The Position of the Duty of Care in the Structure of the General Composition of Delict

• Author: Iko Nõmm
• Position: Magister iuris Judge, Tallinn Circuit Court
• Pages: 68-77

68 JURIDICA INTERNATIONAL XIX/2012

Iko Nõmm

Magister iuris

Judge, Tallinn Circuit Court

The Position of the Duty of Care

in the Structure of the General

Composition of Delict

1. Introduction

When one speaks about the liability stemming from violation of a duty of care, one cannot avoid address-

ing the defi nition of the position of the duty of care in the general composition of delict. Notwithstanding

the circumstances of the damage behind the particular violation of the duty of care involved, we inevitably

need an answer to the question of how to solve such cases in terms of methodology and what exceptions to

general rules are involved in recognition of the duty of care in the general composition of delict. According

to C. von Bar, recognition of the concept of duties of care creates several dogmatic issues in the system of

elements of delictual liability, expressed by the difference of distinguishing among three levels: objective

elements of an act, unlawfulness, and fault.*1 In the author’s opinion, this is not only a theoretical question,

as the distribution of the burden of proof depends on the position in the delictual structure. The question

of who is under the obligation to prove the facts signifi cant for judicial proceedings may become a crucial

factor for the outcome of the litigation and so is rarely of secondary importance for the parties to the pro-

ceeding. The importance of the distribution of the burden of proof is indicated by the fact that the setback

of an action in court is often caused not by the complexity of the point of law but by the claimant’s inability

to convince the court of the facts on which the claim relies.*2

In this article, the author fi rst attempts to fi nd a motivated answer to the question of whether, in cases

where determining the unlawfulness of the damaging of legal rights necessitates establishment of the viola-

tion of the duty of care by the tortfeasor, the latter should be proved by the injured party or violation of the

duty of care by the tortfeasor should be assumed, with the tortfeasor therefore obliged to prove that the duty

of care was fulfi lled. Secondly, the author tries to answer the question of what a methodically applied model

for the solving of a case of violation of the duty of care should look like.

Because several problems discussed below are not present in cases with similar aspects outside the

Germanic law tradition, the references in this article to works by Estonian authors are supplemented pri-

marily by views from the literature on the regulations of the Bürgerliches Gesetzbuch*3 (BGB). In efforts

to reveal the just delictual structure of the composition of delict, additional attention has been paid to the

1 C. von Bar. Verkehrspfl ichten. Reichterliche Gefahrsteuerungsgebote in deuchen Deliktsrecht. Cologne, Berlin, Bonn, &

Munich: Carl Heyemanns Verlag KG 1980, pp. 112–113.

2 E. Karner. The function of the burden of proof in tort law. – H. Koziol, B.C. Steininger (eds). Tort and Insurance Law Year-

book. European Tort Law 2008. Wien & New York: Springer 2008, p. 68.

3 Available at http://www.gesetze-im-internet.de/bgb/BJNR001950 896.html (most recently accessed on 1.5.2012).