Principles of European Tort Law (PETL)

by Ulrich Magnus

1. Scope and purpose

The Principles of European Tort Law (PETL) essentially constitute a collection of those general principles that despite all differences in detail are common to the tort laws of all European countries and form the basis of the respective national law of non-contractual liability. However, the PETL do not intend merely to restate the present position of the law in the fashion of a restatement. On the contrary, their intention is to bring the common European foundations into a consistent system of rules on tortious liability. Moreover, where necessary, they further develop these rules in order to meet the needs and challenges of modern societies regarding the increasing amount of potential risks created by technological innovations.

Like the Principles of European Contract Law (PECL), the PETL also aim to add a further cornerstone to the construction of a more uniform European private law. For this purpose, it does not matter whether a uniform private law in Europe will ultimately develop in the form of a European Civil Code, in the form of model acts or other enactments of the European Union, or in the form of a gradual approximation of the legal systems of the EU Member States.

The starting point of the PETL has been a simple consideration: the numerous differences existing between the European nations in the field of tort law (law of torts/delict, general and lex Aquilia) should not disguise the numerous fundamentally common concepts, values and policies that can nonetheless be found in this area of law. The PETL seek to highlight these common features and to develop them further. They are based on the conviction that a more uniform tort law is useful and even necessary for Europe, much in the same way as in the United States, despite all the peculiarities of the laws of the individual states, a basically uniform tort law is taught, learnt and practised.

2. Creation and preparation of the PETL

The PETL are the work of an international group of scholars, the European Group on Tort Law. The group was founded in 1993 by the Dutch law professor and later Advocate General at the Hoge Raad, Jaap Spier, and comprises 20 members from 16 countries. The group is supported by the introduction of the European Centre of Tort and Insurance Law (ECTIL) in Vienna, which was founded in 1999 and headed by the Austrian law professor Helmut Koziol, who was also a founding member of the European Group on Tort Law. Since 2002, ECTIL is linked to the Austrian Academy of Science, a link from which the work of the group also benefits.

The European Group on Tort Law published the PETL first in 2004 ((2004) 12 ZEuP 427) and then in 2005 in book form with commentaries, and translations into 13 languages. The PETL are the product of intensive comparative research, which the Group published in a series of 10 volumes. Each volume was devoted to one basic element of tort liability, such as fault, causation or damages. The group not only compared the legal systems of most Member States of the European Union, but in addition those of Israel, Switzerland, South Africa and the United States (a prominent tort lawyer from each of these countries was a member of the European Group of Tort Law). The legal systems of these countries have in common that their law has been influenced by different sources and has merged these sources in different ways. To some extent, they can therefore serve as models for the European task of developing more uniform rules from the legal systems presently existing in Europe.

3. Overview of the content of the PETL

The PETL consist of 36 individual articles, which are combined into six titles and further divided into 10 chapters. The provisions regulate the essential general problems of tort law (law of torts/delict, general and lex Aquilia), ie the conditions and consequences of tortious liability. To the extent that they deal with damages, they address an area of the law which also plays an important role in contract law. In this respect, rules are therefore needed which apply to both contracts and torts. Title I of the PETL contains a basic norm, which lists the central elements for liability in tort, Title II deals with the general requirements of liability, ie damages and causation. With fault liability, strict liability and vicarious liability. Title III reviews the different grounds or bases for liability. Title IV is devoted to defences, which may exclude or reduce liability, such as contributory negligence. Title V regulates cases involving several tortfeasors and the damage they have caused. Finally, Title VI deals with remedies and in particular with the assessment of damages.

4. Guiding principles

It is the aim of the PETL to formulate not only very abstract general principles of tort law, but to fix rules that are sufficiently detailed potentially to form part of European or national tort legislation. In fact, the PETL achieve a degree of detail and regulation that goes far beyond many national codifications of tort law, in particular far beyond the scarce regulation of tort law in the French Code civil. On the other hand, the PETL do not strive for a regulation of every imaginable situation for which uniform rules are or could be possible, let alone a full codification of the overwhelming casuistry of the English law of torts. The PETL exclusively regulate the general and central questions of the law of extra-contractual liability.

It is a characteristic feature of the PETL that a considerable number of their provisions do not provide an immediate solution to specific problems but instead state the interests, considerations and values that have to be taken into account when deciding these problems. Through this method, the PETL follow, to a significant extent, the so-called flexible system developed by the Austrian scholar Walter Wilburg in the 1940s and 1950s. This method takes account of the fact that a considerable degree of flexibility is needed, particularly in tort law, given its great variety of factual situations and its tendency, observable in all legal systems, to develop a rich casuistry. The flexible system requires the person applying the law to assess and balance the individual policy and value considerations according to their weight and importance in order to achieve a fair and just decision for the specific case. For instance, Art 4:102(1) PETL defines negligence as a deviation from the conduct ‘of the reasonable person in the circumstances’. However, in order to specify this rather abstract standard, known as such to most legal systems, the provision goes on to list the considerations that have to be taken into account. The assessment of negligence ‘depends, in particular, on the nature and value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on, the foreseeability of the damage, the relationship of proximity or special reliance between those involved, as well as the availability and the costs of precautionary or alternative methods’. These elements have to be considered as an intercommunicating system of pipes. The more dangerous an activity is and the higher the degree of care that has to be expected of its author, the greater the required measures of care have to be, and the higher the costs of these measures may be. Certainly, such a flexible system poses the question of legal certainty and the foreseeability of decisions. The answer is that in practice the courts in Europe often, if not regularly, use just this method when they decide, for instance, on problems of causation or when they continually develop duties of care (Verkehrssicherungspflichten, obligations de sécurité) for numerous new and different tort situations. Frequently, courts do this without openly disclosing their underlying value judgments and policy considerations. The PETL attempt to make tort law’s balancing process and underlying evaluative factors transparent, thus contributing to greater rationality in controlling the process of reaching a decision.

In substance, the PETL follow a traditional view of the tasks of tort law. The primary idea is the personal responsibility of the individual. Whoever has caused damage to another has to compensate the damage if a sufficient basis for liability exists (Art 1:101). The threat of the sanction of personal liability has an additional preventive effect that can influence a person’s behaviour. Correspondingly, tort law ensures that a person who behaved in a sufficiently responsible way generally does not face the sanction of liability, even if he caused damage to others. Because of the importance of this principle of responsibility within a given society, the PETL opted in favour of maintaining tort law as such and against replacing it by a system of complete protection through insurance.

A further fundamental principle of the PETL is the principle of compensation (Art 10:101). Damages are meant fully to compensate the loss that has been caused. However, the PETL reject the idea of a punitive function of tort law. Thus, the PETL do not, for instance, contain provisions on punitive damages, as they can be found in the United States. According to the PETL, tort law predominantly serves the compensation of damage between individuals, as opposed to the United States where it also partly serves the interests of the general public, creating economic incentives for the individual claimant to act as ‘private attorney general’ and pursue the public’s interest. In contrast to many national laws, the PETL have opted for a law of extra-contractual liability truly based on several ‘tracks’. The PETL no longer regard fault liability as the rule and strict liability as the exception, but as two independent bases of liability. The liability for others still complements these two tracks (Art 1:101).

5. Details

a) Basic norm

For a codification of tort law, it is not unusual to formulate at the beginning a general provision which both contains the essential requirements for liability and constitutes the central provision of this area of the law. The PETL also start with a basic norm (Art 1:101), however in a different manner than, for instance, Art 1382 French Code civil, § 1295 Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB), or § 823 German Bürgerliches Gesetzbuch (BGB). The basic rule of the PETL in the fashion of a survey lists the essential grounds which can give rise to liability, ie a person’s own fault, the creation of an extraordinary risk, and responsibility for another’s damaging conduct. In addition, the provision clarifies that damage and causation are also necessary conditions of liability. The details of liability, however, only follow from further, more specific provisions.

b) Damage and protected interests

Like most tort laws the PETL provide for liability only if damage has occurred. It is a fundamental task of each legal system to define the compensable loss and thereby to delimit the interests and positions protected by tort law. While it is rare that national laws define the notion of damage (an exception is, for example, § 1293 ABGB), some of them explicitly list the rights and interests which enjoy protection by the law as does, for instance, § 823(1) BGB. Some legal systems use the separate requirement of wrongfulness, while others do not recognize it as an independent element of tort liability. The PETL (Art 2:102) list and define the legally protected interests. In addition, they establish a clear hierarchy among them. Such hierarchy is not expressly established in the national codifications or statutes; however, the courts of many, if not most, countries acknowledge a respective ranking of protected rights and interests. It is hardly surprising that the rights linked to the person rank first and enjoy the most extensive protection. These rights include life, bodily and mental integrity, human dignity and liberty (Art 2:102(2) PETL). Less extensive, yet still far-reaching, is the protection of property rights, which also include immaterial or other intangible property rights as well (Art 2:102(3) PETL). The protection of pure economic interests in tort law, on the other hand, is much more limited. It depends on factors such as the proximity between the parties, the intention of the tortfeasor, and on the legitimate interests of the tortfeasor ‘in liberty of action and in exercising his rights’ (Art 2:102(4)–(6) PETL).

In conformity, particularly, with international conventions concerning the protection of the environment, the PETL provide that preventive expenses are generally (not only for environmental purposes) recoverable if and to the extent that they are necessary to avoid threatened damage (Art 2:104).

c) Causation

Apart from the element of damage, liability in tort requires causation. Causation can pose extremely difficult problems; some of them have been disputed since the days of Roman law. Regularly, the national codifications require causation for tort liability but do not deal with any details. Consequently, it is the courts’ task to solve the numerous and often intricate problems of causation, and there is generally rich case law in this respect. Derived from that case law, the PETL formulate, partly for the first time, codified rules for many of the most important causation problems. The starting point is the conditio sine qua non-rule: in general, a causal link is only established if the damage would not have occurred without the activity of the tortfeasor (Art 3:101 PETL). Where each of several causes alone could have caused the damage, the PETL consider each of them as a cause (Art 3:102). With respect to some specific cases of uncertain causation, the PETL propose innovative solutions. Particularly, they abandon the rule that the tortfeasor is either liable in full or not liable at all. Instead, they propose proportionate liability depending on the degree of probability of causation. The PETL provide this rule in cases where it is uncertain which of several tortfeasors (who were not joint tortfeasors) in fact caused the damage, and where it remains uncertain which tortfeasor caused the particular victim’s damage when multiple victims are concerned (it being, however, certain that the tortfeasor did not cause the damage to all the victims) (Art 3:103).

d) Liability based on fault

Concerning fault as a ground for liability, the PETL follow the traditional path. A tortfeasor who acts intentionally or negligently must make compensation for the damage caused by his act. Negligence is assessed according to the standard of conduct, already mentioned above, that is expected of a reasonable person in such circumstances (Art 4:102). The factors that have to be taken into consideration for determining the required standard of care for the concrete case have also been mentioned above, under 4. It is remarkable that the PETL establish a rather far-reaching duty to prevent damage from occurring. It is not only from a statute, or from a dangerous situation created by the tortfeasor, or from a special relationship between the parties that such a duty results; rather, the PETL recognize such a duty also ‘when the seriousness of the harm on the one side, and the ease of avoiding the damage on the other side, point towards such a duty’ (Art 4:103). Whoever can readily see to it that another does not suffer grave harm should have an obligation to prevent such harm.

In accordance with English law, yet in contrast to many other legal systems, the PETL do not provide for a fixed age of tortious capacity, but adjust the standard of required care in a flexible way according to the age, any possible handicap, or other extraordinary and exceptional circumstances as a result of which a person cannot be expected to comply with the generally required standard of care (Art 4:102(2)).

For certain cases, the PETL allow a reversal of the burden of proof concerning fault (Art 4:201). The aim is to reduce the risks for claimants in situations which do not yet fall under a strict liability regime but come close to it. The reversal of burden of proof has particular importance for the special enterprise liability envisaged by Art 4:202 PETL. In case of damage caused by an enterprise or its products or services, the enterprise must prove that it has observed the standard of conduct that can be expected of it if it wishes to avoid liability. The provision applies in cases where the strict product liability under the European Product Liability Directive and its national implementations is not applicable. The PETL leave the latter liability origins unaffected (see Art 5:101(4)). The enterprise liability of the PETL acknowledges, however, the basic concept of allocation of risks created by enterprises on which the Product Liability Directive is based. A proposal for the reform of the Swiss law of delict had also espoused this idea.

e) Strict liability

With respect to this important area of modern tort law, the PETL provide that a ‘person who carries on an abnormally dangerous activity is strictly liable for damages related to the risk presented by the activity and resulting from it’ (Art 5:101). ‘Abnormally dangerous’ activities create foreseeable and highly significant risks of causing damage to others even when the tortfeasor exercises all due care to avoid damage. However, this rule does not apply when the risk created is ‘a matter of common usage’ (Art 5:101(2)(b)). The PETL, therefore, fail to impose strict liability for road accidents. They thus reflect the position taken by English law and partly also by Dutch law (and the representatives of these countries in the European Group on Tort Law). The PETL, however, consequently provide that national or supranational rules may introduce strict liability for additional situations. As a model for a future European tort law, this compromise can hardly be deemed satisfactory.

f) Liability for others

Liability in tort for the conduct of others is an area of great practical importance, particularly the liability of the employer for torts committed by his employees (vicarious liability). The PETL provide in a rather general way for strict liability of the person whose auxiliary has at least negligently caused damage to another person while acting within the scope of the assigned function (Art 6:102). Independent contractors are, however, not auxiliaries in this sense (Art 6:102(2)). Thus, fault liability is here coupled with strict liability.

It is not strict liability but presumed fault liability to which the PETL subject persons who are obliged to care for and supervise another person (children, handicapped persons, etc) when that other person—no matter whether with or without fault—has caused damage. To avoid liability, parents, doctors etc, must prove that they have conformed to the standard of care and supervision required in the concrete situation.

g) Defences

Certain defences exist against both fault liability and strict liability and may result in the full or partial exclusion of liability. Such defences include self-defence by the tortfeasor and consent on the part of the victim (Art 7:101). Strict liability can be excluded or reduced if unforeseeable and irresistible natural forces or acts of third persons have caused the damage. The extent to which this excuse is available depends on the weight of the external influence and further considerations, such as the protective scope of strict liability (Art 7:102). Moreover, contributory negligence of the victim is of great practical importance as a defence against liability (Art 8:101). Here, it is not only the victim’s contributory fault that counts, but also those matters which would be relevant to establish or reduce liability if the victim were a tortfeasor.

h) Damages

With respect to provisions on damages, the PETL are much more explicit than most national codifications (Arts 10:101 ff). For the calculation of damages, the PETL distinguish between pecuniary and non-pecuniary loss.

Pecuniary loss requires the victim’s patrimony to be diminished. Generally, it must be determined as concretely as possible. Where a market value of the right or interest that has been damaged exists, an abstract calculation according to the market value is possible irrespective of whether this represents the victim’s specific loss. In the case of bodily injury (Art 10:202 PETL), the tortfeasor must not only compensate the victim’s cost for medical treatment or lost wages, but also the impairment of the victim’s earning capacity, even if the latter—eg a spouse who runs the household—does not exploit his or her earning capacity and has no actual loss of income. In case of death, family members whom the deceased had to maintain, or has in fact maintained, are entitled to claim their loss of maintenance from the tortfeasor. Concerning property damage (Art 10:203), the basic measure is the diminution in value of the property. Generally, this will be the costs for repair or replacement. However, if these costs exceed the diminution in value, they can only be claimed if this manner of compensation is reasonable. Though the rules on compensation for loss of use differ in Europe, the PETL allow its recovery (Art 10:203(2)).

Non-pecuniary loss follows from infringements of protected interests linked to the person (bodily integrity, dignity, and liberty) and can be recovered only in such cases (Art 10:301). Under the PETL, close relatives of a deceased or very severely injured person can claim compensation for their own pain and suffering.

In contrast to many legal systems the PETL contain a reduction clause. Within narrow limits, Art 10:401 permits the reduction of the amount of actual damages owed ‘if in light of the financial situation of the parties, full compensation would be an oppressive burden on the defendant’. For such an exceptional reduction, the rank of the injured interest and the magnitude of the damage are also taken into account.

6. The future of the PETL

The Principles of European Tort Law compete to some extent with similar projects. The Study Group on a European Civil Code has also prepared a draft of a European tort law and included it into the Draft Common Frame of Reference (DCFR). This latter Draft is intended to form the basis of a Community instrument on European private law. However, while the two proposals on tort law differ only insignificantly in their substance, they display significant differences in form. The draft of the Study Group prefers a more casuistic style of regulation. Nevertheless, the far-reaching uniformity of the substance of both proposals speaks for itself. It demonstrates that solutions exist which can form the basis of a future, more uniform European tort law.

Literature

Jaap Spier, ‘The European Group on Tort Law’ in Helmut Koziol and Barbara C Steininger (eds), European Tort Law 2002 (2003) 541; Helmut Koziol, ‘Die “Principles of European Tort Law” der “European Group of Tort Law”’ (2004) 12 ZEuP 234; Ulrich Magnus, ‘Vergleich der Vorschläge zum Europäischen Deliktsrecht’ (2004) 12 ZEuP 562; Reinhard Zimmermann, ‘Principles of European Contract Law and Principles of European Tort Law’ in Helmut Koziol and Barbara C Steininger (eds), European Tort Law 2003 (2004) 2; European Group on Tort Law, Principles of European Tort Law, Text and Commentary (2005); Nils Jansen, ‘Principles of European Tort Law? Grundwertungen und Systembildung im europäischen Haftungsrecht’ (2006) 70 RabelsZ 732; Roger van den Bergh and Louis Visscher, ‘The Principles of European Tort Law: The Right Path to Harmonisation?’ [2006] German Working Papers in Law and Economics <www.bepress.com/gwp/default/vol2006/issl/art8>; Gerhard Wagner, ‘The Project of Harmonizing European Tort Law’ in Helmut Koziol and Barbara C Steininger (eds), European Tort Law 2005 (2006) 650; Helmut Koziol and Reiner Schulze (eds), Tort Law of the European Community (2008).