Week 5: Tort law
The meaning of the term “wrongful (unlawful) act” (tort): states that someone who commits a
wrongful act unto another, shall be responsible for the compensation of the resulting damages.
A wrongful act can be defined as doing or neglecting to do something which is contrary to
either written or unwritten law.
A ‘wrongful’ act tells us that wrongful conduct can arise under three situations:
1. Violating someone else’s right
When someone drops a vase belonging to someone else, she violates the other’s right of
ownership. Copying a book, song or movie without proper consent, namely their copyright.
2. Doing or neglecting to do something contrary to a statutory obligation
This category usually involves some sort of criminal act, such as theft, abuse, destruction of
property. Anyone who commits a criminal act may therefore have to deal with both the criminal
sector of the court, as well as the civil sector where the victim demands compensation based
on wrongful act.
3. Doing or neglecting to do something which is contrary to either written or unwritten law.
This case deals with situations (consisting of an action or an omission) which are contrary to
unwritten law. The wrongful behavior itself is not in direct violation of any statutory right or
provision, but the actor is acting contrary to a duty to exercise due care. Examples include
unfair competition, industrial espionage or causing unnecessary danger. Whether or not
something is in violation must be decided on a case by case basis by the judge.
The case law tends to focus on two themes. The first is the improper weighing of all interests
(has taken interests other than his own into consideration, unfair competition) or causing
unnecessary danger (caused someone else to be in danger, when reasonable care would have
prevented this – think someone leaving the trapdoor to a cellar open).
Conditions for compensation of damages
Carefully we can distinguish a number of conditions that need to be met, before a duty to
compensate based on a wrongful act exists. If one or more of these conditions is not satidfied,
then compensation for damages on the basis of tort cannot be awarded. These conditions are:
- the behavior must be unlawful
- the actor must be accountable;
- there must be damage; a causal relationship between the wrongful action and the
damage must exist.
Accountability
The wrongful act must be attributable to the actor or wrongdoer. There are two ways in which
such accountability can take place: because of personal blameworthiness or because of the
law. On personal blameworthiness means that the act is attributable to the wrongdoer because
she is personally to blame for what has happened. (hits someone, which causes this person
to be injured). There are situations, where personal blameworthiness does not exist, and
someone is still held accountable for the damage. This is when the accountability flows from
the law. The Dutch Civil Code places responsibility for the wrongful act with a specific person,
because this person should carry the risk of the wrongful act (she is strictly liable despite not
being personally involved). The following situations are examples of strict liability – which is
the official term for this.
Employers’ liability
Employers are liable for damage caused to third party by a wrong committed by employees.
This liability has certain conditions: the chance of the wrongful act happening must have
increased because of the employee’s job for the employer, and the employer should have
some form of legal authority over the employee’s actions. (A painter’s employer is liable for
The meaning of the term “wrongful (unlawful) act” (tort): states that someone who commits a
wrongful act unto another, shall be responsible for the compensation of the resulting damages.
A wrongful act can be defined as doing or neglecting to do something which is contrary to
either written or unwritten law.
A ‘wrongful’ act tells us that wrongful conduct can arise under three situations:
1. Violating someone else’s right
When someone drops a vase belonging to someone else, she violates the other’s right of
ownership. Copying a book, song or movie without proper consent, namely their copyright.
2. Doing or neglecting to do something contrary to a statutory obligation
This category usually involves some sort of criminal act, such as theft, abuse, destruction of
property. Anyone who commits a criminal act may therefore have to deal with both the criminal
sector of the court, as well as the civil sector where the victim demands compensation based
on wrongful act.
3. Doing or neglecting to do something which is contrary to either written or unwritten law.
This case deals with situations (consisting of an action or an omission) which are contrary to
unwritten law. The wrongful behavior itself is not in direct violation of any statutory right or
provision, but the actor is acting contrary to a duty to exercise due care. Examples include
unfair competition, industrial espionage or causing unnecessary danger. Whether or not
something is in violation must be decided on a case by case basis by the judge.
The case law tends to focus on two themes. The first is the improper weighing of all interests
(has taken interests other than his own into consideration, unfair competition) or causing
unnecessary danger (caused someone else to be in danger, when reasonable care would have
prevented this – think someone leaving the trapdoor to a cellar open).
Conditions for compensation of damages
Carefully we can distinguish a number of conditions that need to be met, before a duty to
compensate based on a wrongful act exists. If one or more of these conditions is not satidfied,
then compensation for damages on the basis of tort cannot be awarded. These conditions are:
- the behavior must be unlawful
- the actor must be accountable;
- there must be damage; a causal relationship between the wrongful action and the
damage must exist.
Accountability
The wrongful act must be attributable to the actor or wrongdoer. There are two ways in which
such accountability can take place: because of personal blameworthiness or because of the
law. On personal blameworthiness means that the act is attributable to the wrongdoer because
she is personally to blame for what has happened. (hits someone, which causes this person
to be injured). There are situations, where personal blameworthiness does not exist, and
someone is still held accountable for the damage. This is when the accountability flows from
the law. The Dutch Civil Code places responsibility for the wrongful act with a specific person,
because this person should carry the risk of the wrongful act (she is strictly liable despite not
being personally involved). The following situations are examples of strict liability – which is
the official term for this.
Employers’ liability
Employers are liable for damage caused to third party by a wrong committed by employees.
This liability has certain conditions: the chance of the wrongful act happening must have
increased because of the employee’s job for the employer, and the employer should have
some form of legal authority over the employee’s actions. (A painter’s employer is liable for
