Fault in the Three-stage Structure of the General Elements of Tort

• Author: Janno Lahe
• Position: Docent of Civil Law, University of Tartu
• Pages: 152-160

Janno Lahe

Docent of Civil Law, University of Tartu

Fault in the Three-stage Structure of the General Elements of Tort

The three-stage structure of the general elements of tort distinguishes between the objective elements of the act, unlawfulness and fault.The objective composition is composed of three elements:a general distinction can be drawn between the tortfeasor's act, the damage suffered by the victim, and the causal relationship between the tortfeasor's act and the damage suffered by the victim.The general elements of tort require all these elements to be present in order for liability to be created.It is not always an easy task to draw a line between the elements of tort, but it is necessary, because even, e.g., the burden of proof may be distributed differently depending on the prerequisites for liability.Distinguishing fault from the other elements of tort may cause the greatest problem.Besides distinguishing between the prerequisites for general delictual liability, the mutual relations between the relevant prerequisites need to be understood for a better comprehension of the structure of delictual liability.

The main objective of this paper is to analyse the differences of fault as a prerequisite for general delictual liability as well as its points of contact with the other elements of tort.For example, an interesting issue concerns the distinction between fault and an act relevant to tort law, as well as the links and differences between causality and fault.An analysis of these points should be of interest to jurists of all countries. More than others, though, the discourse concerns those countries where the general elements of tort are structured similarly to Estonian law (especially countries belonging to the Germanic legal family)¹.

The author stresses that this paper does not discuss issues of unlawfulness as one of the general elements of tort; neither does it discuss the distinction between unlawfulness and fault. The reason for drawing this line is the broadness of the topics, on the one hand, and the fact that the author has already written about these issues, on the other².

This paper has four parts. The first part analyses the concept, elements, and general structure of the elements of tort. The second part discusses the act as an objective element of tort and its relations with fault. The third part analyses the concept of damage and its relations to fault. The fourth part of the paper studies the concept of causality and the differences and points of contact between causality and fault.

1. Concept and structure of the general elements of tort

Unlawful behaviour that causes damage to another person (tort) is governed by legislation and results, if the relevant prerequisites for liability are present, in the tortfeasor's obligation to compensate for the damage. According to the generally accepted classification, such as the Law of Obligations Act ³ (LOA), the institute of compensation for unlawfully caused damage is classified under non-contractual obligations (LOA Chapter 53)⁴. LOA Chapter 53 distinguishes between the general elements of tort (Division 1), strict liability (Division 2) and liability for defective products (Division 3). The general elements of tort can be defined as a set of certain prerequisites for liability, in which case the tortfeasor has the obligation to compensate the victim for the damage. The tortfeasor's fault is one of these prerequisites⁵. In the event of delictual strict liability attention is paid not to the fault of the tortfeasor, instead it is checked whether the harmful consequence was caused by the realisation of an elevated risk characteristic of things or activities.In the event of a producer's delictual liability, the element of fault has not been completely discarded, but limits have been established to prove the lack of fault.

According to the Civil Code of the Estonian Soviet Socialist Republic ⁶ (CC), which was in force until 1 July 2002, four prerequisites were required, as a rule, for creating an obligation arising from the causing of unlawful damage: (1) the victim must have suffered damage, (2) the tortfeasor's act was unlawful, (3) there was a causal relationship between the damage and the tortfeasor's act, and (4) the tortfeasor was at fault for causing the damage⁷. The first three prerequisites were elements of the objective aspect of the offence, while fault characterised the subjective aspect⁸.

The existence of tort and the claim for compensation from damages arising from it is verified in German law on three different levels of the elements of a civil offence:the levels of the objective elements of tort (three conditions are checked: (1) act, (2) damage, and (3) a causal relationship between the act and the damage), of unlawfulness, and of fault. To "reach" each succeeding level, previous levels must be completed and all their conditions met because moving to the next level would otherwise be pointless, as no delictual liability would be created in the final stage⁹.

German tort law differs from that of many other continental European countries, particularly in the lack of one specific general clause or the general elements of tort¹⁰. The latter claim can be justified with certain reservations, as e.g., the elements (intentional damage against good morals) provided in § 826 of the German Civil Code ¹¹ (BGB) can still be regarded as a "small general tort"¹².

The French Code Civil, like the CC, contains a general clause on delictual liability, according to which any damage caused by one person against his/her obligations to another is subject to compensation (see §§ 1382 and 1383 of the Code Civil). Acting against an obligation is a faute. Besides faute as a basis for liability, the general elements of tort, according to the Code Civil, are behaviour, damage, and causality¹³.

The tort law of common law countries recognises three main elements as the prerequisites for delictualnegligence liability ¹⁴ , which is regarded in these countries as the most important elements of delictual liability (and the general clause at the same time): duty, breach of duty, and damage or injury. Naturally, a causal relationship is required to exist between the breach of duty and the victim's damage¹⁵. Therefore, the tort law of all common law countries is built on the duties that persons have to each other. According to Lord Atkins' classic formulation, which he presented in the case of Donoghue v. Stevenson, duty is defined as follows: You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour. A person has a duty where it seems fair and reasonable in an analysis of the specific case. In addition to that, duty should be assessed based on the predictability of damage and the closeness of the parties to each other¹⁶. When assessing whether a duty has been breached, it should be analysed whether a person has acted reasonably¹⁷.

U. Magnus has found that European tort law should also contain specific elements. Firstly, this includes such main elements as damage, causality, and the victim's complicity¹⁸. Proceeding from article 1:101 of the draft European Civil Code ¹⁹ , a prerequisite of general delictual liability also includes the intention or negligence of the tortfeasor. Unlawfulness in not an express prerequisite for liability according to the draft²⁰.

In the LOA applicable since 1 July 2002, the CC scheme of delictual liability has been abandoned and delictual liability is regulated based on the method characteristic of the Germanic legal family²¹. Similarly to German tort law, the three-stage structure of the general elements of tort in the LOA follows the classic scheme of penal law, which distinguishes between the objective elements of tort, unlawfulness, and fault. The burden of proof of the objective elements of tort and unlawfulness lies with the victim; the tortfeasor has to prove any circumstances precluding unlawfulness or the lack of fault (LOA § 1050 (1))²². The objective elements of tort are the act, the unlawful consequence (damage), and the causal relationship between them. The so-called small general tort of the LOA can be seen in the provision of LOA § 1045 (1) 8), which provides that intentional behaviour contrary to good morals is unlawful (the purpose and substance of this provision are principally the same as those of BGB § 826).

The author of this paper believes that the structure of the general elements of tort according to the LOA is justified, as it sets clear limits on the creation of delictual liability and thus ensures sufficient freedom of conduct: an individual can assess before acting whether the act is unlawful and could result in delictual liability.

2. Act as an objective element of tort and fault

A person's act is the first objective element of tort and hence one of the main bases of liability²³. In tort law, an act means the behaviour of a person which is controlled by the mind and the person's will and is thus controllable²⁴. Gestures which are not controllable (e.g., those done when unconscious) or which result from direct physical duress, as well as reflexes, cannot be regarded as acts and do not give rise to civil liability²⁵. Only a person who has acted on his or her free will can be liable²⁶. An act may also lie in inactivity, but inactivity can result in delictual liability only if a person was under a duty to act but failed to do so. It is often difficult to draw a clear line between an act and inactivity: for example in a situation where a person suffers damage caused...