclear Damage or the
Conventions on Liability for Oil Pollution. However, for practical reasons, most countries regard a
general provision of strict liability for particularly dangerous risks as too vague. They therefore define
specific extraordinary risks where mere causation of damage suffices to incur liability if the specific
risk realizes. Not surprisingly, there is only limited uniformity as to the risks for which particular
danger justifies strict liability. Even with respect to traffic accidents caused by cars almost as many
countries as accept strict liability deny it in this field.
As far as strict liability applies, this does not in most cases mean liability under all circumstances.
Regularly there are grounds of exemption such as force majeure, unavoidable independent act of a
third party and act of the victim itself which excuse from liability.
Where unavoidable external sources which are unrelated to the specific risk have caused the damage
the strict liability of the author of the risk is generally no longer justified. Strict liability regulations
sometimes contain caps which limit the maximum amount of compensation. This is particularly true
for the mentioned international conventions but also, for instance, for the European Product Liability
Directive. It is said that such caps enable the insurability of those risks. In fact they subsidize
particularly dangerous activities because part of the damage attributable to the risk must be borne by
the victims themselves. Rules of that kind lack a convincing justification.
Since strict liability does not require fault.
With few exceptions legal systems provide uniformly that a person is liable without excuse if his
employee has acted within the course of employment and has at least negligently caused damage to
another person (an exception to this rather common rule is, for instance, s.831 German Civil Code,
which excuses the employer if he proves that he diligently selected and controlled the employee).
 Not only employment of others but also the duty to care for others may be a ground for liability.
Where persons such as parents or guardians are obliged to supervise the person under their care and
control they are held liable if they negligently disregarded their duty of supervision and the supervised
person caused damage to others which correct control would have prevented.
Defences
Liability in tort has to be denied if, and to the extent that, the tortfeasor can rely on a valid defence.
Some of these defences are commonly recognized, in particular, justified self-defence, necessity (help
to others in their urgent state of need) or consent of the victim.
Contributory negligence
Every legal system has to take a stance on the case where the victim had contributed to its own
damage. Where the victim was negligent the amount of damages otherwise due is generally reduced
and, where the victim’s negligence clearly prevails, even excluded. And the victim is negligent if it
disregarded such diligence as could be expected of a reasonable person under the same circumstances.
The victim’s self-protection is encouraged and requested.
Though this is a rule of general application in almost all legal systems there is a more recent tendency
in some systems not to take into account the victim’s contributory negligence in specific fields, in
particular where the victim suffered only personal or through a traffic accident It is thought that in
these cases victims should be better protected and should not lose part or even all of their
compensation.
The high degree of bodily integrity and the specific vulnerability, in particular in traffic accidents, are
the justifying reasons.