#14975 - Strict Liability - Comparative Law

STRICT LIABILITY

1. STRICT LIABILITY WHEN DEALING WITH LIABILITY FOR OTHERS

   1. FR

FR is very willing to resort to strict liability when dealing with liability for damage caused by another

• Article 1240(5) creates a form of responsabilité de plein droit for a commettant for the torts committed by her préposé in the course of the functions for which she was employed.

On two separate occasions Cour de Cassation has transformed what was thought to be a statutory presumption of fault into strict liability:

1. Judgment in Blieck

Cour de Cass held that Article 1240(1) creates a general principle of strict responsibility for others for the torts of persons under one’s control or whose activities one’s control

Liability based on the fact that

1. The association had accepted the responsibility to control the life of an handicapped person

2. There was an increased risk of harm to the public where control not properly exercised in the case of a mentally handicapped person

   1. Evolution of parental liability

Art 1240(7) was long understood as allowing parents to escape liability by showing absence of fault but the Cour de Cassation, in Bertrand (1997) held that it only provided for the defence of force majeure and turned parents’ liability into another responsabilité de plein droit.

• Regarded as an expression of a form of garantie familiale aimed at the protection of victims

Viney & Jourdain have argued that the effectiveness of parents’ liability has exclusively depended on families taking out private liability insurance.

• New liability intends to offer the victims a D with deep pockets, e.g. in Blieck by finding liable a social institution, most of these being insured against the consequences of their civil liability

• FR’s approach to fault is in line with where the insurance lie – the parents

  1. EN

EN has exhibited a marked reluctance to make a person liable for the injuries caused by another when that first person is not at fault.

• Liability under negligence can occur but will be based on fault – Home Office v Dorset Yatcht: officers held liable for permitting young offenders under their control to escape and cause damage onto a boat.

The important exception to this general principle is vicarious liability

• An ER will be strictly liable for torts committed by their EEs in the course of their employment

Non-delegable duties have also been used to render an employer personally liable for the negligence of an independent contractor.

• Primary liability does not mean that there need to be any actual fault on the part of the ER, as in Woodland v Swimming, and as such can be described as a form of strict liability.

Liability of parents and educational authorities remains fault-based

• Parents or educational authority can only be liable for their own negligence, by furnishing the child with a dangerous object (Bebee v Sales) or failing to adequately supervise the child (Carmenthenshire CCl v Lewis)

  1. DE

DE strongly favours fault but is willing to use a reverse burden on it in the form of a presumption and a high standard

Presumption of fault

• In cases of vicarious liability for EEs (§831) and liability of parents and guardians for children and disabled adults (§832), fault of the person under a duty to control the wrongdoer’s conduct will be presumed

  • Under §832 liability falls on the part of parent in respect of their children as a result of their Aufsichtspflichtige, their legal duty to supervise minors

• It will be left to them to present exculpatory evidence.

  • ER can evade liability by proving absence of fault in respect of the selection and supervision of the EE or by showing absence of causation – 831

Although there is a possibility of exculpation in DE the methods by which the DE courts allow this to be excluded suggest that they are not comfortable with it:

• Bus Driver (1969): courts have interpreted these exceptions strictly and set the standard of care very high so as limit the possibility of exoneration

• In addition, courts have sought to render the ER directly liable for breach of its organisational duty (Organisationpflicht) under §823(1) or if a corporation strictly liable for the acts of its organs under §31

  • They have also relied on §278 provides an alternative basis for liability which the ER cannot avoid for non-performance of contractual obligations

Wagner claims that these various ways have proven so successful in providing a means of circumventing the limits of 831 that in practice DE differs little from that found in FR and EN

2. THE WIDER PLACE OF STRICT LIABILITY IN EACH SYSTEM

The way that these systems deal with liability for others is generally representative of how willing each jurisdiction is willing to deal in presumption of fault or strict liability.

Particular example of product liability: Prior to the implementation of the Product Liability Directive introducing a common scheme of strict liability,

• FR already imposed strict liability on the manufacturer of defective product under Art 1386(1)

• DE again worked on the basis of a presumption of fault imposed on manufacturer (Fowl Pest)

• EN still required that negligence and thus fault be proven in the ordinary way

  1. FR explicitly acknowledges that liability can be justified on a basis other than fault

The Cour de Cassation in Jand’heur held that Art 1242(1) constitutes the legal basis of a general and autonomous strict liability for things of all kind that D has under her control.

• Works on the basis of a “presumption of liability” where a thing has caused damage

• 1242(1) has largely replaced fault-based liability under 1240 for personal injury

Defence: Can only be avoided by proof of act of “force majeure” (much narrower than absence of fault!) or by an act of the victim or third party

Requirements under Art 1242(1)

1. The act of a thing (fait de la chose) which implies that a thing must have contributed to the realisation of the damage

   1. Where contact between the C and a moving thing assumed that the chose has contributed to realisation of damage

   2. Where contact between C and non-moving thing C has to prove that thing was instrument in causing the damage, will be the case where the thing ‘behaved’ in an abnormal way (comportement anormal de la chose)

      1. Passive in Cadé (1940): women fainted in a swimming pool and fell on a hot pipe no liability under Art 1242(1), heating was installed in a normal way

      2. Active in Taupin (1947): vehicle “abnormally” parked active liability

2. Custodian (guardien): person who is liable is person who, at the time of the accident, has the power to use, direct and control the chose Connot v Franck

Loi Badinter provides for an almost absolute liability for damage caused in road traffic accident

1. Liability under Art 1242(1) is not strict

[1] Strict liability is liability independent of fault or presumption of liability

• Liability under Art 1242(1) operates on the basis of a presumption of liability – Jand’heur

[2] Various conditions for the presumption of liability in the first place:

• Person must be in control “garde” of the object D will not be liable if able to show that at the time of the damage in fact divested of custodianship – Connot v Franck

• The thing must have behaved abnormally – causation very important way out of liability

  • Cadé + Taupin

[3] Strict liability implies that there are no defences in FR law but that is not true

• Force majeure

• Cause étrangère: act of the victim or third party

Position in FR law much more nuanced that might first appear on reading the Jand’heur decision – between pure and no-fault liability

• 1242 covers most situations of liability for things as long as in action, so it might be that FR does not have strict liability at all

  1. DE preference for high standard of fault-based liability

In DE law general principles of tortious liability (823 para 1 and 2 and 826) are all based on fault

Introducing specific categories of strict liability is the exclusive prerogative of the legislature

• No Red Light (1970): Court stressed that “Our legal order attaches liability to the wrongful conduct of the tortfeasor”

  • Court made clear it will decline to extend risk-based liability beyond the specific acts providing for risk-based liability

  • “Judiciary cannot pre-empt the legislative power if the latter knowingly refrains from interfering” dramatic contrast to FR

• Enactment of strict liability legislation like in FR strongly determined by practical needs of the time; e.g. rise of motor accidents in early 20th century

  • Strict liability statutes restrict liability by imposing maximum amounts fault-based liability on BGB which allows full and unlimited compensation.

  • Consequently, victim of serious accident will claim under BGB and be thrown back into fault system + disadvantages associated with it entails: delays, cost, uncertainty of result + increased courts’ load

• Important numbers of specific strict-liability category: e.g. animals, railways, planes, road traffic, water, nuclear energy, medicines, environment

The V’s protection has nonetheless improved by the development of various devices by courts

• Raising the standard of care – Discovery of Verkehrspflichten

• Shifting of the burden of proof onto D by a presumption of fault, 831 BGB, e.g. in product liability, Fowl Pest where German BGH held that “incumbent upon the manufacturer to find out what caused the defect and to prove that he was not at fault”

Markesinis and Unberath argue that this in practice “often results in the surreptitious introduction of strict liability in a system which, judging by the letter of its Civil...