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Strict liability : what about fault?
WINIGER, Bénédict
WINIGER, Bénédict. Strict liability : what about fault? Tort and Insurance Law Yearbook , 2001, p. 2-17
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I. Strict Liability: What About FauU?
Bénédict Winiger1
A.
INTRODUCTION1 For nearly 200 years, fault was a necessary requisite for liability. Since the Code Civil Français from 1804, a11 the important national codifications have mentioned it as a basic condition for the reparation of damage2• Today, fauIt i5 sick, overcharged by tasks for which it had not been conceived: Judges have extended its application on new forms of risk typical for industrial societies. The particularity of these ncw dangers is to come up without the fault of anybody. The result of this evolution is a fault concept 'without fault03
2 One of the main aims of contemporary legislators is to find a remedy to this contradiction in terms. The Swiss draft (SD)4, for example, introduces a spe- cifie norm for strict liability (art. 50 SD)5 with the decIared aim of the drafters
j 1 thank Helmut Koziol and Pierre Widmer [or their reading ofmy paper as weil as my assistants Samantha Mcregalli and Guillaume Etier for their help. My thanks go also ta Donna Stockenhu- ber for proof-reilding my English text.
2 Art. 1382 CCF, §§ 1294 and 1295 ABGB, § 8238GB, art. 41 COS, art. 2043 CCI, art. 6:162 BWetc.
J See Pierre Widmer/PiC1Ye Wessncr, Révisioll et unification du droit de la responsabilité civile.
Rapport explicatif(2üüO), p.120.
4 Avant-projet de loifédérale slIr la révision et l'unification du droit de la responsabilité civile (2000), (citcd Report).
5 Avant-projet suisse Art. 50 Re.I]lOlisahilité pOlir risque
1 La personne qui exploite /lne activité spécifiquement dangereuse est te/Jue de réparer te dom- mage dû li la réalisation du risque caractérisé que celle-ci comporte, même s'il s'a,!?il d'une activité tolérée par l'ordre juridique.
2 Est réputée spécifiquement dallgereu~'e l'activité qui, par sa nature ou par celte des sllb- .l'tances, instrument.l' ou énergies utilisés, est susceptible, en dépit de toute la diligence qu'on peut exiger d'une perso/Jne spécialisée en la matière, de causer de fréquents ou de ,!?raves dom- mages; tel est notamment le cas lorsqu'une loi institue une reJpo!1sahilité spéciale à raimn d'u!1 risque comparable.
3 Sont réservées les di~positions spéciales régi.l'sant la re,lponsabifité à raison d'uil risque car- actérisé détemliné.
Art. 50 GeflihrdUll,!?shaftung
Strict Liability: What About Fault? 3 to give back to fauIt its initial scope6• Other drafts, like the Project of the Euro- pean Group on Tort Law based in Vienna, could propose comparable solu_
tions.
The present paper will try to draw sorne possible consequences of strict liabil- 3 ity nonns on fauit. In my sense, the first and apparently paradoxical conse- quence could be not a diminution, but a notable revaluation of the fault concept. One means of achieving this could be the differentiation of the fauIt in culpa levissima, levis and lata.
B.
CONCEPTS OF FAULT LIABILITYFirst let us examine sorne different forms of fauIt we meet in our law systems. 4 In the absence of real definitions by the law, certain doctrines propose their
OWl1 definitions, while others prefer to give general descriptions.
A first, and let us caU 'basic notion of fault' is that defined by Austrian doc- 5 trine: "A person is behaving fauItily when that person should have acted dif- ferently ,md, furthermore, would have been able to act differently"7. A Swiss definition underlines "the blame not to have avoided hann to another person, notwithstanding the fact that one would have been in a position and under a dut y to foresee and to avert the damage"8. Two elements dominate these defi- nitions: the tortfeasor should and could have acted differently. This type of definition is the oldest one we know, formulated first by Mucius (2nd centllJy B.C.), saying: but afault is what had not beenforeseen although it could have been foreseen by the diligent or what had been denunciated when the danger could nol have heen avoided9• Already here, we have the two elements of pre- vision and duty.
J Winl ScJwden dadllrch verursacht, dass sich da,s charaklerislüche Risiko einer hesonders gefahr/ichen Tiitigkeit venvirklicht, so haftet da/ür die Persan, die diese betreibt, selbsl wenn es sich um eine von der Rechtsordnung geduldete Tâtigkeit hm/deit.
2 Eine Ttiligkeit gil1 ais hesonders gefiihrlich, wenn sie ihre/ll Wesel1nach oder nach der Art der dabei venvendetell Stoffe, Caate oder KraJte geeignef tSl, auch bei Anwendlltlg aUer von einer Jachkulidigen Person ZlI envartendell Sorg/aft hiiufige oder sclllverwiegende Schiiden herbei-
zuführen; dies i.l·t inhesondere da/11/ a!1zunehmen, wennfür ein vergleichhares Risiko bereils ein Geselz eine spezielle Handillug begründet.
3 Spezielle Haj'nmg.sbestimI1lIlTlgenfür ein hestimI1l1e~' charaklerisli.l·ches Risiko sind vorbe- hal/en.
6 See Report, p. 120.
7 H. KOzlol, Austrian Report on Faul!, in: P. WidmeI (ed.), Unification of Tort Law: Faul! (cîted Fault, fortheoming 2003), no. 3; ibid., Wrongfulness under Aus!rian Law, in: H. Koziol, (ed.), Wrongfulness (1998), p. 17; ibid., Liability Based on Falile Suhjective or Objective Yardstick?
r 1998J Maastricht Journal, 1 ! 1.
R P. Widmer, Swiss Report on Fault, Fault, no. 3.
9 Paulus D. 9,2,31: " ... cu/pam autem eS.I·e, quod c!lm a diligente provideripolerit, non essel pro-
VÜIllI1 aul tl/Ill denunftalum esse/, cum periculum evilari 110/1 possit".
4 Bénédict Winiger
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6 The formulation of Mucius suggests a reasoning in two steps. Fifst, the judge establishes the yardstick of the diligens. He asks how would a diligent man have acted in this situation? Second, he compares the model behaviour to the tortfeasor's act. If the author of the damage was not diligent enough, he has to repair the hann, otherwise, he will be absolved. ln this reasoning, the yard- stick is unspecific in the sense that Mucius does not think of a particularly qualified or unapt, but of an average persan. The case which led to his defini- tian of fault concerned a putator, a man cutting branches on a tree and throw- ing them on the ground. Unfortunately, one of the falling branches hatmed someone who was passing. According to Mucius the harrndoer is liable if he failed to take the safety measures he should have taken. The question is simply what an average person would have done to avoid the hann. In our con tempo- rary reasoning, we can find traces of Mucius' definition. We still refer to an average man and impose his hypothetical behaviour as a dut y to everyone. We will see later what exactly is an average man.
7 If we look at the German doctrine, it apparently neglects the detînition of fau1tlO, focusing more on the terms of negligence and intentional wrong-doing.
Despite that, in the Gennan doctrine, the two central elements of fauit are the foreseeability of the damage and its avoidabilityll. Concerning EngIish Iaw, it is interesting, but not astonishing, that the definition of negligence is Dot very far from the Austrian, Swiss and Roman types of fauit. In Blyth v Birmingham Waterworks Co, negligence is described as "( ... ) the omission to do something which a reasonable man ( ... ), guided upon those considerations which ordi- narily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not dO,,12. Bere as weIl, the crite- fion is what a reasonable man would have done, meaning, in Mucius' terms, what a diligens would have foreseen. Note in brackets that, as 1 said, the prox- imity of fault and negligence is not astonishing. Tn fact, originally both had the same argumentative function. Already in c1assical Roman law, fauIt and negli- gence were two parallel arguments to prove the wrongfulness (iniuria) of the tortfeasor' s act.
8 This leads us to a second notion of fault. The juridical practice showed quickly that the, as l called it, 'basic notion of fauIt' did not offer enough nuances. The first problem concerned the degree of fauIt. What if the tortfeasor's behaviour was very close to the standard behaviour of a reasonable man? Should the Iegal consequence be the same if the act was very far from what a reasonable man would have done? In other words, should culpa levissima be treated in the same way as culpa lata or even dolus? This question concerns the founda- tion itself of liability and especially the problem who should be protected, the
10 U. Magnus, German ReporL on Fault, FauIt no. 3: "Therc is no gcneraIlltatutory definition of fault ("Verschulden") in German law. The Civil Code makes it clear, however, that fault is con- stituted by the two categorie~ VrJrsatz (intent) aod Fahrfiissigkeit (negligcnce)". For the dcfini- tion of fàhrTdssigkeit as omission of due care, sec § 276 BGB.
11 Magnus, Fault, no. 7a.
Il Cited by W.V.H. Rogers, English Report on Pault, Pault, no. 3.
Strict Liability: What About .Fault? 5 author of the damage or his victim? Another fundamental point is whether the main purpose of liability is to repair the harm or ta apportion the reparation according ta the [auIt of the wrongdoer. The fonner option neglects the degree of fauIt, the latter one underlines it.
The answers ta this question are various. In German tort law, generally even 9 the slightest degree of negligence renders the author fully liahle, the law requiring ooly 'negligence'13. This is also Ulpian's point of viewl4 which respects the originally very rigid ratio legis of the [ex Aquilia to repair damage iodependently of fauIt considerations. At the other extreme of the scale, in Austrian law, the degree of fauIt detennines the degree of compensation. Here, the basic principle of reparation is int1uenced by equity considerations!5. In between, there is Swiss law where, genera11y, fauit leads to full compensation.
But, according to art. 43 COS thejudge can reduce it in case of culpa levis!6.
What is the link between the, as 1 call il, 'basic notion of fault' and the different 10 graduations between dolus and culpa levissima? In reality, they represent two steps in the same direction. The first step, the basic notion of fauIt, introduced a new symmetry into tort law. The initial syrrunetry, as we know it from the lex Aquilia17, was based only on wrongfulness. The harmdoer H inflicted damage D ta the victim V. H has ta give to V the economical equivalent ofD. The first step away from thls initial symmetry was Mucius' fault symmetry. Tt submitted repa- ration to the condition that there was a fauIt. H had ta repair D if his act was faulty. This new symmetry was a double one, taking in account not only the sit- uation of the victim, but also sorne specific features of the tOltfeasor's behaviour.
According ta Mucius' initial idea, one cannat be held hable for a harm if one had done everythlng to avoid it or if it was entirely imprevisible.
The second step brought a fault/dcgree symmel1y. H had to repair V's damage 11 D proportionally ta his (H's) fault. This second step is a direct consequence of the fault idea. The concept of fauIt results in an analysis of the behaviour of the tortfeasor (and, in case of contributory negligence, the tort or negligence of V or a third persan) with the aim of determining whether his act corresponded ta what an average man would have done. For this determination, it was nec- essary ta fix standard scales of conduct. It is obvious that sometimes the dif- ference between the standard of conduct and the real behaviour of the tortfeasor was very impoltant, and that sometimes it was not. These differ-
13 Magnus, Fault, no. 9a: "Generally, the lowest grade of negligencc suffices to încur full tort lia- bility. Only few tort provisions require a qualified degree of fauIt (inlent: §§ 825, 826 BGB)".
14 Ulpianus D. 9,2,44: "ln [ege Aquilia et levissima clllpa venif."
15 Koziol, Fault, no. 9a: "Il is generally acccpted as equitable that the degree of negligence of the tortfeasor should have an influence on the cxtent of compensation".
16 "Allerdinf?s ist der Richter nichl verpjlichtet, bd leichler Fahrlâssigkeit automatisch âne Reduktion vo/'zunehmen. Gnmdsülzlich vnpflichtel die Ver.\·chufdensha[tl/ng 2U vollem Ersatz.
VoUe Entschddigung bleibt die Regel (art. 41), Kiirzung die Ausnahme ( ... )", R. Brchm, Berner Kommentar, Ob/igationenrecht (OR), VI,I, 3.Tb., 1.Utb., Die Entstehung durch unerlaubte Handlungen, art. 41-61 OR, (2nd edn. 1998), art. 43. no. 76.
17 Gaius, D. 9.2.2pr; UJpianus D. 9,2,27,5.
6 Bénédict Winiger
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ences from case to case suggested a refinement of the scales by introducing degrees of fault allowing one to measure more precisely the difference between the standard scale and the tortfeasor's concrete behaviour. In other words, the differentiation of fauIt in degrees was first an instrument ta evaluate whether there was fault. Gnly later did it become an independent criterion to fix the extent of compensation.
12 At the same time, the distinction of degrees of fauit made one thing evident: to fix the reasonable man's behaviour and to compare it to the tortfeasor's fault was always linked ta evaluation. MostIy, these evaluations were not purely objectives but based on subjective preferences. The standard itself cannot depend merely on individual preferences, like the security needs of anxious or fearless people. Aiso the comparison between standard and concrete behav- iour is not always established mechanically, but sometimes by analogy, espe- cially if the tortfeasor had adopted new or inventive behaviour (for example up ta that point unknown technical proccsses). Theo, the criteria for the analogy imply subjective choice. In other words, fauit and its degrees gave to liability a double subjective turn: the judge took ioto account subjective elements of the tortfeasor and his own judgment contained a certain subjectivity due to his evaluation of the facts submitted to him.
13 Let us now turn our attention to a third notion of fault. If the introduction of fauIt degrees resolved certain problems, it a1so created new ones. In fact, there was now a need to define the reasonable man's standard. Lawyers and judges were systematically confronted with the question: Who is the reasonable man?
Can the same standard be applied to everybody or are there distinctions justi- fying an adaptation on the particu1arities of the tortfeasor? In other worùs, which person is the model for the standard, the average man, the informed person or the specialist? The different answers seem to go into the same sense, introducing classes of models according to the group the tortfeasor belongs to.
For example, under German law, if a doctor causes harm to his patient, he is compared ta an average doctor of his competence. If he is a specialist in sur- gery, the reference will be an average specialist in surgeryl~. The judge also takes in account the particular knowledge and capacities of the person19, This means, of course, that the standard of the specialist is higher than the general- ist's one and that the specialist is obliged to apply ail his extra knowledge, Also Swiss law adapts the yardstick to the tortfeasor's category20, The English judge takes into account aIl the specifie circumstances of the particular case.
He can, but is not obliged to adopt the particular professional standards when he fixes what is due care21• Generally, he will suppose that the average person
18 Magnus, Fall!t, no. 6.
19 Magnus, Fau!t, no. 6: " ... a specialist has to make use of aH his extra know!edge and is, there- fore, Hah!e for a damage which he personal!y eou!d have avoided, even if a colleague with avcrage abi!ities in the respectivc profession could not be blamed for overlooking the damage- callsing deta.i!".
m Widmer, Fau!t no. 6.
21 Rogers, Fau!t, no, 7,
Strict Liability: What Abolit Fault? 7 will have average behaviour and the professional a professional's abilities.
Despite that, he can diminish the standard, for example in case of uncommon circumstances like an emergency situation in which the professional took a 'wrong' decision22• Austrian law also adapts the 'reasonable man's behaviour' to the particular situation of the tortfeasor. According ta § 1294 ABGB, the actor has to take the due attention and diligence. What is 'due' depends on the concrete situation and, for example, on the particular competence of the tort- feasof. This is the general Austrian solution2J. Furthermore, the expert and the specialist fan under § 1299 ABGB and are held responsible for the lack of their specific abilities24•
Retrospectively, it seems obvious that the 'reasonable man standard' could no 14 longer remain a monolith applicable to everybody, as it had been proposed by the 'basic notion of fauIt'. The evolution from an agrarian to an industrial society led to a diversity of individual competences which differentiated the fault notion. This third notion of fault also introduced a new symmetry in tort law. The fault/degree symmetry was transfOlmed into a fauIt/degree/c1ass symmetry. The advantage of this new symmetry concerns the equity of the judgment. Independently of the tact whether the systems of law accept to make a difference between culpa levissima, levis and [ata, the judge can take into account the specific situation such as the professional qualifications of the tortfeasor. The nurse Îs no longer judged according to the same scale as the surgery specialist.
Here again, the evolution to this third notion of fauIt, sometimes called an 15 objectivated tault (which means: objectivated by classes of persons), has its roots in the 'basic notion offault' we know from Mucius, because one is atten- tive not only to the victim and his harm, but also to the particular situation of the tortfeasor. At the same time, this 'objectivated' fault represents an impor- tant new step. Further on, law will not impose one single behaviour to every- body. It will differentiate the conditions according to the individual shape of the actors.
This brings us to a fourth - and very controversial - notion of fault. The dis- 16 tinction of classes underlined an old problem which once again became topi- cal. How to form classes? What are the typical elements and criteria? For sorne of them, the answers are evident as they are already stated elsewhere.
One of them is the professional competence. Often, the different professions fix themselves not only criteria of professional behaviour, but also classes and degrees of competence. In medical sciences, the generalist does not have the same formation and skill as the specialist. Consequently, the judge can use this
21. Rogers, Fault, no, 7.
2J Koziol, Fault, no. 6a: "According ta the predominant opinion in Austria, a subjective standard offault has to be applied and, thus, the personal abilities are decisive. ( ... ) As a subjective yard- stick has to be uscd, one has to examine whether the abilities of the concrcte tortfeasor wcrc sufficicnt to avoid the damage".
2-1- Koziol, Fault, no, 6b.
8 Bénédict Winiger difference in concreto as a criterion to determinate the individual competence asked to the tortfeasor. But, even if there are such criteria from outside, aIl the problems are not resolved for the judge, because he is independent to apply or not ta apply them. If there are foreign elements, his problem will be ta filter them. So, the question is still, what criterion he will use. What circumstances justify the creation of a c1ass? Beside generally accepted classes of profession- aIs, should there be a1so, for example, a class of tired or desperate persons because of matrimonial troubles, health disease or other individual problems?
In other words, to what extent should subjective clements influence the liabil- ity of the tortfeasor? This question can be developed in two opposite senses, First, in the sense of exemptions of liability by personal motives. This would lead to an extremely subjective liability, resulting from a11 the objective and subjective circumstances of the concrete case. Second, it can be developed in the sense of exclusion of aIl personal elements. The effect would be a purely objective liability exc1uding aIl considerations concerning the tortfeasor's individual situation. The first solution opens the floodgate of exemptions, the second one closes them; or alternatively, the first closes the floodgate of liabil- ity, the second one opens it.
17 The recent evolutions show that certain nationallaw systems are restrictive in admitting subjective exemptions from liability. Technically, they inerease the standard of due care up to a level nobody can respect, whatever they do. The effect is that the actor is faulty in any case of damage, even if he did not com- mit a fault This is the so-ca11ed fault liability 'without [ault', which is, in fact, a strict liability, where the 'tortfeasor' is liable independently of his particular behaviour; here, the causallink between act and damage îs sufficient. Another system we find for example in Austrian law, where fault liability and strict lia- bility are considered as the two ends of an 'unbroken chain'25. The degree of due care is increasing with the danger of the activity. The effect is that strict liability is limited to very dangerous activities, less danger allows the tOltfea- sor the possibility ta exempt himself with the argument that he has respeeted his ùuty of care. The advantage of this system is that it guarantees a direct relationship between the intensity of the danger and the degree of care imposed on the actors.
18 Between the third and the fourth notion of fault there is not a difference of symmetry, but of degree, They both focus on the tortfeasor's person, but differ in the way in which he is considered . Both, the third (or objectivated) and the fourth notion of fault establish classes of persons, The <lifference is that the fourth notion of fauIt takes the person not only as a member of a class, but mit- igates the evaluation of his act by considerations concelning his individual features and particulatities. Historically, this strong subjectivity is to a large extent an inheritance of the jusnaturalisme of the 17th and 18th centuries.
Hugo Grotius, Samuel Pufendorf and, above a11, Christian Wolff underlined the importance of subjective rights. A main quality of the individuum was to
25 Koziol, Fault, no. 1 b.
Strict Liability: What About Fau!t? 9
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have the titularity of rights and, more particularly, of property tights. The basic instrument to protect these individual rights was liability conceived as an individual obligation ta repair inflicted hann. The jusnaturalistic concept of liability was extremely subjective and fauIt oriented. In order ta establish the existence or non-existence of fault, the concept penetrated the subject more and more profoundly and observed even its lightest motivations to commit or omit an act. Without any doubt, the fault that emerged later powerfully in the national codifications, and especially in art. 1382 CCF, is a far descendent of jusnaturalism. The celebration of the individuum by the 18th century philoso- phers culminating in Kant's theory ofliberty had deep and unexpected conse- quences on liability. The protection of the subjective rights of both sides - of the harmdoer and the victim - overlooked a fundamental lack of respect for the individuum's intimacy.
Today, tort law has ta resolve two problems concerning fauIt and strict liabil- 19 ity. On the one hand, it has ta eliminate the conceptual contradiction of fauIt liability 'without fault'. On the other hand, it has to develop a new concept to seek an alternative to fauIt liability 'without fauIt' , or, in other words, to fash- ion a strict liability concept.
C.
STRICT LIABILITY CONCEPTSLet us now tum to a very brief examination of strict liability. Besides the dispo- 20 sitions in speciallaws, for example for nuclear plants or for motor vehicles, and besides the unproper strict liability through fault liability 'without fault', 1 would evoke in the European law tradition three different models. The first model is the Roman lex Aquilia (286 ant.c.), saying, in shorthand: damnwn iniuria datum, which means: If someone has in±1icted an unlawful damage, he has ta repair it.
This form of liability is strict because there is no need of fauIt. The wrongdoer is liable independently of his particular behaviour if there is a causallink between the act and the damage and if the act was cornmitted iniuria, that is to say, in violation of the law and without a juridical justification like self defence. Note in brackets that an even olderform of strict liability is the Talion of the XIl-Tables (451 B.e.): si membrum rupit, ni cum eo pacit, taUo esto26• The main difference with the lex Aquilia is that in the Talion reparation is possible, but not compul- sory. Fîrst, it is up to the parties to look for a private arrangement (ni cum ev pacit). Only if they fail to find a solution can the victirn ask the revenge of the Talion. As we have seen , the strict lîability of the lex Aquilia had been com- pleted by jurisprudence only in the 2nd century B.C., when Mucius proposcd for the fifst time a consideration of the faulty behaviour of the tortfeasor. The Roman model of strict liability with a11 its advantages and disadvantages had been analysed and discussed not only by the Roman jurisconsuIts, but also dur- ing all the second millenary. It is interesting to see that, at the extreme end of the 18th century, Cambacérès came back to a no-fauIt liability and proposed in his
26 XII-Tables VIII,2 (1,13 according to Roman Statutes II, London 1996,578).
10 Bénédict Winiger 'Projet de Code civil' a solution very close to the lex Aquilia: "Celui qui cause un dommage est tenu de le réparer, quel que soit le fait qui y donne lieu"n. This ls particularly astonishing because at fuis time fault liability was c1early the mainstream doctrine etemised seveD years later, in 1804, in the pure fauIt liabil- ity of art. 1382 CCF: "Tout fait quelconque de ['homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer".
21 The second model I would evoke is the Italian art. 2050 CCI, entitled as Re,sponsabilità per 1 } esercizio di attÎvità pericolose28• 1 have to state that this is not a real or, at 1east, not a pure stnct liability mode1. However it is strongly influenced by strict liability. It is not the place here ta proceed to a profound analysis of this largely commented article. The point of interest to us is the combination between, on the one hand, dangerous activities and, on the other hand, the possibility for the tortfeasor ta prove that he has taken aIl the ade- quate measures to avoid the damage. The introduction of a specific nonn for dangerous activities is the normative answer to a new technical environment in which accidents are more frequent and of higher gravity. This counter-mea- sure to omnipresent dangers is attenuated by - paradoxical1i9 - a reversed burden of proof on the part of the harmdoer, In this model, the main question 1S not anymore whether the tOItfeasor was faulty, but whether there had been possibilities to avoid the damage. If such possibilities existed, the tortfeasor is Hable, otherwise he is not.
22 ln this concept, there are stiJl traces of Mucius' idea of foreseeability. One has ta take aIl the possible and imaginable safety measures, Ta this traditional ele- ment, jurisprudence often adds a retrospective consideration. Once the dam- age has been inflicted, the judge can be tempted to consider that the tortfeasor should have foreseen this damage. Practically, the tortfeasor is then in the uncomfortable situation of being Iiable independently of his behaviour, because the mere fact of a damage can be interpreted as a lack of precaution.
In this sense, the Italian judge being free in evaluating the danger of an activ- ity and the measures taken by the tortfeasor'o, the liberating proof of art 2050 CCI risks to be a priori impossible ta be given, In reality, under art 2050 CCI the tortfeasor cOlùd be in a situation comparable to the fault liability regime, where the proof of due care is often impossible to be bestowed.
27 Cambacérès, Projet de Code civil, présenté au Conseîl des Cinq-Cents, au nom de la Commis- sion de la Cla&sifieation des Lois, Paris, An cinquième (edited in Paris 1796; reprint Vaduz etc.
1(77), livre III, titre J, § II, 745, p. 262.
28 Art. 2050 CCI Respol1sabi!ità per l'esercizio di attivifà perimlose.
ChiUllque cagiona dan}/o ad a!tri nella svolgùnento di un 'atfività pericolosa, per sua natura 0
pel' la natura dei mezzi adopemti, è tenuto al risarcimento, se flOl1 prova di avere adoUata tutte le misure idonee a evitare il dal/flo.
29 l say 'paradoxicully' because normally the reversed burden ofproaf is a means to get the situa- tion of the harmdoer heavier. Here, we have exact1y the opposite situation. The reYersed burden of proof is the means ta give a second chance to the harmdoer who, otherwise, would be exposed ta strict liability without any possibility of exemption.
-'lU Franzoni, Massimo, Dei Fatti Illeeiti, Art. 2043-2059, in Commentario dei cadice civile Scial-
oja-Branca, 4 (1993), 495.
r Strict Liability: What About Fault? 11
Other dispositions comparable on celtain points ta art. 2050 CCI are in the 23 Albanian Code of 199431 and in the Russian Civil Code of 1994. Art. 1079 of the Russian Code, which i8 more restrictive in matter of proof than the lta1ian and the Albanian rules. regulates the "responsibility for harm eaused by activity creating increased danger for slUTounding persons". COl1ceÎved for "use of rneans of transport, mechanisms, high tension electric power, atomic power, explosive substances, virulent poisons etc", it proposes a no-fauit liability for risky activWes. At the same time, it offers the possibility of exemption if "the hann arose as a consequence of insuperable force or the iutent of the victim"J2.
The third model of strict liability has haunted jUllsts for more than a eentury and 24 is finally proposed by some recent law projects. Art. 50 SD foeuses on liability for ris~3: Its central criterion of application is a 'particularly démgerous activ- ity'. If Buch an activity causes damage, the operator is Hable, whether fauIty or
flOt. He is responsible not for his specifie behaviour in the tort event, but for the
fact that he has undertaken such a dangerous activity. He 1S 1iable, nota bene, even if his activity was authorised by the State. Divergent to the ltalian disposi- tion, art. 50
sn
does not ofter to the tortfeasor a liberating proof. This is a direct consequence of the concept of fauIt in the Swiss draft. Considered as dangerous are activities which cause 'frequent or serious damage' despite the care of a spe- cialist. In this understanding of dangerous activities, the notion of due care loses the sense Mucius invented and transmitted to us, precisely because in tbis con- cept of risk no due care would be sufficient anymore to prevent damage. In a certain sense, one could say that this is the inversion of Mudus' concept. For Mucius as wel1 as for us, the foreseeability of the danger Tenders liable. But if for Mucius it was basically possible to prevent the damage, the concept of strkt liability is justified by the faet that the damage is Ilot avoidable, irrespective of what we d034. Other texts, for example the project of the European Group on Tort Law, should contiml the trend towards special dispositions on strict liabil-JI Albanian Civil Code of 1994, art. 622 says:
"La re.\pollsahilité par l'exercice d'une activité dangereuse.
La personne qui exerce une activité dlmgereuse de par sa nature ou de par les objets utilisés et qui cause par là un dommage à autrui, s'oblige à réparer ce dommage, saufsi eUe pmuve qu'elle a pris tOlites les mesures adaptées et nécessaires pour en éviter la survenance". (Trans- lation by Stiljano Ordolli) .
.12 Art. 1079. Re.lponsibihty for hann causec! by activity creating incre.ased danger/or sarround- ing pen'iOJ/s.
J .luridical persrH/s and citizens whose activity is connected -.,vith UII increased dangerfof SUf- rou/Jding person,l' (use ofmeans o.f transport, mechallisms, high tension electric power, atomic power, explosive substances, virulent poisons elc; effectuatiol1 of construction al/d other activ- ity connected therewith, (ll/d otlIers) shal/ be obliged la compensate the harm caused by a source ofincreascd danger lInless if is proved that the harm amse as a CONsequence ofinsuper- able force or the intent of the virtim. (. .. ) Civil Code of the Russian Federation, (2nd cdn.
199~), (Translation by W.E. Butler).
31 Text of art. 50 SD see above, note 5.
3+ The General Code of the civillaw of the Popular Rcpublic of China of 1986, art. 123 also COll-
tains a form of strict liability, but i8 less general than the Swiss solution because it givcs an enu- meration of the aetivities eoncerned like work with high pressure, explosives, strong poison, radioactivity etc. Furtheron, the parties may be absolved if the victim has himseIf eaused the damage intcntionaIly.
12 Bénédict Winiger ity. Concerning the Osnahlück Working Team on TOltS, it announces disposi- tions for a form of liability for dangerous things and risk35.
D.
THE EFFECTS OF STRICT LIABILITY ON FAULT25 After this short overview of fault- and strict liability concepts, let us now return to our initial question: What could be the possible consequences of strict liabil- ity nonTIS on fauIt? The diftïculty in answering this question is that, today, we lack much practical experience with these new forms of strict liability.
26 In any case, the first and obvious cffect should be to no longer use fault liabil- ity in genuine strict liability cases. Otherwise nobody would understand why particular strict Iiability nOIms are introduced in the new projects. In other wards the field of fault liability will be restrictcd.
27 What will be the new field of fault liability? If we look at the different projects, the definitions of fault or negligence (and concepts with comparable functions as, for examplc, dut Y of carel show that fault liability could revert to its original functions. Ali. 48 SDJ6 enumerates, with the terrns 'intention' and 'negligence', two of the traditional criteria known for centmies. In art. 48a,1 the term of negligence is even explicitly defined cOlTesponding to its tradi- tional understanding37, The same article indicates how to appreciate the dili- gence. This text is nothing more than a specification of the oId and handsorne diligentiaJ8 and simply enumerates different elements which modern jurispru- dence currently applies. The Osnabrück draft uses in the basic rule (art. 1:
.'1" The text of art. 3: 209 "Liability for dangerous things, activities and proccsses" has yet ta be fornmlated. The actual wording of art. 3: 2! 0 "Other Cases ofliability for damage for which one is accountable by law" is: "A person is a[,I'o fiable for a damage when it resu{ts from the reafisation ofa riskfar which he or she is accoulIfabfe according ta statllte or as a maller of judgement ji'O/11 the circulIlstances", see the Osnabrück Working Team on Tort, Tort law paper no. 7, 25 July 2001.
3(, Avant-projet suisse Art. 48. D.Fondements de la re~ponsabi{ité. I.Responsabilité pot/l'faute.
I.Principe
La personne qui cause un dommage à aU/rui pal' son comportement faut!f, soit intentionnelle- ment, soit par négligence, est tenue de le répara
Art. 48. D.Haftungsgriinde. I.Haftu.ng au.\· Verschulden. 1.Grundsatz
Die Person, die einer anderen durcll ihr schuldhaftes Verha{ten Schadell zl.(fügt, sei es mit Absicht, sei es aus Fahrliissigkeil, isl ZU1ll Ermtz vClpflichtet .
.\7 Avant-projet suisse Art. 48a. 2.Négligence.
1 Agit par négligence la personne qui n '()b~'erve pas {a diligence commandée par le.l' circol/- .l'tances et par sa situation individuel/e.
2 La diligence requise s'apprécie suivant l'âge, {a formation, {es connaissances ainsi que les autres aptitudes et qua7ités de {'allteur du dommage.
Art. 4R(/. 2.Fahrliissigkeit
1 Fahrlâssig hande{t die Persan, welche die ihr nach den Umstnnden lInd Ilach ihren persanfî- chen Verhâltnissen obliegellde Sorr-:.fallmissachtet.
2 Die eljbrderliche Sargfalt beurteilt sich nach dem AltCl; der Bildung, den Kenntnissen .l'O\vie nach den übrigen Fâhigkeiten und Eigensclwften der Person, die den Schaden verurslicht hat.
38 See above, (Mucius, p.2)
StrÎct Liability: What About Fault? _ _ _ _ _ _ 13 101) the expression 'breach of duty,39, whîch has îts roots in Mucius' obliga- tion for everyone ta take into account what a diligent man would have fore- seen40. The project of the European Group of Tort Law also seems ta perceive fault in a traditional way as a violation of the required standard of conduct and of care.
Does that mean that we will simply revert ta the fauIt concept we knew before 28
il had been perverted by the extensions ta strict liability? Prabably not. As we saw, the Swiss draftsmen have announced in the report accompanying its project the will ta render negligence more subjective41• This means that the evaluation of fauIt, irrespective of negligence, will take into account more ele- ments specific ta the concrete case. ln arder ta make fauIt and negligence more subjective, the Swiss draft and especially art. 48s SD, but possibly also the European Tort Law draft, underline the importance of the tortfeasor's indi- vidual situation.
But, how can one take better account of these individual situations? As we 29 saw, art. 48a SD offers to the tortfeasor the possibility of exemption by taking his personal indispositions into account. One can invokc a structural or perma- nent incapacity as welI as temporary or problems present at the moment of the harmful event. Art. 48a,2 SD confirms and even strengthens this tendency.
The diligence i8 evaluated according ta the age, formation, knowledge, apti- tudes and other personal qualities of the harrndoer. In other words, art. 48a SD opens the whole individual field ta the appreciation of the judge, In practice, it is likely that the scale of criteria will be very large, going fram purely objec- tive elements like age and fonnation to medium criteria like individual knowl- edge ta - possibly - highly private elements, This authorises the judge a quasi free evaluation. lt will be up to him ta determine whether he will limit his investigations ta objective elements or whether he prefers ta penetrate the whole personality of the wrongdoer and ta weight also perfcctly private cir- cums tances like matrimonial disease, professional disappointment or stress due to bad weather forecast or full mbon, which had influenced the wrong- doer. Compared ta the present Swiss legislation that simply evokes the "cir- cumstances and the gravît y of the fault" 42, the field opened ta appreciation seems at first sight not to be much enlarged by art. 48a SD. But in reality, the
39 Osnabrück Working Team on Tort, Tort law paper no. 7,25 July 2001, Art. 1: 101 Basic Rule:
(1) A person who suif ers legally relevant damage has a right to reparation under this Part against someone who caused the damage intentionally or through breacll of duty, or who is otherwise accountablefor the damage". Breach of dut y is dcfined as: "a bel/aviour which does not mee! the requirements of a statutmy provision which aims at the protection of the other fram the damage he or she suJJered, or which does not amount ta sI/ch care as in al! the cÎrculll- stances of the case is reasonable", art. 3: 103.
40 Paulus, D. 9,2,31.
41 "Pour les auteurs de l'avant-projet, la détlve que connaît actuellement la responsabilité aquili- cnne - qui ne s'explique que par le désir d'étendre les droits de la victime - doit être corrigée.
Cette correction peut se réaliser en donnant à la notion de négligence un contenu plus subjec- tif', P. Widmer/P. Wessner (supra note 3), p. 120.
42 Art. 43 COS.
14 Bénédict Winiger
- - - - -
fact to enurnerate carefully the criteria for negligence and diligence is an explicit incite ment to considerations the judge ean ignore under the CUITent
art. 43 COS. There is no doubt that art. 48a SD would have as an effect accen- tuation of the fault and to introduce l1ew nuances to it. In tbis sense, it is likely that the Swiss draftsmen will not miss their declared aim of giving back to fault its subjective character, In the draft of the European Group on Tort Law, fault will probably also be a central concept. even if the subjectivity could be less extensive. Concerning the Osnabrück project, the Tole of fault does not seem detenruned yet. Currently, only art. 6: 105 mentions il, labelled as 'Con- tributory fault'. The general rule has yet to be formulated43.
30 Let us now see how the judge appHes the fault dispositions and ta what extent this practice could be modified by the new projects. Il is weU known that the standard of care is an ad hoc model that bas to be established for each parti cu- lar case. In a first step, the judge has ta fix a reasonable man standard accord- ing ta the class the tortfeasor belongs to (see the third notion of fault, supra [13] et seq.). In a second step, he has to adapt the class-model to the individual personality of the tortfeasor (see the fourth notion of fault, supra [16]). This is the traditional rneans by which our judges proceed.
31 ln my opinion, the formulation of the Swiss draft, which strengthens fault extensively, and possibly to sorne extent also the project of the European Group on Tort Law, should have as a consequence the introduction of a more differentiated way to appreciate fault. 1 think that there is one historical model with an exceptional potential that has not been exhausted. 1 am thinking of the distinction between different faults going from cuIpa levissima to culpa Iata and passing by aU the intermediate levels (see the second fault mode!, supra [8] et seq.). The distinction between tllese degrees of fault was, without any doubt, a major evolution opening new possibilities to evaluate exactly the degree of liability of the tortfeasor. With this model, the judge can combine two different elements: On the one hand he holds the qualifications of the tort- feasor according to the class he belongs to (for example professional classes
~3 It Îs certainly a bit tao early for speculations about the exact wording of the projects of the Group on European Tort Law and the Osnabrück Working Team.The results between the three projecls will maybe dîffer very much. However, technîcally the legislators have different instruments ta accentuate the fault. Moslly, they use as basic concept the 'standard of care' ur, as the SwÎss draft caUs it, the 'diligence eommanded by the cÎreumstances' (art. 48a SD).
A first possibility would be to give few instructions how to build the reasonable man standard combined with an extensive definition of negligence. This Îs the solution in the Swiss draft.
Anolher possibility would be ta give extensive instructions how to establish the dut Y of care standards; then, one does not neeci to give an extensive definition of negligence, because the possible extensions are already anticipated in the definîtion of the dut y of care. This could be the solution adopted by the European Group on Tort Law. The efTect of each one of the lwo techniyucs depends, of course, on what is inc1uded in the two de1ïnitions of dut Y of care, respectivcly of the negligence. But it i8 likely that the first technique, the one with an extensive definition of negligence, would lead to a more subjective interpretation than the second one, which undcrlines the dut Y of care without pushing the jurist ta the personal features of the indi- vidual person. Anyhow, both oUer the possibility of building a fauIt system with subtle nuances.
Strict Liabilit~: What About Fault~ 15 like a nurse, average doetor, surgery specialist etc). On the other hand, he can take into account the degree offault as levissima, lev;s or lata, according to the particular qualification of the tortfeasor. This model permits a fonn of ca1cula- tion. Graphically, one could represent it in a system of abscissa and coordi- nate: On the abscissa are located the degrees of fauIt from culpa levissima to culpa lata, and on the coordinate there are the different acts imposed on the tortfeasor in a concrete case. If the tortfeasor does not have particular qualifi- cations, the list of imposed acts will be short, if he is a specialist, the list will be long. The addition of the different fauIts committed indicates as a tinal result the degree of liabilitl4. The resuIt of this ca1culation corresponds to the average liability of a c1ass. If we take the example of a surgery specialist, the number of acts imposed on him would go up to the top of the coordinate, prob- ably near to the maximum (Al-An). The degree of fault would be fixed on the abscissa for each one of the imposed aets. If the actor committed 4 fauIts, his liability would correspond to the addition of the percentages of the 4 faults (A3=20%; A4=1O%; A7=40%; A9=5%; AIO=lO%; Total liability degree=
85%). This calculation would correspond to what the Swiss draft calls the 'dil- igence commended by the circumstances' .
In a second step, the judge would have to adapt these different fauIt -levels to 32 the individual situation of the tortfeasor. In other words, he should take ioto accouot the 'individual situation', as art. 48a,1 SD says. He could diminish the
44 More precisely, therc would be on the coordinatc a list of acts (A l-An) imposed in a certain case. The list would go from the simple acts, for example to phone for medical help, to the most sophisticated ones, like the handling of newest surgcry techniques. Thejudge would have to situate the concrete wrongdoer on a celtaÎn lcvel of thc list, accordillg to his class compe- tence. For a quidam who meets a hurt person the list would be short; on the coordînate he would be near 0 (for example AI-A3). For the surgery specialîst in the same situation the list would be long and he would go near to An. On the abscissa, the judge would have to illdicate the degree offault of each one of the imposed aets. The addition of the different faults' degrees would indicate the final fauU degree of the wrongdoer. The maximum of the final fault degrcc wou Id, of course, be limited to 100%.
100%
90%
80%
70%
60%
Fault 50% 40%
level 30%
20%
10%
0%
Calculation of the liability degree
1 1
,0jl
/ ..
~~tj!.JL7?L7b ~Cjb/
A1-An: Actions ta perform in a given situation Totalliability degree =: Al + A2 + ... +An (max. 100%).
16 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bénédict Winiger degree of liability if he thought that the specitic situation of the tortfeasor jus- tified considering a certain fauIt as less important. For exarnple, the surgery doetoT could benefit from the fact that his equipment was not optimal or, to take a more subjective criterion, that the mistake he made occurred after fif- teen hours of an uninterrupted surgery intervention. As 1 said, the judge would probably have here a very large competence to appreciate what kind of indi- vidual situations would permit diminishing the degree of fault.
33 If we look at the CUiTent legal systems, we note that this kind of individual appreciation i5 not totally new. As wc saw, Swiss law permits it through art.
43,1 COS and, partly, 44,2. But Austrian law in particular apportions the degree of fault.
34 The advantage of the system presented here would be ta establish a direct link between the degrees of fault and of liability. But, there would be a very con- siderable danger. Though the burden of proof of his allegations would be on the tortfeasor's side, the victim's protection would be reduced by the numer- ous exemptions the tortfeasor could invoke through his individual situation.
35 Therefore, 1 think that the 'individual-situation' -argument should be handled with extreme care. The lowering of liability should be submitted ta three rules.
First, the more the argument for exemption is personal, the greater should be the conditions to accept it be restrictive. For example, a surgery specia1ist invoking that he was tired when the fault occurred should benefit from reduced liability only in extreme circumstances. Personally, l would even hope that judges never followed such an argumentation, even more so as, in this particular case, the hanndoer would probably have committed a fault by the simple fact of having worked for such a long time. Second, the judge should be attentive ta the degree of danger of the activity. The greater the dan- ger is, the stricter should be the conditions to get an exception. This rule is jus- titied by the faet that the probability of the victim ta suffer damage inereases with the degree of the danger he is exposed to. An increasing danger has to be counterbalanced by an increasing liability not only in order to dissuade the potential tortfeasor, but aiso in order to ofter better protection to the victim in a system that is not particularly favourable to him. This second rule seems to be in contradiction with the basic idea of strengthening fault-liability, because it cOlild open the doors ta liability 'without fault'. There is no doubt that this risk could emerge. It would be up ta the judge to tind the golden way between a too strict and a too Iatitudinarian handling of this rule. Third, and also with the alm of offering better protection to the victim, the conditions to get an exemption should depend on the gravit y of the damage. The judge would have to be more strict for exemptions, the greater is the degree of damage of the victim.
36 To conc1ude, l come back once more to my initial question: What are the con- sequences of strict liability on fauIt? The debate about strict liability is cer- tainly an excellent occasion to eliminate the inconsistent concept of fauit
Strict Li9!!ility~What About .Fault? 17 liability 'without fault'. With strict liability we would introduce a slightly dif- ferent logic in our law. Liability would be divided in two fields: a no-fauit (strict) and a fault liability. These two tields would be separated by a basic dis- tinction: Fault liabiIity weighs the behaviour of the tortfeasor, while strict lia- bility makes him li able by the mere fact of a damage. This separation would not make sense if the future fault liability failed to offer a better adequacy between fault and liability. This can be obtained by a system in which the degree of liability is directly proportional to the degree of fault. The strict lia- bility, combined with a retined lault concept, would promote the equity of the judgments. Such a system would certainly strengthen the position of the tort- feasor and weaken the victim. In the long tenn, it could also accentuate the role of insurance in order to compensate the victim's lack of security.
Historically, strict liability would mark a comeback of the tirst lex Aquilia 37 concept which was also not attentive to the behaviour of the tortfeasor. But this renewal would be only partial, restricted to risky activities. Also the fauIt would get a certain revival. The introduction of a progressive fauIt liabiIity system would give late honours to the old idea of fauIt degrees, rejected already by Ulpian and neglected, since, by a certain tort law tradition. The last decision will be in the hands of the judges who will decide whether or not a real subjective fauIt will exist. Experience with the actual systems shows that judges are often in favour of high security standards and do aIl they can to pro- tect the victim. If they adopted the same position under the new system, the role of subjective fault would be minimal. But then, the interpretation of the new fauIt liability concept could be in contradiction with the inherent logic of the new projects.
