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Factors Determining the Amount of Damages
Published online by Cambridge University Press: 12 February 2016
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Two seemingly contradictory objections are raised against the traditional rules of liability for damage; on the one hand the requirement of fault appears to preclude just compensation of many persons who have suffered loss or injury, particularly such as is caused by modern dangers—motor traffic, the use, storage or transportation of high explosives, or the release of atomic energy. On the other hand damage caused by even the slightest degree of negligence may exceed by far what can justly be demanded from the person responsible.
In Dunne v. North Western Gas Board no less that 46 coal gas explosions occurred simultaneously in the streets of Liverpool. The people injured were unable to recover because it turned out that the defect in the gas mains had developed without the fault of any person. In Fowler v. Lanning the plaintiff suffered injuries from pellets discharged from the defendant's gun. He pleaded this fact as a sufficient cause of action, leaving it to the defendant to explain the accident. That seems indeed to have once been the law. Today, however, the plaintiff has at least to allege negligence (if not intention) or to set out facts which “shout negligence”; only then does the rule res ipsa loquitur relieve him of the burden of proof, and then only of that burden alone. Ought not a hunter to be responsible for his gun, a gas board for its pipes?
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References
1 [1964] 2 Q.B. 806. A more recent case with the same result is Pearson v. North Western Gas Board [1968] 2 All E.R. 669.
2 [1959] 1 Q.B. 426.
3 [1961] A.C. 388 at 422; [1961] 1 All E.R. 404, 413.
3a The terms “damages” and “compensation”, the one preferred in England, the other in the local Civil Wrongs Ordinance, are here used synonymously.
4 (1848) 1 Exch. 850, 855; 154 E.R. 363, 365.
5 See Mayne, , On Damages (12th ed., 1961) para. 6.Google Scholar
6 Livingstone v. Rawyards Coal Co. (1880) 5 A.C. 25, 39.
7 [1964] A.C. 1129.
7a A different system appears to prevail in the Socialist world. See section 5 (p. 187) hereafter.
8 Hereafter: BGB (Buergerliches Gesetzbuch).
9 See, e.g., Prosser, , The Law of Torts (2nd ed., 1955) 284Google Scholar; 3rd ed. (1964) 427–28.
10 The German developments are summarized in the Referenten-Entwurf eines Gesetzes zur Aenderung und Ergaenzung schadensersatzrechtlicher Vorschriften (1967), II Begruendung—hereafter: “RE 1967 II”. See also Hermann Lange, Begrenzung der Haftung fuer schuldhaft verursachte Schaeden? (Gutachten fuer den 43 Deutschen Juristentag 1960—hereafter: “Hermann Lange”).
11 RE 1967 II. 30; Hermann Lange 7.
12 RE 1967 II. 34.
13 43 Deutscher Juristentag, 1960 (hereafter: “43 DJT”).
14 i.e. the Referenten-Entwurf mentioned in n. 10.
15 (1854) 9 Exch. 341; 156 E.R. 145.
16 [1967] 3 All E.R. 686, 691–92, 694 ff.
16a See, e.g., RE II. p. 30.
17 e.g., Judgment of the Bundesgerichtshof in NJW 52/1010.
17a In view of the need to refer to English terminology the New Version of the Ordinance with its re-numbered sections is not referred to in this article.
18 [1943] A.C. 92.
19 Williams, , Joint Torts and Contributory Negligence (1951) §65.Google Scholar See, e.g., Lawson, , “Notes on the History of Torts in the Civil Law” (1940) Journal of Comparative Legislation 136, 143.Google Scholar
20 Interim solutions such as the “last opportunity rule” have no bearing on our problem.
21 Apportionment had been proposed while the draft C.W.O. was under discussion: Tedeschi, and Rosenthal, , Civil Wrongs Ordinance, 122.Google Scholar
22 The new rule spread slowly to other Dominions. The Wagon Mound [No. 2] shows that New South Wales accepted it only during the present decade: [1966] 2 All E.R. 709, 717 ff.
23 D. 50. 17. 203. (What a person suffers as damage through his own negligence is not considered as damage suffered.)
24 Part I, Title 5 §360–63 and Title 6 §18–23 respectively.
24a “When it is necessary for a court to ascribe liability in proportion to more than one person, it is well established that regard must be had not only to the causative potency of the acts or omissions of each of the parties, but to their relative blame-worthiness…the emphasis is upon fault, not solely upon causation of damage.” Brown v. Thompson [1968] 1 W.L.R. 1003, 1008, C.A.; [1968] 2 All E.R. 708, 709, G.I. (C.A.) (my italics).
24b Cf. Gray, Soviet Tort Law: The New Principles Annotated (in: Law in the Soviet Union, ed. by Lafave (Urbana, 111., 1965) 180 at 204–05 on similar hesitations in modern Russia).
25 [1967] 1 A.C. 826, 847.
26 Art. 34 of the Bonn Constitution (1949) and the modern German civil servants laws.
27 Hermann Lange, 9. Out of the vast literature on labour law see, e.g., Hueck, and Nipperdey, , Grundriss des Arbeitsrechts (1960) 58–59.Google Scholar
28 Kahn-Freund, , Das soziale Ideal des Reichsarbeitsgerichts (1931)Google Scholar, reprinted in Ramm, , Arbeitsrecht und Politik (1966).Google Scholar
29 Professor Wilburg, rapporteur of the 1960 Lawyers Convention, very strictly distinguishes between the Betriebsrisiko and the zone of danger of the individual worker: 43 DJT. II/C 16, 17.
29a Hermann Lange, 16–17.
30 Hermann Lange, 20.
31 e.g. arts. 1150–51 of the French Code Civil and following them, e.g., art. 1225 of the Italian Nuovo Codice Civile (1942) and in Israel arts. 109–10 of the Ottoman Civil Procedure Code (1879).
31a From a mimeographed paper, “Ersatz und Versicherung”, by Stig Jorgensen (translated from German).
32 Recueil Sirey 1952. 1.89; Recueil Dalloz 1951, Jurisprudence 717.
32a Recueil Sirey 1958. 1.77.
32 RE II., 35 Gmuer, , Das Schweizerische Zivilgesetzbuch (1965), 164.Google Scholar
33a Gray, op. cit. at 205–06.
33b Cf. also art. 428 which imposes on a person not responsible for his acts the obligation to compensate his victim if fairness and the principles of social intercourse require it—a rule obviously inspired by §839 of the German BGB, though redrafted with the new Communist formula.
33c Gsovski, and Grzybowski, , Government, Law and Courts in the Soviet Union and Eastern Europe II (1959) 1268.Google Scholar
33d The author regrets that the Code is not available to him; his information is based on an article by Mr.Rudzinski, A. W., New Communist Civil Codes of Czechoslovakia and Poland: A General Appraisal (in: (1965) 41 Indiana Law Journal 33–68).Google Scholar
34 RE II 37–38 (translated from German translation).
35 See, e.g., Kruse, , A Nordic Draft (1963)Google Scholar, esp. §§10, 15, 146, 1329; see also RE II p. 39.
36 See, e.g., Hermann Lange, 21–22.
37 Ibid. 21, note 43.
38 Verhandlungen des 43. DJT Band II/C Erste Abteilung (excerpts: NJW 60/1944).
39 Referenten-Entwurf eines Gesetzes zur Aenderung schadensersatzrechtlicher Vorschriften (1967), I Wortlaut (hereafter: RE. I).
40 i.e. directors or managers of a body corporate.
41 [1951] 2 K.B. 759, 764.
42 Ibid. 766. (Lord Goddard continues that the matter is different in equity and distinguishes negligence from an “error of judgment”, which is no breach of duty at all.)
43 The distinction is known in French law, but the two cases quoted in nn. 32 and 32a are not based on it.
44 The German view, as expressed in the official explanation of §255a quoted above, seems to justify the prohibition to alleviate damages in case of wilful (or grossly negligent) acts by the express supposition that such wilfulness or negligence refers to the damage itself and not only to the circumstances which create the liability of compensation: RE. II. p. 48. But see the apparently different view in the preparatory opinion of the rapporteur Hermann Lange, loc. cit. 24.
45 The Heron II [196]) 2 All E.R. 686.
46 Sec. 55B(1) (i) C.W.O. applies a double test: foreseeability and unavoidability. That seems to me the better view, but this is not the place to go into this matter.
47 Vicarious liability may, of course, be mixed with fault, such as putting the wrong man in the wrong place. But vicarious liability pure and simple is devoid of personal fault of the partly so held liable.
48 RE. I., draft of the new §255a BGB.
49 Hermann Lange, 60 (No. 2).
50 Verhandlungen des 43 DJT. II/C. 40. See also RE II p. 40.
51 R.E. II, 43 at (b), 47.
52 [1967] 1 A.C. 645, 663–64; [1966] 2 All E.R. 989, 996.
52a It is interesting to note that the revolutionary Soviet Russian Civil Code of 1932 apparently tried to do that but failed. See the article of Gray, op. cit. at 183–84.
52b Cf. Tedeschi, , “Recovery of Compensation for Injuries” (1964/1965) 21 HaPraklit 237.Google Scholar
53 [1963] 1 Q.B. 750; [1962] 3 All E.R. 1089.
54 [1968] 1 Q.B. 195; [1967] 2 All E.R. 1168, now, however, reversed by the House of Lords: The Times, February 2, 1969.
55 See Buckley v. John Allen Ford (Oxford) Ltd. [1967] 2 W.L.R. 759, as against Goodburn v. Thomas Cotton Ltd. [1968] 2 W.L.R. 229, and Note in (1968) 3 Is. L.R. 312.
56 (1967) (II) 21 P.D. 339, 341.
56a (1968) (II) 22 P.D. 379 at 385 and 388.
57 For examples see (1967) Current Law Year Book, §723, cases nos. H.49, H.48, B.172, A.446.
58 Professor Tedeschi, op. cit., 241, n. 4, suggests replacing s. 60, C.W.O. by a more elastic provision which would permit a gradation of damages, taking account, inter alia, of the degree of fault and the economic position of the parties.