The Importance of Distinguishing between Forms of Fault in the Law of Delict

Author:Janno Lahe
Position:Docent of Civil Law, University of Tartu

1. Introduction - 2. Forms of fault - 3. Implication of forms of fault upon joint causation of damage - 4. Implication of forms of fault upon reduction of compensation - 5. Implication of the forms of fault upon ­compensation for non-pecuniary damage - 6. Implication of the forms of fault upon reduction of compensation due to the injured party's own role in causing the damage - 6.1. General - 6.2.... (see full summary)

1. Introduction

The tortfeasor's fault is one of the prerequisites for general delictual liability (general elements of a delict). Section 1043 of the Law of Obligations Act 1 (LOA) provides that a person (tortfeasor) who unlawfully causes damage to another person (injured party) shall compensate for the damage if the tortfeasor is culpable of causing the damage or is liable for causing the damage pursuant to law. The burden of proving the lack of fault lies with the tortfeasor according to LOA § 1050 (1).

As a rule, the form of fault is irrelevant as regards the creation of delictual liability and the scope of the tortfeasor's liability. However, there are certain cases in the law of delict where the forms of fault have to be distinguished. Such distinction is often necessary to reach a fair final solution in a particular case.

The purpose of this article is to study the cases in which it is important to distinguish between forms of fault in the law of delict. The main sources for the article are the LOA, the Common Frame of Reference 2 (CFR) and the German Civil Code 3 (BGB). The article also makes use of relevant legal literature, case law, and the laws and regulations of various countries.

Apart from the introduction and summary, the article consists of six parts, the first of which gives a brief overview of the forms of fault, while the remaining parts analyse specific cases where a distinction between forms of fault may be relevant in the law of delict.

2. Forms of fault

The generally recognised forms of fault are intent, which is divided into direct and indirect intent, and negligence, which is divided into carelessness and gross negligence. According to LOA § 104 (2), the forms of fault are carelessness, gross negligence, and intent.

LOA § 104 (5) provides that intent is the will to bring about an unlawful consequence upon the creation, performance or termination of an obligation. CFR Article 3:101 provides that a person causes legally relevant damage intentionally when that person causes such damage either: (a) meaning to cause damage of the type caused; or (b) by conduct which that person means to do, knowing that such damage, or damage of that type, will or will almost certainly be caused.

LOA § 104 (5) defines the concept of direct intent. It may be said that the concepts of direct intent as defined in the LOA and CFR (Article 3:101 (a)) are principally similar in that they relate direct intent to a person's wish to cause damage or an unlawful consequence. As opposed to the LOA, the CFR also defines indirect intent (Article 3:101 (b)). In Estonia, indirect intent has been left to legal literature and case law to define. 4

Like the concept of intent, the legal concepts of carelessness and gross negligence have been introduced in the Estonian positive law. LOA § 104 (3) provides that carelessness is failure to exercise necessary care. Necessary care should be assessed considering various aspects, especially the scope and likelihood of damage, as well as the expenses that a person should have incurred to avoid the damage. 5 It should be added that in the law of delict, carelessness should be also assessed under LOA § 1050 (2), which provides that the situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration upon assessment of the fault of the person.

According to CFR Article 3:102, a person causes legally relevant damage negligently when that person causes the damage by conduct which either: (a) does not meet the particular standard of care provided by a statutory provision whose purpose is the protection of the injured party from the damage suffered, or (b) does not otherwise amount to such care as could be expected from a reasonably careful person in the circumstances of the case.

CFR Article 3:102 (b) is especially similar to LOA § 104 (3). An assessment of necessary care also involves deciding what kind of conduct could be expected from a reasonably careful person in the circumstances of the case. The Estonian law does not contain a provision similar to CFR Article 3:102 (a). However, there are provisions in the LOA that specify a person's care, see, e.g., LOA § 762 -- the care of a provider of health care services. A major difference between CFR Article 3:102 and the LOA is that LOA § 1050 (2) requires that subjective circumstances should be taken into account when assessing carelessness.

Unlike the CFR, the LOA also defines gross negligence: LOA § 104 (4) provides that gross negligence is failure to exercise necessary care to a material extent. The meaning of "material extent" could be questioned. This is primarily a question of assessment that depends on the standards applicable in the relevant field. The author of this article believes that carelessness and gross negligence should be distinguished on the basis of factual circumstances and, in each particular case, one should try to answer the question of whether the person has failed to take the precautions that seem to be elementary in the particular situation.

3. Implication of forms of fault upon joint causation of damage

The importance of distinguishing between forms of fault may firstly become evident when determining the scope of liability in the relations between joint tortfeasors. Although joint tortfeasors bear solidary liability for compensating the injured party, their liability need not necessarily be equal. A fair division of liability can be reached and should be reached by taking various circumstances into account.

CFR Article 6:105 (1) provides that where several persons are liable for the same legally relevant damage, they are liable solidarily. As for the relationship between the solidary debtors themselves, the share of liability is equal unless different shares are more appropriate, taking into consideration all circumstances of the case and in particular fault or the extent to which a source of danger mentioned in Chapter 3 contributed to the occurrence or extent of the damage (2).

According to BGB § 426, joint debtors must compensate for the caused damage in equal parts, unless it is proved that the compensation obligation should be divided disproportionately. In the French law, the balance of liability in the event of joint liability depends on the weight of each person's breach. Where one tortfeasor is liable for strict liability and the other for faute, only the latter may remain liable as between the two persons. 6

The form of fault is principally one of the factors regulating the relations between joint tortfeasors also in many other legal regimes. For example in Italy, the right of recourse of the person who compensated for damage depends on the person's fault and the gravity of the consequences of his or her act. The Hungarian jurist Harmathy claims that although the question of whether damage was caused intentionally or by negligence is usually irrelevant in cases of delictual liability, it is a decisive element in settling the mutual disputes between tortfeasors themselves, and is probably even more important than the act that caused the damage. 7 Also, according to Swedish civil law, the type of the tortfeasor's fault is decisive when determining the division of the tortfeasors' liability. 8

In the Estonian law, the solidary liability of joint tortfeasors is set forth in LOA § 137 (1). 9 The relations between joint tortfeasors are governed by LOA § 137 (2), according to which in relations between the persons specified in subsection (1) (joint debtors), liability shall be divided taking into account all circumstances, in particular the gravity of the non-performance or the unlawful character of other conduct and the degree of risk borne by each person.

This provision establishes an open list of circumstances that have to be taken into account in the division of liability between solidary debtors. The gravity of the non-performance should be thus considered in the first order, followed by the unlawful character of other conduct and finally the intensity of the risk (the degree of risk of the major source of danger). What should be taken into account as regards the unlawful character of other conduct may remain unclear, because the law does not distinguish between degrees of unlawfulness. One should probably be guided by the understanding that where, e.g., damage is caused by a violation of a provision of the Penal Code, the degree of unlawfulness is greater when compared to a violation of, e.g., property maintenance rules.

A comparison of LOA § 137 (2) with relevant provisions of the CFR shows that as opposed to the CFR, the LOA stipulates no direct obligation to take fault into account. However, considering that the fault of the tortfeasor is the most important aspect in the relations between several tortfeasors in the legal regimes of all the observed countries, it should be considered natural that "all circumstances" in LOA § 137 (2) cover the fault of the tortfeasors. The fact that the division of liability between solidary debtors should consider their fault has also been noted by the Civil Chamber of the Supreme Court (CCSC) in its decision of 25 September 2006 in matter No. 3-2-1-70-06. 10 The decision also notes, with due justification, that in the event...

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