Principles of European Tort Law A Critical Examination Ken Oliphant (Cardiff Law School) BIICL, 23 November 2005

1. Why Principles of European Tort Law? Full harmonisation (a European Civil Code) Other “hard” harmonisation “Soft” harmonisation Development of a distinct EC Tort Law An exercise in comparative law

2. Structure of the Principles The Basic Norm The Three Bases of Liability  Fault  Abnormally dangerous activities (strict liability)  Auxiliaries (vicarious liability) The Other General Conditions of Liability  Damage  Causation Defences, remedies, etc.

Cf. Structure of Study Group’s draft “A person who suffers legally relevant damage has a right to reparation from a person who caused the damage either intentionally or negligently or is otherwise accountable for the causation of the damage.”

Comparison with Other Codes: (i) Three-part structure The Principles  Fault  Abnormally dangerous activities  Auxiliaries French Civil Code  Fault (art. 1382)  Liability for things (art. 1384)  Liability for others (art. 1384)

Comparison with Other Codes: (ii) Protected interests French law of delict BGB § 823 (1) The Principles No specification of protected interests List of protected interests: covered/not A hierarchy of protected interests, with varying protection

3. The Flexible System “Protection of pure economic interests… may [or may not] be more limited in scope.” “an interest may [or may not] receive more extensive protection against intentional harm than in other cases…” “The required standard of conduct… may [or may not] be adjusted when due to age… [etc.] the person cannot be expected to conform to it.”

4. Specific principles Negligence Intentional harm Strict liability (abnormally dangerous activities) Vicarious liability (auxiliaries) Causation (inc. proportionate liability) Defences acting to reduce liability The general reduction clause

5. Concluding Thoughts: A Common Lawyer’s Perspective The value of the enterprise  Opening the door to the civilian law of tort  (cf. Fairchild)  A common and neutral framework to make sense of other legal systems The value of these principles  “The best” selected ahead of “the rest”  Reflecting accumulated practical experience  Specific proposals an aid to the further development of the common law