Consumer Liability Reportabc - en

Institut für Europäisches Wirtschafts-
und Verbraucherrecht e.V.
COMPARATIVE ANALYSIS OF NATIONAL LIABILITY

SYSTEMS FOR REMEDYING DAMAGE CAUSED BY
DEFECTIVE CONSUMER SERVICES
CONTRACT NO. B5-1000/02/000382
A STUDY COMMISSIONED BY THE EUROPEAN COMMISSION
FINAL REPORT
ULRICH MAGNUS – HANS-W. MICKLITZ
Project Manager: Prof. Dr. Hans-W. Micklitz
April 2004
Part A: General Part

Part B: Survey over the Contract and Tort Liability in the Reported Legal Systems
Part C: The Specific Part – Medical Services, Leisure, Tourism and Public Utilities
Ulrich Magnus/Hans-W. Micklitz
A. General Part 29
I. The Objectives of the Study.............................................................................................. 29

II. The Scope of the Study ..................................................................................................... 29
1. The second Part of the Study – B. Survey over the Contract and Tort Liability in
the Reported Legal Systems ........................................................................................ 29
2. The third Part of the Study – C. Specific Part – Medial Malpractice, Leisure,
Tourism and Public Utilities ........................................................................................ 30
3. The fourth Part of the Study – D. Comparative Analysis ............................................ 30
III. Analysis of the Contract and Tort Law Liability Systems – B. General Part Short
Survey over Contract and Tort Liability in the Reported Legal Systems ......................... 30
1. The Set of legal Issues ................................................................................................. 30
2. The Methodology for the Compilation, Description and Comparison of the different
Systems ............................................................................................................................. 32
3. The internal Management of the Compilation and Analysis ....................................... 34
IV. Analysis of the Liability for Medical Services, Leisure, Tourism and Public Utilities –
C. The Specific Part .......................................................................................................... 34
1. The standardised Pattern of the legal Analysis and its factual Background ................ 34
2. Insufficient quantitative Data....................................................................................... 35
3. Shaky Basis of qualitative Data ................................................................................... 36
4. The fields of Conflict in the selected Areas of Services .............................................. 36
a) Leisure .................................................................................................................... 36
b) Health care.............................................................................................................. 37
c) Tourism................................................................................................................... 39
d) General interests ..................................................................................................... 40
V. A comparative in depth Analysis of the Benefits and Weaknesses of the Systems
– D. The Comparative Part ............................................................................................... 41
1. The comparative Analysis of the four Fields of Services ............................................ 41
2. Conclusions.................................................................................................................. 41
B. Survey over the Contract and Tort Liability in the Reported Legal
Systems........................................................................................................41
I. France................................................................................................................................ 43
1. Sources of law.............................................................................................................. 43
2. Contract liability in general ......................................................................................... 44
a) General system of contractual liability ................................................................... 44
aa) Violation of contractual obligation (obligation de moyen ou de résultat)......... 45
bb) Standard of care (fault based/strict liability) ..................................................... 45
cc) Causation ........................................................................................................... 45
b) General aspects of the remedy of damages (le préjudice) ...................................... 46
aa) Pecuniary damage.............................................................................................. 46
bb) Non-pecuniary damage...................................................................................... 46
c) Scope of contractual protection .............................................................................. 47
d) Contributory negligence ......................................................................................... 47
e) Limitation ............................................................................................................... 47
f) Burden of proof ...................................................................................................... 47
3. Tort liability in general ................................................................................................ 48
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Schedule
a) General system of tortious liability......................................................................... 48

aa) Protected interests.............................................................................................. 48
cc) Causation ........................................................................................................... 50
b) Damage and compensation ..................................................................................... 50
c) Contributory negligence ......................................................................................... 50
d) Limitation ............................................................................................................... 50
e) Burden of proof ...................................................................................................... 51
4. Specific institutions for the administration of personal injury cases ........................... 51
II. Germany............................................................................................................................ 53
1. Sources of law.............................................................................................................. 53
cc) Causation ........................................................................................................... 55
b) General aspects of the remedy of damages............................................................. 56
d) Vicarious liability ................................................................................................... 58
e) Contributory negligence ......................................................................................... 58
f) Limitation ............................................................................................................... 59
g) Burden of proof ...................................................................................................... 59
cc) Causation ........................................................................................................... 61
e) Limitation ............................................................................................................... 62
f) Burden of proof ...................................................................................................... 63
III. Italy .................................................................................................................................. 65
1. Sources of law.............................................................................................................. 65
2. Contractual liability ..................................................................................................... 66
cc) Causation ........................................................................................................... 70
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e) Contributory negligence ......................................................................................... 74
f) Limitation ............................................................................................................... 75
g) Burden of proof ...................................................................................................... 75
cc) Causation ........................................................................................................... 78
d) Limitation ............................................................................................................... 84
e) Burden of proof ...................................................................................................... 85
IV. Spain ................................................................................................................................ 87
1. Sources of law.............................................................................................................. 87
2. Contractual liability ..................................................................................................... 87
aa) Violation of contractual obligation.................................................................... 88
cc) causation ............................................................................................................ 88
d) Contributory negligence ......................................................................................... 90
e) Limitation/Prescription ........................................................................................... 91
f) Burden of proof ...................................................................................................... 91
cc) Causation ........................................................................................................... 93
d) Limitation ............................................................................................................... 96
e) Burden of proof ...................................................................................................... 96
V. Sweden.............................................................................................................................. 97
1. Sources of law.............................................................................................................. 97
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Schedule
cc) Causation ......................................................................................................... 100

b) General aspects of the remedy of damages........................................................... 100
aa) Pecuniary damage............................................................................................ 100
bb) Non-pecuniary damage.................................................................................... 100
c) Scope of contractual protection ............................................................................ 101
d) Contributory negligence ....................................................................................... 101
e) Limitation ............................................................................................................. 101
f) Burden of proof .................................................................................................... 101
3. Tort liability in general .............................................................................................. 102
a) General system of tortious liability....................................................................... 102
aa) Protected interests............................................................................................ 102
bb) Standard of care (fault based/strict liability) ................................................... 102
cc) Causation ......................................................................................................... 102
b) Damage and compensation ................................................................................... 102
c) Contributory negligence ....................................................................................... 103
d) Limitation ............................................................................................................. 103
e) Burden of proof .................................................................................................... 103
4. Specific institutions for the administration of personal injury cases ......................... 103
VI. United Kingdom............................................................................................................. 105
1. Sources of law............................................................................................................ 105
2. Contract liability in general ....................................................................................... 105
a) General system of contractual liability ................................................................. 105
aa) Violation of contractual obligation (obligation de moyen ou de résultat)....... 105
cc) Causation ......................................................................................................... 106
i) Normal standard of causation .......................................................................... 107
ii) Omissions........................................................................................................ 107
iii) Presumptions and burden of proof................................................................. 107
d) Vicarious liability ................................................................................................. 109
e) Contributory negligence ....................................................................................... 110
f) Limitation ............................................................................................................. 110
g) Burden of proof .................................................................................................... 111
cc) Causation ......................................................................................................... 112
c) Vicarious liability ................................................................................................. 113
e) Limitation ............................................................................................................. 113
f) Burden of proof .................................................................................................... 113
VII. United States ................................................................................................................. 115
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1. Sources of law............................................................................................................ 115

2. Contract liability in general ....................................................................................... 116
a) General system of contractual liability ................................................................. 116
aa) Violation of contractual obligation (obligation de moyen ou de résultat)....... 117
cc) Causation ......................................................................................................... 118
e) Vicarious liability ................................................................................................. 121
f) Limitation ............................................................................................................. 121
g) Burden of proof .................................................................................................... 121
cc) Causation ......................................................................................................... 123
c) Contributory negligence ....................................................................................... 124
d) Vicarious liability ................................................................................................. 125
e) Limitation ............................................................................................................. 125
f) Burden of proof .................................................................................................... 125
4. Specific institutions for the administration of personal injury cases ......................... 126
C. The Specific Part...................................................................................................... 127

I. Scope of this part ............................................................................................................ 127
II. Liability for leisure services............................................................................................ 127
1. Description................................................................................................................. 127
2. French law ................................................................................................................. 128
a) Contractual liability .............................................................................................. 128
aa) The parties ....................................................................................................... 129
i) Contract parties ................................................................................................ 129
ii) By-standers and others.................................................................................... 129
iii) Vicarious liability .......................................................................................... 129
bb) Bodily injury to claimant................................................................................. 130
cc) Violation of contractual duty of care............................................................... 130
i) Duty to act professionally ................................................................................ 130
ii) Duty to supervise and control technical equipment ........................................ 130
dd) Fault or objective liability ............................................................................... 131
i) Fault requirement ? .......................................................................................... 131
ii) Presumption of fault and burden of proof....................................................... 131
iii) Standard of fault (if applicable) ..................................................................... 131
iv) Exemption from liability................................................................................ 131
ee) Causation ......................................................................................................... 132
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Schedule

ii) Omissions........................................................................................................ 132
ff) Damage and compensation.............................................................................. 132
i) Damage to health ............................................................................................. 132
ii) Pain and suffering ........................................................................................... 132
iii) Measure of damages ...................................................................................... 132
gg) Contributory negligence .................................................................................. 133
hh) Limitation prescription period (time limits) .................................................... 133
b) Tortious liability ................................................................................................... 133
aa) The parties ....................................................................................................... 133
cc) Wrongful conduct............................................................................................ 134
dd) Causation ......................................................................................................... 135
ee) Fault................................................................................................................. 135
hh) Limitation (prescription period) ...................................................................... 136
c) Exclusion and limitations ..................................................................................... 136
d) Procedural questions............................................................................................. 137
aa) Burden of proof ............................................................................................... 138
bb) Specific institutions (ombudsman, claims board etc.) ..................................... 138
e) Case study............................................................................................................. 138
3. German law................................................................................................................ 141
aa) The parties ....................................................................................................... 143
ee) Causation ......................................................................................................... 148
ii) Omissions........................................................................................................ 148
7
aa) The parties ....................................................................................................... 151

dd) Causation ......................................................................................................... 155
ee) Fault................................................................................................................. 155
e) Case study............................................................................................................. 158
4. Italian Law ................................................................................................................. 159
a) Contractual Liability............................................................................................. 160
aa) The parties ....................................................................................................... 160
ii) By-standers and Others ................................................................................... 161
iii) Vicarious Liability ......................................................................................... 162
bb) Bodily Injury to the claimant........................................................................... 162
i) Fault requirement? ........................................................................................... 164
iii) Standard of Fault (if applicable) .................................................................... 165
ee) Causation ......................................................................................................... 166
ii) Omissions........................................................................................................ 166
iii) Quantification (measure) of damages ............................................................ 167
hh) Limitation Period (time limits) ........................................................................ 167
aa) The parties ....................................................................................................... 168
dd) Causation ......................................................................................................... 172
ee) Fault................................................................................................................. 172
bb) Specific institutions (ombudsman, claims board, etc) ..................................... 176
8
Schedule
e) Case Study ............................................................................................................ 177

5. Spanish law................................................................................................................ 179
aa) The parties ....................................................................................................... 179
ee) Causation ......................................................................................................... 181
hh) Prescription period........................................................................................... 182
b) Tortious liaiblity ................................................................................................... 182
aa) Wrongful conduct............................................................................................ 182
bb) Causation ......................................................................................................... 182
cc) Fault/Strict liability.......................................................................................... 182
dd) Damage and Compensation ............................................................................. 183
ff) Contributory negligence .................................................................................. 183
gg) Prescription period........................................................................................... 184
c) Exclusion and limitation ....................................................................................... 184
bb) Specific institutions ......................................................................................... 185
e) Case study............................................................................................................. 185
6. Swedish Law.............................................................................................................. 187
aa) The parties ....................................................................................................... 188
iii) Standard of fault ............................................................................................ 190
ee) Causation ......................................................................................................... 191
hh) Limitation ........................................................................................................ 192
aa) The parties ....................................................................................................... 192
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dd) Causation ......................................................................................................... 193

ee) Fault................................................................................................................. 193
hh) Limitation ........................................................................................................ 193
7. Law of United Kingdom ............................................................................................ 197
aa) The parties ....................................................................................................... 198
ee) Causation ......................................................................................................... 201
ii) Omissions........................................................................................................ 202
hh) Limitation ........................................................................................................ 203
aa) The parties ....................................................................................................... 204
dd) Causation ......................................................................................................... 205
ee) Fault................................................................................................................. 205
hh) Limitation ........................................................................................................ 206
e) Case study............................................................................................................. 206
8. Law of the United States............................................................................................ 209
aa) The parties ....................................................................................................... 209
10
Schedule

ee) Causation ......................................................................................................... 214
ii) Omissions........................................................................................................ 215
aa) The parties ....................................................................................................... 217
dd) Causation ......................................................................................................... 218
ee) Fault................................................................................................................. 218
III. Liability for health services ............................................................................................ 221
1. Description...................................................................................................................... 221
2. French law....................................................................................................................... 222
a) Contractual liability for medical malpractice ....................................................... 223
aa) The parties ....................................................................................................... 224
i) Injuror/injured .................................................................................................. 224
ii) In case of death ............................................................................................... 224
i) Duty to render professional treatment.............................................................. 225
ii) Duty to use best efforts ................................................................................... 225
iii) Duty to supervise and control technical equipment ....................................... 226
iv) Duty to inform of risks................................................................................... 226
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v) Duty to document............................................................................................ 228

vi) Duty to obtain the patient’s prior consent ...................................................... 228
ee) Causation ......................................................................................................... 230
ii) Omissions........................................................................................................ 230
hh) Limitation ........................................................................................................ 232
aa) The parties (vicarious) liability for employees................................................ 233
dd) Causation ......................................................................................................... 234
ee) Fault................................................................................................................. 234
ff) Damage............................................................................................................ 234
hh) Vicarious liability ............................................................................................ 234
ii) Burden of proof ............................................................................................... 235
jj) Limitation ........................................................................................................ 235
c) Exclusion clauses.................................................................................................. 235
aa) Exclusion clauses in contractual relations ....................................................... 235
bb) Exclusion clauses in tortious liability.............................................................. 235
aa) Burden of proof by issue ................................................................................. 235
e) Case study............................................................................................................. 236
3. German law................................................................................................................ 237
aa) The parties ....................................................................................................... 239
i) Fault requirement ............................................................................................. 243
12
Schedule

ee) Causation ......................................................................................................... 245
ii) Omissions........................................................................................................ 245
hh) Limitation ........................................................................................................ 247
aa) The parties and their (vicarious) liability for employees................................. 248
dd) Causation ......................................................................................................... 249
ee) Fault................................................................................................................. 249
ff) Damage............................................................................................................ 249
hh) Burden of proof ............................................................................................... 250
i) Limitation ............................................................................................................. 250
bb) Exclusion clauses and tort liability.................................................................. 251
bb) Specific institutions ......................................................................................... 251
e) Case study............................................................................................................. 252
4. Italian Law ................................................................................................................. 253
aa) The Parties ....................................................................................................... 254
i) The Injuror/The Injured ................................................................................... 254
bb) Bodily Injury to the Claimant.......................................................................... 256
i) Duty to provide professional treatment............................................................ 257
iv) Duty to inform of the risks............................................................................. 258
v) Duty to Document ........................................................................................... 260
ee) Causation ......................................................................................................... 265
i) Normal Standard of causation.......................................................................... 266
ii) Omissions........................................................................................................ 267
13

hh) Limitation ........................................................................................................ 269
b) Tortious Liability .................................................................................................. 270
bb) Bodily injury to the claimant ........................................................................... 270
dd) Causation ......................................................................................................... 271
ee) Fault................................................................................................................. 271
ff) Damage............................................................................................................ 271
gg) Contributory Negligence ................................................................................. 271
i) Burden of proof................................................................................................ 271
jj) Limitation ........................................................................................................ 272
d) Procedural Questions ............................................................................................ 273
bb) Specific Institutions (ombudsman, claims board, etc.).................................... 273
e) Case Study ............................................................................................................ 273
5. Spanish Law............................................................................................................... 275
aa) The parties ....................................................................................................... 275
i) Duty to respect the lex artis ad hoc standard.................................................... 276
ii) duty to assist.................................................................................................... 276
iii) duty to inform ................................................................................................ 277
ee) Causation ......................................................................................................... 279
hh) Limitation ........................................................................................................ 280
dd) Causation ......................................................................................................... 281
ee) Fault................................................................................................................. 281
ff) Damage............................................................................................................ 282
jj) Limitation ........................................................................................................ 283
14
Schedule

e) Case study............................................................................................................. 284
6. Swedish Law.............................................................................................................. 287
aa) The parties ....................................................................................................... 289
ee) Causation ......................................................................................................... 292
ii) Omissions........................................................................................................ 292
hh) Limitation ........................................................................................................ 293
aa) The parties ....................................................................................................... 294
dd) Causation ......................................................................................................... 294
ee) Fault................................................................................................................. 294
ff) Damage............................................................................................................ 295
jj) Limitation ........................................................................................................ 295
aa) The parties ....................................................................................................... 298
15

ee) Causation ......................................................................................................... 304
ii) Omissions........................................................................................................ 305
hh) Limitation ........................................................................................................ 307
aa) The parties ....................................................................................................... 307
dd) Causation ......................................................................................................... 308
ee) Fault................................................................................................................. 308
ff) Damage............................................................................................................ 309
jj) Limitation ........................................................................................................ 310
e) Case study............................................................................................................. 311
aa) The parties ....................................................................................................... 314
i) By-standers and others ..................................................................................... 314
ii) Vicarious liability ........................................................................................... 315
cc) Violation of (contractual) duty of care ............................................................ 316
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Schedule

iv) Duty to examine and inform the patient properly and fully........................... 317
v) Duty not to abandon the treatment untimely................................................... 317
vi) Duty to document? ......................................................................................... 317
ee) Causation ......................................................................................................... 319
ii) Omissions........................................................................................................ 320
i) Pain and suffering ............................................................................................ 322
ii) Measure of damages ....................................................................................... 322
hh) Limitation ........................................................................................................ 323
aa) The parties ....................................................................................................... 324
bb) Vicarious liability ............................................................................................ 324
cc) Bodily injury to claimant................................................................................. 324
dd) Wrongful conduct............................................................................................ 324
ee) Causation ......................................................................................................... 325
ff) Fault................................................................................................................. 325
gg) Damage and compensation.............................................................................. 325
hh) Contributory negligence .................................................................................. 325
ii) Limitation ........................................................................................................ 325
IV. Liability for services related to tourism ......................................................................... 329
1. Description................................................................................................................. 329
2. French Law ................................................................................................................ 330
aa) The parties ....................................................................................................... 331
ee) Causation ......................................................................................................... 336
17

e) Case study............................................................................................................. 338
3. German law................................................................................................................ 341
aa) The parties ....................................................................................................... 343
ee) Causation ......................................................................................................... 348
ii) Omissions........................................................................................................ 348
aa) The parties ....................................................................................................... 350
dd) Causation ......................................................................................................... 352
ee) Fault................................................................................................................. 352
d) Procedural question .............................................................................................. 354
e) Case study............................................................................................................. 354
4. Italian Law ................................................................................................................. 355
aa) The parties ....................................................................................................... 357
ii) Bystanders and others ..................................................................................... 360
cc) Violation of the contractual duty of care ......................................................... 361
18
Schedule

i) Fault requirement ............................................................................................. 363
iii) Standard of Fault (if applicable) .................................................................... 365
ee) Causation ......................................................................................................... 366
i) Normal standard of Causation.......................................................................... 366
ii) Omissions........................................................................................................ 366
ff) Damage and Compensation ............................................................................. 366
i) Damage to Health ............................................................................................ 367
iii) Quantification of Damages ............................................................................ 368
hh) Limitation period (time limits) ........................................................................ 370
aa) The parties ....................................................................................................... 371
dd) Causation ......................................................................................................... 371
ee) Fault................................................................................................................. 372
hh) Limitation period ............................................................................................. 372
aa) Burden of Proof ............................................................................................... 373
bb) Specific institutions (Ombudsman, Claims Board etc).................................... 373
e) Case Study ............................................................................................................ 373
5. Spanish law................................................................................................................ 375
aa) The parties ....................................................................................................... 375
ee) Causation ......................................................................................................... 377
bb) Causation ......................................................................................................... 378
cc) Fault................................................................................................................. 378
dd) Damage and compensation.............................................................................. 379
ee) Contributory negligence .................................................................................. 379
ff) limitation (prescription period)........................................................................ 379
19

e) Case study............................................................................................................. 381
6. Swedish Law.............................................................................................................. 383
aa) The parties ....................................................................................................... 384
iii) Exemption from liability................................................................................ 387
ee) Causation ......................................................................................................... 387
i) Pain and suffering ............................................................................................ 387
ii) Measure of damages ....................................................................................... 388
hh) Limitation ........................................................................................................ 388
aa) The parties ....................................................................................................... 388
dd) Causation ......................................................................................................... 389
ee) Fault................................................................................................................. 389
hh) Limitation ........................................................................................................ 390
aa) The parties ....................................................................................................... 393
20
Schedule

ee) Causation ......................................................................................................... 396
ii) Omissions........................................................................................................ 397
aa) The parties ....................................................................................................... 398
dd) Causation ......................................................................................................... 399
ee) Fault................................................................................................................. 399
e) Case study............................................................................................................. 400
aa) The parties ....................................................................................................... 402
ee) Causation ......................................................................................................... 406
ii) Omissions........................................................................................................ 406
21

ii) Limitation prescription period (time limits) .................................................... 409
aa) The parties ....................................................................................................... 409
ee) Causation ......................................................................................................... 410
ff) Fault................................................................................................................. 410
ii) Limitation (prescription period) ...................................................................... 411
V. Liability for services of general interest (gas, electricity)............................................... 413
1. Description................................................................................................................. 413
2. French law ................................................................................................................. 414
aa) The parties ....................................................................................................... 416
ee) Causation ......................................................................................................... 418
bb) Causation ......................................................................................................... 420
cc) Fault................................................................................................................. 420
ee) Contributory negligence .................................................................................. 422
ff) Limitation (prescription period) ...................................................................... 422
e) Case study............................................................................................................. 424
3. German law................................................................................................................ 425
aa) The parties ....................................................................................................... 426
22
Schedule

ee) Causation ......................................................................................................... 429
ii) Omissions........................................................................................................ 429
aa) The parties ....................................................................................................... 431
ee) Causation ......................................................................................................... 432
ff) Fault................................................................................................................. 432
ii) Limitation (prescription period) ...................................................................... 433
e) Case study............................................................................................................. 434
4. Italian Law ................................................................................................................. 435
aa) parties .............................................................................................................. 438
i) Contract Parties ................................................................................................ 438
ii) By-standers and Others ................................................................................... 438
bb) Bodily injury to the Claimant .......................................................................... 439
cc) Violation of the contractual duty of care ......................................................... 440
i) Elements of Fault ............................................................................................. 442
iv) Exemption from Liability............................................................................... 443
ee) Causation ......................................................................................................... 444
ii) Omissions........................................................................................................ 444
23

ff)Damage and compensation.............................................................................. 444
ii) Pain and Suffering .......................................................................................... 444
iii) Quantification of Damages ............................................................................ 445
hh) Limitation Period (Time limits)....................................................................... 445
aa) The parties ....................................................................................................... 446
bb) Bodily Injury to the claimant........................................................................... 446
cc) Wrongful Conduct ........................................................................................... 446
dd) Causation ......................................................................................................... 447
ee) Fault................................................................................................................. 448
hh) Limitation Period............................................................................................. 449
c) Exclusion and Limitations .................................................................................... 449
d) Procedural Questions ............................................................................................ 449
aa) Burden of Proof ............................................................................................... 449
bb) Specific Institutions (Ombudsman, claims board, etc).................................... 449
e) Case Study ............................................................................................................ 450
5. Spanish Law............................................................................................................... 451
aa) The parties ....................................................................................................... 451
ee) Causation ......................................................................................................... 452
hh) Prescription period........................................................................................... 452
bb) Causation ......................................................................................................... 453
cc) Fault................................................................................................................. 453
ee) Prescription period........................................................................................... 454
c) Exclusion and Limitations .................................................................................... 454
e) Case Study ............................................................................................................ 455
6. Swedish Law.............................................................................................................. 457
aa) The parties ....................................................................................................... 457
24
Schedule

ee) Causation ......................................................................................................... 459
hh) Limitation ........................................................................................................ 460
aa) The parties ....................................................................................................... 460
dd) Causation ......................................................................................................... 461
ee) Fault................................................................................................................. 461
aa) The parties ....................................................................................................... 466
ee) Causation ......................................................................................................... 468
ii) Omissions........................................................................................................ 468
25

aa) The parties ....................................................................................................... 469
dd) Causation ......................................................................................................... 471
ee) Fault................................................................................................................. 471
e) Case study............................................................................................................. 472
aa) The parties ....................................................................................................... 473
ii) Standard of fault.............................................................................................. 475
iii) Presumption of fault and burden of proof...................................................... 476
ee) Causation ......................................................................................................... 476
ii) Omissions........................................................................................................ 477
hh) Limitation ........................................................................................................ 479
aa) The parties ....................................................................................................... 479
dd) Causation ......................................................................................................... 480
ee) Fault................................................................................................................. 480
gg) Vicarious liability ............................................................................................ 480
26
Schedule

ii) Limitation ........................................................................................................ 481
27
General Part
A. General Part
Literature: E. Deutsch, Aspekte für ein europäisches Haftungsrecht – Versuch einer kritischen,
dogmatischen Bestandsaufnahme, Karlsruher Forum 1992 (1993); 10; E. Frietsch, Der europäische
Vorschlag einer Haftung für Dienstleistungen, Der Betrieb 1992, 933
I. The Objectives of the Study

The study has two objectives.
• First: to present a comparative analysis of existing national civil liability systems for
remedying damage caused by certain defective consumer services, whose scope is
clearly defined
- the study is limited to France, Germany, Italy, Spain, Sweden, UK and the United
States,
- the study covers consumer services, i.e. services mainly intended for physical
persons in their private capacity, thereby excluding financial services and public
services connected with police, security, defence and education,
- the study focuses on liability and compensation in relation to health and physical
safety of consumers, thereby excluding economic and financial damages and
damages to goods,
- the study focuses on civil liability systems. Administrative and criminal liability
shall only be covered if this is relevant and important in order to reach the overall
objective of the study.
• Second: as far as possible to serve as a major contribution to the factual basis for the
Commission when considering the needs and possibilities for Community measures
with regard to liability for defective services.
II. The Scope of the Study
1. The second Part of the Study – B. Survey over the Contract and Tort
Liability in the Reported Legal Systems
The second part of the study (‘B. Survey over the Contract and Tort Liability in the
Reported Legal System’) consists of two elements:
- description and comparison of national systems applicable, including existing
national legislation which implements international conventions in the area,
29
- description and comparison of the relevant and significant jurisprudence and other
relevant and significant practices, such as out of court dispute resolution,
instruments for settlement of consumer claims and complaints and like practices.
2. The third Part of the Study – C. Specific Part – Medial Malpractice, Leisure,
Tourism and Public Utilities
The third part of the study (‘C. Specific Part’) covers four areas of consumer services
- leisure services (sports, entertainment, playgrounds),
- services of general interest (gas, electricity)
- services related to tourism (excluding transport),
- health services.
The following set of requirements are taken into account,
- legal criteria which shall guide the in depth comparison such as the alleged
negligence/fault, causation, burden of proof, calculation of compensation,
including financial limits and non-pecuniary losses,
- extra-legal criteria as far as possible, such as the effectiveness of the systems in
ensuring adequate compensation, such as the relevant insurance and social
systems in place.
3. The fourth Part of the Study – D. Comparative Analysis

The fourth part sums up the major findings. It consists of two elements:
- firstly of an in-depth analysis of the benefits and weaknesses of the systems for
different stakeholders, hereunder the effectiveness of the systems in ensuring
adequate compensation.
- Secondly of a conclusion which identifies the major weaknesses in the countries
legal order and discusses possibilities for a new Commission initiative.
III. Analysis of the Contract and Tort Law Liability Systems – B. General Part
Short Survey over Contract and Tort Liability in the Reported Legal
Systems
1. The Set of legal Issues

The general part gives a condensed overall survey of how and when the compared
national systems of law establish liability for bodily harm caused through services
30
General Part
rendered to consumers. And it is the liability of the service provider towards the injured
person, which will be only examined.
However, a number of general questions had to be clarified before the description of the
respective liability systems. First, the notion of consumer had shortly to be defined
which is not entirely identical for the EU and the national laws under survey. It had also
to be examined whether the compared countries distinguish between consumers and
other persons when liability and compensation for damage to health and physical safety
of persons is at stake. Furthermore the meaning of the term services has to be fixed. It
has been pointed out that many defective services cases can easily be dressed as
products liability cases since the service provider will often use products to provide his
services, for instance a radiologist his x-ray apparatus. It may then either be the defect
of the product that caused the damage. But the cause may be instead or in addition that
the service provider misapplied the apparatus or neglected his duty to take care that the
products he uses for his service be safe. It is then the injured person’s choice to claim
compensation either from the manufacturer of the product or from the service provider
who neglected the expected care. The study is only concerned with the latter case.
The main focus in the general part of the study lies on the description of the liability
systems. In an abridged form the general system of contractual and extra-contractual
liability has been stated for each of the reviewed countries. Since liability for damage
through services will regularly be based on contract law because services are regularly
rendered on a consensual basis – though not always on a valid contract or on a contract
with the victim – the study had therefore to highlight contractual liability for services.
This includes the question to which extent and under which conditions third parties
enjoy the protection of the contract. It was necessary, too, to examine when and under
which conditions rendered services can be regarded as “defective”. This terminology
was also used in the withdrawn proposal for a directive on liability for service providers
(COM (1990) 482 final)1 and aroused some criticism.2 The study has therefore clarified
whether this terminology is used in the reviewed countries and/or whether it is
appropriate for a European solution. Furthermore the study has examined whether also
in the field of contractual liability for services a stricter standard of responsibility
applies than in general tort law as it is normally the case with contract law since the
compared countries base contract law in general either on a system of objective liability
or of presumed liability for any breach of contract while tort law – generally and as the
1
In the introductory considerations of the proposal.
2
See, e.g. E. Deutsch, Aspekte für ein europäisches Haftungsrecht – Versuch einer kritischen,
dogmatischen Bestandsaufnahme, Karlsruher Forum 1992 (1993) 10; E. Frietsch, Der europäische
Vorschlag einer Haftung für Dienstleistungen, Der Betrieb 1992, 933. In particular, it was criticised
that the proposal did not define the notion of „defective service“ and contained a general reversal of
burden of proof with respect to fault.
31
starting point – presupposes fault. Also the question of possible exclusion of liability –
especially through general conditions – has been addressed.
In the field of tortious liability for damage caused through services the general regime
and the conditions of liability adopted by the compared systems of law have been stated.
It has been examined here whether, and if so, which particular rules apply when damage
originates from an activity, which qualifies as service. In particular, it has to be
identified whether the general fault principle governs or whether, and when fault is
presumed or even dispensed with. Again, it has also to be asked whether the countries
under review apply a concept of “defective services” and whether such concept which
originates from products liability is also appropriate for services causing bodily harm.
By stating the law of the compared countries both statutory and judge-made law has
been taken into account. International conventions, which cover the area of this study
have been considered as well however only as far as ratified by some or all of the
countries under survey. The study describes those practices and instruments, which
provide other means of dispute resolution than court procedures as far as those means
are used in the field of compensation for bodily harm through services. In this respect,
too, it has been taken into consideration whether and, if so to which extent, the social
security system of each of the compared countries supplants or substitutes private
contract or tort law concerning compensation of bodily harm.
2. The Methodology for the Compilation, Description and Comparison of the

different Systems
The reports on the national liability systems proceeds according to a standardised
pattern of analysis. Only if such a pattern is used which necessitates that the same
questions for all countries are answered a final and fruitful comparison becomes
possible. This pattern has been drafted along the following lines:
In the respective country reports it has first to be clarified which conditions must be
present to establish contractual liability (breach of contractual duty, damage, causation,
fault/presumed fault/strict liability). Then the scope of protection of the contract towards
third parties (privity of contract) has to be dealt with. Also the ambit and assessment of
contractual damages for bodily harm has to be described.
Secondly, the question has to be answered under which conditions the national tort law
provides for damages in defective services cases. With respect to national laws on extra-
contractual obligations even greater differences than in contract law exist concerning
both the conditions and consequences of liability for damage caused through defective
services. Partly, strict liability is acknowledged to a wide extent as a principle of
liability; partly and just to the contrary, the fault principle governs although often
stretched to its utmost boundaries by using an objectivated standard of care or a reversal
32
General Part
of burden of proof or other tools to the same effect. Therefore for each country under
survey the conditions of tortious liability (damage, causation, fault/presumed fault/strict
liability) have to be stated. As to the consequences of liability the level and extent of
compensation varies rather widely between the EU-member states in particular as
compensation of non-pecuniary damage and of damage of third parties like relatives is
concerned. Therefore the national reports will have to place much weight on the detailed
description of this situation in the respective country (compensation of
material/immaterial loss, assessment of damages).
The research work could be based on useseful research carried out by ECTIL and
others:
Research undertaken within ECTIL:
• J. Spier (ed.) “The Limits of Liability”, Kluwer Law International, 1996.
• J. Spier (ed.) “The Limits of Expanding Liability”, Kluwer Law International, 1996,
• H. Koziol (ed.) “Unification of Tort Law: Wrongfulness”, Kluwer Law International,
1998
• J. Spier (ed.), “Unification of Tort Law: Causation”, Kluwer Law International, 1999
• U. Magnus (ed.), “Unification of Tort Law: Damages”, Kluwer Law International,
2001
• U. Magnus/J. Spier (eds.), “European Tort Law”, Lang Verlag, 2001
• B. Koch/H. Koziol (eds.), “Unification of Tort Law: Strict Liability”, Kluwer Law
International, 2002
• H. Rogers (ed.), “Non-pecuniary Loss in Europe”, Springer Verlag, 2002
• B. Koch/H. Koziol (eds.), “Compensation for Personal Injuries in a Comparative
Perspective“, Springer Verlag, 2002
• U. Magnus/M. Casals (eds.), “Unification of Tort Law: Contributory Negligence”,
Kluwer Law International, 2004
• U. Magnus (ed.), “The Impact of Social Security Law on Private Tort Law
Concerning the Compensation for Personal Injuries”, Kluwer Law International,
2003
Research undertaken in other networks or by individual researchers:
• Ch. v. Bar, “Gemeineuropäisches Deliktsrecht“, Band 1 1996, Band 2 1999, Beck
Verlag
• W. v. Gerven et al., “Tort Law – Scope of Protection“, Hart Oxford, 1998
33
• G. Brüggemeier, “Prinzipien des Haftungsrechts – Eine systematische Darstellung

auf rechtsvergleichender Grundlage“, Nomos Verlag, 1999
• U. Magnus/W. Wurmnest, “Europäisches Schadensersatzrecht“, Nomos Verlag,
2002
3. The internal Management of the Compilation and Analysis

The study has been undertaken jointly be the applicant Prof. Micklitz and Prof. Magnus.
The national reports as prepared by Prof. Micklitz and Prof. Magnus have been counter-
checked by the members of VIEW’s and ECTIL’s network in order to guarantee that the
law in the Member States and the US is correctly presented. Since the 6 Member States
and the US belong to four different legal families (following the ”Rechtskreislehre” –
the idea of legal circles or legal families), it is proven useful to group the seven
countries in the following way: the reports on Germany has been split, UK and the US
(the common law family) and Sweden remained in the hands of Prof. Magnus, the
reports on Spain, Italy and France (the Romanic law family) in those of Prof. Micklitz.
IV. Analysis of the Liability for Medical Services, Leisure, Tourism and Public
Utilities – C. The Specific Part
The analysis of the national laws on the liability for services to consumers has been
based on the premise that the envisaged comparison in Part C can only be undertaken if
two requirements are met:
That the analysis of the seven countries may be undertaken under a standardised regime;
that key-cases have to be found which ideally respond to the same type of social conflict
so as to enable an Part C. an in-depth comparison of the benefits and weaknesses of each
legal system.
Step one turned out to be a success, step two had to face much more hurdles than
originally expected. Quantitative data are scarce, and qualitative data difficult to obtain.
1. The standardised Pattern of the legal Analysis and its factual Background
The standardised pattern of analysis which had been developed to compare the general
legal systems of contract and tort law in the seven countries under review, has equally
been applied to get to grips with the four areas of research: medical malpractice, leisure,
tourism and public utilities. However, an intermediary step had to be undertaken due to
the request for combining the legal rules with a factual background. Right from the
beginning it was the idea not to focus on a mere legal approach, but to look into the real
world of conflicts, be it in the courts, be it outside the courts, in order to identify the true
problems, consumer might have to face with unsafe services.
34
General Part
Two different methods of analysis had been tried: to find quantitative data on possible
conflicts in this area and or to identify qualitative data, which allow for a deeper insight
of where the problems are. To say it bluntly: Statistical data are not available and
qualitative data difficult to obtain. Therefore the factual basis of the analysis has largely
been derived from a careful analysis and systematisation of case-law.
2. Insufficient quantitative Data

Statistical data on liability litigation, be it on products or on services, are difficult to
obtain. The Directive 85/374/EEC has refrained from imposing a notification duty on
the Member States to inform the European Commission whenever a product liability
issue arises. The Green Paper on the Product Liability Directive (COM (1999) 396
final) as well as the Report on the Application of the Product Liability Directive (COM
(2000) 893 final) provides ample evidence how difficult it is for the Commission to get
a full picture of the case-law in the Member States.
So far there are only two Community initiatives in the field of liability for products and
services which provide help already now and/or improve in the near future the available
set of information: (1) the Community sponsored accident surveillance system and (2)
the directive on product safety 2001/95/EC which imposes a notification duty on the
producer to inform the national authorities on emerging risks. Both information
systems, however, provide only indirect information on liability litigation. The accident
surveillance system might indicate a causal link between an accident, a defective
product and/or a defective service; however, there can be numerous other reasons why
the customer has been injured. It is one of the most debated issues whether and to what
extent accident surveillance systems are able and feasible to provide reliable data on the
interrelationship between the use of a (defective) product/service and the accident. The
situation might considerably improve after the adoption of the product safety directive.
The producers and within the scope of the directive, the service providers will then have
to give information on risky products and services. The United States’ Consumer
Product Safety Commission has always regarded this notification duty as the major tool
for monitoring product safety properly. However, a notification duty in its best shape
will not substitute an appropriate reporting system of product liability litigation. The
same is true for services liability litigation.
The key actors all over the European Community who are supposed to store information
on liability litigation with regard to particular services or service categories are the
insurance companies. All other actors, the economic operators, the consumer
organisations, specialised lawyers and national administrations do not dispose of a
comparable set of information. However, the information that may be obtained will not
meet the requirements of statistical evidence. In theory insurance companies are the
35
born information holder in the European Community. They are involved in the
management of liability litigation, because they compensate for the damage of the
injured person, either through the health care insurance, third party liability insurance or
legal expenses insurance. Neither the Member States nor the European Community
oblige the insurance companies to disclose their information. The insurance companies
themselves claim that they do not retain information and that the set of available
statistical data even for internal management purposes is overestimated.
3. Shaky Basis of qualitative Data

For all these reasons, the study relied on the only available source of information –
namely on qualitative data. The Commission provided in its Green Paper on the Product
Liability Directive (COM (1999) 396 final) as well as in the Report on the Application
of the Product Liability Directive (COM (2000) 893 final) a solid ground for action – in
the field of product liability litigation. A comparable reference system in the field of
liability of services is lacking.
Therefore the study had to focus on the information, which had been made available by
the selected Member States and the United States. As no fully-fledged system exists,
consumer organisations had been contacted to highlight the areas in which liability
cases occur. It was suggested that the more subjective nature of the information made
available by consumer organisations could to a certain extent be counter-balanced by
the statistics on out of court settlement procedures. Again such an approach turned to be
flawed. It was not possible to draw major information from out of court settlement
procedures, mainly because they do not play an important role in the field of consumer
services, perhaps with the exception of medical malpractices.
Therefore the factual basis of the analysis has been largely taken from litigation in
courts. The country reports are written around the available case-law and less on
academic writings. The case-law, i.e. the real world of conflicts over the liability of the
service provider has been taken as the starting basis for the country reports. They are not
meant to fully present the legal doctrine, however, they are meant to fully present the
relevant law in action. In addition, each and every country report contains a short case
study, which turned out to be characteristic for the selected field of conflict.
4. The fields of Conflict in the selected Areas of Services
a) Leisure
Leisure activities are many and various, and so are the accidents and injuries resulting
from unsafe leisure services. Leisure services (1) cover a broad range of sports and
other leisure activities, they (2) involve team-mates and participants as well as
36
General Part
bystanders and spectators, they (3) concern vulnerable and less vulnerable groups: the
well-trained sportsman as well as children and elderly or handicapped people, they (4)
address the contractual party to the service contract – if there is any – and/or the bearer
of a duty of care under tort law, and, last but not least, they (5) require differing
standards of safety (voluntary and binding).
• Types of activities
skiing, skating and (free-) climbing,
swimming and playing on private and or public ground,
visiting amusement parks,
horse riding.
• Degrees of participation
direct participation (opponents, team-mates or any other participants in swimming,
skiing, playing or racing),
bystanders (children, photographers of sports events, walkers or strollers),
spectators of mass events (races and rock concerts).
• Addresses of higher levels of protection
children in varying circumstances (playgrounds, artificial ponds and pools),
elderly or handicapped people.
• Addressees of liability
parties to the contract, maybe under particular professional standards (ski or
mountain guides, showmen, architects, building owners),
bearer of the tortious liability to care (organiser and promoter of sport and leisure
activities as well as the operator/conductor of sports and leisure grounds).
• Standards of liability
binding and non-binding standards (mandatory safety requirements, non-binding
technical standards and regulations for the prevention of accidents.
b) Health care
Health services have become increasingly important in the last decades mainly for two
reasons: the average age increased tremendously, namely doubled in Europe over the
last century, having the effect that today the number of persons has enormously grown
who are in need of health care due to their age and/or illnesses. The second main reason
37
is the progress of medical science which enables to cure diseases which were incurable
and therefore a death verdict in former days. Very often it is not an inevitable fate that
decides on life or death but the doctor. Because of this situation people expect and
demand today a high standard and perfection of medical treatment.
In almost all cases of personal injury through medical malpractice a contract or quasi-
contract (negotiorum gestio) is in the way though the contract may only exist between
the medical institution, namely the hospital, and the patient but not between the patient
and the doctor who is employed by the medical institution.
The medical activities which cause or may cause bodily injury cover most kinds of
medical treatment; even omissions can do serious harm. Typical and difficult problems
are, however, regularly tied with the question of causation, the standard of care which
has to be met and frequently also with the extent of damages.
• Significant fields of damaging medical activities
chirurgical operations
gynecological treatment (birth)
other medical treatment
• Specific kinds of failures
errors of diagnosis
non-compliance with state of the art
failure to disclose the risks
failure to document
• Link between medical treatment and damage
causal nexus
loss of chance
presumptions
• Standard of care
ascertainment of right standard of care
professional/beginner
duties of organisation and supervision
• Addressee of liability
direct contract between doctor and patient
38
General Part
employed doctors or other medical personal

medical institutions
c) Tourism
Tourism is closely linked to sport and leisure activities and is no longer defined by the
classical three elements of travel, hotel accommodation and food supply. Sport and
leisure activities are gaining ground and are becoming a fourth element in tourism, be it
in the form of package tours or individually organised holidays. Nevertheless, one
difference remains. Leisure services that provide the facilities for those activities usually
operate in local/regional or national circumstances. Therefore the question of who is
responsible towards whom is usually decided within the national legal order. The
situation is different for services related to tourism. The tourist changes his or her social
and cultural environment. Therefore it seems fair to relate the liability issue to the
varying spheres of influence.
The approach chosen here distinguishes between private spheres of risks, climate risks
and environmental problems, risks and surrounding fields and finally force majeure
issues. For each and every aspect it will have to be determined whether any disturbance
or defect has to be understood as a realisation of the tourist’s normal life risk or whether
the tour operator can be held responsible because he is in a position to protect the tourist
from an interference into his private sphere of risks. Once it is clear that the tour
operator is liable in some way or another, the kind of damage that must be compensated
will have to be determined. It will have to be shown that there is no clear-cut borderline
between defects justifying price reduction, compensation claims for wasted holidays
(“vertane Urlaubszeit”) and compensation for pain and suffering. Therefore it makes
sense to start from a broad perspective in order to find out to what degree the
investigated legal orders provide compensation even in cases in which the damages
might be restricted to pain and suffering alone.
• Private sphere of risks
traffic accidents (beyond transportation from the consumer’s home to the place
where he or she intends to spend his or her holidays),
fatal accidents or injuries (sports accidents resulting in injuries, tripping or slipping
and other sources of injuries, animal attacks)
sickness and illness, more particularly conditions resulting from mal-nutrition or
from spoilt food.
• Climate risks and environmental problems
39
weather situation and environmental circumstances (bad weather conditions, strong

wind, lack of snow),
information requirements on weather related decisions.
• Risks in surrounding fields
conditions of nature (no fish in the sea, jellyfish, noisy waterfalls, dying forests),
vermin and other animals at the holiday place.
• Public utilities
public transport,
beach (quality of the sand and water),
streets and paths (trespassing of rivers, travelling outside publicly run streets in open
areas),
behaviour of other tourists and disturbances by third parties (behaviour of other
guests, children and handicapped people),
criminal action (theft, degree to which hotel is under custody).
• Force majeure
natural disasters, mass infections, wars and danger of war, political insurrections,
airline, airport personal or air traffic controller strikes)
d) General interests
Services of general interest like supply of gas, water or electricity are regularly rendered
on a contractual basis and they belong to the most frequent contracts since almost
everybody in contemporary society depends on these services. But in contrast to their
frequency these supply services lead only rarely to court decisions concerning personal
injuries. Cases of exploding gas pipe lines, poisoned water or unsafe electricity wires
appear to be infrequent. The safety standards in this field seem to be high and were
continuously raised in accordance with the growing technical know-how and expertise.
The relatively high security is also due to the strong public interest and public control
that services of this kind be safe.
Services of general interest tended to be supplied by public bodies though in recent
years many of them have been privatised. However, questions of liability remain
generally untouched by the form in which the supplier is organised. The public
influence is represented in technical standards and public safety control and supervision.
Despite the contractual basis of services of general interest also tortious liability towards
by-standers (family members, guests) or other persons not protected by the contract has
40
General Part
to be taken into account in case of damage through defective services. The decisive
question is then regularly whether or not duties of care existed and had been neglected.
• Fields of damaging activities
unsafe installations
Supply of impoisoned goods (water)
insufficient control and supervision
• Protected persons
contract party
by-standers
other third parties
• Duty of care
technical standards
V. A comparative in depth Analysis of the Benefits and Weaknesses of the

Systems – D. The Comparative Part
1. The comparative Analysis of the four Fields of Services

The comparative analysis has been undertaken along the line of the same standard
format of analysis. The major findings of the seven countries are presented in form of a
chart for each of the four areas, medical malpractice, leisure, tourism and public utilities
separately. Each chart is supplemented by a comment to highlight the major findings.
Therefore the comparative analysis allows for a deeper insight into the strength and
weaknesses of each legal system under review. The in-depth analysis provides for a full
picture of the law in action. It is right here where the legal analysis and the factual
background are united.
2. Conclusions
The comparative analysis is just but a first step in Part. D. It is to be recalled that the
second major objective of the study is to contribute to the reflection on whether a new
Community initiative in this area would be useful and justified.
In response to that request the conclusions identify potential areas for reform. The
overall idea is to condense the findings and break them down in principles and elements
of a possible future Community initiative.
41
42
Sources of Law France
B. Survey over the Contract and tort Liability in the Reported Legal Systems
I. France
Literature: Ch. v. Bar, Gemeineuropäisches Deliktsrecht, Vol. II, 1999; R. Cabrillac, Droit des
obligation, 4th ed., 2000; J. Carbonnier, Droit Civil – TOME 4, Les Obligations, 17th ed., 1993; M.
Ferid/H. J. Sonnenberger, Das Französische Zivilrecht – Band 2 Schuldrecht: Die einzelnen
Schuldverhältnisse, Sachenrecht, 2nd ed., 1986; J. Ghestin/G. Viney, Traité de droit civil, La
responsabilité, Vol. 1: conditions, 2nd ed., 1998, Vol. 2: effets, introduction à la responsabilité, 2nd ed.,
1995; A. Knetsch, Das Verhältnis von Vertrags- und Deliktsrecht, Darstellung der französischen Doktrin
zum Prinzip des „non-cumul“ mit kritischem Ausblick auf das deutsche Recht, 1975; H. Mazeaud/J. et
Léon/F. Chabas, Leçons de Droit Civil – TOME II / 1er volume, Obligations théorie générale, 6th ed.,
1991; 00. Mazeaud-Tunc, Traité théorétique et pratique de la responsabilité civile délictuelle et
contractuelle, volumes, 6th ed., 1965-1983; G. Légier, Droit civil – les obligations, 17th ed., 2001; F.
Terré/Ph. Simler/Y. Lequette, Droit civil – Les obligation, 7th ed., 1999; Ph. le Tourneau/L. Cadiet, Droit
de la Responsabilité et des Contrast, 2000/2001; J. Viney, Les conditions de la responsabilité, 2nd ed.,
1998; C. Witz/G. Wolter, Vertragliche oder deliktische Haftung im Rahmen von “Vertragsgruppen” in
Frankreich?, ZEuP 1993, 592.
1. Sources of law
In regards to the sources of law, in France, the term civil liability is used as a
comprehensive term covering cases of contractual and tortious liability. The relevant
provision regarding contractual liability is governed in the French Civil Code (C.civ.),
namely in Article 1147 C.civ. The five general clauses – Articles 1382-1386 C.civ. –
represent the legal foundation of tortious liability. But more importantly civil liability
cases are mainly based on judge-made law.
Contrary to the corresponding regulations of other E.C. Member States, e.g. Germany,
the French rules on civil liability constitute competing causes for action. This subject
became known under the “principe de non-cumul”.3 It is today’s prevailing opinion that
contractual liability supersedes tortious liability.4 The French Federal Supreme Court (la
cour de cassation) developed the following principle on that subject matter. Generally,
if liability arises from a contract and relationships between the contracting parties are at
concern then the injured party cannot invoke the provisions of tortious liability even if it
would be for the advantage of the injured party, e.g. the contractual claim has come
under the statute of limitations.5
3
Cf. A. Knetsch, Das Verhältnis von Vertrags- und Deliktsrecht, Darstellung der französischen Doktrin
zum Prinzip des „non-cumul“ mit kritischem Ausblick auf das deutsche Recht, 1975.
4
Cf. Dalloz, Encyclopédie Juridique, Répertoire de Procédure Civile, Nr. 117.
5
Cass. Civ. 11.1.1992, D 1922 1 16.
43
Hans-W. Micklitz
Beside the “principe de non-cumul” the “action directe” plays an important role in the
French liability system. It grants the consumer, who enters into a contract with an
intermediate, a contractual claim against the producer and anyone that appears before
the consumer’s actual contracting party in the contracting chain.6
Finally, the French liability system must be seen in the light of the EC Directive on
Product Liability from July 25, 1985 which France implemented as the last member
state of the European Union in 1998, ten years later as required by the directive. Upon
the implementation of the EC Directive on Product Liability a body of experts intended
to create a new system on liability replacing the existing rules. Yet, the new provisions
exist beside the traditional liability system; the expectation of a more simple and
transparent liability system could not be met. The plaintiff has got the right to choose
between the traditional and newly established provisions. The choice will therefore
mainly depend on the individual case. The buyer of a defective product might not
invoke the new regulations if he fears that the manufacturer will encounter his
development risks. In those cases he might rather refer to the traditional provisions
regarding liability such as “action directe” and the “principle of non-cumul” which refer
to the relationship between a manufacturer and its direct contracting parties as well as
between a manufacturer and any other buyer. Moreover, since the beginning of the
nineties, the French Supreme Court (Cour de cassation) established the seller’s
“obligation contractuelle de sécurité” giving rise to the seller’s liability for damages. It
will arise if the product is defective and/or if the buyer’s property is damaged by the
product. In its judgement on April 4, 1998 the French Supreme Court expressly referred
to the EC Directive on Product Liability ruling that the manufacturer is liable for
damages that have been incurred by the defectiveness of his product. The court
furthermore stated that liability arises against individuals directly and indirectly
involved regardless of their character as a contracting or third party7 in that establishing
genuine strict liability of a manufacturer and seller of defective products.
2. Contract liability in general
a) General system of contractual liability
First and foremost contractual liability requires a valid and enforceable contract. It
arises in the event of the non-performance of a contractual obligation and if the other
contracting party incurs damage. Furthermore it demands causation between fault and
damage. It might also be necessary that the creditor puts the debtor in default.
6
C. Witz/G. Wolter, Vertragliche oder deliktische Haftung im Rahmen von “Vertragsgruppen” in
Frankreich?, ZEuP 1993, 592.
7
Cass. civ. I, 28.4.1998, JCP 1998, II, 10088.
44
aa) Violation of contractual obligation (obligation de moyen ou de résultat)
The French legal system distinguishes between contracts according to which the debtor
owes a particular result (obligation de résultat) and contracts which oblige the debtor to
merely provide his services to the best of his knowledge and belief (obligation de
moyen).
A work is considered as agreed if it is according to the agreements stipulated in the
contract. This might require the debtor to make the work according to the règles d’art
unless the contractor provides the debtor with a particular pattern or plan. The technical
standards provided by AFNOR represent a clue to the adherence to the règles d’art.
Contractual liability may arise if either the work is defective or the debtor is in delay
with the delivery.
If a debtor is bound to an obligation de moyen he is obliged to serve the obligee with all
his means he can dispose of and to apply all necessary diligence whilst exercising the
contract and to use his best efforts.8 Contractual liability claims might be asserted if
either a contractual obligation is not performed at all or only partially.
bb) Standard of care (fault based/strict liability)
The standard of care is governed in Article 1137 C.civ. according to which the debtor is
to exercise the care of a reasonable, prudent businessman (la diligence de bon père de
famille).
cc) Causation
The relevant provision on causation is contained in Article 1151 C.civ. Causation must
be evident between the damage claimed and the defendant’s fault – the non-
performance of his contractual obligation. The French liability system distinguishes
between two approaches applicable. The first approach proceeds from the equivalence
of all faults. This means that all conditions which led to the damage are considered
being equivalent. Therefore, every single element, in whose absence the damage would
not have occurred, is regarded as having caused the entire damage. Contrarily, the
second approach originates from the assumption that the weighting of every single
element with regard to the entire damage is different and damage must be regarded as a
chaining of exceptional circumstances; cause adéquate. Both theories are applied by
French courts.
8
Cass. 3e civ., March 7, 1978: Bull. civ. III, No. 108.
45
Hans-W. Micklitz
b) General aspects of the remedy of damages (le préjudice)
In general, the French legal system on civil liability provides two procedures to pay
damages: restitution in kind and restitution in equivalence. Restitution in kind means to
reinstate the initial situation. Restitution in equivalence refers to the compensation of
the plaintiff’s loss by paying damages and interests which have to equalize the total
amount of the damage.9 Yet they do not have to exceed the loss occurred.
In particular, the execution of claims for damages arising from contractual relations is
subject to Art. 1142 C.civ. If the obligation can only be performed by the debtor then he
cannot be forced by law to perform his obligation; the court would award damages. But
if the obligation is impersonal then the debtor will be obliged to restitute in kind.
Civil liability aims at the compensation of damages. Damage is an obligatory
requirement. Contract law distinguishes between pecuniary and non-pecuniary damage.
aa) Pecuniary damage
Pecuniary loss (préjudice matériel) could be defined as the detriment of someone’s

financial rights.10 The damage must truly be existent which means that the damage must
be certain and must not have been indemnified yet. As for the certainty of the damage,
French courts require sufficient probability. Traditionally, as per Art. 1151 C.civ., the
plaintiff is entitled to claim for damages for his pecuniary loss and for lost win.
bb) Non-pecuniary damage
There are different definitions for non-pecuniary losses (préjudice moral) one of which
states that a non-pecuniary loss is a detriment which could not be evaluated by
pecuniary means. There exists a classification which differentiates between three
important categories with regard to non-pecuniary losses: (1) a violation of the moral
rights of the personality, (2) a non-pecuniary loss arsing from the violation of bodily
integrity and (3) a violation of the personal environment or nuisance.
In essence pain and suffering are considered to be immaterial damages and are
compensated if the usual conditions for awarding damages are fulfilled. Damages for
pain and suffering are awarded both in contract and tort law, on the basis of the usual
requirements for a right to damages. The barrier to cross is the lien de causalité plus the
usual conditions for damages as direct and certain. Courts are free to determine the
amount of the damages awarded for pain and suffering. Therefore it is possible to award
only a single Euro (“franc symbolic”).
9
Further H. Mazeaud/J. et Léon/F. Chabas, Leçons de Droit Civil, No. 622-630 and G. Légier, 117.
10
H. Mazeaud/J. et Léon/F. Chabas, Leçons de Droit Civil, 397.
46
c) Scope of contractual protection
As for the scope of contractual protection the following principle applies. Any third
party that provides evidence for having suffered a personal loss as a direct result of the
defendant’s initial misconduct towards the victim is entitled to assert a claim for
damages (dommage par richot).11
d) Contributory negligence
The debtor can exonerate himself from liability in the event of force majeure (Art. 1148
C.civ.) and if the creditor can be at least partly held liable for the non-performance of
the contract.
e) Limitation
Claims arising from contractual relations are subject to a thirty-year limitation period, as
per Art. 2262 C.civ. Though, there might apply abridged limitation periods, e.g. as per
Art. 1645 C.civ. the seller of a product will be held liable for the entire damage caused
by the faulty product if the seller conducted with malice aforethought which means that
he knew about the faultiness of the product. The same applies to latent defects. There is
an irrebuttable presumption that sellers acting in the scope of a business activity are
aware of the latent defect at the time of the conclusion of the contract.12 Yet, this
provision is restricted by Art. 1648 C.civ. according to which the buyer is required to
assert his claim within a short period of time “bref délai” upon the discovery of the
fault. There is no established practice of French courts on that particular subject matter
yet; in an individual case a court considered one year as “short”.13
f) Burden of proof
In regards to the burden of proof the French legal system distinguishes between the two
different kinds of obligations, obligation de moyens (Art. 1137 C.civ.) and obligation de
résultat (Art. 1147 C.civ.). In the first case-scenario the debtor cannot be held liable
unless he commits a fault which the creditor has to prove whereas in the second
scenario the debtor is liable for the non-performance or late-performance of the
contract. The creditor merely bears the burden of proof for the non-performance of the
contract.14
11
G. Viney, Les conditions de la responsabilités, 132, supra. 309; restrictions to that principle cf. 139,
supra. 316 f.
12
Cf. F. C. Dutilleul/Ph. Delebecque, Contrats civils et commerciaux, 231.
13
Cf. F. C. Dutilleul/Ph. Delebecque, Contrats civils et commerciaux, 227.
14
Cf. G. Légier, 107, distinctive criteria.
47
Hans-W. Micklitz
3. Tort liability in general
a) General system of tortious liability
Although damage is a requirement of tortious liability as per Art. 1382 C.civ. two other
requirements must be met in order for damages to be awarded: fault and chain of
causation between fault and damage.
aa) Protected interests
As per Art. 1382 C.civ. anyone sustaining a damage is entitled to claim damages. But
jurisprudence did restrict that principle for different reasons.15 It is required that the
plaintiff has a legitimate interest to be legally protected. Generally, the party causing the
damage will be held liable as per Art. 1382 C.civ. Liability may also arise from damage
caused by a third party or a thing. There are additional rules e.g. in regards to claim
against legally incapable persons.16
From the traditional point of view civil liability requires a fault (la faute). Yet, the
supporters of the so-called risk-theory (la théorie du risque “de lege ferenda”) deny
that requirement for several reasons.17 In order to answer the question as to whether
there is a requirement of fault18 between the following three fields has to be
distinguished: (1) liability for personal fault, (2) liability for a third party’s fault and (3)
the liability of a “gardien”.
The subject matter of Art. 1382 is the intentional infliction of damage through one’s
own conduct (délit). Art. 1383 equalizes intention and negligence (quasi-délit). Among
others there is the requirement of fault in order to establish liability for fault.19 In the
relevant literature20 several attempts can be found providing abstract definitions on the
term fault by naming objective and subjective elements. Intentionally inflicting damage
is sufficient to established fault. Fault will also be established if there is a violation of an
obligation (devoir). There can either be a particular obligation whose violation would
immediately constitute fault (obligation to produce a certain result) or a general
15
Cf. H. Mazeaud/J. et Léon/F. Chabas, Leçons de Droit Civil, No. 604.
16
17
H. Mazeaud/J. et Léon/F. Chabas, Leçons de Droit Civil, p. 417.
18
Cf. Y. Lambert-Faivre, L’évolution de la responsabilité civile d’une dette de responsabilité vers une
créance d’indemnisation, Rev. trim. dr. civ. 1987.
19
H. Mazeaud/J. et Léon/F. Chabas, Leçons de Droit Civil, 421 in particular No. 432.
20
Cf. survey provided in JCL Civ. Art. 1382-1383, 1st part Fasc II, 1st vol. No. 16.
48
obligation (obligation for general prudence) in that fault is to be established by

determining imprudence or negligence.21
According to Art. 1384 Para. 1, 1st alt. one could be held liable for damage arising from
the conduct of a third party that one is legally responsible for. Yet this regulation does
not constitute a general clause on vicarious liability. It is considered being an
introductive formula in regards to articles 4-6 listing different groups which could be
held liable for a third party’s conduct; the parent’s liability for the conduct of their
children as well as the master craftsman’s and principal’s liability. Besides the French
Civil Code there are several other regulations governing cases of vicarious liability. In
regards to parents and master craftsman there is rebuttable presumption of fault whereas
there is an irrebuttable presumption of fault connected to principals.22 The so-called
cumul des responsabilités makes vicarious liability available besides liability of the
immediate party causing the damage. Both the third and immediate party will be jointly
and severally liable if the tort constitutes a criminal offence, Art. 55 C. Pén.
Beside the standard rules on tortious liability, the French liability system adopted an
additional rule which establishes tortious liability of a keeper of a thing “gardien” for
damage incurred by the thing. This particular liability proceeds from an irrebuttable
presumption of the keeper’s fault. Therefore, the plaintiff does not bear the burden of
proof establishing the keeper’s fault. A person that merely uses a thing might be liable
for the improper use of the thing “garde du comportement”, e.g. borrowers, tenants,
whereas its keeper will be liable for any damage arising from the faultiness of the thing
“garde de la structure”. A keeper of a thing can only exonerate himself by proving
force majeure, as per the French Supreme Court’s ruling in the case “Jand’heur”.23
Liability for damages caused by things requires three prerequisites: the damage must
have been caused by the thing’s intervention respectively conduct and the party claimed
on must be its keeper “gardien”. According to Art. 1384 Para. 1 C.civ. a thing is any
tangible object24 which is not subject to any other special liability provision.25 Courts
have ruled out any attempts of distinction, in particular the restriction of liability for
damages caused by movables and hazardous objects.26
Art. 1385 C.civ. governs liability for damages caused by animals and Art. 1386 C.civ.
regulates claims for damages in case of building collapse. Art. 1384 Para. 2 C.civ
applies to fire damage only.
21
H. Mazeaud/J. et Léon/F. Chabas, Leçons de Droit Civil, No. 440.
22
23
Cass. Chambres réunies, 13.2.1930, DP 1930 1 57.
24
Cf. F. Terré, Droit Civil, No. 732.
25
Cf. H. Mazeaud/J. et Léon/F. Chabas, Leçons de Droit Civil, No. 556 s.
26
Cf. F. Terré, Droit Civil, No. 735, 736.
49
Hans-W. Micklitz
cc) Causation
The fault of the defendant must have caused the damage. In regards to tortious liability
the plaintiff bears the burden of proof. The chain of causation between the defendant’s
conduct and the non-performance of his obligation is presumed. Yet, in the event of a
court case the plaintiff has to provide evidence for a chain of causation between the
non-performance of that obligation and the damage arisen.
b) Damage and compensation
Civil liability aims at the compensation of damages. Damage is an obligatory

requirement. Tort law too distinguishes between pecuniary and non-pecuniary damage.
The pecuniary damage is the damage incurred to the assets of the victim, e.g. lost
revenue or a damage to car bodywork. As in contractual liability cases the damage must
truly be existent which means that the damage must be certain and must not have been
indemnified yet. And the plaintiff is also entitled to claim for damages for his pecuniary
loss and for lost win.
Tortious liability recognizes two types with regard to non-pecuniary damages. The first
refers to the violation of the dignity, the private life or the invasion of personal privacy.
The second refers to the grief and sorrow caused by the decease of a loved person
(evidently the claim is asserted by a person other than the victim).
c) Contributory negligence
The tortfeasor can exonerate himself from liability in the event of force majeure. If the
victim’s at least negligent conduct contributed to the damage then the tortfeasor will be
partly exonerated.
d) Limitation
Claims arising from tort law are subject to a ten-year limitation period, as per Art. 2270-
1 C.civ. There are several exceptions in the form of abridged limitation periods which
might also apply.27
27
Cf. Ph. le Tourneau, Droit de Responsabilité et des Contrats, No. 2274.
50
e) Burden of proof
The party having suffered the injury/loss bears the burden of proof for fault and the
causality of the tortious conduct.
4. Specific institutions for the administration of personal injury cases

The practical application of French tort law is mainly characterized by the adhesive
procedure and the public penal action which is closely interrelated with the civil action
for damages. According to Articles 2, 3 and 4 C Pr Pén the injured party is entitled to
bring an action for damages (action civile) in front of a civil court. Alternatively the
injured party is entitled to submit the action for damages to a criminal court. In both
cases the procedure of an action civile is only applicable to civil wrongs which represent
a criminal offence at the same time. The injured party is entitled to assert the claim
although there is also the possibility of derivative claims (victimes par ricochet).
Furthermore it may be applicable to those who by the act of infringement are obliged to
provide compensation to the injured party or to those who are liable for the injuring
party e.g. parents or teachers.
Once a public penal action is pending and an action for damages is brought in front of a
civil court then the latter proceedings are suspended until the pending final judgment of
the criminal court as per Art. 4 Para. 2 C Pr Pén to avoid contradicting judgments.28 The
sentence becomes also final in regards to the civil action unless a later civil claim will
be based on different suppositions.
28
Cf. H. Mazeaud/J. et Léon/F. Chabas, Responsabilité III. 1 No. 2175.
51
Sources of Law Germany
II. Germany
Literature: W. Erman (ed.), Bürgerliches Gesetzbuch, 10th ed. 2000; O. Jauernig (ed.), Bürgerliches
Gesetzbuch. Kommentar, 10th ed. 2003; H. Kötz/G. Wagner, Deliktsrecht, 9th ed. 2001; H. Lange/G.
Schiemann, Schadensersatz, 3rd ed. 2003; D. Medicus, Bürgerliches Recht, 19th ed. 2002; Münchener
Kommentar zum Bürgerlichen Gesetzbuch, 3rd/4th ed. 1997 ss; O. Palandt (ed.), Bürgerliches Recht, 62nd
ed. 2003; R. Zöller (ed.), Zivilprozessordnung, 22nd ed. 2001.
1. Sources of law
In Germany, the basic rules on contractual as well as tortious liability are mainly
contained in the Civil Code (Bürgerliches Gesetzbuch, BGB) of 1900 as amended until
today. Nevertheless, there are also some further special acts and statutory regulations
outside the Code which are relevant for liability in the fields under survey in the present
study. This is particularly true for the services of general interest (electricity, gas,
water). Moreover, the solution of many concrete problems cannot be taken from the text
of the BGB any more. Instead, the court practice must be taken into account since the
courts have partly developed rules outside the Code and partly interpreted Code
provisions in a way that a lay reader would not expect.
The Code clearly distinguishes between contractual and tortious liability. In general, it
is less difficult for plaintiffs to get compensation when they can establish contractual
liability. The recent reforms of the BGB in 2002 – the so-called “Schuldrechtsreform”29
and the “Schadensersatzrechtsreform”30 have narrowed the gap between contract and
tort liability a good deal but though there still remains a rather sharp difference as far as
vicarious liability is concerned.
Contractual liability – in general but also with respect to personal injury – presupposes a
contractual duty which has been violated and whose violation has caused the claimant’s
loss. As a rule it is further necessary that the defendant was at least negligent in causing
the damage. A further requirement is that the claimant has suffered a recoverable loss.
29
See Schuldrechtsmodernisierungsgesetz of 26. November 2001 (BGBl. 2001 I 3138). This Act on the
Modernisation of the Law of Obligations entered into force on 1 January 2002.
30
See 2. Schadensersatzänderungsgesetz of 19. July 2002 (BGBl. 2002 I 2674). This 2nd Act on the
Reform of the Law of Damages entered into force on 1. August 2002.
53
Ulrich Magnus
However, this study which is concerned with personal injury pursues on the assumption
that the contract party has been bodily injured and thereby suffered a recoverable loss.31
The contractual duties have in the first line to be fixed by the parties to the contract. The
parties’ agreement – and a reasonable construction of the agreement – determines the
contents of the obligations, and in particular whether the debtor is obliged to achieve a
certain result or whether s/he is “only” obliged to act with reasonable care but cannot,
and cannot be expected to, guarantee the result.
If the parties have not themselves fixed their respective duties though the conclusion of
the contract is for sure then the objective law – legislature and judiciary – has to step in.
However, the BGB does foresee as a general duty only the duty to act in good faith32
(and duties where and when to perform). With respect to contracts, the Code does not
expressly establish a general duty not to cause personal injury to the other party in the
course of the performance of the contract. But the courts have developed such a duty
(“Schutzpflicht”) which is today implied in every contract.33 How far this duty extends
and what its precise contents is depends, however, very much on the terms, on the
purpose and on the interpretation of the respective contract.34
If, however, a contract party has injured the other within the course of performance of
the contract this implied duty is always violated unless the injury had no connection
with the performance of the contract.
The burden of proof lies generally with the claimant. S/he must prove that a contractual
duty existed and had been violated.35
Mere violation of a contractual duty does in theory not attract liability. It is further
necessary that the party who violated the contractual duty acted at least negligently. The
fault principle is still at the theoretical basis of contractual – and largely even of tortious
– liability.36 Negligence is established when the debtor has disregarded that standard of
care that is required and would be expected of a reasonable person in the same situation.
31
It is left aside here that in Germany most personal injuries are compensated under social security
schemes which, however, have in principle a right of recourse against the person liable under civil
law: see § 116 SGB X (Social Security Code, Book X).
32
BGB § 242.
33
See, e.g., RGZ 148, 150; BGH VersR 1976, 166; Palandt-H. Heinrichs, § 280 no. 28.
34
See thereto D. Medicus, BR no. 208 ss.
35
See, e.g., BHGZ 28, 253; BGHZ 48, 312; BGH, NJW 1985, 264.
36
See BGB § 280.
54
The Code requires observance “der im Verkehr erforderlichen Sorgfalt”.37 This standard
is an objective one. The debtor’s conduct is negligent if it does not comply with what an
ordinary, careful and reasonable person in the specific situation would and should do.38
However, fault is presumed if the violation of the contractual duty is established. It is
then for the party in breach to show that s/he did not neglect the required standard of
care.39
cc) Causation
As already mentioned contractual liability requires further that the violation of a

contractual duty has caused the claimant’s damage. In order to adjudicate whether a
sufficient causal link between the violation of the duty and the injury exists40 – and also
between the injury and further damaging consequences41 – the courts generally apply the
concept of adequate causation (“adäquate Kausalität”).42 The failure of the actor must
firstly have been a condition without which the damage would not have happened
(condicio sine qua non) and which secondly increased the probability of a damage of the
kind which in fact occurred.43 Only conditions of very rare and improbable occurrence
are regarded as inadequate. In difficult causation cases the courts adduce however
further policy considerations. For instance, the intervening act of a third party does not
“break the chain of causation” as long as this act is not wholly unexpected as criminal
acts or grossly negligent acts are. Applying these principles the courts have for example
held that a doctor who has wrongly treated a patient’s broken finger has also caused a
negligent mistreatment by a second doctor who cut the tendon of the finger when trying
to correct the first doctor’s failure. Only if the second doctor had grossly neglected all
rules of due medical diligence then his/er intervention would have interrupted the chain
of causation.44
In general omissions can constitute a cause of damage only if the respective person was
under a duty to act and if the required act would have avoided the damage.45 The
contract party is as indicated regularly under a duty not to injure the other party. But it
37
See § 276 par. 2 BGB.
38
See, e.g., BGH, NJW 1972, 151.
39
§ 280 par. 1 sent. 2 BGB.
40
So-called „haftungsbegründende Kausalität“.
41
So-called „haftungsausfüllende Kausalität“.
42
See H. Lange/G. Schiemann, 82 ss.
43
See BGHZ 3, 261; BGHZ 7, 198; BGHZ 57, 137; in detail H. Lange/G. Schiemann, 82 ss.
44
BGH, NJW 1989, 767.
45
BGHZ 7, 198; Palandt-H. Heinrichs, Vorbem. vor § 249 no. 84.
55
Ulrich Magnus
must be not only likely but almost certain that the required act would have avoided the
damage.46
The burden to prove that a certain violation of a contractual duty has caused the damage
falls in principle on the claimant.47 But a number of exceptions is recognised.48 The most
important one is the rule that a grave violation of professional duties (“grober Verstoß
gegen Berufspflichten”) is presumed to have caused the other party’s damage provided
that the failure could in general have caused a damage of the kind that occurred.49 The
actor then must rebut the presumption and prove that not his/er failure has been the
cause of damage but another reason. A further exception is the prima facie-proof.
Where a certain typical chain of events has happened – e.g., an forgotten instrument in
the patient’s stomach after an operation and an inflammation at that part of the body
shortly thereafter50 – then a causal link between both is presumed and the claimant has
prima facie proved his/er case. The actor is then liable unless s/he can rebut the prima
facie-proof by showing that untypical circumstances were present which may have
caused the damage. Then again, the claimant has the full burden of proof.51
b) General aspects of the remedy of damages
If the requirements of contractual liability for personal injury are established the regular
remedy is damages in terms of money. Largely, the assessment of damages for personal
injury is not much different in contract and tort law. Remaining differences concern the
compensation in case of death and claims of third persons like heirs and dependants
who are thereby indirectly affected.
Compensation for damage to body and health includes the cost of healing, of
rehabilitation measures, of lost income or other financial consequences caused by the
injury. A mere abstract loss of earning capacity is however not compensable.52 Mere
psychic damage like nervous shock is to be compensated if it amounts to a medically
recognisable illness but not otherwise.53
46
See, e.g., BGHZ 64, 46; BGH, NJW-RR 1994, 102.
47
See BGH, VersR 1974, 1222.
48
See the survey on decisions presented by Palandt-H. Heinrichs § 280 no. 38 ss.
49
See, e.g., BGH, NJW 1981, 2513; BGH, VersR 1989, 851; compare further Palandt-H. Heinrichs,
§ 280 no. 38.
50
See, e.g., BGH, NJW 1981, 462.
51
For details see Zöller-G. Greger, Vor § 284 no. 29 s.
52
Palandt-H. Heinrichs, Vorbem. vor § 249 no. 36 with further references.
53
BGH, NJW 2000, 862.
56
Unlike for instance in English law under German law it is the ordinary remedy that the
injured person is granted a rent if lost future income or increased future needs have to be
compensated.54 A lumpsum can be claimed in these cases only if important reasons so
require.55
In case of death the heirs of the deceased inherit the latter’s rights to claim as far as such
rights existed at the time of the death. But the heirs and/or dependants have no right of
their own in contract to claim burial costs and lost maintenance. Claims of such nature
are left to the province of tort.56
Until very recently (August 2002)57 the injured party could not claim compensation for
pain and suffering in contract but only in tort. Since then this has been changed; it is
now possible to recover a money compensation for the pains of personal injury also in
contract.58
The assessment of that head of damage follows entirely the lines which had previously
developed in tort law.59 The main factors which have to be taken into account are the
gravity and duration of the pain and the lasting consequences (if any) of the injury; but
also age, sex, personal situation of the victim, degree of fault of the actor or further
specific circumstances of the case play a role.60
Pain and suffering of near relatives who are confronted with the death or serious injury
of a spouse, parents or children or other near person is as such not recoverable under
German law. Only if in such a case the shock results in a psychiatric illness which
cannot be attributed to the normal risk of life then the near relative is entitled to
compensation.61
The compensation for pain and suffering is awarded as a lumpsum.
It is a specific feature of German contract law that not only the immediate parties can
rely on the contract but rather often further persons as well. This depends on the
54
55
56
See § 844 BGB.
57
When the Act on the Reform of the Law of Damages entered into force.
58
See now § 253 par. 2 BGB.
59
See the remarks in Jauernig-A. Teichmann, § 253 no. 3 ss; Palandt-H. Heinrichs, § 253 no. 18 ss with
many references.
60
See thereto Jauernig-A. Teichmann, § 253 no. 5; Palandt-H. Heinrichs, § 253 no. 15 ss.
61
See thereto MünchKomm-U. Stein, § 847 no. 16.
57
Ulrich Magnus
protective scope of the contract (“Vertrag mit Schutzwirkung zugunsten Dritter”). On

the one hand the parties themselves are entitled to extend the protection of the contract
to further persons.62 But even if they haven’t done so the courts imply such protective
effect of the contract where it is clear that certain third persons (like family members)
come into close connection with the contract, depend to some extent on the correct
performance of the contract and would be otherwise left without appropriate remedy.63
Then the third person if injured is entitled to invoke the rights granted by the contract
though the third person is not obliged under the contract as far as performance is
concerned.
d) Vicarious liability
The contract party who employs others for the performance of the own contractual
duties is liable for any damage which the employed person (“Erfüllungsgehilfe” –
performing employee) has negligently or intentionally caused within the course of
employment.64 It is not necessary that the employed person is an employee in the strict
sense. Also an independent contractor who is employed to perform the debtor’s duties is
regarded as “Erfüllungsgehilfe”.65 It is however necessary that the damaging act has
been committed by the employee when performing the debtor’s duties and not only by
just taking the opportunity.66 An inner connection between faulty conduct and the
performance is required.
In contrast to tort law, in contract the debtor is liable for the employee’s fault as if it
were his/er own fault. The debtor is not excused – as s/he is in tort – by the fact that s/he
selected, controlled and supervised the employee with all required care.
e) Contributory negligence
In contract law – but equally in tort law – the creditor (the injured person) is obliged in
his/er own interest to mitigate the damage in its occurrence as well as in its
consequences. If the victim has neglected this duty (“Obliegenheit”) and has negligently
contributed to his/er own damage this fact has to be taken into account and may reduce
or even exclude the otherwise owed compensation.67 The extent to which the victim’s
claim for compensation is affected depends on the circumstances of the case, in
particular on the question whether and to which extent the victim contributed in causing
62
See §§ 328 ss BGB.
63
See Erman-H. P. Westermann, § 328 no. 11 ss; Palandt-H. Heinrichs, § 328 no. 13 ss.
64
See § 278 BGB.
65
BGHZ 62, 124; BGH, NJW 1996, 451.
66
See, e.g., BGHZ 114, 270.
67
See § 254 BGB.
58
the damage and whether and in which form the parties were negligent or otherwise
responsible for the damage. However, if it is the very purpose of the contract to protect
the other party against bodily injury, like in contracts for medical treatment, then
contributory negligence will only be taken into account rather reluctantly.68
f) Limitation
The normal limitation period is now three years.69 Unless there are prevailing statutory
provisions this period applies to all kinds of contract claims – and to claims brought in
tort as well.
The period starts running by the end of the year in which the cause of action accrued
and in which the claimant acquired knowledge of the damage and its author or must
have acquired such knowledge.70 In any event (when the claimant does not, and must
not, know of the damage and its author) the limitation period for claims for
compensation of bodily harm ends thirty years after the damaging act.71
g) Burden of proof
The general rule on burden of proof is that the claimant must prove those facts which
found his/er claim. But in contract s/he must only prove his/er damage, the existence
and violation of a contractual duty and causation between the violation and the
damage.72 If these requirements are proved fault is presumed and the other party must
then rebut this presumption in order to avoid liability.
As far as the proof of causation is concerned partly rules on the prima facie-proof ease
the claimant’s burden of proof. This kind of proof applies if a certain sequence of events
is so typical that causation, sometimes also negligence can be concluded from it almost
with certainty.73 The claimant then has met his/er primary burden of proof but the
defendant can still rebut it by advancing unusual circumstances which militate against
the prima facie-impression. It is then again for the claimant to fully prove his/er case.74
For compensation of personal injury damage tort liability had been traditionally much
more important than contractual liability since in particular compensation for pain and
68
See, e.g., BGH, VersR 1971, 1123.
69
§ 195 BGB.
70
§ 199 par. 1 BGB.
71
§ 199 par. 2 BGB.
72
See supra 2. a.
73
See BGH, NJW 1991, 230; Zöller-G. Greger, Vor § 284 no. 29.
74
See Zöller-G. Greger, Vor § 284 no. 29 with numerous references.
59
Ulrich Magnus
suffering could only be claimed in tort until very recently. But as already mentioned this
has been changed by the legislator in 2002. Now it is rather likely that personal injury
claims will be primarily based on contract because vicarious liability in contract is
regularly more favourable for claimants than it is in tort.
Tortious liability under German is either based on fault or on strict liability while the
latter can only be created by statute.75 Fault based tort liability is incurred when
absolutely protected rights or statutory provisions which are designed to protect others
or the boni mores have been infringed.76 The infringement must be wrongful and
negligent; in case of violation of boni mores intention is required. Moreover, the
infringement must have caused a damage. However, since this study is concerned with
certain services through which personal injury has been caused in practice only liability
based on the infringement of absolutely protected rights (§ 823 par. 1 BGB) really
matters. Strict liability statutes concerning services are thus far not yet enacted in
Germany. Liability for products, pharmaceuticals, modified genetic organism and the
like for which strict liability statutes exist are outside the scope of this study and can be
left aside here.
Life, body and health belong to those interests which are expressly mentioned and
protected in § 823 par. 1 BGB. Any personal injury qualifies as an impairment of one of
these absolutely protected interests. According to the prevailing view such impairment
is wrongful (illegal and forbidden) per se and can only be justified by an acknowledged
justification like valid consent etc.77
In the fields of this study tortious liability is only incurred if the service provider acted
negligently and neglected the required standard of care which was to be observed in the
circumstances of the case. The general standard as fixed in § 276 par. 2 BGB and
already mentioned with respect to negligence in contract78 applies also here without any
restriction. In particular, the standard does in principle not take notice of the personal
capacity of the tortfeasor (unless s/he is a minor or an incapacitated person). It is
75
RGZ 78, 171; BGHZ 55, 229.
76
See §§ 823 par. 1 and 2, 826 BGB.
77
See to this theory of „Erfolgsunrecht“ and the contrary theory of „Handlungsunrecht“ H. Kötz/G.
Wagner, no. 98 ss.
78
See supra 2. a bb.
60
expected that every person can, and must, comply with the rather high standard of care
which the courts generally apply.
cc) Causation
As far as causation in tort is concerned the same rules as in contract apply. It can be
referred to what has been stated on them.79
With regard to damage and compensation two minor differences between tort law and
contract law still exist while the general assessment of damages is identical in both
branches of law.
A first difference is that in tort the heirs of the deceased are entitled to the costs of the
burial of the deceased80 while they are not in contract since they are no party to the
contract between the deceased and the tortfeasor.
The second difference is the entitlement of dependants whom a deceased was legally
obliged to maintain. Those dependants though only indirectly affected by the act that
killed their breadwinner can nonetheless claim their lost maintenance from the
tortfeasor.81 No such claim lies, however, in contract.82
The assessment and compensation of non-pecuniary loss, in particular for pain and
suffering, follows now entirely the same lines both for tort claims and for contract
claims.
The only difference between tort and contract law with respect to contributory
negligence lies in the fact that in tort some persons (heirs and dependants) are entitled to
79
See supra 2. a cc.
80
§ 844 par. 1 BGB.
81
§ 844 par. 2 BGB.
82
The only exception is a contract of services or labour where the employer has the same obligation
towards heirs and dependants of an employee for whose death due to unsafe working conditions the
employer is liable, see § 618 BGB.
61
Ulrich Magnus
claim their indirect loss from the tortfeasor but likewise is the contributory negligence
of the deceased imputed to them.83
As already indicated the only sharp and practically important difference between
contract and tort law concerns vicarious liability. Also in tort like in contract, an
employer is liable for wrongful acts of his/er employees (so-called “Verrichtungs-
gehilfen”) who have caused damage to the claimant if those acts were committed within
the scope – and not outside – the employment. But in tort law (§ 831 BGB) the term
employee is understood in its strict sense; the employee must be obliged to observe the
directions of the employer.84 In tort, the employer is therefore never liable for acts of
independant contractors whom s/he engages for performing obligations of the employer.
Moreover and more important, the employer can avoid liability by proving that s/he has
selected, controlled and supervised the employee with the required care.85 In German
tort law, vicarious liability is construed as presumed liability for the employer’s own
fault while in contract law it is a kind of strict liability for negligent damaging acts of
persons whom the employer/principal has engaged for his/er purposes.86 This exemption
clause has been very much critisiced and the courts invented some circumventions.87 In
particular, the excuse of own diligence is not allowed where leading staff personal of
the employer (directors, managers etc.) has committed the wrong.88 Furthermore, the
courts stretched as far as possible the possibility of contractual liability, for example by
extending the protective scope of the contract.89 And by no means, is it easy to prove
due diligence in selecting, controlling and supervising employees but on the contrary it
is not impossible.90
e) Limitation
The limitation period for torts is identical with that one for personal injury claims in
contract. The same provisions aply to both.91
83
§ 846 BGB.
84
See thereto Staudinger-W. Belling/Ch. Eberl-Borges, § 831 no. 59 ss.
85
§ 831 par. 1 sent. 2 BGB.
86
For a detailed discussion see, e.g., H. Kötz/G. Wagner, no. 266 ss; Staudinger-W. Belling/Ch. Eberl-
Borges, § 831 no. 2 ss.
87
See thereto Staudinger-W. Belling/Ch. Eberl-Borges, § 831 no. 25 ss.
88
The courts then apply § 31 BGB which makes an association liable for negligent damaging acts of its
organs without any possibility of excuse; see, e.g., BGHZ 49, 19.
89
See supra 2. c.
90
91
See supra 2. f.
62
f) Burden of proof
In tort, the claimant has generally to prove the tortfeasor’s act, damage, fault and
causation.92 Contrary to contract law fault is not principally presumed where a general
duty of care has been violated (unless such a presumption is provided for by statute like
in § 831 BGB). But the prima facie-proof will help in many such situations.93
In certain situations, in particular in medical malpractice cases a grave medical or
professional failure can generate the presumption that that failure has caused the injured
person’s damage.94

Specific institutions for the administration of personal injury cases exist only in certain
specific fields as for instance in the medical field.95 In Germany no general institutions
for the administration of such cases have been established yet.
92
Compare Palandt-H. Thomas, § 823 no. 167.
93
See, e.g., BGH, VersR 1970, 61; BGH, WM 1996, 835. As to the prima facie-proof see also supra 2.
g.
94
Compare thereto Palandt-H. Thomas, § 823 no. 169 ss.
95
See thereto infra C. III. 3.
63
Sources of Law Italy
III. Italy
Literature: G. Alpa, Il problema dell’atipicità dell’illecito, 1979; G. Alpa/M. Bessone, I fatti illeciti,
Trattato di diritto privato diretto da Rescigno, XIV, 1982; C. M. Bianca, Diritto civile, 3, Il contratto,
2000; id., Diritto civile, 5, La responsabilità, 1994; id., Diritto civile, 4, L’obbligazione, 1990; G.
Bonilini, Danno morale, in Digesto delle discipline privatistiche, Sez. civile, V, 1989, 83; F. D. Busnelli,
La lesione del credito da parte di terzi, 1964; C. Castronovo, La nuova responsabilità civile, 2a ed., 1997;
P. Cendon/F. Ziviz (a cura di), Il danno esistenziale, 2000; G. Cian, Antigiuridicità e colpevolezza, 1966;
M. Comporti, Esposizione al pericolo e responsabilità civile, 1965; A. De Cupis, Dei fatti illeciti, in:
Commentario al codice civile a cura di Scialoja e Branca, 2a ed., 1971; M. V. De Giorgi, Danno IX)
Risarcimento del danno da uccisione, Enc. giur. Treccani, X, 1999, 1; id., Danno II) Danno alla persona,
Enc. giur. Treccani, X, 1994, 1; id., Danno I) Teoria generale, in: Enc. giur. Treccani, X, 1988, 1; M.
Franzoni, Dei fatti illeciti, in Commentario al codice civile diretto da Scialoja e Branca a cura di Galgano,
1993; F. Giardina, Responsabilità contrattuale ed extracontrattuale, 1993; M. Giorgianni,
L’inadempimento, 3a ed., 1975; id., Buon padre di famiglia, in: Noviss. Dig. It., II, 1958, 597; L.
Mengoni, Responsabilità contrattuale (diritto vigente), in: Enc. dir., XXXIX, 1988, 1072; Osti,
Impossibilità sopravveniente, in: Noviss. Dig. it., VIII, 1962, 287; S. Patti, Danno patrimoniale, Digesto
delle discipline privatistiche, Sez. civile, V, 1989, 90; Ponzanelli (a cura di), Critica del danno
esistenziale, 2003; F. Realmonte, Il problema del rapporto di causalità nel risarcimento del danno, 1967;
C. Salvi, La responsabilità civile, in Trattato di diritto privato a cura di Iudica e Zatti, 1998; id., Danno,
in: Digesto delle discipline privatistiche, Sez. civile, V, 1989, 63; R. Scognamiglio, Responsabilità
contrattuale ed extracontrattuale, in: Noviss. Dig. it., 1968, XV, 670; id., Illecito (diritto vigente), in:
Noviss. Dig. it., VIII, 1962, 164; P. Trimarchi, Rischio e responsabilità oggettiva, Milano, 1961; G.
Visintini, Inadempimento e mora del debitore, in: Il Codice Civile. Commentario diretto da P.
Schlesinger, 1987; id., La responsabilità contrattuale, 1979; id., La responsabilità contrattuale per fatto
degli ausiliari, 1965; id., Trattato breve della responsabilità civile, 2a ed. 1999; M. Zana, Responsabilità
del professionista, in: Enc. giur. Treccani, XXVII, 1991, 1
1. Sources of law
In Italian law, the distinction between contractual liability and extra-contractual liability
is expressly set forth by the civil code (Codice civile, hereinafter c.c.) of 1942, which
governs the two different types of liability under separate sets of provisions. The
contractual liability (more precisely defined as liability for non-performance) is
governed by art. 1218 c.c., which is the cornerstone provision and by the following
articles 1219-1229. The fundamental rule in the field of tort liability, the so-called
liability by illicit conduct (often defined as “civil liability” or “aquilian liability”, due to
the Roman Lex Aquilia) is governed by art. 2043 c.c., which is followed by special rules
of liability pursuant to articles 2044-2059 c.c. Other special rules of liability are laid
down in other statutes (i.e., product liability, environmental liability, civil procedural
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liability, et cetera). The Italian system of civil liability cannot, however, be fully
understood without taking into account also the case law trends, especially in the field
of personal injury. In the last twenty years, the case law of the Constitutional Court and
of the Corte di Cassazione (Italian Supreme Court) has contributed to adapt the rules on
liability to the changes of social life and of the constitutional legal values, by
considerably extending and specifying the different types of liability. As a main result,
this development in case law has given rise to the so-called “biological damage” (i.e.,
damage to health), which is one of the most important types of damages, also under a
practical viewpoint.
The following differences can be pointed out among the two kinds of liabilities96: the
relevance of legal capacity and legal will;97 the placement of the burden of proof
according to the requirement of fault (see below); the compensation of unforeseeable
damages (see below); the term of prescription for claiming damages (action for
damages); and (at least according to a largely adopted view), the compensation of moral
damages (see below).
In the event that the same conduct may simultaneously constitute a breach of a pre-
existing obligations and an infringement of a right protected “erga omnes” in every day
life, the Italian case law, unlike French case law, holds that the two types of liability
may concurrently exist, as well as the related monetary claims.98 The possibility of
cumulating the compensatory claims enables the damaged party to choose the type of
remedy. This option can be extremely advantageous if one bears in mind the (not
irrelevant) differences existing between the two types of liabilities.
2. Contractual liability
The contractual liability consists in the sanctions that the debtor must bear for his failure
to perform the obligations. The main sanction resting upon the debtor in breach consists
in the duty to compensate the creditor for the damage caused by the breach of the
96
Cfr. C. M. Bianca, La responsabilità, 546 ff., who points out that the discrepancies between the two
legal regimes have been strongly reduced throughout time.
97
In the case of tort liability, the author of the harmful event is exempted from liability if he was not
capable of understanding or intending (art. 2046 c.c.). The rule is not applicable in the case of
contractual liability.
98
In this sense, see for instance, Cass. s.u. 4 aprile 2000, n. 99, Cass. 6 march 1995, n. 2577, in Mass.
Foro it. 1995, 336, Cass. 7 august 1982, n. 4437, in Resp. civ. e prev., 1984, 78. In the legal doctrine,
see R. Scognamiglio, Responsabilità contrattuale ed extracontrattuale, in Noviss. Dig. it., XV, 1968,
670; F. Giardina, Responsabilità contrattuale ed extracontrattuale, 1993; C. M. Bianca, La
responsabilità, 551 ff.
66
obligation.99 The duty to compensate arises, if the following preconditions are met: the
breach must be ascribed to the debtor (“imputable breach”), a causal link must be
established between the breach and the damage. In the Italian legal order, the greatest
uncertainties can be found in the definition of the concept of imputable breach, since it
is still being debated if the liability for breach is based on the principle of fault or if it is
instead an objective liability, which occurs regardless of the debtor’s negligence or
wrongful negligence.
The first precondition of contractual liability is the breach of an obligation. In this

respect, it must be pointed out at the outset that in Italy the notion of contractual liability
covers also the breach of obligations, which do not arise out of a contract, but also from
a so-called negozio unilaterale (roughly a deed) or from an atto illecito (roughly, an
unlawful conduct). The wording “responsabilità contrattuale” (contractual liability) is
thus a synonymous of “responsabilità per inadempimento” (liability for non-
performance).100
The breach consists in the failure to execute or the failure to correctly execute the
bargained performance.101 The inaccuracy of the performance can consist in a lack of
quantity (partial performance) or in a lack of quality (defective performance) or in a
temporary failure to perform, i.e., delay.
In the most recent Italian legal scholarly writings, the distinction between obbligazioni
di mezzi (literally, obligations of means) and obbligazioni di risultato (literally,
obligations of result) is considered to be a criterion dealing merely with the content of
the obligation, in other words, with the assessment of the performance due.102 The
expression obbligazione di risultato is used in those cases in which the debtor
undertakes to perform a given task (f.i., the carrier’s obligation in the carriage contract,
a so-called obbligazione di garanzia). The expression obbligazione di mezzi is used in
those cases in which the debtor must perform a task, regardless of the achievement of a
given result (f.i., the duty of care of the physician). It must be pointed out that the
distinction between the two types of obligations is relative, since the concepts of mezzi
(means) and risultato (result) are relative concepts, which take different meanings
according to the moment that is deemed relevant to assess what the creditor is entitled to
99
C. M. Bianca, La responsabilità, 546 f.
100
See among all, L. Mengoni, Responsabilità contrattuale (diritto vigente), in Enc. dir., XXXIX, 1988,
1072.
101
C. M. Bianca, La responsabilità, 1.
102
C. M. Bianca, L’obbligazione, 72.
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Stefano Troiano
obtain.103 When dealing with an obbligazione di mezzi one takes into account only the
cases in which the sole result due is the performance of a diligent activity. The case law
seems to give a broader scope to this conceptual distinction. Different rules of liability
are held applicable to the two categories of obligations: negligent liability in the case of
obbligazioni di mezzi and objective liability in the case of obbligazione di risultato.104
The legal authors, for the most part, have rejected this conceptual framework and have
buttressed that the said distinction must be analysed only with regard to the contents of
the performance due.105
Article 1218 c.c. states that “the debtor who does not exactly perform the obligation due
must compensate damages, unless he proves that the non-performance or the delay was
due to an impossibility of performance, for a cause not imputable to him” (unofficial
translation). The interpretation of this provision has always been controversial. The
dispute deals especially with the second part of the provision, where the liberatory proof
resting upon the debtor is found.
According to a first doctrinal view (the so-called objective theory),106 the debtor is freed
from his obligation only if he proves that the impossibility to perform was objective and
absolute (in other words, that the impossibility is the same for any debtor and that it
cannot be overcome by any human possible effort). This essentially means that
negligence is no longer a precondition for liability: the debtor who proves that he made
any effort to perform under the “good father’s diligence” rule is always liable, unless he
can prove the impossibility to perform, pursuant to the above-described standards.107
According to other authors (so-called subjective theory) instead, the interplay between
art. 1218 c.c. and art. 1176 .c.c (which requires the debtor to perform his obligation with
the good father’s diligence) shows that fault is a general precondition for liability.
Under this view, the impossibility dealt with by art. 1218 c.c. is a relative concept, i.e.,
an impossibility which is unforeseeable or inevitable by using the ordinary diligence
103
As a matter of fact, a conduct that is valued as an instrument to achieve a subsequent goal constitutes
already a result, when it is considered alone a final point of a more limited theleological sequence. For
instance, in the surgeon’s obligation, which is traditionally considered an obligation of means, the due
result can be found in the diligent performance of the surgery.
104
V. Cass. 10 april 1975, n. 1346.
105
106
Osti, Impossibilità sopravveniente, in Noviss. Dig. it., VIII, 1962, 287 ff.
107
The supporters of this theory point out that some corrections should be made, in order to temper the
rigorous rule: it is held admissible that impossibility may be relative or that the debtor does not have
to be held liable when the performance cannot be requested (according to a good faith interpretation),
i.e., when the performance would require the use of extraordinary instruments, which the debtor
cannot be forced to use (according to a good faith interpretation), see L. Mengoni, Responsabilità
contrattuale, 1086 ff.
68
required under art. 1176 c.c.108 Even under this second view, it is acknowledged that the
principle of negligence, intended as the cornerstone of contractual liability, is subject to
several exceptions. A third theory (so-called eclectic theory) denies that a general or
prevalent criterion of imputation can be found and holds instead that different criteria of
imputation can be found with respect to the kind of obligation in default.109 With
reference to generic obligations110 and monetary obligations111 it is often believed that
the criterion of imputation of liability is fault free. If one looks at the case law
applications (leaving aside the adopted formulations, which often do not correspond to
the content of the rule adopted to decide the controversial subject matter) there seems to
be a general case law trend, which prefers to adopt the criterion based on negligent
imputation.112
Fault can be defined as the failure to comply with the “good father’s” standard of
diligence (art. 1176 c.c.).113 It is an objective standard of diligence based on the average
person parameter.114 With respect to obligations, which require the performance of
professional duties, the required diligence must be assessed on the grounds of the nature
of the specific activity performed (professional diligence) under art. 1176, paragraph 2,
c.c.115 The professional diligence is a special kind of diligence based on the specific
knowledge and the use of technical instruments, which are adequate for the kind of
activity to perform. It is however a normal type of diligence, except that its relevant
standard is not based on a generic activity, but rather on a professional activity, which
requires the knowledge and the use of the technical skills of a given profession.116
According to art. 2236 c.c., whenever the performance of the obligation requires to
solve technical problems of special difficulty, the “intellectual professional” is liable
only for wilful misconduct or serious negligence.117
108
C. M. Bianca, La responsabilità, 15 ff.
109
According to M. Giorgianni, L’inadempimento, 236, the rule that sets forth liability up to the limit of
objective and absolute impossibility should apply only to the obligations of delivery or restitution of a
determined and certain thing (among which, pecuniary obligations), whereas the negligence criterion
should apply to all other obligations.
110
For instance, F. Galgano, La responsabilità contrattuale: contrasti giurisprudenziali, in: Contr. impr.,
1989, 37.
111
See, for instance, M. Giorgianni, L’inadempimento, 299.
112
See Cass. 15 june 1988, n. 4088, in Giust. civ., 1989, I, 111; Cass. 30 october 1986, n. 6404; Cass. 8
june 1984, n. 3450; Cass. 27 july 1976, n. 2981, in Foro it., 1976, I, 2090. Some decisions refer
instead to the rule which sets forth liability up to the limit of objective and absolute impossibility: v.
Cass. 13 august 1990, n. 8249. See on this issue the overview of the positions taken by the case law,
authored by C. M. Bianca, La responsabilità, 15 ff.
113
Cass. 21 march 1981, n. 1656.
114
M. Giorgianni, Buon padre di famiglia, in: Noviss. Dig. It., II, 1958, 597.
115
M. Zana, Responsabilità del professionista, in Enc. giur. Treccani, XXVII, 1991, 3.
116
117
See Cass. 11 august 1990, n. 8218.
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Stefano Troiano
If the rule of art. 1218 c.c. is deemed to imply that the debtor’s liability for default is
based on fault or wrongful negligence, the formulation of the provision (which enables
the debtor to waive his liability by proving that the breach was caused by an
impossibility not imputable to him) leads to believe that there is general presumption of
negligence resting upon the debtor in default.118 Once the creditor proves that a breach
occurred, it is up to the debtor to prove that the breach was due to an impossibility to
perform, which was not caused by his negligence or wrongful negligence. It must be
noted, however, that in the obligations of means (where the breach consists of a
negligent performance of the obligation), the proof of the breach, which rests upon the
creditor, is by itself a proof of the debtor’s negligence.119 This, however, is not a waiver
of the general rule of liability, since it remains settled that, once the inaccurate
performance is proved, the debtor will have the burden to prove that the inaccurate
performance was caused by an impossibility not imputable to him, which prevented him
to execute the obligation correctly.
The proof of the non-imputation of non-performance does not necessarily require the
party to show the specific impediment, which caused the impossibility of performance,
since it will suffice to prove that the event (whichever it may be) could not be imputed
to the debtor.120
The liability is objective, meaning that it does not depend on the debtor’s negligence, if
the default was caused by a third party’s negligence or wrongful negligence, who had
been hired by the debtor to perform the obligation (art. 1228 c.c.).
cc) Causation
In order for contractual liability to arise, a damage must have occurred and the damage
must have been caused by the failure to perform.121 Article 1223 c.c. expressly limits
compensation for the mere damage which is the immediate and direct consequence of
the default. According to the prevailing view, this causation link (so-called juridical
causation) arises only if two preconditions are met: the damage would have not
occurred, save that default had taken place (the so-called condicio sine qua non
criterion); the damage must fall under the normal consequences (or not implausible
consequences) of the debtor’s behavior, according to the “ordinary experience” criteria.
(the so-called criterion of adequate causation).122 The compensation of damage is
118
Cass. 9 july 1984, n. 4020. In the legal doctrine, see S. Patti, Prove. Disposizioni generali, in:
Commentario al codice civile a cura di Scialoja e Branca, 1987, 112.
119
Cass. 4 december 1990, n. 11652.
120
Cass. 25 maggio 1998, n. 5208; C. M. Bianca, La responsabilità, 75.
121
F. Realmonte, Il problema del rapporto di causalità nel risarcimento del danno, 1967.
122
Cass. 10 may 2000, n. 5962; Cass. 11 january 1989, n. 65; Cass., 19 july 1982, n. 4236, in Giur. it.,
1983, I, 1, 424.
70
excluded when a factor separate and independent of default takes place, provided that
this factor alone is capable to cause damage (so-called break of the causation link).123
The breach of the obligation that can be allocated upon the debtor forces him to
compensate the damage. Article 2058 c.c., dealing with tort liability, sets forth two
separate means of damage compensation: 1. the “equivalent compensation”, i.e., the
payment of a sum equivalent to the value of the actual loss or the lost profits suffered by
the damaged party; 2. the “specific compensation”, consisting of a removal of damage,
i.e., the duty to bring back things to the time before the coming into existence of the fact
which caused the damage.124 Pursuant to article 2058 c.c., the damaged party may
request the remedy of “specific compensation” provided that it will be entirely or
partially admissible. The judge may deny this type of remedy when the specific
restitution is excessively expensive for the debtor (paragraph 2). It is disputed whether
the specific compensation remedy, absent an express mention in art. 2058, may be
applicable also in case of contractual liability. The prevailing view, also in case law,
seems to be in the affirmative sense.125
The choice between specific compensation and equivalent compensation has to be made
exclusively by the damaged party.126 He may request both remedies, and, if so, the
equivalent compensation will deal with all the damages that have not been directly
removed by specific compensation of the damage (f.i., personal damages).
Even though the issue is arguable, the prevailing opinion is that the specific
compensation remedy is applicable also to non-pecuniary damages.127
Pursuant to art. 1223 c.c., the damage to be recovered includes both the creditor’s actual
loss (so-called danno emergente) and the loss of profits (so-called lucro cessante).
Compensation does not only deal with the damage that had been caused at the time of
liquidation, but also the damage occurring after that time, provided that it is reasonable
to predict its coming into existence (there is no need for an absolute surety that the
123
Cass. 21 may 1997, n. 2009; Cass. 7 october 1987, n. 7467.
124
M. Franzoni, Dei fatti illeciti, cit., 1079
125
Cass. 3 january 1994, n. 6, in Foro it., 1994, I, 1783; Cass. 16 december 1988, n. 6856; Cass. 2 march
1973, n. 582. In the legal doctrine, see C. M. Bianca, La responsabilità, 188; in the contrary sense, R.
Scognamiglio, Responsabilità contrattuale ed extracontrattuale, 230.
126
Cass. 25 july 1997, n. 6985.
127
C. Castronovo, La nuova responsabilità civile, cit., 495.
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Stefano Troiano
damage will arise).128 Aside from the future damage, there is a different damage
consisting in the loss of a favorable chance. This loss constitutes a current damage,
which may be compensated if the chance is functionally linked to the good damaged or
the right infringed. In this event, the damage can be assessed under equitable judgment,
due to the greater or smaller probability that the lost chance could have come into
existence.129
Pursuant to article 1225 c.c., if the non-performance was not caused by the debtor’s
wilful negligence, compensation is limited to the damages that could have been foreseen
at the time the obligation arose. The damage is considered to be foreseeable if a person
of normal diligence in the same situation of the debtor could have foreseen the potential
occurrance of it: It is therefore a judgment based on an objective criterion.130 The proof
of the foreseeability of damage rests on the creditor, who claims damage
compensation.131 The debtor’s gross negligence cannot be compared to wilful
negligence.
According to a widely spread legal theory,132 in the field of contractual liability the only
damage that can be compensated is pecuniary damage. To support this view, it is
assumed that the provision dealing with non-pecuniary damage (article 2059 c.c.133)
deals only with tort liability. According to a different view, it is not justified to adopt
two different rules for compensation, depending on whether the relevant interest is
damaged in the field of contractual liability or in the field of tort liability.134 It must
however be pointed out that if art. 2059 c.c. is deemed to apply to contractual liability,
the compensation of non-pecuniary contractual damages could take place only under
very limited circumstances, since there are very few cases of contractual non-
performance which the criminal law holds punishable as a wrong. In any event, this
problem is nowadays tempered by the coming into existence of the so-called “biological
damage”, which is a damage to one’s health that can be per se compensated, even if it
has been caused by the non-performance of an obligation. For this type of damage, the
distinction between pecuniary and non-pecuniary interests has been overcome, since the
128
Cass. 4 february 1992, n. 1147, in Foro it., 1992, I, 2127; Cass. 22 february 1991, n. 1908.
129
130
Cass. 11 october 1983, n. 5896; Cass. 28 may 1983, n. 3694; Cass. 10 december 1982, n. 6761.
131
Cass. 11 march 1992, n. 2910, in Giust. civ., 1992, I, 3072; Cass. 26 may 1989, n. 2555, in Giur. it.,
1989, I, 1, 1696; C. M. Bianca, La responsabilità, 158.
132
See R. Scognamiglio, Il danno morale, 313.
133
Art. 2059 c.c. deems admissible the compensation of a non-pecuniary damage only in the cases listed
in the statutes. The most important of these cases is the one of art. 185 of criminal code, i.e. when the
illicit conduct also constitutes a criminal wrong.
134
72
limitation set forth by art. 2059 is held not applicable (see below). Moreover, given that
biological damage consists in the attack to a person’s unified psychological and physical
integrity, it covers also moral damages, i.e., pain and suffering.135
Even under Italian law, although pursuant to suggestions of German legal origin, it is
hypothesized that a contract may have protective effects as to third parties. According to
some authors, who take as a model the prevailing view among German legal scholars,
the foundation of the duties of protection of third parties lays in the general clause of
objective good faith, which accordingly gives rise to accessory obligations of surety.136
According to other authors, instead, the protection of third parties arises from the
debtor’s duty to execute the performance in a diligent way: The diligence in performing
the obligation requires the debtor to adopt the protections which are normally apt to
keep the creditor’s living and working environment immune from harm and to protect
also the third parties which belong to that environment (relatives, employees or
guests).137 In the case law, the issue of contract with protective effects for third parties
has been adopted to define the contract of health care between a pregnant woman and a
hospital: It has been held that this contract obliges the hospital not only to assist the
woman with the medical care necessary for her to deliver the baby, but also to provide
her with all the necessary aid to enable the fetus to come into existence, avoiding any
possible damage.138
Pursuant to art. 1228 c.c., the debtor who performs the obligation with the aid of third
parties is liable for their negligence and wrongful negligence. This is an objective
liability, arising from the agent’s conduct, which is independent of the debtor’s possible
negligence or wrongful negligence in choosing his agent or in supervising his work.
The “auxiliaries” are only those who act on behalf of the debtor and whose activities are
subject to his power of direction and control.139 The juridical nature of the relationship
between the debtor and the auxiliary is irrelevant as the auxiliary may also not belong to
the corporate organization of the debtor.140
135
See C. M. Bianca, La responsabilità, 181.
136
C. Castronovo, Obblighi di protezione, in Enc. giur. Treccani, XXI, 1990, 1 ss.
137
C. M. Bianca, Il contratto, 571-572.
138
Cass. 22 november 1993, n. 11503, in Nuova giur. civ. comm., 1994, I, 690.
139
C. M. Bianca, La responsabilità, 62-63.
140
V. Cass. 8 january 1999, n. 103; Cass. 20 april 1989, n. 1855, in Foro it., 1990, I, 1970.
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It is irrelevant that the auxiliary’s activity constitutes an exact performance of the duties
assigned to him. According to the case law, it is sufficient that the assignment has been
the necessary occasion for the fact (the so-called link of “necessary chance”,
occasionalità necessaria), i.e., that it has exposed the creditor to the harmful
interference of the auxiliary. It follows that the debtor is liable also when the auxiliary,
while committing the fact, abused of his assignment.141
According to the wording of 1228 c.c. itself, this is a default rule. The waiver agreement
(so-called “clausola di manleva”,) is separate from the waiver of liability clause: the
former does not exclude entirely the liability for non-performance, but it simply affects
the allocation of liability on the party in breach.
It must be pointed out that given that the auxiliary is not a party to the obligation, he is
not liable vis à vis the creditor for non-performance. However, if the conduct constitutes
also a tort, the auxiliary is liable vis à vis the damaged party for tort liability.
According to the civil code, the potential combined negligence of the creditor in the
production of damage may cause a reduction of the compensation according to the
seriousness of negligence and to the extent of the consequences it has produced (art
1227, paragraph 1). Further, the compensation of damages that the creditor could have
avoided with the use of ordinary diligence is excluded (art. 1227, paragraph 2). It is held
that paragraph 1 is only referred to the negligent participation of the damaged party in
the production of damage, whereas paragraph 2 only deals with the case in which the
damage is “causally” imputable to the damaging party alone and the damaged creditor
could have prevented or reduced the damage, with its diligent intervention.142
The duty to prove the concurrence of a negligent act of the damaged party rests upon the
damaging party, once the damaged party proved the direct production of the damage by
illicit conduct.143 It is held admissible, however, that the concurrence of the negligent act
may also be ruled upon by the judge on his own motion.144
With respect to the damage that can be prevented by using ordinary diligence, it is held
that, within the sphere of ordinary diligence, only non-burdensome or exceptional
activities are included or activities which may carry serious risks or relevant sacrifices
for the damaged party.145
141
Cass. 15 february 2000, n. 1682.
142
Cass. 13 march 1987, n. 2655, Cass. 3 march 1983, n. 1594; C. M. Bianca, La responsabilità, 136 ss.
143
144
Cass. 16 november 1992, n. 12267.
145
Cass. 20 november 1991, n. 12439, Cass. 29 september 1999, n. 10763.
74
f) Limitation
The action of contractual liability is subject to the ten years ordinary term of
prescription (art. 2946 c.c.). Shorter time limits are established for rights which arise in
certain contracts. For instance, pursuant to art. 2951 c.c., the one year time limitation is
applicable to the rights arising out of carriage contracts (the term is, however, extended
to 18 months if the carriage starts and ends outside of Europe), among which the right to
compensation of damages arising out of accidents. In this latter case, the statute of
limitations starts to run from the day of the accident.
g) Burden of proof
Pursuant to the general rule of allocation of the burden of proof (art. 2697 c.c.: who
wants to claim a legal right in judicial proceedings must prove the facts on which such
right is based), the creditor must prove all the constitutive elements of contractual
liability, save negligence, since the latter is dealt with by the presumption set forth by
art. 1218 c.c. (at least if the provision is interpreted according to the prevailing view in
the case law). The creditor must prove the existence and the amount of damage, as well
as the non-performance.
As for non-performance, the case law makes some distinctions. In the case of credits
subject to a given term (not in the other cases, for instance for negative obligations),
there is a general rule which presumes the continuing existence of the right. Pursuant to
this presumption, the creditor must only prove the existence of the legal relationship and
the expiry of the term, but he does not need to prove the failure of performance. In other
words, since every right must be presumed to exist if a cause of expiry has not taken
place, once the term of performance has expired, it is up to the debtor to prove that the
obligation has been performed or has ceased to exist for another reason.146 It is instead
dispute whether this rule may apply to the creditor who does not claim the non-
performance, but the failure to correctly perform the obligation. The issue has been
recently settled by the Corte di Cassazione, in a plenary session (Sezioni Unite), which
held that the creditor must only prove the inaccurate performance, whereas it is the
debtor’s duty to prove that the obligation had been correctly performed.147 The prove of
the breach of the obligation must also be provided by the creditor when he claims a
delay in the performance (instead of the non-performance).148
146
Cass. 28 january 2002, n. 982, Cass. 23 may 2001, n. 7027; Cass. 11 march 1994, n. 2369, Cass. 5
april 1984, n. 2221. In dottrina, v. C. M. Bianca, La responsabilità, 1994, 76 s.
147
Cass. s.u. 30 october 2001, n. 13533; see the previous negative decisions of Cass. 15 october 1999, n.
11629, Cass. 4 december 1990, n. 11652.
148
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The Italian tort liability law is based on the general rule of art. 2043 c.c., according to
which “any wilfully negligent or negligent act that caused an unjust damage to the
others, obliges the party who committed it to compensate the damage”. Along with the
general rule of liability for negligent behaviour pursuant to art. 2043 c.c., the legal order
deals with special types of liabilities, among which the aggrieved liability (in which
negligence is presumed) (f.i., the parents’ liability for the conduct of a minor: art. 2047
c.c.; the school teachers’ liability for the act of their pupils: art. 2048 c.c.) and the
objective liability (f.i. the principals’ liability for the acts of their agents: art. 2049 c.c.)
and complex issues in which both the special kinds of liabilities concur (f.i., the liability
of manufacturers). As far as the foundation of liability goes, it is still largely debated if
the system that can be construed on the above mentioned provisions depicts a system of
liability based on negligence, as a general criterion of imputation or rather a system in
which negligence does no longer have a central role in defining liability. According to a
part of the legal doctrine, negligence pursuant to the general provision of art. 2043 c.c.,
is not actually neither the only nor the main criterion for the imputation of liability. Next
to negligence, the same amount of central relevance can be given to liability based on
objective criteria (the risk of enterprise has been expressly mentioned), as, for instance,
the liability for the conduction of dangerous activities or the liability of the principal for
the acts of the agent.149 According to the traditional view,150 which is still highly
regarded among case law, negligence remains the primary and general criterion for the
imputation of liability, in regards of which the mentioned types of special liability
represent an exception.
In the Italian legal order, the choice of interests protected by tort law requires an
interpretation of the concept of “unjust damage”, which art. 2043 c.c. considers one of
the basic foundations of civil law torts. In the last decades, the interpretation of this
concept has been constantly extended. Starting from the (now abandoned) traditional
approach, which limited unjustness of damage only to the cases of infringement of
149
In this case, a distinction is made between those who believe that negligence only plays a marginal
role and that the objective imputation of damage is prevailing criterion (R. Scognamiglio, Illecito, 171,
M. Comporti, Esposizione al pericolo e responsabilità civile, 35 ss.) and those who believe that in the
Italian legal system there are several concurring criteria of imputation (C. Salvi, La responsabilità
civile, 93 ss.; v. anche P. Trimarchi, Rischio e responsabilità oggettiva, 39, according to whom in the
legal system two general principles of liability exist: negligence and risk).
150
V. ad es., A. De Cupis, Dei fatti illeciti, 4; C. M. Bianca, La responsabilità, 540 ss.
76
“absolute rights” (real property rights, personality rights), the subsequent approach
acknowledged that even other damages could be compensated and, namely, damages
arising out of “relative rights” (protection in tort of credit interests, which is admissible
only under certain conditions) and damages to other interests of juridical relevance,
which are protected in a life of relationships, but are not classified as subjective rights
by other legal norms. Presently, the legal doctrine is divided in two main views: a first
view considers our system to be based on the principle of tipicità evolutiva of torts:
accordingly, art. 2043 is a general norm (and not a “general clause”), in other words it
does not directly point at the protected interests, but it makes reference to other
provisions in the legal order, which acknowledge the existence of an interest which
constitutes a juridical situation to be protected in society.151 A second view (possibly
prevailing) deems our legal system to be an “open” system of liability (so-called sistema
aperto di responsabilità) based on a general clause, which, unlike German law, does not
make a strict list of typical kinds of interests protected in tort and leaves the interpreter
with the duty to select on a case by case basis the protected interest, regardless of
whether a different provision may deal with it. Under this view, it still controversial,
however, which criterion should be used to guide the interpreter in selecting the
protected interests.152
As mentioned earlier, Italian law sets forth a general case of liability based on
negligence and several other kinds of special liabilities, in which either negligence is
presumed (so-called aggrieved liability) or negligence is completely irrelevant
(objective liability). In the field portrayed by this study (the liability of the provider of
services for personal injury damages) tort liability may thus be based, depending on the
cases, on negligence (potentially presumed) or it may not rely on negligence at all. For a
more detailed analysis and specific examples, regard should be had to the following
reports.
In cases where liability is based on negligence, the required standard of care is an
objective standard. It seems, in fact, that the original subjective or psychological
conception of negligence has been abandoned, at least that which takes into account the
151
“General norm” means, in fact, the norm that summarizes all the cases, without any need to
specifically list them, see C. Castronovo, La nuova responsabilità civile, 13 ss.
152
For authors who consider the criteria of selection to be very ample, with a reference to all the interests
arising out of social and economic relationships, which deserve protection on a case by case basis, see,
f.i., G. Visintini, Trattato breve della responsabilità civile, 348 ss.; M. Franzoni, Dei fatti illeciti, 188.
Si richiama, invece, al sistema costituzionale di valori G. Alpa, Il problema dell’atipicità dell’illecito,
245. For an author who believes instead that reference should be made to the law in action (diritto
effettivo), which includes all the suggestions of case law decisions, C. M. Bianca, La responsabilità,
586 ss.
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Stefano Troiano
real psychological conditions of the acting party, whereas a judgment based on the
objective canons of diligence seems to be favored.153
For the tort to come into existence, negligence is usually sufficient, i.e., a conduct that
does not comply with the good father’s standard set forth (in case of non-performance
of an obligation) by 1176 c.c.. This provision is said to be the expression of a general
principle, which is applicable also to the performance of a generic duty of not infringing
the legal sphere of other individuals (so-called principle of neminem laedere).
cc) Causation
Pursuant to its express mention in art. 2056 c.c., art. 1223 c.c. is applicable also to tort
liability. It must be noted, however, that according to currently prevailing legal doctrine
and case law,154 unlike contractual liability, the inquiry on the causation link in tort
liability takes place at two (conceptually) different stages, aimed at grasping the distinct
causation links, which tie up the various stages of the illicit conduct, which can be listed
as follows: the conduct of the damaging party; the event that caused damage (so-called
damage event, i.e. “danno-evento”) to the protected interest (and that gives rise to the
duty to compensate the so-called an respondeatur) and, finally, the further economic
consequences of that even (so-called “danni-conseguenza”). With regards to the various
stages of this complex sequence, the inquiry would firstly deal with the material link
between the conduct and the harmful event, absent which no other damage can be
compensated (this is the so-called link of neutral causation, i.e. “causalità naturale”).
Secondly, the inquiry would deal with the existence of a causation link between the
harmful event and the so-called consequential damages, i.e., “danni-conseguenza”.155
Bearing in mind this distinction, it is then held that the rule of art. 1223 c.c. (according
to which only the damages which are a “direct and immediate consequence” of the non-
performance can be compensated) can only refer to the latter type of link, defined as
“juridical causation”. Whereas, to establish the so-called link of natural causation
between the conduct and the damage event, in the absence of a specific set of rules of
causation in tort liability, reference is made to the rules of the criminal code, dealing
153
Cfr. C. M. Bianca, La responsabilità, 576. In a different sense see, however G. Cian, Antigiuridicità e
colpevolezza, 169.
154
V. C. Salvi, La responsabilità civile, 172 ss.; C. Castronovo, La nuova responsabilità civile, 64; for a
criticism of the distinction between natural causation and juridical causation, see C. M. Bianca, La
responsabilità, 114.
155
In the field of contractual liability, the distinction between different causal sequences is useless, since
the non-performance (i.e., the failure to perform or the inaccurate performance) is automatically a
harmful conduct (harm to the interest of the creditor, which is alone capable of producing a damage
equal to the amount of the non-executed or not correctly executed performance), so that the only
relevant causation link (that of so-called juridical causation “causalità giuridica”, governed by art.
1223 c.c.) is that which stands between the non-performance and its economic consequences.
78
with causation in criminal wrongs (see articles 40 and 41 of Italian Criminal Code.).
Actually, the case law, albeit distinguishing between two different types of causation,
tends to apply in both cases the same criterion, i.e, that of adequate causation, so-called
causalità adeguata, which has been discussed in contractual liability. It is held that the
causation link exists whenever the conduct (or the harmful event) constituted a condicio
sine qua non for the occurring of damage and, further, that damage is a normal or
adequate consequence of that type of conduct (or of that harmful event), according to
the criteria of average experience.156
The causation link is interrupted when an autonomous factor of exceptional nature
arises, which alone is capable of producing the event.157 This may also be constituted by
the damaged party’s conduct, when it is the only and exclusive cause for the harmful
event, to the extent that it makes juridically irrelevant the previous behavior of the party
who caused the illicit conduct.158
When, following an act that harmed somebody’s health, pecuniary consequences arise,
these must be compensated autonomously, with respect to the damage consisting of an
infringement of health, alone considered (so-called “biological damage”, i.e. danno
biologico). As will be clarified shortly, in case of a harm caused to one’s health, the
Italian case law, starting from the mid-eighties, made a distinction between damage-
event, which can be compensated alone and which consists of a harm to the psycho-
physical integrity and the consequential-damages, which can be compensated as an
autonomous source of damage and can be distinguished in pecuniary damage or in the
so-called moral damage (i.e., pain and suffering).
The negative pecuniary consequences include: the expenses paid because of the harm
suffered and the loss of earnings. As far as the loss of earnings goes, the case law makes
a distinction between the loss of the generic working ability, i.e., the loss of the
marketable potential of a professional individual and the specific working ability,
meaning the actual loss of the capacity to make profits, with regards to the current job.
The first one is deemed to fall under the sphere of biological damage, as a damage-
event, whereas the second one fall under the negative economic consequences and must
be compensated as an independent kind of damage.159 With regards to compensation of
156
Cass. 9 may 2000, n. 5913, Cass. 6 march 1997, n. 2009.
157
158
Cass. 10 november 1993, n. 11087.
159
Cass. 12 september 2000, n. 12022.
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Stefano Troiano
damages due to permanent invalidity, it has been held that the occurring of a pecuniary
damage caused by the loss or the reduction of working ability is not excluded, at least
theoretically, even if the damaged party has retired,160 is a housewife,161 or a minor.162 In
the case of a minor who does not have a job, the judge must use presumptions, based on
the type of working activity that the minor is likely to conduct in the future. This
assessment must be based on the type of studies, the preferences and the social and
economic position of the minor’s family.163
As to the pecuniary damages suffered by the damaged party’s relatives in the case of
murder or injury, the surviving relatives are awarded a right iure proprio of recovery of
pecuniary damages,164 The damage includes both the expenses (medical and healthcare
expenses) paid, inasmuch as the loss of profits, i.e., the loss of the contributions or
economic advantages that both on the grounds of statutory rules and on the grounds of a
style of life based on ethical and social rules, which reflect normal criteria based on
common experience, the deceased person would have given to the relative.165 This claim
is based, according to some authors, on the tortious harm to the credit of the relatives,
who have a right to economic support;166 according to other authors, the claim is based
on the harm to the family ties, protected by the Constitution as an independent legal
interest.167
It should be recollected that in the field of extra-contractual liability damages can be
awarded without the limit of foreseeability, since art. 1225 c.c., which sets forth this
limit, is applicable only to the damage caused by non-performance.168
The issue of personal injury, i.e., the damage to the psycho-physical integrity has been
the object of the greatest development in the case law of the past decades. For a long
time, the case law has deemed admissible the damage compensation only as long as it
caused negative pecuniary consequences (especially, costs and decrease of income) or a
160
Cass. 27 june 2000, n. 8744.
161
Cass. 11 december 2000, n. 15580.
162
163
164
M. V. De Giorgi, Danno IX) Risarcimento del danno da uccisione, 1 s.; Cass. 6 january 1983, n. 75.
165
Cass. 26 november 1996, n. 10480, which makes reference to the case of murder; Cass. 1 december
1999, n. 13358, which makes reference to the case of a personal injury.
166
F. D. Busnelli, La lesione del credito da parte di terzi, 155 ss.
167
C. M. Bianca, La responsabilità, 608; G. Visintini, Trattato breve della responsabilità civile, 422.
168
V. Cass. 17 novembre 1962, n. 3133, in Riv. circ. trasp., 1963, 149. The legal doctrine holds,
however, that the case law view according to which the causation link (intended as “adequate
causation”), which excludes the causation link as to damages of extraordinary nature, risks to impose,
even in the field of tort liability, the limitation of compensation for foreseeable damages only: C. M.
Bianca, Responsabilità civile, 153, nota 124.
80
moral damage (pain and suffering), which may be compensated only in the cases
expressly laid down in the statute (first of all in the case of a conduct punished in
criminal law), as pointed out by art. 2059 c.c. In 1986, a milestone decision of the
Constitutional Court,169 later followed by the Corte di Cassazione, held that the damage
to the psycho-physical integrity can be compensated alone, regardless of the negative
economic consequences and of subjective moral damage. This solution has been
justified so far on the grounds of a reading of art. 2043 c.c., in the light of the
Constitution (especially art. 32 of the Constitution, which protects the right to one’s
health). Art. 2059 c.c. has been deemed to apply exclusively to the subjective moral
damage, i.e., to the unjustified suffering and distress. However, as we will outline
below, two very recent decisions of the Italian Corte di Cassazione seem to announce
that the Court will soon revisit this reading of art. 2043 and art. 2059 c.c. and propose a
new interpretation of these provisions in the light of the Constitution (for details see
below, at the end of this paragraph).170
It is disputed if the biological damage is a pecuniary damage, a non-pecuniary damage
or a tertium genus of damage, but this does not affect its capacity of being compensated,
once it has been acknowledged that it is directly protected by art. 2043 c.c. (and it is
therefore exempted from the limit set forth by art. 2059 c.c.).171
Within the sphere of the damage to health, one must include also psychological
damage,172 which must however consists in a true pathological alteration of the psychic
dimension of a person. Moreover, all the other kinds of non-pecuniary damages must be
included within the concept of damage to health: aesthetic damage, damage to the life of
relationship (see below), damage consisting of a reduction of the generic working
ability.173
The crucial issue of biological damage is however the discovery of the most suitable
criteria for its liquidation. Currently, the case law seems to prefer the so-called method
of Pisa, which requires to take into account, for each kind of bodily injury, the index of
the average values that can be inferred from the case law precedents (the so-called
reckoning of the invalidity figures, i.e., punto di invalidità).174 Actually, many courts
have adopted their own charts, which present data based on their precedent decisions,
169
Corte Cost., 14 july 1986, n. 184.
170
Cass., 31 may 2003, n. 8827 and n. 8828, in Corr. Giur., 2003, 1017 ff.
171
In the first sense, see M. Franzoni, Dei fatti illeciti, 994 ss.; in support of the view that damage to
health is of non-pecuniary nature, see C. Castronovo, Danno biologico, 38; C. M. Bianca, La
responsabilità, 179 ss.; the concept of tertium genus is implicitly adopted by Corte cost., 14 july 1986,
n. 184, cit.
172
Cass. 29 november 1999, n. 13340.
173
Cass. 17 november 1999, n. 12740, Cass. 16 april 1996, n. 3565.
174
Cass. 22 may 2000, n. 6616, Cass. 20 october 1998, n. 10405.
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Stefano Troiano
which are non-binding for the judge and work only as indicators.175 Among the legal
doctrine, the prevailing view is that the assessment of biological damage must be made
in an equitable fashion, without a mechanic transposition of chart figures.176
In the event that damage to health caused death to the victim and that death and the
harmful event were not too distant in time, the most recent case law decisions,177
following a first affirmative decision of the Constitutional Court,178 have excluded that
the victim will have a right to obtain compensation of biological damage and have thus
excluded that a similar kind of right to compensation can be transferred iure hereditario
to the relatives of the dead person. This part of the case law admits however that
relatives can obtain compensation for biological damage iure proprio.179 provided that a
proof of the impairment of the relatives’ psycho-physical integrity is given, in the light
of family and social life.180 The compensation of a biological damage suffered iure
proprio by the relatives is awarded even in case of harm.181
The pain and suffering (so-called subjective moral damage), strictly speaking, represent
typical kinds of “non-pecuniary” damage. Therefore, they should be capable of being
compensated, by means of a combined application of articles 2059 c.c. and 185 c.p. (of
criminal code), only provided that the illicit conduct constitutes a criminally relevant
act. To dodge this limitation, the legal scholars and the case law made several attempts
to extend the concept of pecuniary damage beyond the traditional definition of
“negative economic consequence”. For instance, it has been held that pecuniary damage
should be intended only as the reduction or the failed increase of the damaged party’s
assets, but, in a general sense, it should be intended as pecuniary damage any damage
that has a monetary value or a trade value. Under this view, new forms of damage have
been envisaged, their boundaries not being well-defined, e.g., “the damage to the life of
relationship”182 (consisting in the diminishment of the person’s capacity to socially
interact with the others) and the “aesthetic damage” (consisting in the diminishment of
the person’s ability to succeed in society due to his unpleasant look, caused by the harm
suffered). These new categories of damage aimed at enabling a party to recover
damages for his suffering, even in cases that do not fall under the strict limits of
175
Cass. 11 august 2000, n. 10725.
176
See for instance, C. M. Bianca, La responsabilità, 184.
177
Cass. 2 april 2001, n. 4783, Cass. 28 november 1998, n. 12083.
178
Corte cost., 24 october 1994, n. 372.
179
Corte cost., 24 october 1994, n. 372.
180
See Cass. 26 october 1998, n. 10629.
181
See Cass. 11 november 1986, n. 6607 which awarded compensation of damage to the husband who
could not have a sexual relationship with his wife, due to the physica injuries caused to her by a bad
surgery (the harm to the mutual right to have a sexual relationship has been deemed equivalent to the
right to one’s health).
182
Cass. 2 june 1984, n. 3344, Cass. 23 october 1985, n. 5197.
82
protection set forth by art. 2059 c.c. As, in the eighties, the concept of biological
damage was affirmed (biological damage was also conceived to enable compensation
for a damage to one’s health even outside of the cases falling under the limits imposed
by art. 2059 c.c. to the compensation of non-pecuniary damages), this posed a final stop
to the new special kinds of damages, which are nowadays deemed to fall under the
general category of damage to health183. More recently, however, following the
suggestions of the legal doctrine, the case law has conceived a new kind of damage,
which can be paired with biological damage, even though it does not overlap with it.
This kind of damage is becoming increasingly important: it is the so-called “danno
esistenziale” (literally, damage to existence), which is a sum of the negative events
affecting one’s existence, which follow from the harm of a subjective interest, of
constitutional relevance, related to the primary and unchangeable sphere of self-
realization of an individual (albeit, different from the right to one’s health): for instance,
right to privacy, to honor, et cetera. A number of prejudices fall in the sphere of danno
esistenziale (the boundaries of which must still be determined), which determine a
worsening of the living conditions of the damaged party, and which overlap (partially)
moral subjective damage.184
The compensability of this kind of damage (danno esistenziale) is justified on the same
grounds on which the concept of biological damage is founded, i.e. on the basis of a
reading of art. 2043 c.c. in the light of the Constitution (in particular, of art. 2
Constitution, which protects all fundamental human rights). Under this reading, the
damage arising from the events affecting personal interests of constitutional relevance
(beside the human health, the harm to which already represents a biological damage) are
capable of compensation by means of art. 2043 c.c. and are therefore exempted from the
limit set forth by art. 2059 c.c., which is deemed to apply exclusively to the subjective
moral damage, i.e., to the unjustified suffering and distress.
However, it must be outlined that this reading of artt. 2043 and 2059 c.c. has been very
recently revisited by the Corte di Cassazione, in two very important decisions precisely
183
The independence of aesthetic damage from biological damage has been denied by Cass. 15 november
1999, n. 12622; for the damage to the life of relationship, see the analogous view of Cass. 17
november 1999, n. 12740, Cass. 16 april 1996, n. 3565. Among the legal scholars, see C. M. Bianca,
La responsabilità, 185 ff.
184
See Cass. 7 june 2000, n. 7713, in Foro it., 2001, I, 188, which, following a reasoning analogous to
that which lead the case law to award biological damages, held that the infringement of rights of
constitutional relevance is subject to a monetary sanction, based on the harm itself (damage-event),
regardless of possible negative economic consequences (consequential damages). For a detailed
discussion on this issue, see P. Cendon/F. Ziviz (a cura di), Il danno esistenziale (with ample citations
of case law and legal doctrine) and, although in a firmly critical way Ponzanelli (a cura di), Critica del
danno esistenziale.
83
Stefano Troiano
regarding a case of danno esistenziale.185 It is therefore easy to predict that in the next
future the Court will change his opinion also as to the justification of the biological
damage. In particular, the Corte di Cassazione has now affirmed that the damage arising
from the harm to a subjective interest of constitutional relevance is not protected by art.
2043 c.c., which is deemed to apply only to pecuniary damage, but still by art. 2059 c.c.
Under this new reading, art. 2059 c.c. no longer refers to pain and suffering (moral
damage) only but it applies instead to all non-pecuniary damages. However, the result is
not that of limiting the compensation of all damages formerly referred to as danno
esistenziale or as biological damage. On the contrary, the Corte di Cassazione affirms
that art. 2059 c.c. itself must be read in the light of the Constitution, which means that in
the case of personal interests directly protected by the Constitution the compensation of
damages cannot find any limit in art. 2059 c.c.186
Art. 1227 c.c., dealing with contractual liability, is applicable also to tort liability
pursuant to the reference made by art. 2056 c.c. Thus, reference is here made to the
above-described creditor’s joint fault in the breach and to the duty of the damaged party
to avoid damage.
d) Limitation
Whereas the claim for contractual liability is subject to the regular ten years
prescription, the claim in tort is subject to a shorter five years prescription (see art.
2947, 1 co., c.c.), which is shortened to two years when the damage was caused by
circulating vehicles (see art. 2947, 2 co., c.c.). A longer statute of limitation can be
found in the field of tort liability only when the fact is considered a criminal wrong
under statutory wording and when a longer prescription is applicable to the criminal
wrong. The criminal prescription then applies also to the monetary claim (art. 2947, 3
co., c.c.).
185
Cass., 31 may 2003, n. 8827 and n. 8828, in Corr. Giur., 2003, 1017 ff. The position of the Corte di
Cassazione is then indirectly followed also by Corte Cost., 11 july 2003, n. 233, in Corr. Giur., 2003,
1028 ff.
186
In other words, though art. 2059 c.c. admits the compensation of non-pecuniary damages only in the
cases laid down in the statute, a reading of this article in the light of the Constitution allows to
conclude that such cases are also those of personal interests directly protected by the Constitution.
Were the limitation set forth by Art. 2059 c.c. to apply also to fundamental rights of constitutional
relevance, this would result in denying even a minimal protection to those interests, i.e. in an
unacceptable infringement of fundamental constitutional values.
84
e) Burden of proof
Pursuant to the above-mentioned rule on the allocation of the burden of proof (art. 2697
c.c.), the creditor must prove all the elements of tort, which, pursuant to art. 2043 are:
the damage, the unjustness of damage, fault (negligence or wilful negligence) of the
damaging party, the causation link between the conduct and the damage. The imputation
based on negligence or wilful negligence is a fact that must be proved by the damaging
party, unlike contractual liability, where art. 1218 c.c. establishes a presumption of
negligence in favor of the creditor. It has been observed that specific provisions set forth
(also in the field of tort) a presumption of negligence (so-called aggrieved negligence),
or set forth cases of objective liability. In some of these cases, it is still disputed if the
liability is based on presumed negligence or on objective liability.187

In Italy, there are no institutions or specific procedures to deal with controversies out of
court. There is an exception in the field of sport liability, which will be dealt with by
this report under the category of liability for hobby activities.
187
See, for instance, art. 2050, liability from exercise of dangerous activities; art. 2051, damage caused
by things in custody; art. 2052, damage caused by animals. Above all, see C. M. Bianca, La
responsabilità, 715 ff.
85
Sources of Law Spain
IV. Spain
1. Sources of law
Legal rules dealing with liability can be found in special laws but foremost in the codigo
civil as well as in the codigo penal.
Spain, other than France for example, does not know a strict system of non-cumul des
responsabilités. The jurisprudence has always tried to avoid a non-concurrence of
actions as it is known in other countries with a general clause for tortious liability. The
Tribunal Supremo has tried to define a contractual liability only what belongs to the
inner circle of what has been negotiated (la rigurosa orbita de lo pactado) and awards
damages for pure economic loss on the basis of contractual liability only when the loss
stems from the contractual obligations. However, there is no strict course followed by
the Tribunal Supremo. The court tries to qualify a case either as contractual or as
tortious, but it is not compulsory and thus does not always work. Plus, similar cases are
not always qualified the same.
A good example is the following case:188 An installation firm installed a heater in a
bathroom. Since a piece was defective, the plaintiff asked for repair. The electrician
came, but did not install a new piece. The defendant used the heater believing that the
piece had been repaired. He suffered serious injury and his daughter died. When asking
for damages, the Tribunal Supremo awarded compensation on the basis of tort liability
stating that contractual liability was not applicable even though it recognized that the
parties originally had concluded a contract.
2. Contractual liability
Contractual liability arises if either a contractual obligation is not performed at all or

only partially or if the performance is either defective or late. In regards to the non-
performance and burden of proof, the Spanish legal system distinguishes two different
kinds of obligation, the obligación de medios and the obligación de resultado. In the
first case-scenario, the debtor cannot be held liable unless he commits a fault which the
creditor has to prove whereas in the second scenario the debtor is held liable for the
non-performance or late performance of the contract. The creditor merely bears the
burden of proof for the non-performance. The debtor can exonerate himself from
liability in the event of act of God and a creditor´s contributory fault.
188
STS July 20, 1992, La Ley 1992 (4), 405.
87
Hans-W. Micklitz/Barbara Möller
There is no general provision in the codigo civil pronouncing a vicarious liability.

However, in several decisions, the Tribunal Supremo (Spanish Supreme court)
recognized such liability without a correct and precise founding in the law, though189. In
general, the Tribunal Supremo sees the liability of an employer rooted in natural law. It
“is a principle of natural law that the person that has the advantage of a business done
by a third person charged by the beneficiary must bear the disadvantages as well and
must compensate all damage done by the third person” (cuius commoda, eius
incommoda).190 Also, within the chapters about special contractual relations there are
several provisions dealing with vicarious liability.
aa) Violation of contractual obligation
Any non-performance, be it partial or complete191, resulting in damage is covered by

contractual liability. Contractual liability also arises in case the performance is late or
defective. The violation must be imputable at the contractual party. Which contractual
obligation is being violated does not matter; it can also be a minor one.
The standard of care depends on the type of contract. In general, the standard of care to
be observed is the one of the buen padre de familia (bonus pater familias), which means
the average standard of care observed by an average person. When the contract is not
onerous, the standard is at least the one of the buen padre de familia, but the court is
free to reduce the scope of liability.
cc) causation
There must be a direct link between the violation of a contractual duty and the result,
thus the damage. Spanish law also follows the doctrine of conditio sine qua non, limited
by the theory of adequacy. In some situations, especially in the field of risk based
activity, an adequate causal link is found in omissions on the part of the defendant, thus
when the defendant does not respect a duty to act, to inform or to take the appropriate
security measures even though the real cause for the damage lies somewhere else. In
such cases, adequacy of the cause exists where there are measures thinkable that would
have minimized or avoided the damage and that reasonably or normally could have
been taken. The type of measures depends of the field of activity, taking also into
consideration the specific circumstances of the case. In the last years, the Tribunal
189
STS March 1, 1990, RJ 1990, 1656; STS June 22, 1989, RJ 1992, 4776, STS January 9, 1985, RJ
1985, 167, STS March 2, 1990, RJ 1990, 1659.
190
STS (sala 2) June 18, 1985, RJ 1985, 3022
191
AP Barcelona S January 12, 1988, La Ley 1988, 230.
88
Supremo´s jurisprudence shows a tendancy to hold someone liable for omission of a

necessary measure especially when that someone had a duty of security to fulfill. In one
case, the court held a maintenance firm liable for all damage caused by a lift suffered by
two persons due to the miserable state of the lift.192 The owner of a hotel was held liable
as well for all damage caused by a fire that started in the hotels basement for unknown
reasons and injured several people staying in that hotel.193
Of course, the principle of restitutio in integrum also is true in Spanish law194 which
means that all damage caused must be compensated. However, according to Art. 1103
codigo civil, every court may decide upon the amount of damages itself respecting the
degree of fault and the scope of the damage caused. In some cases, the possibility of art.
1103 codigo civil is used in order to alleviate problems of proof.
Direct (daños) as well as indirect (perjuicios) damages are compensated. The amount of
the damage is evaluated according to the value the good had in the market at the
moment of the damageable event. All reasonable and non excessive costs necessary for
the reparation of the damage are compensated.195 Missed profit (lucro cesante) is
compensated, too, see art. 1106 codigo civil. The Tribunal Supremo requires the proof
of a certain objective possibility of the amount of the missed profit, according to the
normal development and the particular circumstances of the given case.196 It is not
sufficient that there is a mere chance of profit. Only certain, concrete and credible
benefits that the plaintiff would have had (which he has to prove) are being
compensated. In accordance with this jurisprudence, the Tribunal Supremon denied
damages to a telephone company that claimed missed profit due to a rupture of a coaxial
cable by excavation activity, because there was no proof given of the time of
interruption of the service, nor were any data given in order to calculate the hypothetical
benefit nor were any costs that would have occurred in any case been substracted.197 In
this case, the court denied the application of art. 1103 codigo civil saying that its
application would be more than mere modification since there was no real basis given
for a calculation of the missed profit at all.
192
STS October 25, 2001; RJ 2001, 8670.
193
STS November 7, 2000; RJ 2000, 9911.
194
STS February 14, 1980; RJ 1980, 516; STS June 2, 1997; RJ 1997, 2727.
195
STS October 30, 1998; RJ 1998, 8844.
196
STS June 26, 1998; RJ 1998, 5019.
197
STS November 5, 1998; RJ 1998, 8404.
89
There is room for non-pecuniary damage under Spanish law198, even without any precise
legal provision. Spanish courts emphasize on the fact that non-pecuniary damage should
not be used in order to inflict punitive damages on the author of the damage. However,
Spanish courts seem to be quite willing to grant compensation for non-pecuniary
damage. For example, in one case the Tribunal Supremo even admitted morales in a
case where a flight was late by eight hours, the delay having caused tension,
inconvenience and frustration.199 The only way to indemnisate non-pecuniary damage is
giving money. A non-pecuniary damage must be proven like every other damage, it
does not exist automatically.
Bodily as well as material, moral harm and mental and physical pain are compensated.
A loss of profits and earnings is compensated, too. The harm caused must be real,
though. In general the scope of protection is determined by the contracts content. Any
breach of duties is protected.
The codigo civil does not state any rules about contributory negligence. Such rules can
only be found in special laws. However, jurisprudence applies this criteria when
determining the scope of damages awarded. Contributory negligence is a grounds for
exoneration if the plaintiffs behaviour has been the unique and exclusive cause of the
damage and if no reproach can be made to the defendant at all. For example, in one
case, a passenger tried to board a train, even though the train already was in motion, and
fell and hurt himself badly. The passenger alone had to bear his damages.200 This
jurisprudential doctrine often is anchored in Art. 1104 codigo civil demanding that the
defendants behaviour not only complies with the regulations but must have been
adapted to the circumstances concerning the persons involved, time and place of action,
also to the field of commerce or the social life in which the action is taking place.201
However, jurisprudence tends to alleviate these requirements where it considers an
indemnification necessary and appropriate. In such cases, the courts refer to age, the
victims physical and mental condition in order to justify the award of damages.
198
STS June 3, 1991, RAJ 1991, No. 4407, STS March 23, RAJ 1988 No. 2226, 2178.
199
STS July 30, 2000, RJ 2000, 5089.
200
STS April 6, 2000; RJ 2000, 2508.
201
STS December 13, 1985; RJ 1985, 6527, STS May 8, 1986; RJ 1986, 2669, STS December 17, 1986;
RJ 1986, 7675, STS July 1987; RJ 1987, 9974.
90
e) Limitation/Prescription
Limitation clauses are known and accepted, however they have to be measured
according to Art. 1102, 1255, 1258 codigo civil.
Actions “ex contracto” are subject to a fifteen-year-period, Art. 1964 codigo civil.
f) Burden of proof
The general rule for burden of proof is found in Art. 1214 of the codigo civil modified
by the LEC (ley de enjuiciamiento civil-law of civil procedure) in 2000. Art. 217 of this
law puts into legal words what jurisprudence had developed to Art. 1214.
Accordingly, the plaintiff must prove existence of a valid contract and violation of the
contractual obligations. The plaintiff must also prove the existence of a damage as well
as the causal link between non performance and damage.
There is no presumption of fault just because there is damage. However, in cases where
it is impossible for the plaintiff to prove the fault and chain of causation, due to special
circumstances of the case and taken into account that this proof often means proving a
negative fact, jurisprudence has reversed the burden of proof so that the defendant must
now prove compliance with his contractual duties and his diligence. In such cases, the
plaintiff must usually prove the probability of a fault in order to achieve reversal of the
burden of proof. According to the LEC, courts should observe that the rules about the
burden of proof are neither of absolute nature nor inflexible and that they should be
adapted to each single case taking into account the availibility and possiblity of proving
a fact. Courts thus must consider each parties position concerning their possibility of
proof.
Spanish law also distinguishes between obligación de resultado and obligación de
medios. When dealing with the first, the burden of proof does not weigh heavily. The
plaintiff only must show that the result did not occur. The defendant then has the
possibility to show that the non-occurrence was caused by chance or act of god (caso
fortuito, imposibilidad sobrevenida). When facing an obligación de medios, the proof is
more difficult. The plaintiff must show the non-performance which often means that he
must prove the defendants non-compliance with the standard of care of the average
professional in the field.202 A non-performance is proven for example, when a certain
action was not taken but could be expected to be: for example, a lawyer had not done all
that was necessary to hinder prescription of an action in tort.203
202
STS July 5, 1991, RAJ 5568; February 4, 1992, RAJ 819; December 23, 1992, RAJ 10715, September
26, 1989, RAJ 6379.
203
STS December 16, 1996, RAJ 8917.
91
The codigo civil provides for two means of extra-contractual liability, fault based
liability (responsabilidad por culpa) to be precise: One, there is liability according to the
provisions of the penal code (codigo penal) in case a civil liability arises from a crime or
minor offence, Art. 1092 codigo civil. Second, there is the “normal” tortious liability.
Only in cases where the causation of damage does not result in a criminal punishment,
there is room for real civil liability. The basic provision in the codigo civil is Art. 1902.
It is a general liability provision stating that who, by fault or negligence, causes damage
to someone must compensate it. Two more requirements must be met in order for
damages to be awarded: fault and chain of causation between fault and damage.
Protected interests are: life, health, honor, reputation, privacy, property (also intellectual
property) and possessive rights.
Art. 1902 codigo civil is the main provision for extra-contractual, thus tortious liability.
It provides for a fault based liability, the fault consisting in a behaviour non adapted to
the diligence necessary according to the particular circumstances of the case, time, place
and persons involved as well as the social environment, the social reality of the acting
person. The defendants actions must be reproachable.
In case of non-compliance with provisions that cannot be excused or whose respect was
recommended by common sense, one speaks of negligence (negligencia) which also
constitutes a fault.
Besides the liability for fault there is also strict liability (responsabilidad objetiva). This
kind of liability is found only in special laws, not in the codigo civil itself. This is
particularly true for damages caused in the field of nuclear energy, press, hunting,
aviation.
However, there are some tendencies in jurisprudence to make liability more objective
thereby assimilating fault based liability to a quasi-strict liability.204 All starts with a
reversal of the burden of proof or its alleviation when it seems appropriate. Another
204
STS July 10, 1943; RJ 1943, 856, STS February 11, 1992; RJ 1992, 1209, STS March 6, 1992; RJ
1992, 2397, STS May 20, 1993; RJ 1993, 3718, STS July 19, 1993; RJ 1993, 6161, STS October 5,
1994; RJ 1994, 7453, STS November 14, 1994; RJ 1994, 9321.
92
possibility was to presume a fault in case there was a damage resulting from an action
or omission. Also, tightening the standard of diligence has been a method, without
amounting to a solely risk based liability though – the principle of a fault as inalienable
requirement remains. In case the standard of diligence is tightened, the defendant must
not only prove that he complied with regulatory or legal standards but with the higher
standard. He must prove that the precautionary measures he took, positively work to
avoid foreseeable damage and thus are efficient. The subjective element of fault based
liability such as a moral or psychological factor as well as the value judgment
concerning the defendants conduct must be preserved, too. The quasi-strict liability
grew with the increase in dangerous activities due to technical progress and with the
principle that who has a benefit or advantage must bear the risk and thus compensate
the third injured.
One is not only liable for her own actions but also for actions of third persons that one is
responsible for (responsabilidad por actos ajenos). According to Art. 1903 Para. l one
could be held liable for damage arising from the conduct of a third party one is legally
responsible for. Yet this regulation does not constitute a general clause on vicarious
liability. It is considered being an introductive formula in regards to articles 2- 5 listing
different groups which could be held liable for a third parties conduct; the parents
liability for the conduct of their children, guardians (tutores) for minors and the
incompetent (incapacitados) under their custody (autoridad) and live with them as well
as the master craftsmen (empresario) and principals liability (directores) or the owner
(dueno) as well as animals. This kind of liability is valid for fault based liability as well
as for strict liability. However, one can only be liable if there is fault on behalf of the
third person and if the person held liable committed a fault or negligence herself (culpa
o negligencia) which usually lies in a bad surveillance or bad choice of the third person.
This results from the fact that art. 1903 refers to art. 1902. There is a rebuttable
presumption of fault connected to principals, art. 1903, para. 6 codigo civil.
cc) Causation
The defendant’s fault must have caused the damage. The plaintiff bears the burden of
proof. The chain of causation between the defendant's conduct and the damage is
presumed in case of strict liability, which is not the case when dealing with fault based
liability. The chain of causation also determines the scope of compensation.
The defendant must compensate all damage no matter whether caused on purpose or by
pure negligence. Compensation can be done by money (annuity or single payment) or
93
restitution in equivalence or repair work or by procuring a substitute for the object

damaged. The plaintiff can also ask for the elimination of the cause of damages.
The amount of damages in case of fault based liability is quasi unlimited. When
dealing with strict liability, the special laws often provide for a maximum amount.
The plaintiff has the right to ask for more than the maximum amount when the
conditions for fault based liability are fulfilled. The Regional Court of Valencia decided
in a case that the defendant had to compensate even the costs arising from a treatment in
a special hospital, including travel costs.205 In the particular case, a nine year old
suffered eye injury from a shot effectuated by a classmate. The defendant argued that
the treatment in the local General Hospital had been good and adequate and that it
therefore was unnecessary that the plaintiff travelled several hundreds of kilometres in
order to obtain special treatment in a special hospital. The court however rejected that
argument by saying that obtaining the best treatment in order to get full compensation
for the damage suffered was alright and had to be paid for by the defendant. There was
only room for exoneration if the defendant proved that the special treatment was totally
inadequate or the price for it totally disproportionate.
All pecuniary damages are compensated such as medication and health treatments
costs, economic loss suffered because no work could be done, maintenance for children
and other. In general, loss (damnum emergens) as well as missed profit (lucrum
cessans) is compensated. Direct damage (daños) as well as indirect damage
(perjuicios) has to be compensated.
Spanish law knows compensation for non-pecuniary damages (morales). This is also
true in case of loss of a relative or when there is unauthorized distribution of
photographs and articles in the press. Art. 104 of the penal code rules that
compensation covers non-pecuniary damages to health, freedom, honor, reputation or
other sentiments and emotions, too.
The amount of damages is within the courts discretion, however criteria for the
determination are: special circumstances of the individual case, the scope of the injury.
205
AP Valencia, October 25, 1990.
94
There is no general legal rule in the codigo civil specifically mentioning contributory
negligence as a ground for exoneration. It is not written in Art. 1902 codigo civil.
However, it is recognized to exist. Jurisprudence has to deal with it quite often since it is
the most frequently used excuse of defendants.206 Even though there is no general rule,
in most special legal texts establishing strict liability for a certain field of action, the
possibility of exoneration due to contributory negligence however, is mentioned
expressis verbis, see for example Art. 25 LGCDU (ley general para la defensa de los
consumidores usuarios). While contributory negligence extinguishes the fault of the
author of the damage in case of fault-based liability, it interrupts the causation chain in
case of strict liability.
Due to its casuistic character, there are no established requirements to be met so that one
could surely speak of contributory negligence. Jurisprudence decides on a case-to-case-
basis. The doctrinal nature of this figure is not clear. Sometimes it is qualified as having
its own nature, sometimes it falls into the category of fuerza mayor, sometimes it is
qualified as being a problem of the causal chain, after all.
Contributory negligence may exonerate the defendant partially or wholly depending on
the share in causing the damage. In order to obtain total exoneration, the plaintiffs
negligence must have been the unique and exclusive cause of all the damage and that no
reproach can be made to the defendant at all. However, these requirements must not be
understood as to be strictly obeyed. Often, courts refer to all sorts of reasons in order to
award damages when considering them appropriate, such as age, the plaintiffs physical
or mental condition, even though at first sight it had been the victims fault that he
suffered damage. Jurisprudence ruled that minor contributory negligence is not taken
into consideration. When the defendant has caused the risk of damage, contributory
negligence is not taken into account either. The reason behind this is that the person
creating a risk or controlling a risk must be more diligent than any other person so that
any eventual contributory negligence never will be on the same level as the fault of the
defendant. The decisive case dates from 1936. A train had collided with a car at rail
crossing. The Tribunal Supremo found that liability would be only divided in case the
faults were of equal degree and of identical judicial value which would not be the case
here: The railroad company had the constant duty to permanently and thoroughly watch
that no danger emerges for the public from the operation of its service. The violation of
206
See only: STS October 8, 1998; RJ 1998, 7559, STS March 6, 1998; RJ 1998, 1496, STS September
16, 1996; RJ 1996, 6563, STS November 13, 1995; RJ 1995, 8255, STS March 8, 1994; RJ 1994,
2202.
95
this duty of vigilance is not compensated by the drivers unforeseeable and prompt
appearance.207
However, if the victim has taken the risk on his own initiative, courts deny
compensation. The same applies in case the victims fault was preponderant outweighing
by far any contribution of the defendant.
Liability is also restricted or even denied in case of act of God, or when the damage has
been caused by pure chance (caso fortuito) or when the defendant is able to prove that
he satisfied the standard of care and supervision regarding others he is responsible for.
d) Limitation
Claims arising from tort are subject to a one-year period of prescription starting on the
day the damage as well as the defendant having caused it, are known, Art. 1968. 2
codigo civil.
e) Burden of proof
The party having suffered damage bears the burden of proof for fault and the causality
of the tortious conduct. The plaintiff must prove the damage and its scope: The amount
of damage must be determined. However, jurisprudence aims at lightening the burden of
proof and often only demands the proof of a damage thereby reversing the burden of
proof or even presuming a fault.

There are no specific institutions. However, plaintiffs have the possibility to choose
between civil and penal actions in case the tort is a criminal offence, too, according to
the provisions of the codigo penal. The most important provision is Art. 116. I codigo
penal. Once a penal action is pending, the choice has been executed and there is no
turning back: The penal court will decide about the award of damages and its judgment
cannot be overruled by civil courts, losing jurisdiction by a penal courts civil law
decision. The penal court can award the same type of damages, pecuniary and non-
pecuniary. In case of unforeseen worsening of the damage or of new unknown damage
after the decision has been rendered, a new action can be brought, but only to the civil
law jurisdiction. The court will then decide upon further damages but must apply the
rules of the codigo penal.208
207
STS January 18, 1936; RJ 1936, 243 bis.
208
STS July 3, 1981; RJ 1981, 3044, STS February 9, 1988; RJ 1988, 771, STS April 20, 1988; RJ 1988,
3267.
96
Sources of Law Sweden
V. Sweden
Literature: A. Adlercreutz, Sweden (1996), in: J. Herbots (ed.), Contracts, vol. 5, in: R. Blanpain (ed.),
International Encycopedia of Laws (cited: A. Adlercreutz); U. Bernitz, Market and Consumer Law, in: S.
Strömholm (ed.), An Introduction to Swedish Law, 2nd ed., 267 ss.; B.W. Dufwa, Compensation for
Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a
Comparative Perspective, 2003, 293 ss.; B. W. Dufwa, Contributory Negligence under Swedish Law, in:
U. Magnus/M. Martín-Casals (eds.), Unification of Tort Law: Contributory Negligence, 2004, 197 ss.; J.
Hellner, Contract and Sales, in: S. Strömholm, An Introduction to Swedish Law, 2nd ed. 1988, p. 233 ss.;
J. Hellner/S. Johansson, Skadestandsrätt, 6th ed. 2001; J. Ramberg, Allmän avtalsrätt, 4th ed. 1995; L.
Wendel, The Impact of Social Security Law on Tort Law in Sweden, in: U. Magnus, The Impact of Social
Security Law on Tort Law, 2003, 176 ss.
1. Sources of law
Swedish law dealing with personal injuries through services is regulated by different
acts and rules developed by the courts; but these regulations leave many gaps. A general
regulation is lacking; the country does not possess a comprehensive codification. The
main acts relevant here are in particular the Lagen om avtal och andra rättshandlingar pa
förmögenhetsrättens omrade (Act on contracts and other legal acts concerning the field
of contract and property law – cited as Contract Act),209 the Konsumenttjänstlag
(Consumer Services Act)210 and the Skadestandslagen (Damages Act).211 These Acts
govern certain aspects of tort law and of contract law. But by far not all questions of the
rendition of services are regulated by these acts. In addition, the Damages Act contains
several general provisions, which can be, and are applied to contract situations.212 The
Contract Act does not contain provisions on services contracts and the Consumer
Services Act regulates only certain contracts for works and keeping but not all services.
It is therefore rather open which rules of the mentioned acts can be applied to the
services here under discussion. This situation is in a sense ‘aggravated’ since only very
few court decisions concerning services have been delivered on cases where personal
injury was caused through services of the kind here relevant.
One of the main reasons for this penomenon is the so-called “Swedish model”
concerning compensation for bodily harm. This term circumscribes the fact that most
personal injuries are compensated via insurance schemes which have been established
either by voluntary collective agreements between the insurance business and larger
209
Act 1915:218.
210
Act 1985:716.
211
Act 1972:207.
212
See B.W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.),
Compensation for Personal Injury in a Comparative Perspective, 308.
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groups of potentially liable persons or by mandatory legislation obliging for instance

employers, health care service providers and others to insure the risk to cause damage to
others. The level of protection against personal injury is more or less oriented at the
level set by the Damages Act for civil liability. But fault does regularly not matter as a
requirement of compensation and the system is administerd by insurance agencies.213 It
is therefore generally unnecessary for injured persons to have redress to civil liability
law and to the court system.
As a repercussion of this situation the governing law in this field is rather uncertain due
to the few statutory regulations and due to the lack of case law. It can only be supported
what J. Hellner has observed with respect to contract law:
“However, the Swedish law of contract dissolves into a penumbra of uncertainty when we
leave the field where legislation applies with full force. The very uncertainty may be the
reason why parties hesitate to bring lawsuits, which they may equally lose or win. It is
therefore possible that the uncertainty is self-perpetuating.”214
The Contract Act does not contain specific rules for contracts of services. The most
general piece of Swedish legislation in this field is therefore the Consumer Services Act
of 1985.215 However, this Act extends only to contracts of services between a
professional provider and a consumer and it restricts its scope to certain specific
services only, namely to services concerning work on movables and immovables and
the keeping of movables (while movables do not include living animals). Furthermore
the Act explicitly excludes its application to damages for personal injuries.216 On the
other hand the more general provisions of the Consumer Services Act may be applied
by analogy also to other contracts of services though the exact extent of the analogy is
uncertain.217 Liability in contract is also partly regulated by the Damages Act. Unless
special contract terms or specific legislation for contracts provides otherwise this Act
213
See for details L. Wendel, The Impact of Social Security Law on Tort Law in Sweden, in: U. Magnus,
The Impact of Social Security Law on Tort Law, 176 ss.
214
J. Hellner, Contract and Sales, in: S. Strömholm, An Introduction to Swedish Law, 264. Hellner’s
observation is strongly supported by the fact that for instance the commentary to the provisions of the
Consumer Sales Act in Karnov, Svensk Lagsamling med kommentarer, 2003-2004, can quote almost
no single case though the Act is in force since 1986.
215
See A. Adlercreutz, no. 437.
216
§ 35 Consumer Services Act.
217
A. Adlercreutz, no. 437.
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can be equally applied to contractual relations.218 Again, the precise extent of application
of this Act to contracts is not beyond doubt.
The Consumer Services Act (§ 4) establishes the obligation of service providers to

perform the contract in a professional manner. The provider is further obliged to ensure
that safety rules and prescribed administrative regulations are observed.219
The rule as stated in the Consumer Services Act of 1985, is that the service provider is
liable unless he or she can prove that the failure of performance was due to an
impediment beyond the provider’s control.220 This formulation is taken from the Vienna
UN Convention on Contracts for the International Sales of Goods of 1980 (CISG)221 and
can also be found in the Swedish Sale of Goods Act 1990. The rule does not state a firm
strict liability of the respective contract party but constitutes a rather strict presumption
of negligence, which can be rebutted by the party in breach.222 But the presumption is
only overcome by strong reasons, namely if circumstances outside the control of the
party in breach can be proved which have impeded the performance. Therefore, under
the Consumer Services Act the service provider’s negligence is presumed, and the
rebuttal of the presumption is rather difficult. But it must be stressed that this Act
extends to a certain group of services contracts only, and does also not cover damages
for personal injuries. It is rather clear that in case of ‘higher’ services like those of
physicians, architects etc. fault will not be presumed but must be proved.223 For instance,
in cases of contractual liability for medical malpractice negligence it is likely that
negligence would not be presumed but had to be proved though cases of this kind
evidently never reach the courts due to the publicly organised structure of the Swedish
health care system and due to the Swedish patients’ insurance.224 However, it is doubtful
whether in case of other services which are neither higher services nor fall under the
Consumer Services Act the regulation of this Act or still the traditional rule applies
which usually requires negligence which the recipient of the service has to prove.225 The
latter alternative seems more likely.
218
Chap. 1 § 1 Damages Act.
219
Consumer Services Act § 5.
220
Consumer Services Act § 31.
221
See Art. 79 par. 1 CISG.
222
See thereto A. Adlercreutz, no. 344.
223
See A. Adlercreutz, nos. 344, 454.
224
See in more detail the part on medical malpractice in Swedish law.
225
See also A. Adlercreutz, no. 457.
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cc) Causation
Causation is a necessary ingredient of contractual but as well of tortious liability. The

standard, which the courts apply in order to establish causation does not vary for both
branches of law. A minimum requirement is that the conditio sine qua non-test must be
met – the damage must not have happened without the actor’s conduct. But further
considerations – mainly those of adequacy of causation – have to be applied.226 For
instance, in cases of more than one possible cause it must be “clearly more probable”
than not that the cause on which the victim relies was the effective cause.227
If a contract party has breached a contractual obligation and has thereby caused damage
to the other party the latter party is granted the remedy of damages. The main rules on
damage and compensation are laid down in the Damages Act which primarily deals
with injury caused by tortious acts but whose general provisions on recoverable damage
are as well applied to contractual obligations unless provided otherwise by specific
legislation or special contract terms.228
A peculiarity of the Damages Act is a general reduction clause, which allows the courts
to reduce the recoverable amount of damages if in the light of all the circumstances of
the case full compensation would be unduly burdensome for the defendant tortfeasor.229
Physical or psychical injury entitles (if the further requirements of liability are met) to
damages, which include lost income and any extra expenses caused by the injury.230 In
case of death the decedents are entitled to compensation of the burial expenses and to
their own loss of maintenance.231
Immaterial consequences of injuries have likewise to be compensated in terms of money

including. There are three different heads of immaterial harm for which recovery can be
226
See the comprehensive study of M. Radetzki, Cause and Damage. Interptretation of Liability-
activating Causation Terms in Property Insurance, Scandinavian Studies in Law, vol. 38, 1999, 315 ss.
227
See to cases of that kind: HD, Nytt Juridiskt Arkiv 1977, 176; HD, Nytt Juridiskt Arkiv 1982, 421;
HD, Nytt Juridiskt Arkiv 1991, 481; HD, Nytt Juridiskt Arkiv 1993, 764.
228
229
Chap. 6, § 2 Damages Act.
230
Chap. 5, § 1 no. 1 and 2 Damages Act.
231
See C. Dahlmann/L. Wendel, Sweden, in: M. Faure/H. Koziol (eds.), Cases on Medical Malpractice in
a Comparative Perspective, 197.
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sought: temporary pains (“sveda och värk”), permanent harm and disability (“lyte eller
annat stadigvarande men”) and special inconveniences (“olägenheter i övrigt”).
In case of negligently caused death close relatives of the deceased are entitled to obtain
compensation for their non-pecuniary harm. This has been recently codified by the
legislator.232
Swedish contract law starts by the maxime of privity of contract. As a rule only the
direct parties to the contract are obliged and entitled. But there are also exceptions. The
parties can either expressly or impliedly agree that further persons shall benefit from the
contract.233 And in relation to services of the kind here reviewed it will not rarely be the
case that further persons are intended by both parties to be protected by the contract.
Chap. 6 § 1 Damages Act contains a general rule on contributory negligence. It provides

that in case of bodily injury contributory negligence of the injured person is to be
disregarded except where the injured acted with intent or gross negligence. Therefore
simple negligence of a bodily injured person, which contributed to his or her damage
does not affect a claim for compensation in any way. And the courts are rather reluctant
to state gross negligence.234
e) Limitation
The general period of limitation for claims in contract is ten years.235 But if there are
more specific statutory provisions prescribing different periods, as in fact there are,
these periods prevail. The period starts running on the accrual of the claim.
f) Burden of proof
The burden of proof for damage, causation and negligence lies generally with the
claimant both in contract and tort where injuries during the rendition of services are
concerned and where the services are of the kind discussed here.236 Swedish law does
232
Modification of Damages Act, entering into force on 1 January 2002; see thereto H. Sandell, Sweden,
in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2002, 2003, 393 ss.
233
See A. Adlercreutz, no.279 ss.
234
See the examples mentioned by B.W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A.
Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective, 318.
235
See § 2, Limitation Act (Prescriptionslag, Act 1981:130).
236
See A. Adlercreutz, no. 344; B.W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A.
Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective, 315 s.
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not know of formal rules like res ipsa loquitur or the like, which shift the burden of
proof in certain situations onto the defendant party.237
Tort liability is mainly based on fault. Nonetheless for a number of situations strict
liability has been introduced by statute and occasionally even by the courts.238 But as
already noted above civil tort liability plays a limited role only due to the fact that
personal injuries are compensated mainly by the means of voluntary or mandatory third
party insurance.
Bodily injury includes both physical and immaterial harm. Even compensation for
emotional distress of close relative of a person who has been killed is recoverable.
Liability in tort for personal injury through the services here under review requires fault.
The general standard of care must be adapted to the specific service but in principle the
required standard can be taken from the Consumer Services Act, which provides that the
service provider has to act with reasonable professional care.239
cc) Causation
For causation it can be referred to above 2. a) cc).
Also with regard to damages and compensation tort liability does not pose specific
problems. Since the Damages Act is in essence applied both to tort and contract,
compensation of pecuniary and non-pecuniary damage in case of bodily injury is treated
alike for both branches of law. Therefore again reference can be made to what has
already been remarked thereto in contract.240
237
B. W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.),
238
Compare B. W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.),
Compensation for Personal Injury in a Comparative Perspective, 313 s.
239
§ 4, Consumer Services Act.
240
See above 2. b).
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For contributory negligence see also already above under 2. d.
d) Limitation
Unless differently regulated by particular statutes, in tort the general limitation period of
ten years applies and starts running when the claim accrues.
e) Burden of proof
As in contract the claimant bears the burden of proof for his or her action in tort. S/he
must prove the damage, the service provider’s negligence and causation.

The Swedish legal system is particularly known for its out of court procedures (for
instance the institution of an ombudsman) to deal with legal disputes. In the field of
services consumers can always approach the “Allmänna Reklamationsnämnden” (Public
Complaints Board) with their complaints. The Board deals with disputes between
consumers and entrepreneurs concerning goods and services and gives a
recommendation which if not complied with can be transformed into a court judgement
by a special simplified court procedure.241
241
See thereto U. Bernitz, Market and Consumer Law, in: S. Strömholm (ed.), An Introduction to
Swedish Law, 293.
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Sources of Law United Kingdom
VI. United Kingdom

Literature: J. Chitty, on Contracts, 28th ed. 1999; J. Cooke/D. Oughton, The Common Law of
Obligations, 3rd ed. 2000; R. M. Jackson/J. L. Powell, on Professional Negligence, 4th ed. 1997; W. V. H.
Rogers, Damages under English Law, in: U. Magnus (ed.), Unification of Tort Law: Damages; P.
Winfield/J. A. Jolowicz, Winfield & Jolowicz on Tort,
1. Sources of law
English Common Law is mainly based on precedents though statutes play an increasing
role, too. But in the fields242 here under review statutes are of limited importance though
for instance the Supply of Goods and Services Act 1982 contains a general provision
which applies to most contracts for services and requires the service provider to exercise
reasonable care and skill when providing the service.243
Under a contract for services the provider of the service is liable for personal injury
done to the other party if either the provider had expressly promised that that injury
would not occur or if the provider had neglected a duty of care, if further the provider
had caused the other party’s injury and if the other party had suffered damage.
The central element of the contractual liability is the duty to act with reasonable care
and skill which a professional service provider owes to the customer when supplying
the service in the course of his/er business.244 This duty is rarely explicitly expressed in
contracts but is now imposed by statute for most kinds of services245 and corresponds
entirely with the same duty in tort.
The required standard of care is adjudicated according to “the standard of the ordinary
skilled man exercising and professing to have that skill. A man need not possess the
242
J. Cooke/D. Oughton, 570 s.
243
Sec. 13 Supply of Goods and Services Act 1982.
244
See already Shiells & Thorne v. Blackburne [1789] 1 Hy. Bl. 159 (in a medical case).
245
See sec. 13 Supply of Goods and Services Act 1982.
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highest expert skill; it is well established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that particular art.”246
The duty of reasonable skill and care is an objective one in the sense that the service
provider owes that kind of diligence that is required in the specific circumstances. To
take an example from the medical field: it is for instance no excuse that a doctor who
has mistreated and thereby injured the patient is a young and inexperienced physician
who personally does not possess the normally required skill.247
Liability in contracts for services requires generally that the service provider has
violated the duty to act with reasonable care and skill and has neglected the ordinary
standard of professional diligence. Therefore, fault in the usual objective sense is
necessary to incur liability. A contract for services does, however, regularly not impose
a strict contractual duty to achieve a certain result.248 Nevertheless the service provider
can undertake to achieve a certain result but such a guaranty needs very clear words to
this effect and is normally not inferred from the contract.249
The general rule is that the negligence of the service provider is not presumed and that
the injured customer as plaintiff must prove that the provider has neglected the
reasonable care.250 But the so-called maxim res ipsa loquitur may relieve the customer
from the full burden of proof. This maxim does not effect a formal reversal of burden of
proof but it establishes a prima facie case of negligence which requires the service
provider then to explain the reasons of the damaging event. The maxim has been
expressed in the following way: “There must be reasonable evidence of negligence. But
where the thing is shown to be under the management of the defendant or his servants,
and the accident is such as in the ordinary course of things does not happen if those who
have the management use proper care, it affords reasonable evidence, in the absence of
explanation by the defendants, that the accident arose from want of care.”251
cc) Causation
The general rules on causation apply without restriction to liability under contracts for
services. The breach of the duty to exercise reasonable care and skill must therefore
246
Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 (per McNair J.) (again a
medical case formulating the so-called Bolam-principle).
247
Wilsher v. Essex Area Health Authority [1987] Q.B. 730.
248
J. Cooke/D. Oughton, 571.
249
250
251
Scott v. London & St. Katherine Docks [1865] 3 H. & C. 596 (601 per Erle C. J.).
106
have caused the customer’s injury. If the damage is not too remote the customer then is
entitled to full compensation. However, in contract – in contrast to tort – the mere
breach of contract entitles the customer to nominal (symbolic) damages even where the
breach has either caused no damage or was not the cause of the damage that in fact
ensued.252
i) Normal standard of causation
The normal standard of causation requires a two-step operation.253 First, causation in

fact must be established. Secondly, it must be established that the damage was
sufficiently for seeable and not too remote (causation in law). If the causation is
uncertain the claimant will succeed when on the probabilities of the case causation is
more likely than not. However, prevailing probability (more than 50 %) suffices to
establish causation.
Causation in fact relies very much on the “but for” test.254 The claimant’s damage must
have happened but for the service provider’s negligent breach of duty.255 The negligence
must have been the condicio sine qua non of the damage. If the damage would have
occurred in any event causation is to be denied how negligent ever the service provider
was.256
Even if the chain of causation is established the damage may be too remote because it
could not have been reasonably foreseen as a consequence of the service provider’s
negligent act.257
ii) Omissions
In case of omitted measures of professional care no different rules of causation apply.258

The “but for” test is satisfied where the customer’s injury would have been avoided had
the omitted measures been taken in time.
iii) Presumptions and burden of proof
252
See thereon R. M. Jackson/J. L. Powell, no. 6-172.
253
See P. Winfield/J. A. Jolowicz, 195 ss.
254
P. Winfield/J. A. Jolowicz, 197.
255
See thereon R. M. Jackson/J. L. Powell, no. 6-171 ss; Jones, no. 5-004 ss.
256
See, e.g., Barnett v. Chelsea and Kensington Hospital Management Committee [1968] 1 All E.R.
1068.
257
See to the remoteness problem in contract: Hadley v. Baxendale [1854] 9 Exch.341; Victoria Laundry
(Windsor) Ltd. v. Newman Industries Ltd. [1949] 2 K.B. 528; Koufos v. C. Czarnikow Ltd. (The Heron
II) [1969] 1 A.C. 350; J. Chitty, no. 27-039 ss.
258
See Barnett v. Chelsea and Kensington Hospital Management Committee [1968] 1 All E.R. 1068 (a
case of failure to treat a patient; see supra).
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There is no presumption of causation. As a matter of principle it is for the injured

customer to prove that the service provider’s negligence has caused the customer’s
damage.259 But the maxim res ipsa loquitur may also assist the customer with respect to
causation.
If the service provider’s breach of duty has caused the customer’s damage the customer
is entitled to full compensation. But even if the breach caused no damage or if damage
has not been proved the mere fact of the breach of the contract – unlike in tort – gives
rise to nominal damages which consist of a symbolic sum.260
The compensable damage to health comprises any bodily or psychic injury even if
aggravated by the patient’s particular vulnerability due to an unusual predisposition (so-
called “eggshell skull” rule).261
Pecuniary loss resulting from the injury covers costs like medical expenses or losses
like lost earnings.262 The normal way of compensation of these losses is by way of a
lump sum; payment by way of rent is only possible if either party agrees or where a
settlement to this effect has been made.263
English Common Law knows in contract as well as in tort also of the possibility to grant
damages which serve other than mere compensatory purposes.264 Aggravated damages
are those which are higher than would be required for full compensation; the purpose of
aggravated damages is to reflect a specific aggravated injury done to the victim.
Furthermore, exemplary damages have as their primary objective the purpose to teach
the tortfeasor that tort does not pay.265 They are of a punitive nature but granted only in a
very limited number of situations, are in fact not available in medical malpractice
cases.266
259
See thereon R. M. Jackson/J. L. Powell, no. 6-180 ss.
260
See e.g., The Mediana [1900] A.C. 113; Surrey County Council v. Bredero Homes Ltd. [1993] 1
W.L.R. 1361.
261
See thereto Jones, no. 5-077 ss.
262
See thereto J. Chitty, no. 27-012.
263
See W. V. H. Rogers, Damages under English Law, in: U. Magnus (ed.), Unification of Tort Law:
Damages, 58.
264
Compare J. Chitty, no. 27-017 ss.
265
The leading case is Rookes v. Barnard [1964] A.C. 1129.
266
See Jones, no. 9-005.
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Even in contract compensation for pain and suffering as caused by personal injury can
be recovered.267 Compensation is achieved by a fair and reasonable money award. The
assessment of this head of damages is not different from tort law. Gravity and
endurance of the injury and its consequences are the main factors that influence the
amount of damages but also all other relevant circumstances have to be taken into
account which have a bearing on the injured person’s inconvenience and discomfort
caused by the injury.268
English contract law relied for long on a rather strict doctrine of privity of contract
conferring contractual rights only upon the immediate parties to the contract.269 Few
exceptions were recognised.270 But in 1999 the legislator enacted the Contracts (Rights
of Third Parties) Act 1999 which considerably extends the protective scope of contracts
with regard to third parties.271 Third persons are entitled to rely on the contract either if
the contract expressly so provides or if contract terms purport to confer a benefit on
them.272 Whether or not this is the case depends on the proper construction of the
contract and whether the parties appeared to have intended to confer such benefit on the
third party.273
The Act provides further that the “third party must be expressly identified in the
contract by name, as a member of a class or as answering a particular description”.274
Without such identification the Act will be of no assistance to the third party.275
At Common Law an employer is liable for torts which his/er employees have committed
in the course of their employment.276 This liability is said to be strict in that no fault on
the part of the employer is necessary but the employee’s fault is imputed to the
employer.277 Neither is it necessary that a contract between employer and injured
claimant exists. But the employee must have acted within the scope of his/er
267
See e.g., Wren v. Holt [1903] 1 K.B. 610; Grant v. Australian Knitting Mills Ltd. [1936] A.C. 85; J.
Chitty, no. 27-068.
268
Compare J. Chitty, no. 27-068 ss.
269
J. Chitty, no. 19-003.
270
See thereto J. Chitty, no. 19-019 ss; J. Cooke/D. Oughton, 112 s.
271
The Act is discussed by J. Cooke/D. Oughton, 113 ss.
272
Sec. 1 (1) Contracts (Rights of Third Parties) Act 1999.
273
274
275
See J. Cooke/D. Oughton, 116.
276
277
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employment and not “at a frolic of his own”.278 The tortious act must have been either
authorised or been an unauthorised mode of doing an act authorised by the employer.279
In general the employer is however not liable for torts of independent contractors whom
s/he has engaged to fulfill the own obligations. But a number of exceptions applies also
here, in particular when the employer was not allowed to delegate his/er duties.280
The Law Reform (Contributory Negligence) Act 1945 allows a reduction of the amount
of damages where a claimant “suffers damage as the result partly of his own fault and
partly of the fault of any other person”.281 It is however doubtful whether and to which
extent the Act applies to claims in contract.282 Nevertheless, where a customer’s own
negligence has contributed to his or her injury or has aggravated the damage the service
provider has caused the latter can regularly raise the defence of contributory negligence
and the amount of damages may then be reduced or even excluded where the customer’s
conduct is the sole cause of the damage.283 This is at least true where the contractual
obligation is the same as the duty of care in tort.284 But in contract contributory
negligence is no defence where a strict contractual duty – where for instance the
provider has guaranteed a certain result of the services – has been breached.285
f) Limitation
The general limitation period for claims in contract as well as in tort (six years286) does
not apply to cases involving personal injury caused by negligence. In such cases, the
limitation period is three years for claims both in contract and tort.287 The period starts
running from the date when the cause of action accrued which in personal injury cases
is normally the date on which the injury occurred or, if later, when the claimant
acquired knowledge of certain facts reelevant for the claim.288 “Knowledge” means that
278
Joel v. Morrison [1834] 6 C. & P. 501, 503 (per Parke B.).
279
Sir J. Salmond/R. F. V. Heuston, 521.
280
See e.g., McDermid v. Nash Dredging and Reclamation Co Ltd. [1987] A.C. 906; J. Cooke/D.
Oughton, 612 with further references.
281
Sec. 1 (1) of that Act.
282
See Forsikrings Vesta v. Butcher [1989] A.C. 852; further J. Chitty, no. 27-037.
283
284
See Forsikrings Vesta v. Butcher [1989] A.C. 852.
285
286
Sec. 5 Limitation Act 1980.
287
Sec. 11 (1), (3), (4) Limitation Act 1980; see thereto Jones, no. 10-004 ss.
288
See sec. 11, 14 Limitation Act 1980.
110
the patient knows the actor and the cause of action “with sufficient confidence to justify
embarking” on legal proceedings.289
But even after the period of limitation has lapsed the court has still a discretion to allow
the claim according to sec. 33 Limitation Act 1980.
g) Burden of proof
The general rule is that the claimant has to prove the own damage, the service
provider’s negligence and a causal link between both. As mentioned above the maxim
of res ipsa loquitur may, however, assist the claimant.
In the field of the supply of services the professional duties of service providers are
more or less the same in tort as in contract. Somebody who offers publicly professional
services is obliged to render them with the required care and skill irrespective whether
or not a contractual bond exists with the person who has been bodily injured by the
provider’s activity. This resembles to some extent the liability of so-called common
callings (in particular inn-keepers, carriers etc.) in the middle-ages.290 The difference
between liability in tort and in contract is therefore almost inexistent as far as the
provision of professional services and the causation of bodily harm through them is
concerned. The following can thus largely refer to what has been stated for contractual
liability for such services.
Tortious liability for services requires a damage on the part of the customer, a negligent
breach of a duty owed to the customer on the part of the provider and a causal link
between both the damage and the breach of duty.
The Common Law has not adopted an approach like German Law to protect certain
specific, abstractly formulated interests or rights. It has instead developed different torts
which however finally result in a similar protection of rights or positions of others. In
the field of services the tort “negligence” is the most important tort. The protection
rendered by this tort is mainly achieved by the element of the duty of care which this
289
See Halford v. Brookes [1991] 3 All E.R. 559 (573 s per Lord Donaldson M.R.).
290
Compare thereto R. M. Jackson/J. L. Powell.
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tort presupposes as one of its requirements.291 In particular is it the question to whom

this duty is owed292 or in other words who is protected in his/er personal integrity,
property and economic situation.
Professional service providers owe generally and even in tort a duty to exercise
reasonable care and skill when rendering their services.293 This is a fault based liability
and everything what has been said in this respect on contractual liability294 applies also
here with the only exception that in contract the service provider may undertake a
guarantee for a certain result. Such guarantee operates only towards the contractual
partner or persons on whom the contractual protection is conferred.
cc) Causation
The rules on causation do not differ insofar as liability in contract and in tort is
concerned. Again, reference can be made to the above stated considerations concerning
contract.
In general the heads of damage and the assessment of damages do not differ again in
contract and tort. However, in case of death a special statute, the Fatal Accidents Act
1976 gives the dependants of the deceased a right of their own to claim compensation
for their lost maintenance from the person liable for the death of the breadwinner.295
Also for the compensation of non-pecuniary loss in general the same principles apply in
tort and contract. But an exception follows also here from the Fatal Accidents Act 1976:
Under that act the spouse and parents of an unmarried minor child are entitled to a fixed
sum (so-called bereavement) from the tortfeasor if the spouse or child is killed.296
291
See in the same sense W. van Gerven et al., 16 s.
292
See the leading case Donoghue v. Stevenson [1932] A.C. 562.
293
See R. M. Jackson/J. L. Powell.
294
See supra 2. a aa and bb.
295
Compare thereto P. Winfield/J. A. Jolowicz, 805 ss.
296
For details see P. Winfield/J. A. Jolowicz, 809.
112
c) Vicarious liability
The rules stated above for vicarious liability in contract apply as well in tort.297
The Law Reform (Contributory Negligence) Act 1945 applies undoubtedly to tort
claims and permits a reduction of the claimant’s damages if his/er contributory
negligence has has partly caused the damage. In assessing the extent of reduction the
same considerations as in contract apply.298
e) Limitation
The limitation period with respect to claims for compensation for bodily injury is the
same in contract as in tort.299
f) Burden of proof
As far as the burden of proof is concerned, again, there is no difference between

contract and tort in the surveyed field of professional services.
297
See supra 2. d.
298
See supra 2. e.
299
See supra 2. f.
113
Sources of Law United States
VII. United States

Literature: J.D Calamari/J.M. Perillo, The Law of Contracts, 4th ed. 1998; D.S. Clark/T. Ansay (eds.),
Introduction to the Law of the United States, 2nd ed. 2002; D.B. Dobbs, The Law of Remedies, 2nd ed.
1993; E.E. Farnsworth on Contracts, 3 vol., 2nd ed. 1998; V.R. Johnson/A. Gunn, Studies in American
Tort Law, 2nd ed. 1999; A.H. Kastely/D. W. Post/ S. K. Hom, Contracting Law, 1996; A.B. Morrison (ed.),
Fundamentals of American Law, 1996; S.E. Pergalis/H.F. Wachsman, American Law of Medical
Malpractice, 3 vol., 2nd ed. 1992 (Suppl. 2003); W.L. Prosser/W.P. Keeton on Torts, 5th ed. 1984; G.T.
Schwartz, Causation under US Law, in: J. Spier (ed.), Unification of Tort Law: Causation, 2000, 123;
G.T. Schwartz, Contributory Negligence under United States Law, in: U. Magnus/M. Martin-Casals
(eds.), Unification of Tort Law: Contributory Negligence, 2004, 223; G.T. Schwartz, Liability for
Damage Caused by Others under US Law, in: J. Spier (ed.), Unification of Tort Law: Liability for
Damage caused by Others, 2003, 279; G.T. Schwartz, Damages under US Law, in: U. Magnus (ed.),
Unification of Tort Law: Damages, 2001, 175; S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law
of Torts, 4 vol. 2003; S. Williston on Contracts, 29 vol., 4th ed. by R.A. Lord, 2002.
1. Sources of law
In the field under review – civil liability for health services, tourism services, leisure
and public utilities services – no codified general and uniform US law exits. Instead, the
fifty single states and the district of Columbia have their own laws in this respect. But as
Common Law jurisdictions all single states of the United States – with the exception of
Louisiana – base their contract and tort law mainly on precedents, which in turn follow
rather closely the common traditions of the English Common Law. This does by no
means mean that federal statutes and state legislation do not exist or are unimportant but
on the whole they matter only to a limited extent as far as contract law and tort law in
general are concerned. The differences between the single states with respect to
questions of civil liability are therefore not very far-reaching300 so that publications can
be found reporting the American law of contract or of tort (or – more often – of torts).301
Moreover, the American Law Institute, a US-wide institution, drafts continuously, and
publishes, Restatements both on Contract and on Tort (and other fields of law), which
try to state and codify the overall situation in the respective branch of law. All these and
further factors (in particular a common language, more or less identical education of
lawyers, a rather uniform system of administration of justice) lead to a wide uniformity
in this field of law. This is the reason why the differences between the different US
300
See, e.g., J.Zekoll/J.G. Fleming, Torts, in: D.S. Clark/T. Ansay, Introduction to the Law of the United
States, 190.
301
See for example S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, who write in
their preface (vol. 1, p. vii): “More than 20 years has been devoted to what the authors hope will be a
definitive work, worthy of the title >The American Law of Torts<” or V.R. Johnson/A. Gunn, Studies
in American Tort Law or S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice.
115
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jurisdictions can more or less be ignored here and will be only addressed where
particularly relevant. On the other hand one should be aware that the real picture of the
governing law is only shown where the specific law of a specific single state is precisely
identified.
Contrary to Civil Law countries the US states regularly do not treat contract law and tort
law as one single and comprehensive branch of law called law of obligations. Like in
English Common Law the US states regard the law of contract and the law of torts as
rather separate subjects which do not have much in common.
Some pecularities of the US law on civil liability stem from the fact that awards of
damages are generally made by juries which consist of laypersons and from the fact that
such awards have to include the attorneys’ fees. Any comparison has to take account of
these facts.
Though there exists a Uniform Commercial Code (UCC) on the federal level dealing
with certain aspects of contract, albeit in particular with sales transactions, this ‘code’
has no binding force but is merely a model act open for adoption by the legislation of
the single states. Nonetheless all single states (including Louisiana with its French legal
tradition) have adopted the UCC, often with certain modifications. The concepts of the
UCC and respective state legislation on contract matters are, however, those of the
Common Law. According to the Common Law the general conditions under which a
provider of services becomes liable under a contract for services for any personal injury
done to the other party are that a binding contract existed, that the provider had
neglected a promised or implied contractual duty of care and that this neglect had
caused the other parties injury. But it must also be stated that personal injury cases in
the fields here of interest are regularly based on tort law even though an underlying
contract existed. Thus it has been observed (with respect to medical malpractice cases
but with a view to other professions, too):
“Because malpractice is essentially a tort action arising from an implied contractual
relationship (although there are certainly examples of express contracts between
physicians and patients, but these are so infrequent that we pass on a discussion of this
category of cases), we speak of the basic duty of a physician to use reasonable care and
diligence in the treatment of a patient, a traditional common law tort duty which may be
reinforced by statutory or contractual obligations as well.”302
302
I.J. Sloan, Professional Malpractice, 1992, 7. In the same sense S.E. Pergalis/H.F. Wachsman,
American Law of Medical Malpractice, vol. 1, § 2:5: “(T)he law implies into the physician-patient
116
It corresponds to this view that the leading textbooks on contract law, in particular the
multi-volume work of Williston, do hardly mention the case that in the wake of a
contract personal damage has been caused.303
Without the violation of a contractual duty no liability in contract would arise. First
there must therefore exist a specific contractual duty. There can be specific agreements,
which expressly oblige the service provider to achieve a certain result (e.g. a successful
surgery operation etc.). But in general, the contractual duty concerned here, namely not
to infringe the life, body or health of the other party is, however, only rarely expressly
agreed upon. On the other hand, as the above quoted citation304 indicates there is a
general Common Law duty also inherent in contracts for those services here under
review which obliges the provider of the service to use reasonable care and diligence.305
This duty is normally none which obliges the sevice provider to achieve a certain result
(obligation de résultat) but one which obliges to use the best efforts or at least those
efforts which can be regularly expected of a reasonable service provider (obligation de
moyen).306 But even for other contracts for services the courts seem to accept more often
than not a mere duty to use best efforts. As the Supreme Court of Minnesota expressed
it in 1978:
”Architects, doctors, engineers, attorneys, and others deal in somewhat inexact sciences
and are continually called upon to exercise their skilled judgment in order to anticipate
and provide for random factors which are incapable of precise measuremnet. The
indeterminable nature of these factors makes it impossible for professional service people
to gauge them with complete accuracy in every instance… Because of the inescapable
possibility of error which inheres in these services, the law has traditionally required, not
perfect results, but rather the exercise of that skill and judgment which can reasonably be
expected from similarly situated professionals.”307
Secondly, after a duty of the service provider has been established this duty must have
been violated (as to the required standard of care see below).
relationship a quasi-contractual obligation on the physician to use reasonable care and diligence in the
exercise of hie skill and application of his learning an to use his best judgment.”
303
See S. Williston, vol. 24, §§ 64 ss. (a short mention is made in connection with compensation for
mental suffering, see § 64:7). Compare also J.D. Calamari/J.M. Perillo, § 14, who do not specifically
address personal injury caused in connection with a contract.
304
See also fn. 3.
305
See for the particular sectors of this study: W.T. Champion, Fundamentals of Sports Law, 1990,
§§ 1.2, 1.3 (leisure sector); S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice,
vol. 1, § 2:5 (medical sector); J.R.Goodwin/J.M. Rovelstad, Travel and Lodging Law. Principles,
Statutes, and Cases, 1980, 335 s. (sector of tourism).
306
See E.A. Farnsworth on Contracts, vol. II, § 9.1a, citing and relying on, the French expressions.
307
City of Mounds View v. Walijarvi, 263 N.W. 2d 420, 424 (Minn. 1978). Further decisions to the same
effect are quoted by E.A. Farnsworth on Contracts, vol. II, § 9.1a fn. 5 ss.
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In general, contract liability is strict under US contract law.308 But as indicated above the
professional provider of those services which are of interest here has regularly not to
guarantee a certain result but to exercise the care and diligence which “can reasonably
be expected from similarly situated professionals.”309 This is not strict liability but fault
liability. However, like in English Common Law an objective fault concept is applied.
The provider must have behaved in a way that would be regarded as reasonable under
the circumstances. It is expected that the service provider disposes of the capacities
necessary for the service and applies them. Whether the provider has reached the
required level depends very much on the facts of the case.
cc) Causation
Under US contract law – as in English law – a contract party is only liable for such
consequences of a breach of the contract, which were caused by the breach.310 The
general rules on causation apply. As in other Common Law jurisdictions the English
case of Hadley v. Baxendale311 is still regarded as the best expression of which
contractual damage is recoverable.312 It is necessary that the loss would not have
occurred without the breach of contract and that a loss of that kind – though not
necessarily of that extent – was either forseeable, or had been within the contemplation
of the parties, at the time of conclusion of the contract.313 Any damage which is not
‘proximate’ or is too remote is irrcoverable because the necessary causal link is lacking.
The general aim of the remedy of contractual damages is to “place the aggrieved party
in the same economic position the aggrieved party would have attained if the contract
had been performed.”314 The main goal of damages is therefore that of compensation.
And though US law is most famous for tremendous sums of punitive damages which
can be awarded under the law of many single US states such damages are normally not
308
E.A. Farnsworth on Contracts, vol. II, § 9.1, p. 560.
309
See City of Mounds View v. Walijarvi, 263 N.W. 2d 420, 424 (Minn. 1978) quoted above in the text.
310
See S. Williston on Contracts, vol. 24, § 64:1.
311
[1854] 9 Ex. 341.
312
See S. Williston on Contracts, vol. 24, § 64:14.
313
Hadley v. Baxendale [1854] 9 Ex. 341; S. Williston on Contracts, § 64, 13 s. with extensive references
to US decisions.
314
J.D. Calamari/J.M. Perillo, § 14.4.
118
granted in contract cases, no matter how malicious the breach of the contract was.315
Nontheless there exist exceptions, which are specifically relevant in some of the areas
here under review.316 But since personal injuries caused through a breach of contract are
regularly treated on the basis of tort law317 it normally remains possible that punitive
damages are granted if the further requirements for such damages are met unless the
respective single state has enacted legislation limiting or excluding punitive damages.318
US law recognizes also the possibility of nominal damages in contract cases where the
breach has caused no revoverable loss.319 Then only a symbolic sum – regularly 6 cents
or 1 $ – is awarded to express that the rights of the plaintiff have been infringed.
As already mentioned to be recoverable any loss must be the forseeable consequence of
the breach of contract. Moreover, the loss must be “certain”, meaning that the alleged
loss must have ensued with reasonable certainty.320 This needs a rather high degree of
sufficient evidence.321
The recoverable loss includes the pecuniary damage caused by a breach of contract.
Normally in contract cases it is the market value of the injured position, which the party
in breach has to compensate.322 In personal injury cases pecuniary loss includes medical
expenses (cost of healing or rehabilitation) and lost income.
Generally the US courts deny compensation for mental suffering in contract situations
unless the other contract party suffered bodily injury.323 But even without having
suffered own bodily harm some exceptions to the rule have been recognised where
victims of a breach of contract have been granted compensation for their mental
315
Compare as examples J.J. White, Inc. v. Metropolitan Merchendise Mart, 48 Del. 526, 197 A. 2d 892
(1954); Grace Petroleum Corp. v. Williamson, 906 S.W. 2d 66 (Tex. App. 1995). Also J.D.
Calamari/J.M. Perillo, § 14.3.
316
See in particular: Tourism Services.
317
See above under 2.a).
318
See thereto G.T. Schwartz, Damages under US Law, in: U. Magnus (ed.), Unification of Tort Law:
Damages, 175 ss.
319
J.D. Calamari/J.M. Perillo, § 14.2; S. Williston on Contracts, § 64:6; § 346 Restatement (Second) of
Contracts.
320
See thereon J.D. Calamari/J.M. Perillo, § 14.8.
321
J.D. Calamari/J.M. Perillo, ibid.
322
See the extensive discussion by J.D. Calamari/J.M. Perillo, § 14.12 ss.
323
J.D. Calamari/J.M. Perillo, § 14.5(b); S. Williston on Contracts, § 64:7; § 353 Restatement (Second)
of Contracts: “Recovery for emotional disturbance will be excluded unless the breach also caused
bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a
particularly likely result.”
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anguish.324 Particularly relevant are those exceptions, which encounter in medical

malpractice cases; they will be dealt with in the respective chapter of this study. In
general, the exceptions presuppose that mental suffering was the “particularly likely
result”325 of a breach of contract depending either on the kind of the contract or on the
specific kind of the breach.326
The US courts never applied the doctrine of privity of contract with the same strictness
as English courts did. US writers have therefore remarked from their point of view:
“Contract beneficiaries have fared better on this side of the Atlantic.”327 Today a number
of single US states have enacted statutes, which regulate the extent to third parties
benefit from contracts between other persons. In general, as the Restatement (Second)
of Contracts puts it, the protection of the contract covers also all intended benficiaries.328
Modern practice is more generous to render the contractual protection to third parties.329
The ‘intended beneficiary’-test allows also to apply policy considerations how far the
protection rendered by a specific contract should be extended. But for instance a case is
still regarded as good law330 where a claim failed where the claimant’s house burnt
down because the water at the fire hydrants lacked the necessary pressure, which the
defendant had agreed to deliver to the responsible authority of the town where the
claimant’s house was located.331
It is a general rule of contract law that “a party who has been wronged by a beach of
contract may not sit idly by and allow damages to accumulate.”332 The aggrieved party
has a “duty“ to mitigate the damage as far as reasonable.333 If the agrieved party does not
324
See J.D. Calamari/J.M. Perillo, § 14.5(b); S. Williston on Contracts, § 64:7 with extensive references.
325
See § 353 Restatement (Second) of Contracts (cited above fn.19).
326
Compare E.A. Farnsworth on Contracts, vol. III, § 12.17; J.D. Calamari/J.M. Perillo, § 14.5(b); S.
Williston on Contracts, § 64:7, each with extensive references.
327
E.A. Farnsworth on Contracts, vol. III, § 10.2, p. 8.
328
Restatement (Second) of Contracts, Introductory Note to Ch. 14 and Reporter’s Note to § 302.
329
See J.D. Calamari/J.M. Perillo, § 17.3 and the references there.
330
See J.D. Calamari/J.M. Perillo, § 17.3, p. 647 s.
331
H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928).
332
J.D. Calamari/J.M. Perillo, § 14.15, 562.
333
See thereon E.A. Farnsworth on Contracts, vol. III, § 12.12 (pointing also to the fact that this is no
duty which the other party is allowed to enforce in any respect).
120
take reasonable mitigation measures he or she is excluded from claim damages insofar
as the omitted measures would have prevented the damage.334
e) Vicarious liability
Here the rule ‘respondeat superior’ applies. This maxime imputes torts, which
employees commit in the scope of their employment to the employer.
f) Limitation
Limitation is regulated by legislation of the single states. The general period of

limitation seems to be six years. It starts running from the accrual of the claim.
g) Burden of proof
Regularly, the claimant has to prove all elements which found his or her claim. In
particular, causation and damage must be proved.

As already mentioned bodily injury cases resulting from contracts for services are
mainly treated as tort cases. “Despite the existence of a contract that by its terms
imposes a duty to exercise care, if a plaintiff pleads negligence or facts that would
constitute negligence, the courts will consider the action to be in tort …”335
With the exception of Louisiana tort law is generally not codified but has developed in
an evolutionary process led by the courts.336 In particular in the field here under review –
tortious liability for personal injury which has been caused when contractual services
were rendered – no comprehensive strict liability statutes or other specific statutes seem
to exist which regulate this particular field as such – unlike in product liability.
Therefore, in general the Common Law principles on tort law apply. But it has to be
stressed as well that many US states have enacted several statutory provisions which are
relevant for certain aspects of tort cases here under review. For instance, some states
have introduced fixed limits for the maximum compensation, so-called ‘caps’, either for
334
E.A. Farnsworth on Contracts, vol. III, § 12.12; see also C.L. Knapp, Contract Law, in: A.B. Morrison
(ed.), Fundamentals of American Law, 232 s.
335
S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 1A, § 5:26, 234 s. (in
particular with respect to the applicable – tort or contract – law on limitation.
336
See S.A. Law, Torts, in: A.B. Morrison (ed.), Fundamentals of American Law, 239 ss. (239).
121
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damages for pain and suffering337 or for awards of punitive damages.338 Also have many
US states introduced specific time limits for actions in medical malpractice cases,339 etc.
Due to these different regulations diversity between the US states has been said to be far
greater in tort law than in contract law.340
Earlier and stricter than English law US tort law has reduced and partly abondaned the
great variety of different torts which had developed under the Common Law.341 But like
in England the tort “negligence” gained overwhelming importance. “Negligence thus
developed into the dominant cause of action for accidental injury in this nation
today.”342 According to the principles governing negligence tortious liability regularly
requires a damage on the part of the claimant, a negligent breach of a duty owed to the
claimant on the part of the responsible service provider and a sufficient causal link
between the damage and the breach of duty.343
Like in England and in contrast to some civil law countries the US tort law does not list
a number of specifically protected interests but has taken over the catalogue of different
torts, which were developed under the Common Law. These torts were further
developed and adapted to US conditions. For the present study it is of relevance that
life, body, health, privacy and emotional peace are protected interests whose invasion
may lead to damages.
Third parties also affected by the injury of the victim have in principle no right of
action. There exist only few exceptions, namely the spouse’s right to compensation for
loss of so-called consortium (see below under b) bb)). Another exception is the
entitlement of dependants when their breadwinner has been killed. All US state have
enacted specific legislation (wrongful death statutes) entitling surviving family
members to claim their lost maintenance from the tortfeasor.344
337
For instance, California has enacted a maximum amount of $ 250.000 for pain and suffering in
medical malpractice cases, compare G.T. Schwartz, Damages under US Law, 176 (G.T. Schwartz was
Reporter for the Restatement of Torts).
338
See G.T. Schwartz, Damages under US Law, 176.
339
See the survey by S.E. Pergalis/ H.F. Wachsman, vol. II, § 13:8.
340
S.A. Law, Torts, in: A.B. Morrison (ed.), Fundamentals of American Law, 239.
341
Compare W.L. Prosser/R.E. Keeton on the Law of Torts, § 6.
342
W.L. Prosser/R.E. Keeton on the Law of Torts, § 28, 161.
343
W.L. Prosser/R.E. Keeton on the Law of Torts, § 30.
344
See W.L. Prosser/R.E. Keeton on the Law of Torts, § 127.
122
Negligence, the tort relevant here, is based on fault and requires that the tortfeasor has
neglected a duty to take those measures of care which would be reasonable in the
circumstances.345 The standard is generally set by what a “reasonable person” in like
circumstances would or would not do.346
cc) Causation
As for contractual liability causation is also always a requirement of tortious liability

and it is more or less the same requirement as in contract law.347 Causation is given
when first the claimant’s damage would not have occurred but for the tortfeasor’s
conduct. This is sometimes referred to as the “actual cause”. Secondly, the tortfeasor’s
conduct must be the “proximate” or “legal cause”.348 By this expression it is meant that
the forseeability and directness of the damage as a consequence of the conduct must be
taken into account. Only if the damage was a sufficiently forseeable and direct or near
consequence liability can be imposed. Also policy considerations may influence the
causation test.349
In the US the concept of damage under tort law does not differ much from that under
contract law though it is said that damages in tort tend to be higher than those in
contract. The heads of recoverable damage in case of personal injuries and the method
of assessing the respective damages are mainly the same. However, as already
mentioned punitive damages are much more common in tort law than in contract law.
Today some US states disallow punitive damages at all or have introduced maximum
amounts (so-called caps). In a recent decision the US Supreme Court has generally
limited the amounts of punitive damages to about ten times the amount that is due for
compensation in the respective case.350 Punitive damages require always that the
tortfeasor has caused damage either intentionally or gross negligently so that his or her
conduct appears to be unacceptable.
345
S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 2A, § 9:4.
346
See the discussion by S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 2A,
§§ 9:4 and 9:5.
347
Necessarily, the contemplation rule has only its meaning in contract law.
348
See G.T. Schwartz, Causation under US Law, 123.
349
G.T. Schwartz, Causation under US Law, ibid.
350
See Romo v. Ford.
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The recoverable pecuniary damage in personal injury cases includes all reasonably
necessary medical expenses, but for instance also necessary house-keeping costs, travel
expenses to see a specialist or to undergo a plastic surgery in order to correct a
disfigurement resulting from the injury.351
Non-pecuniary damage is also recoverable. Damage of this kind comprises

compensation for pain and suffering as a consequence of physical harm. The assessment
is in the discretion of the jury and depends mainly on the gravity and endurance of the
injury.352 In some US jurisdictions a per diem compensation for pain and suffering is
allowed while the majority of the single states refuse such a method of assessment.353 A
number of single US states has placed ‘caps’ (maximum amounts) on the size of awards
for pain and suffering or at least on the amounts of punitive damages.354
A further ‘head’ of non-pecuniary damages is compensation for loss of consortium for
the spouse of the victim if marriage life is impaired by the victim’s injury. Then the
spouse, in some jurisdictions also the fiancé(e), is entitled to some compensation.355
Also in US tort cases the most common defence against liability is contributory
negligence.356 But while this defence was for long a complete bar most US states have
now adopted the concept of ‘comparative negligence’. This concept is applied in two
different forms: some states allow a proportionate reduction of the amount of damages
when the victim has contributed to the own damage by neglecting the ordinary care
required in his or her own interest. The extent of reduction or even exclusion of
damages then depends on the circumstances of the case.357 Other states allow a
proportionate reduction only if the victim’s contribution is less than that of the
351
S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 2, § 8: 24.
352
S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 2, § 8:18 ss.
353
The matter is extensively discussed by S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of
Torts, vol. 2, § 8:8.
354
See G.T. Schwartz, Damages under US Law, in: U. Magnus (ed.), Unification of Tort Law: Damages
176.
355
S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 2, § 8:22.
356
W.L. Prosser/R.E. Keeton on the Law of Torts, § 65.
357
Compare W.L. Prosser/R.E. Keeton on the Law of Torts, § 67; G.T. Schwartz, Contributory
Negligence under United States Law, in: U. Magnus/M. Martin-Casals (eds.), Unification of Tort
Law: Contributory Negligence, 223 ss.
124
tortfeasor. Where the victim’ contribution prevails (more than 50 %) this “modified”
comparative negligence concept still excludes any damages.358
In tort employers are – in a sense strictly – liable for those torts of their employees,
which were committed within the scope of employment; the maxime of “respondeat
superior” applies.359 It is no excuse that the employer used all own proper care to select
and control the employee.
On the other hand, a person employing an independent contractor is in principle not
liable for torts of the contractor within the scope of employment towards third parties.360
But so many exceptions to that rule are recognised361 that the “rule is to be applied only
where no good reason is found for departing from it, or for not applying it.”362 Thus in
many cases, in particular in medical malpractice cases the torts of independent
contractors are imputed to their employers.
e) Limitation
The period of limitation for tort claims is generally regulated by state legislation and
varies from state to state. The most common periods are two, three and six years.363 The
period usually starts running when the cause of action “accrued”. This is the case when
all elements of the alleged tort have been realised.364 As expressed by court decisions:
“(T)he crucial date is the day the damage is done not the day upon which the alleged
negligent conduct occurred.”365
f) Burden of proof
The claimant has in principle to prove all facts, which are necessary to found his or her
claim. Thus, the claimant must prove the own damage, the tortfeasor’s negligence and
358
See further G.T. Schwartz, Contributory Negligence under United States Law, in: U. Magnus/M.
Martin-Casals (eds.), Unification of Tort Law: Contributory Negligence, 223.
359
S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 1, § 4:3 with reference to
numerous decisions. See also G.T. Schwartz, Liability for Damage Caused by Others under US Law,
281 s.
360
Restatement (Second) of Torts, Chap. 15; also S.M. Speiser/Ch.F. Krause/A.W. Gans, The American
Law of Torts, vol. 1A, § 4:23.
361
The Restatement ibid. lists them in 24 sections.
362
S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 1A, § 4:24, 18.
363
See the survey given by S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 1A,
§ 5:26.
364
Compare S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 1A, § 5:27.
365
See Mitchell v. Dairyland Ins. Co., 405 So. 2d 1233 (La. Ct. App. 1st Cir. 1981).
125
Ulrich Magnus
the causal link between both.366 However, rather often the doctrine of ‘res ipsa loquitur’
applies and eases the claimant’s task to prove all facts. For instance, negligence is
established (unless otherwise explained by the tortfeasor) when the damaging event has
been such “that in the light of ordinary experience it gives rise to an inference that
someone must have been negligent.”367

In specific sectors there exist institutions particularly designed to treat personal injury
cases. This is especially true for medical malpractice cases where a number of states has
introduced a mandatory pretrial procedure with the aim to encourage settlements of
these cases. There, before any court action an expert panel must review the case; but the
panel does not deliver a judgment.
366
See W.L. Prosser/R.E. Keeton on the Law of Torts, § 37.
367
W.L. Prosser/R.E. Keeton on the Law of Torts, § 39, 244.
126
Leisure service France
C. The Specific Part
I. Scope of this part

The specific part deals with the four major issues of the study: leisure, medical
malpractice, tourism and public utilities. Contract and tort law, as well case law are
analyzed in the seven countries under review.
II. Liability for leisure services
1. Description
Leisure activities are many and various, and so are the accidents and injuries resulting
from unsafe leisure services. Leisure services (1) cover a broad range of sports and
other leisure activities, they (2) involve team-mates and participants as well as
bystanders and spectators, they (3) concern vulnerable and less vulnerable groups: the
well-trained sportsman as well as children and elderly or handicapped people, they (4)
address the contractual party to the service contract – if there is any – and/or the bearer
of a duty of care under tort law, and, last but not least, they (5) require differing
standards of safety (voluntary and binding).
• Types of activities
skiing, skating and (free-) climbing,
swimming and playing on private and or public ground,
visiting amusement parks,
horse riding.
• Degrees of participation
direct participation (opponents, team-mates or any other participants in swimming,
skiing, playing or racing),
bystanders (children, photographers of sports events, walkers or strollers),
spectators of mass events (races and rock concerts).
• Addresses of higher levels of protection
children in varying circumstances (playgrounds, artificial ponds and pools),
elderly or handicapped people.
• Addressees of liability
127
Hans-W. Micklitz
parties to the contract, maybe under particular professional standards (ski or

mountain guides, showmen, architects, building owners),
bearer of the tortious liability to care (organiser and promoter of sport and leisure
activities as well as the operator/conductor of sports and leisure grounds).
• Standards of liability
binding and non-binding standards (mandatory safety requirements, non-binding
technical standards and regulations for the prevention of accidents.
2. French law
Literature: Encyclopédie Dalloz – Répertoire de Droit Civil, 2nd edition, Tome VII, Relais Printemps
1996; C. Miège, Les institutions sportives, PUF, Coll. “Que sais je?” No. 2729, 1993, 28; P. Mistretta,
L’extension de la responsabilité civile sportive. In: La Semaine Juridique, 1998, Volume 73, No. 11, 427;
W. Rabinovitch, La responsabilité de l’organisateur, Les problèmes juridiques du sport, préc. note (27),
289; Ph. le Tourneau, Droit de Responsabilité et des Contrats, No. 5705.
With approximately 175.000 sports clubs and more than thirteen million active
members, France is considered a sports nation.368 As sportive activities generate certain
risks, accidents occur frequently and damage claims arise. Since the past few years
French courts have been facing an increased number of liability cases arising from the
field of sports or leisure services. Those may concern criminal liability if the sportsman
or the organizer of the sporting events/activities voluntarily or involuntarily injures the
bodily integrity respectively the life of a third party. Yet, criminal liability does not
constitute the actual legal basis of liability claims in regards to sports and leisure
services. Legal actions in cases of liability in the scope of sports or leisure services have
shown that courts apply the rules of contractual and tortious liability. The identification
of those being held liable is rather difficult as courts do not restrict liability to the active
sportsman or organizer of sporting events only.
a) Contractual liability
If the injured party and the injuror have engaged in a contractual relationship prior to
the damage then claims for damages can merely be asserted on the grounds of
contractual liability. If there exists a contractual relationship between the parties to the
action, for contractual liability to be applicable it is required that the damage was caused
by on of the contracting parties in the course of the execution of the contract. Thus, if
the damage occurs prior or subsequent to the execution of the contract, then liability
may only arise from tort law.
368
C. Miège, Les institutions sportives, PUF, Coll. “Que sais je?” No. 2729, 1993, 28.
128
aa) The parties
i) Contract parties
French courts habitually affirm the existence of a contractual relationship between the
organizers of a public event and its participants. There is no requirement that the
participant has to pay to obtain the right to take part in the event. It is the established
practice of the courts to uphold the existence of an implied agreement between the
participants and the organizers of the events.369
In the course of the celebration of the anniversary of a village, the association which had
been in charge of the preparations of the celebration organized a soccer match between
a local team and a team whose players were recruited in the streets that day. During the
match one of the players of the latter team got injured. The injured claimed damages
from the association. The court found for the plaintiff stating that the players recruited
in the streets and the association had been entered into an implied agreement.370
It is the established practice of the French courts that there is at least an implied
agreement between the organizer of a sporting event and the participants.371
ii) By-standers and others
Although, French jurisprudence generally denies an implied contractual relationship

among sportsmen372 recently an exception to that rule has been established.
A court ruled that among divers there exists a contractual relationship even if there
might be no expressed will to enter into a contract as contrary to other sports, diving has
an inherent risk in that divers have to have to rely on one another in dangerous
situations in order not to get injured or even die.373
The organizer of a sporting event will be contractually liable if the victim has got the
quality of a spectator and if the latter entered into a contract with the organizer, e.g. by
purchasing a ticket. In that case the organizer bears an obligation de moyen.
iii) Vicarious liability
369
Cass. 1re civ., July 13, 1982: Bull. civ., I, No. 264.
370
Cass. 1re civ., July 13, 1982: Bull. civ., I, No. 264.
371
W. Rabinovitch, La responsabilité de l’organisateur, Les problèmes juridiques du sport, préc. note
(27), 289.
372
Cass. 2e civ., May 22, 1995: Bull. civ., II, No. 155.
373
CA Paris, January 25, 1995: D. 1997, Somm., 191, obs. F. Lagarde.
129
Hans-W. Micklitz
Vicarious liability applies if there had been established a contractual relationship

between the third party and the injured party.
bb) Bodily injury to claimant
The majority of the cases including bodily injury to the claimant will be based on tort
law as usually there is a lack of a contractual relationship between the parties to the
action.
cc) Violation of contractual duty of care
During the execution of the sporting event the organizer is obliged to conduct carefully
and diligently.
i) Duty to act professionally
The standard of care is derived from Article 1137 C.civ. according to which the debtor
is to exercise the care of a reasonable, prudent businessman (la diligence de bon père de
famille).
ii) Duty to supervise and control technical equipment
The differentiation between obligation de moyen and obligation de résultat is of

particular interest in regards to the organizer’s obligation to render security. The
organizer of a sports competition is required to ensure the bodily integrity of his
contracting parties – athletes as well as spectators.
In the event the contracting party takes an active role in the performance of the contract
then the organizer merely bears an obligation to provide his services to the best of his
knowledge and belief (obligation de moyen).
In the course of a ride, a woman who was a debutant in the field of horse-riding fell off
the horse and got injured. The woman had been accompanied by an instructor. The
horse broke into a gallop and as a result the woman fell off the horse. The court found
that the lessor cannot be held liable for violating its contractual obligation to supervise.
The breaking into a gallop which had caused the woman’s fall did not result from the
nervousness of the horse nor from the instructor’s negligent conduct but from the
woman’s conduct whose convulsions and screams made the horse break into a gallop.374
Yet, there is an exception to the above-mentioned rule. If the participant merely plays a
passive role with regard to a dangerous sporting event, then the sportsman can no longer
374
Cass. 1re civ., May 3 1988: Bull. civ., I, No. 126.
130
take care of himself. Thus the organizer’s obligation of those sporting events turns into
an obligation de résultat.375
The organizer of a sporting event is legally required to provide the equipment and
material free of defects. Furthermore, the organizer can be required to have the
participants medically examined as for their state of health; in particular with regard to
sports which are considered dangerous.376
dd) Fault or objective liability
Contractual liability in the field of leisure service may arise if the defendant violates an
obligation which had been imposed on him by law or contract.377
i) Fault requirement ?
The fault must be imputable in abstracto which means that the debtor is to exercise the
care of a reasonable, prudent person (la diligence de bon père de famille), as per 1137
C.civ.
ii) Presumption of fault and burden of proof
In regards to contractual liability the burden of proof depends on the origin of the
obligations arising from the contract; the French legal system distinguishes here
between contracts according to which the debtor owes a particular result (obligation de
résultat) and contracts which oblige the debtor to merely provide his services to the best
of his knowledge and belief (obligation de moyen). In the latter case scenario a fault by
the injuror is assumed which the party injured in the course of a sport event is obliged to
provide evidence for. If the debtor has promised a particular result, then the injuror’s
fault is assumed.
iii) Standard of fault (if applicable)
iv) Exemption from liability
the contract.
375
CA Paris, May 13, 1992, SM3A c/Conquet: Juris-Data No. 021402.
376
Cass. 1re civ., November 5, 1996: JCP G 1996, IV, 2550.
377
Cf. Ph. le Tourneau, Droit de Responsabilité et des Contrats, No. 5705.
131
Hans-W. Micklitz
ee) Causation
The relevant provision on causation is contained in Article 1151 C.civ. Causation must
be evident between the damage claimed and the defendant’s fault – the non-
performance of his contractual obligation.
ii) Omissions
The organizer of a sporting event is obliged to inform the participants of the dangers
and hazards arising from the sport respectively activity. The organizer’s failure to
render the necessary information might become liable for omission.
A tourist association organized an excursion. In the course of this excursion the
participants had to cross a bridge which then collapsed. The court found the tourist
association liable for having omitted to inform the participants about the defective state
of the bridge.378
In regards to the organizer’s obligation de moyen to provide security for the participants
and spectators of a sporting event, both, the participants and the spectators bear the
burden of proof that the organizer of the sporting event did not use the best of his
knowledge and efforts required by his function.
ff) Damage and compensation
Compensation for damage that results from malpractice in the field of leisure services
does not pose specific problems which differ from other fields where bodily injury is to
be recompensed.
i) Damage to health
The injured party may claim the costs of the healing as well as those costs which result
from the consequences that he or she cannot go to work.
ii) Pain and suffering
iii) Measure of damages
378
Cass. 2e civ. December 18, 1995: D. 1997, Somm. 188, obs. A. Lacabarats.
132
gg) Contributory negligence
the contract.
hh) Limitation prescription period (time limits)
As there appears to be no abridged limitation period for claims arising from contractual
relations in the scope of leisure services, those claims are subject to the normal thirty-
year limitation period, as per Art. 2262 C.civ.
b) Tortious liability
Tortious liability is often invoked in the scope of liability claims arising in the filed of
sports or leisure services. For damage claims to be awarded the following three
requirements must be met: damage, fault and causation. Whenever there does not exist a
specific norm with regards to liability emerging from sports or leisure services then
tortious liability applies.
Tortious liability claims may arise from one’s personal fault requiring a faulty conduct
of that particular person, liability for damage caused by a third party or a sports device.
In the course of a rugby game one player injured a player of the competing team. The
injured claimed compensation from the sports club the injuror had been a member of.
The court found that sports associations are responsible for the organisation and the
surveillance of their members during a competition these take part in. In that particular
case the sports was held liable for their player’s misconduct, as per Art. 1384 para. 1
C.civ.379
In the course of the practice session prior to a competition on a reserved slope, a
professional skier had a heavy fall. As a result of the fall one of the bindings of the ski
came off and injured a person who had been in charge of taking the time and to control
the skiers’ technique in a difficult passage of the slope. The court found that the skier
was liable for the damage arisen as per Art. 1384 para. 1 C.civ.380
aa) The parties
379
Cass. 2e civ., May 22, 1995, JCP G 1995, II, 22550.
380
CA Paris, April 17, 1986: Gaz. Pal. 1987, 1, Somm. 138/139.
133
Hans-W. Micklitz
Generally, liability claims arising between participants of competitions and between

sportsmen must be asserted on the grounds of tortious liability. Courts have refused to
affirm an implied agreement between those participants.381
Vicarious liability applies if there had not been established a contractual relationship
between the third party and the injured party.
Moreover, liability might arise between the sportsman and a third party which is not
directly involved in the damaging sports activity. It might concern spectators rendering
their help during a sporting event but also third parties with no involvement at all.
In the course of a trotting race, 20 metres to the finishing post, the leading driver
whipped his horse on in that making another horse breaking into a gallop. The driver of
the latter horse who had been disqualified asserted a claim for damages. The court
found against the plaintiff.382
If a spectator did not enter into a contract with the organizer, e.g. by purchasing a ticket,
then there might only arise claims based on tort law.
In the course of a practicing boxing-session one of the boxers kicked his opponent in the
face. The latter, affected by the kick, tumbled and got injured. The court awarded
damages as per Art. 1382 C.civ. reasoning that the injuror had hit his opponent with
violence without controlling the power of his gesture.383
cc) Wrongful conduct
It is the established practice of the courts that there is a correlation between the violation
of a rule of the game and the acknowledgement of a wrongful conduct.
In the course of practical training, while playing soccer, two members of a rugby club
collided. One of the players pulled a maneuver which would have been in accordance
with the rules of rugby. Yet, the other player could not have expected that maneuver as
it goes against the rules of soccer. The injured asserted a claim for damages. The court
found for the plaintiff reasoning that the injuror had committed a civil wrong by not
abiding with the rules of soccer.384
It is the established practice of the courts to affirm the existence of a fault if the
violation of a rule of a game constitutes an omission of a rule of security. Any other
381
Cass. 2e civ., May 22, 1995: Bull. civ., II, No. 155.
382
Cass. 2e civ. March 19, 1997: JCP G 1997, IV, 1035.
383
Bull. civ., I, No. 258.
384
Cass. 2e civ., June 22, 1994: D. 1996, Somm. 27, obs. A. Lacabarats.
134
violation of a rule of a game creates a fault only if the violation is the consequence of
voluntary and dishonest conduct or of characterized carelessness.385
dd) Causation
The defendant’s fault must have caused the damage. In regards to tortious liability the
plaintiff bears the burden of proof. The chain of causation between the defendant’s
court case the plaintiff has to provide evidence for a chain of causation between the
non-performance of that obligation and the damage arisen.
ee) Fault
Generally spoken, tortious liability in the field of leisure services arises if a person
negligently or intentionally injures another person. Furthermore, there exists the
distinction between liability for fault and plein droit. As tortious liability does not
distinguish between obligation de moyen and obligation de résultat, damage claims may
arise from the contracting party’s own misconduct or from its liability for pieces of
(sports) equipment.
According to Arts. 1382 and 1383 C.civ., the injured party is obliged to prove that the
organizer of the sporting event, respectively at least one of its participants committed a
fault which must have incurred the injuries.
Liability is of plein droit if the damage had been incurred with a piece of (sports)
equipment, such as soccer ball, bicycle, skis etc. while exercising sport or in the course
of a sporting event. In compliance with Arts. 1384 para. 1 and 1385 C.civ. liability will
be presumed.
In general the notion and assessment of damage is identical in tort and contract law.
In the event liability is presumed the party held liable can exonerate itself by invoking
that an exterior reason, e.g. force majeure had caused the damage. Moreover, if the
injured party’s negligent conduct had contributed to the damage arisen, then the injuror
can invoke contributory negligence.
385
Cass 2e civ., June 22, 1994: D. 1996, Somm. 29, obs. A. Lacabarats.
135
Hans-W. Micklitz
In the course of a game of golf among friends a woman accidentally hit her company
with the golf club. The moment the woman was about to hit the ball the other woman
bent forward and thus got hit with the golf club at her head. The court found both parties
equally liable for the damage arisen as the first golfer did not ascertain to have sufficient
distance to her company whereas she behaved negligently in not ensuring her own
security.386
hh) Limitation (prescription period)
Claims which arise from tort law in the scope of leisure services are subject to the
normal ten-year limitation period, as per Art. 2270-1 C.civ.
c) Exclusion and limitations
In regards to damages arising from a piece of sports equipment the French jurisprudence
has restricted the application of tortious liability referring to the theories of the
acceptation of risk or hazard and garde en commun.
According to the first theory, it is the established practice of the courts that in
connection with certain sports it is implied that the injured party abandons to claim
those damages which had been incurred by another participant through a piece of sports
equipment.
An eight year old girl had been hurt in the course of a sleight ride. At the moment of the
accident another minor was behind the victim when he lost the control over his sleight
and thus injured the girl. The victim asserted claims for damages. The court found that
regardless of the presumption of fault for liability of pieces of sports equipment as per
Art. 1384 para. 1 C.civ. in regards to sports and leisure activities which have an inherent
risk, the party claiming damages needs to prove the injuror’s fault.387
Nonetheless, the theory of the acceptance of risk or hazard only applies to an injured
party which actually takes part in a competition.388
In the course of a trotting race two sulkies collided. As a result one of the horses, a
breeding mare got injured. Its owner asserted a claim for damages. The court found
against the claimant reasoning that collisions in the course of a trotting race are frequent
and especially during the starting phase of the race.389
386
CA Paris, March 10, 1976: Gaz. Pal. 1976, 2, 544.
387
CA Rouen, 1re ch. civ., May 17, 1995: Recueil Dalloz, Somm. 189, obs. A. Lacabarats.
388
Cf. Civ 2e civ., March 1995: Bull. civ. II, No. 99.
389
Cass. 2e civ., April 10, 1991: Bull. civ. II, No. 121.
136
Consequently, it follows that spectators, third parties and even participants of those
sporting events which merely take a passive role, e.g. by assisting in the course of the
event benefit from the presumption of fault, as per Art. 1384 para. 1 C.civ.
In the course of a celebration there had been installed an artificial pool for a
competition. A spectator lost balance, slipped and bounced his head at the bottom of the
pool. The injured party claimed damages from the organizer of the celebration. The
court found that the theory of the acceptance of risk or hazard does not apply in that
particular case.390
Yet, the acceptance of risks or hazards does not neutralize the presumption of liability
for pieces of sports equipment with regard to abnormal risks of sports activities.
In the course of a regatta the entire crew of a sailing boat drowned. The heirs and legal
successors of the crew sued the skipper’s inheritor for damages. The court rejected the
application of the theory of the acceptance of risk and hazard as the crew members were
to expect those risks which could be foreseeable with regard to a competition on the
high seas. Considering the given circumstances, the crew members did not have to
expect to die in the course of the competition. The court found that Art. 1384 para 1
C.civ. applies.391
As the conditions on the acceptance of risk or hazard are not unified yet, courts tend to
sometimes invoke the theory of garde en commun with respect to the application of
liability for damages arising from pieces of sports equipment among sportsmen. The
theory applies to cases where in order to achieve the purpose to the activity engines
(yacht, cars, motorbikes) or animals are required as well as where players dispute about
an object, e.g. basketball. In order to create liability, it is required that the responsible
person’s fault is proven.
In the course of a sailing trip one of the crew members deceased in an accident.
Although all members had been in charge of the sailing boat, the court found that the
skipper had committed a personal fault in not leading the crew members to put on their
life vests upon the ocean’s raging in a dangerous passage.392
d) Procedural questions
Regardless of its general character, tortious liability cannot be invoked in the case of an
accidents resulting from a sports or leisure activity if the damage arises from the non-
performance of a contractual obligation. The established practice of the courts of the
principle of non-cumul applies also to matters of sports and leisure activities in that if
390
Cass. 2e civ., March 24, 1980: Bull. civ. II, No. 71.
391
Civ. 2e, March 8, 1995: Bull. civ. II, No. 83.
392
Cass. 2e civ., June 15, 1983: Bull. civ., II, No. 127.
137
Hans-W. Micklitz
the requirements for contractual liability are met then it is impossible to assert claims on
the grounds of tortious liability.393 Therefore, it is very important for the litigant to avoid
making a mistake with regard to the qualification.
aa) Burden of proof
As already stated, damage claims may arise from the contracting party’s own
misconduct or from its liability for pieces of (sports) equipment.
According to Arts. 1382 and 1383 C.civ., the injured party is obliged to prove that the
organizer of the sporting event, respectively at least one of its participants committed a
fault which led to the injuries. In regards to damages which had been incurred with a
piece of (sports) equipment, such as soccer ball, bicycle, skis etc. while exercising a
sport or in the course of a sporting event liability will be presumed, as per Arts. 1384
para. 1 and 1385 C.civ. Yet, if there is an inherent risk linked to the particular activity
then the party suing for damages bears the burden of proof for the defendant’s fault.394
bb) Specific institutions (ombudsman, claims board etc.)
No particular out of court dispute settlement procedures exist.
e) Case study
Cass. civ. 1re, November 4, 1992; Ms Smith v. Sté SEMT Sept Laux et a.395
On January 3, 1985, the plaintiff, Ms Smith, used the ski-lift in Prapoutel which is
located in the ski-resort Sept Laux (Isère). Upon getting off the ski-lift, the plaintiff
found herself unable to release the bar of the ski-lift. Her right hand was stuck to the
bar. Upon the bar’s release the hand unclasped. As a result her small finger got partly
and her thumb entirely torn off.
The damage was especially severe as the plaintiff is a professor giving piano lessons.
The plaintiff sues for damages against the Société d’Economie mixte du Téléphérique
des Sept Laux (SEMT) and its insurance company Hannover International. The plaintiff
stated that she had entered into a transportation contract with SEMT, as per Art. 1147
C.civ. in that creating an “obligation de résultat” of the operator of the ski-lift. – The
court found against the plaintiff. It stated that while getting on and off the ski-lift the
operator merely bears an “obligation de moyen” as the getting on and off the ski-lift
requires the active participation of the person to be transported. Moreover, an
393
Cass. 1re civ., October 3, 1972: Bull. civ., I, No. 191.
394
June 25, 1980, Bull. civ., II, No. 163.
395
Cf. JCP I 1993 No. 22058.
138
investigation of the ski-lift showed that there had not been any anomaly with regard to
the material which had been in good condition and in accordance with the required
technical norms. Furthermore, no elements could be established which might have
resulted in the tearing of the thumb.
139
Leisure service Germany
3. German law
Literature: G. Brüggemeier, Deliktsrecht, 1984; G. Dambeck, Der Pistenraupenfall – Kasko statt
Eigenverantwortlichkeit?, Anm. zu Urteilen des Österreichischen OGH und LG Kempten, SpuRt 1999,
138; G. Dambeck/J. Pichler, Kollisionsunfälle mit Skipistengeräten – Haftung nach deutschem und
österreichischem Recht, SpuRt 1996, 6; Europäisches Parlament (Hrsg.), Untersuchung der
Privatrechtsordnung der EU im Hinblick auf Diskriminierungen und die Schaffung eines Europäischen
Zivilgesetzbuches, Studie im Auftrag des Ausschusses für Recht und Binnenmarkt des Europäischen
Parlaments, 1999; E. Fellmer, Die Haftung bei Sportveranstaltungen, MDR 1995, 541; J. Fritzweiler,
Neueste Rechtsprechung zum Sportrecht, NJW 2000, 997; ders., Skisport und Unfälle, SpuRt 1995, 28;
ders., Rennen auf eigene Gefahr? – Ist das Risiko im Skirenn- und Motorsport gerecht verteilt?, SpuRt
1994, 131; J. Fritzweiler/E. Scheffen, Haftung bei Sport- und Spielunfällen, SpuRT 1998, 148; G.
Gaisbauer, Anm. zu Urteil LG Aachen vom 10.4.1991, VersR 1992, 513; B. Galli, Haftungsprobleme bei
„Freeclimbing“, SpuRt 1997, 87; A. Goda, Die Verkehrssicherungspflichten gegenüber Zuschauern einer
Sportveranstaltung, Diss. Regensburg, 1995; N. Jansen, Auf dem Weg zu einem europäischen
Haftungsrecht, ZEuP 2001, 30; Ch. Joerges/J. Falke/H.-W. Micklitz/G. Brüggemeier, Die Sicherheit von
Konsumgütern und die Entwicklung der Europäischen Gemeinschaft, 1988; L. H. Michel, Planung und
Betrieb privater Kinderspielplätze – Haftung und Versicherung, ZMR 1991, 201; H.-W. Micklitz/S.
Bittner, § 828, in: W. Kohte/H.-W. Micklitz/P. Rott/K. Tonner/A. Willingmann (Hrsg.), Das neue
Schuldrecht – Kompaktkommentar, 2002; Ph. Mohr, Der Fall Monika Seles – Personenschutz als
Verkehrssicherungspflicht des Sportturnierveranstalters?, SpuRt 1997, 191; F. Pardey, Haftung von
Freizeitsportlern untereinander, ZfS 1995, 281; J. Pichler, Selbstgefährdung durch Teilnahme am
Skirennsport – Haftungsbegrenzung?, SpuRt 1997, 7; J. Pichler/J. Fritzweiler, Österreichische und
deutsche Rechtsprechung zu Skiunfällen, 2. Teil: Liftunfälle und Skibindungsprobleme, 2000, 8; dies.,
Österreichische und deutsche Rechtsprechung zu Skiunfällen, 1. Teil: Kollisionen und
Skipistensicherung, SpuRt 1999, 7; S. Richtsfeld, Der verletzte Zuschauer – Verkehrssicherungspflichten
bei Sportveranstaltung, SpuRt 1997, 196; E. Scheffen, Die Rechtsprechung zu gefährlichen Sportarten im
öffentlichen Verkehr, NVZ 1992, 385; dies., Zivilrechtliche Haftung im Sport, NJW 1990, 2658; K.
Vieweg, Inline-Skating – Rechtstatsachen, Rechtslage und Reformbedarf, NVZ 1998, 1.
While liability for the safety of services can and should involve contractual liability,
reality in Germany had been different. An estimated 90 % of liability cases brought
before the courts were tort law cases. The overall reason is fairly simple. Contractual
and tortious liability stand side-by-side, they are not mutually exclusive. But under
German law as it stood until August 2002, only the tort law regime allowed the injured
party to claim compensation for pain and suffering. That explains why most cases were
based on tort law. However, in the future, it can be expected that most cases in which a
contract exists will be brought under contract law. Compensation of immaterial harm,
including pain and suffering, can be claimed under contract law after the recent reform
141
Hans-W. Micklitz
of the law of damages, and German contract law is regularly more favourable to
claimants than tort law because of its stricter vicarious liability.
As there is no such legal category as liability for leisure services, the many court
decisions in this field have resulted in a patchwork approach. Legal doctrine tries to
meet the challenge by breaking down the large area of leisure activities into different
fields. So there are areas of leisure activity accidents which seem to have produced their
own sets of rules, such as children suffering from accidents on public and private
playgrounds,396 skiing accidents,397 accidents at mass events,398 or simply fashionable
sporting activities such as inline-skating.399 More ambitious efforts aim at distinguishing
between sport and play. Sport is understood as being rule guided, whereas no such rules
exist in play.400 This distinction leads to far-reaching legal consequences. Those who
engage in sport are bound by the rules, whatever their nature and their legal quality may
be; in play no rules exist outside of general standards of behaviour. Where accidents
occur between the participants of sport or play, the team-mate’s prior consent or their
decision to join in on his-er own risk (Handeln auf eigene Gefahr) might be decisive.401
Particular problems arise if accidents occur during an organised sports event such as a
motor race, a ski race or a cycle race. Here one may wonder to what extent participants
are acting on their own risk, whether they can be held liable for each other and whether
the organiser or promoter can be held liable for deficits in the organisation and
performance of the event.402
The degree to which the different fields of leisure activities are subject to litigation
differ considerably. However, it seems as if the endless chain of cases dealing with
skiing accidents may provide skiing with a prominent position at least in the
development of sports law.403 It remains to be seen to what extent sports law liability
standards may spill over to playing.
396
L. H. Michel, ZMR 1991, 201.
397
J. Fritzweiler, SpuRt 1995, 28; J. Pichler, SpuRt 1997, 1; same author, SpuRt 1996, 6; J. Pichler/J.
Fritzweiler, SpuRt, 1999, 7; same authors, SpuRt 2000, 8.
398
A. Groda, 1995; sometimes focusing on riots around sports events, H. Stein, Haftungsrechtliche
Folgen von Zuschauerausschreitungen bei Massensportveranstaltungen, Diss. Köln 1992.
399
K. Vieweg, NZV 1998, 1; E. Scheffen, NZV 1992, 385.
400
In particular J. Fritzweiler/E. Scheffen, SpuRt 1998, 148.
401
BGH, 21.2.1995, ZfS 1995, 207 may be understood so as to confirm such a distinction.
402
E. Fellmer, MDR 1995, 541. A particular case is certainly the attack of a spectator on Monica Seles in
1993 in Hamburg, see Ph. Mohr, SpuRt 1997, 191.
403
J. Fritzweiler, NJW 2000, 997, 1000; on earlier efforts to define the role of sports law, E. Scheffen,
NJW 1990, 2658.
142
The role and importance of contractual relations varies considerably. As a rule, they
arise only if the consumer pays in order to gain access to the playground, amusement
park, the sports events or any other mass event. Here a contract is concluded. It might
be a rental contract, a contract for services or a sales contract. Usually the contract is
concluded on the basis of standard business conditions, printed on the backside of the
ticket or alike. It regularly contains exemption clauses to exclude or limit the liability of
the operator of the playground or amusement park, respectively the organiser of mass
events.
Most of the cases are decided on the basis of tort law rules, even if the parties have
concluded a contract. The reasons are twofold. Unlike French law, a non-cumul rule
does not exist and it was tort law that paved the way for damage claims for pain and
suffering. However, in quite a number of typical situations, there are no contractual
relations at all. In Germany playgrounds for children are usually run by the local
communities (Gemeinden) or by the cities. There are no entry fees, and an important
area of case-law has resulted from accidents which occurred at public playgrounds and
where the parents claimed damages from the public authorities on behalf of their
children. A second large area of situations in which no contractual relations exist
concern various sports activities and mass events where there is no fee on entrance. The
tortfeasor might be a concurrent consumer or a competitor in the event. Numerous
examples for the first category may be found in the area of skiing, skating, swimming
and horse-riding, and in the area of motor or bike races for the second. Here tort law
alone provides a legal basis for damage claims.
aa) The parties
i) Contract parties
The parties to a contract are normally those who benefit from the event. If they are still
minors, the question might arise to which extent they are legally allowed to conclude a
binding contract without prior consent or approval of their parents. In practice, however,
the existence of a valid contract in order to claim damages is of no importance, since the
injured party may refer to tort law.
If the user is a child accompanied by his or her parents, the contracting parties may be
the parents or even the child as represented by its parents. It seems as though courts,
without really discussing the matter, tend to assume that the contract is concluded with
143
Hans-W. Micklitz
the parents. The children, however, are integrated into the protective scope of the
contract. These contracts are concluded to the benefit of the children (Vertrag mit
Schutzwirkung zugunsten Dritter).404
A particular category of by-standers are the spectators/visitors of sports events and/or
entertainment mass events. These spectators/visitors have often bought a ticket to visit
the event. It might well be, however, that the spectators are not paying for an entry
ticket, but are simply benefiting from an open-air festival or open-air sports event.
Whether or not there is a contract in present practice seems to be somewhat arbitrary.
The only logic seems to be that he who pays may have a better view and may be nearer
to the ongoing action. However, there is no case-law which would treat the contracting
spectator and the non-contracting spectator differently.405
If the playground facilities turn out to be unsafe, the question might arise whether the
local communities can be held liable under § 278 BGB or § 831 BGB with regard to
tortious liability, even though the producer of the facility is the ultimately responsible
person. In principle, the operator of the playground is not liable for construction defects
of playground facilities. The operator, the local community or the city may rely on the
safe production of the equipment subsequent to professional production standards.406
This study is based on the assumption that a consumer has been injured during his-er
leisure activities. German law does not distinguish between bodily injury in contract and
tort law.
The central requirement of contractual liability is the violation of a contractual duty. In

a landmark decision, the German Supreme Court defined the necessary standard of care
in leisure activities irrespective of the reason of liability, be it contractual or tortious: the
addressee of the liability claim is only obliged to provide such safety measures which a
sensible, prudent and reasonably cautious person may find sufficient to protect other
persons from harm and which could reasonably be expected of the tortfeasor under the
404
L. H. Michel, ZMR 1991, 202 with regard to public playgrounds.
405
See for an overview, St. Richtsfeld, Der verletzte Zuschauer – Verkehrssicherungspflichten bei
Sportveranstaltungen, SpuRt 1997, 196.
406
OLG Hamm, 19.8.1995, VersR 1996, 1517.
144
circumstances of the case.407 A thoroughly reasoned decision of the Court of Appeal of

Cologne points in the same direction.408 Again, the judges were trying to develop
general standards of care, for contractual as well as for tortious liability.
There is no particular duty to act professionally on behalf of the operators of leisure

facilities. However, the courts seem to start from the assumption that the operators and
organisers of sports and leisure activities are foresighted, responsible persons who take
into consideration not how model users would behave, but how real-life users actually
behave. In so far, professional skill is needed to anticipate potential risks. A responsible
operator of leisure activities has to invest considerably into the evaluation of all factors
which might determine the degree of risk. If he does not, he may easily be held liable
because he has violated his duty of care. Therefore the organiser of a cycle race may be
liable due to organisational deficiencies when a car driving behind the cyclists gives
spectators the impression that the race is over.409 The same is true for the holder of a
horse riding school. He has to take organisational measures in order to make sure that
inexperienced children are constantly under custody.410 However, organisational duties
should not be overstretched. The operator of a water-slide in a leisure park can not be
expected to survey each single sliding (Rutschvorgang), provided he has made sure that
the users obey rules which, if respected, cancel the imminent risks.411
Professional skills are likewise required if the contracting consumer seeks advice on the
adequate technical equipment for the respective sport activities. This is particularly true
for a skier buying an appropriate ski binding. The seller is legally obliged to inquire into
the abilities of the buyer. He/she may not rely on unspecified self-classification made
according to the producers’ categorisation of beginners and skilled skiers in order to
adequately adjust the ski binding.412 Similar issues arise if the consumer’s leisure
activities are tied to educational training. However, the horse instructor might only be
407
Sicherheitsmassnahmen, die ein verständiger und umsichtiger, in vernünftigen Grenzen vorsichtiger
Mensch für ausreichend halten darf, um andere Personen vor Schäden zu bewahren und die (dem
Pflichtigen) den Umständen nach zumutbar sind, BGH, 21.3.2000, ZfS 2000, 333 = NJW 2000, 1946.
408
OLG Köln, 20.7.2000, VersR 2002, 859.
409
As quoted by E. Scheffen, NZV 1992, 388, the BGH VersR 1954, 596, however, rejected the claim
due to the lacking causation between the violation of the organsational duties of care and the accident.
410
OLG Celle, 8.2.1995, VersR 1996, 1511.
411
LG Aachen, 10.5.1995, ZfS 1995, 323; KG VersR 1990, 168; different and more strict AG Friedberg
NJW-RR 1989, 738 (each sliding, although the bath attendant was excpetionally in a position to
supervise each sliding). The OLG Köln, 20.7.2000, VersR 2002, 859 has very carefully analysed the
standards of care for the operators of water-slides.
412
OLG Köln, 7.4.1997, NJW-RR 1998, 1634, see also OLG Düsseldorf, 15.1.1999, 22 U 160/98
(unreported) and OLG München, VersR 1989, 489 as quoted by J. Pichler/J. Fritzweiler, SpuRt 2000,
13.
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Hans-W. Micklitz
obliged to stop the training process if he realises that the rider is overexerted by the
programme.413
The operators of leisure facilities are under a contractual obligation to constantly

supervise and control the technical equipment at all types of events. Equal standards
apply to the organisers/promoters of leisure activities regardless of whether the injured
party is an individual user or whether it is a mass event. The main question is whether
and to what extent technical equipment is employed.
This is particularly true with regard to playground facilities. The intensity of supervision
and control depends on the kind and nature of the facilities. So-called adventure
playgrounds require more supervision and control than normal playgrounds. In essence,
the operators are under a steady obligation to regularly have the safety of the facilities
inspected by competent technicians. This includes the obligation to exchange the lawn
under playing facilities in case it has be come so hard as to have turned into
“concrete”.414 In so far, the duty to supervise and control comes close to the
“Produktbeobachtungspflicht” German courts have derived from tort law with regard to
the product liability of the manufacturer. The operator remains responsible for risks
resulting from an abandoned adventure playground.415 The same way of thinking can
already be found as early as 1938, where the “Reichsgericht” held the organiser of a
cycle race responsible for an accident which occurred after the event had already
finished, during the cleaning activities.416
Particular duties of supervision are required of the operators of ski lifts. Accidents might
occur due to the malfunction of the lift which could have been avoided if the operator
had sufficiently supervised and controlled the ski lift.417 Supervision and control
includes the duty to constantly monitor the risks which might result from the operation
of the lift even outside the ski course. In the case at issue a skier had been injured by the
hanger of a ski tow.418
413
OLG Frankfurt, 19.8.1996, ZfS 2000, 56.
414
LG Wuppertal, ZFS 1982, 129.
415
BGH, VersR 1978, 762.
416
RG JW 19838, 2727, as quoted by E. Scheffen, NZV 1992, 385, 388.
417
OLG Hamm, 30.10.1995, 6 U 1999/94 (unreported), quoted by J. Pichler/J. Fritzweiler, SpuRt 200, 8
(ein nicht ordnungsgemäß sich ein- bzw. hochziehender Schleppbügel war ursächlich beim Aussteigen
dieses Schleppliftunfalles).
418
OLG Nürnberg, 20.12.1996, ZfS 1997, 127, quoted by J. Pichler/J. Fritzweiler, SpuRt 2000, 11 as
unreported.
146
The organisers of sports events are obliged to consider the safety of the construction of
the sports ground.419 This is also true if the organisers are not the owners of the sports
ground. However, the organisers may only be held liable if the unsafe construction or
the defects were recognisable. The owner’s liability may reach further. The most well-
know case concerns the claim of spectator of an ice-hockey game who had been injured
by a puck which crossed the protection fence.420
Liability is based on fault. Whether or not there is fault depends on the adherence to
objective standards. This becomes clear in the key role of technical standards, which not
only play a role in defining the set of duties to be considered, but whose non-respect
indicates the existence of fault. The standards of fault are objective in the sense that the
operator is required to know and to respect technical standards. He cannot escape
liability by referring to his inexperience in setting up playing grounds or similar
facilities.
The courts largely rely on prima facie evidence. Once it is clear that the operator of
leisure facilities has objectively violated his-er duty of care, prima facie evidence
demonstrates his-er negligence.421
The standard of fault is objective in the sense that the operator’s negligence is already
proven if he/she does not comply with the usual standards of care. He is not obliged to
take particularities of the injured party into consideration.422
Exemption clauses in contractual relations have to be broken down into those used
before and after the 2002 amendment of the BGB. Before 2002, exemption clauses for
419
See for a careful analysis of the obligations imposed on the operators and/or organisers, A. Groda,
134.
420
BGH, NJW 1984, 801.
421
OLG Köln, 20.7.2000, VersR 2002, 859, 862.
422
OLH Hamm, 19.1.2000, NJW-RR 2001, 1248 – no liability towards the user of a leisure park facilities
who is suffering from an unrecognised osetoporose.
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Hans-W. Micklitz
intention and gross negligence in standard business conditions were regarded void under
§ 11 Nr. 7 AGBG (Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedin-
gungen). However, even in cases of slight negligence, the courts were not willing to
accept the exclusion of liability, at least not in cases where the injured party had
concluded a contract with the operator of a playground or a swimming pool. An
example for the – now outdated – discussion is the question of whether local
communities may exclude liability for contractual and even tortious liability in their
bathing rules. The courts were only willing to accept exclusion clauses with regard to
the negligence of the visitors but not regarding to the operator’s duty of care.423
After 2002, any exemption clauses – irrespective of the degree of negligence – are void
in which the user of the standard business conditions aims at exempting himself from
liability for the violation of personal integrity, § 309 No. 7 BGB.424
ee) Causation
Causation does not seem to provide difficulties in the liability for leisure activities,
perhaps with one notable exemption. There are numerous cases to be reported where
children died in public bathes. The point at stake is whether the operator of the bath has
violated his-er obligation of supervising the visitors (Aufsichtspflicht). The causal link
only exists if the operator could have prevented the fatal accident if he had complied
with his supervision duties. Supervision cannot and does not mean that the bath
attendants must be in a position to overlook what all visitors are doing at all times. The
requirements to be fulfilled must be reasonable (zumutbar). That is why causation may
be found to be lacking where the accident would have occurred anyway.425
The normal standard of causation is adequate causation (adäquate Kausalität). It applies

to all sorts of leisure activities. The violation of the duty of care must be adequately
causal, i.e. cause and effect in the normal course of things, ignoring very peculiar and
improbable situations, for the bodily injury of the consumer. In most of the cases
presented here, causation is not really an issue, at least as long as the violation results
from positive action.
ii) Omissions
423
OLG Brandenburg, 11.3.1999, ZfS 2000, 287, with reference to BGH, NJW 1982, 1144.
424
See H.-W. Micklitz, § 309 Rdnr. 24, in: W. Kohte/H.-W. Micklitz/P. Rott/K. Tonner/A. Willingmann
(Hrsg.), Das neue Schuldrecht – Kompaktkommentar, 2002.
425
BGH, 21.3.2000, ZfS 2000, 332 at the very end of the judgment.
148
The set of duties of care imposed on the wrongdoer does not depend on whether the
blameworthiness of his behaviour results from positive action or omissions. In both
variants, he/she has to make sure that the parties to the contract or the by-standards are
adequately protected against risks.
The courts are inclined to use prima facie evidence. This concept is regarded to be
helpful to decide whether a particular action or omission is causal for the occurred
damage, provided that the damage could be regarded as the typical consequence of the
violation of the duty of care according to general life experience.426 This is not the case
if the participant of a rock concerns suffers from a hearing defect (Hörsturz), although
the organiser has respected the technical standards on the admissible volume in rock
concerts.427
Sometimes the courts run into difficulties. There is no agreement among the appeal
courts as to whether a false adjustment of a ski binding might be the cause for an
accident in which the skier suffers considerable injuries.428 A similar situation exists
with regard to accidents where a skier crashes with a tractor (geht es um einen
“Pistenbully”?) maintaining the ski slope. Prima facie evidence presupposes that the
skier would have adequately reacted if he/she had seen the tractor or if he/she had heard
the/a warning horn.429
Compensation for damages resulting from a violation of the duty of care of the
organiser/promoter of the leisure activities does not pose particular problems.
i) Damage to health
Compensation for health covers the cost of healing, of rehabilitation measures, of lost
income or other financial consequences caused by the injury. No particularities have to
be reported.
426
Quite outspoken, OLG Köln, 20.7.2000, VersR 2002, 859, 861 with reference to further case law.
427
OLG Karlsruhe, 30.3.2000, ZfS 2000, 245.
428
In favour OLG Köln, 7.4.1997, NJW-RR 1998, 1634; against OLG München, 9.12.1977, 2 U 1312/77
(unreported), and OLG Saarbrücken, 20.9.1977, 7 U 41/76 (unreported).
429
See G. Dambeck, SpuRt 1999, 139 with reference to deviating decisions of German and Austrian
courts.
149
Hans-W. Micklitz
Until 2002, the injured party could only claim compensation for pain and suffering in
case of tortious liability. This is the major reason why so many cases were solved on the
basis of tort law, even if contractual relations existed. Now the law has changed.
Contract law and tort law have been put on an equal footing. It remains to be seen
whether and to what extent the amendment will influence court practice.
Contributory negligence of the injured party, be it an adult or a child, had to be

considered under § 254 BGB before the reform of the German BGB. In the latter case,
contractual and tortious liability are interlinked, since a child could be held liable for its
own contributory negligence only where it was held to be capable of realising its own
negligent behaviour under § 828 BGB. The courts have not developed particular rules
with regard to leisure activities, the general standards of § 254 BGB apply. Under these
standards it is hard to imagine a little child being held responsible for not having
realised inherent dangers of its leisure activities. This may be different – depending on
the circumstances - with regard to adolescents.
Whenever a child has been injured, the question may arise whether a possible violation
of the parents’ duty of supervision (Aufsichtspflicht) might lead to a reduction of the
compensation.430 In principle it is legally possible to reduce the child’s claim for
compensation because its parents have not complied with their duty of supervision,
§§ 254, 278 BGB. However, in practice this is only relevant in case the child has
blatantly misused the leisure facilities and the parents have not taken measures to hinder
the child’s activities.
The courts are quite tough as far as accidents of children on playgrounds are concerned.
In such cases, the courts deny the possibility of referring to the parent’s contributory
negligence by lowering the standard of the supervisional duty. Little children – in the
case at issue a two year old child – were not considered to need comprehensive and
constant custody.431 This might be different, however, when little children are playing
outside playgrounds in private ornamental pools (Zierteich)432 or when they are older
and seek entertainment in horse riding.433 The Supreme Court had to decide five similar
430
See particularly BGH, 13.1988, VersR 1988, 632 and L. H. Michel, ZMR 1991, 205.
431
OLG Köln, 25.5.2000, VersR 2002, 448.
432
BGH, NJW 1994, 3348 (Ornamental garden).
433
BGH, VersR 1992, 844 (paddock).
150
cases434 in a relatively short period of time. Small children died or were heavily injured
because they fell into ornamental pools situated in their neighbours’ gardens. Under
these circumstances the courts tend to accept a contributory negligence of the parents
under §§ 254, 278 which can lead to a considerable reduction of the damage claim.435
A prominent field of application of contributory negligence are accidents in sports
between opponents or team-mates. In these cases, the injured party is usually also held
responsible. The solution is a quotation of the damages as in accidents between skiers
and tractors.436
The legal basis for contractual liability is breach of contract (positive

Forderungsverletzung). Due to the recent reform of the BGB there is uncertainty as to
the prescription period, at least in cases in which the contractual basis is a sales contract
or a manufacturing contract. In the latter cases, the prescription period is 2 years under
§§ 438/634a BGB. In most cases, however, the underlying contract is a contract for
services. Therefore § 195 BGB applies, which provides for a three-year prescription
period. Under §§ 438/634a, the prescription periods begins with the delivery of the
good, under § 195 it starts once the injured party knows or could have known the
violation of the duty of care, § 199.
aa) The parties
The range of potential parties is wide. Normally the wrongdoer will be the organiser or
promoter of sports and leisure activities as well as the operator/conductor of sports and
leisure grounds.
However, opponents, team-mates or other participants in swimming, playing or racing
may also become the addressees of liability claims. Usually these persons are
consumers as well. The point then is when and under what conditions consumers are
liable towards consumers. There is a considerable variety of cases in the field of skiing,
so-called collision accidents between skiers,437 bath accidents, where children are trying
434
BGH, 20.9.1994, VersR 1994, 1486; 25.5.1995, VersR 1995, 973, VersR 1996, 643; VersR 1996,
986, 12.11.1996 – AZ ZR 234/95 (unreported).
435
See the overview and analysis of the case law in J. Fritzweiler/E. Scheffen, SpuRt 1998, 148.
436
G. Dambeck, SpuRt 1999, 138.
437
Typical cases are reported by J. Pichler/J. Fritzweiler, SpuRt 1999, 7, with reference to German and
Austrian cases.
151
Hans-W. Micklitz
to push it each other into the water,438 or more generally where leisure sportsmen
collide.439
The courts seem to draw a line between rule-guided sport activities and free playing. If
there are rules, such as in foreseeable collision accidents between skiers, where proper
conduct may even call for a so-called emergency dive (Notsturz), the participants of the
sports have to obey these rules.440 More generally speaking, there are situations in which
the wrongdoer artificially causes an accident in which he might be injured in order to
avoid a collision (Selbstaufopferung).441
Possible liability risks could be outweighed by the question whether all participants to
the sport have given their consent under the rules of accepting risk of injury or the
concept that every participant acts on his-er own risk. If, however, children or adults
come together to play, and they join in ‘dangerous’ play, there are no rules to follow.
Therefore the injured parties’ claim for compensation may not be rejected by reference
to prior consent or acting on one’s own risk.442
Usually it is the directly injured party that claims compensation under tort law. Persons
who are only indirectly affected may in principle not claim compensation. This sort of
litigation, which has gained ground under the notion of so called shock damage
(Schockschäden), does not play a role in leisure litigation.
The notable exception to the rule is the right of dependants of a killed person to claim
damage if the latter was the family’s provider.
German courts have developed duties of care (so called Verkehrssicherungspflichten)

out of § 823 BGB. Only if the tortfeasor has violated the duties of care, may he be held
liable. The duties of care vary enormously according to the type of leisure activities. In
the playground liability cases, they start with the planning process, they focus on the
building of the leisure ground and its operation, and they do not even finish with the
closing up of the facility. In skiing accident cases, the duty of care focuses on the
availability of a safe ski slope (so-called Pistensicherungspflicht). This comprises the
438
BGH, 21.2.1995, ZfS 1995, 207.
439
For an overview of the case-law F. Pardey, ZfS 1995, 281.
440
OLG Hamm, 27.9.1993, SpuRt 1995, 59.
441
See E. Scheffen, NZV 1992, 385, 386 with reference to LG Bückeburg, DAR 1954, 297 (car driver
crashes in order to protect a seven year old roller-skating child).
442
This is the essence of BGH, 21.2.1995, ZfS 1995, 207.
152
establishment and maintenance of a ski slope as well as its constant and steady
supervision.
However, there is a common standard which is equally valid for all types of duties of
care: the inner link between the notion of danger/risk and the degree to which the
responsible person has to take the particular risks into account when he decides to
produce or to market an inherently dangerous product.443 Normally one might
distinguish three types of risks: (1) those related to the ordinary use of the product, (2)
those related to the foreseeable use, (3) those related to the foreseeable misuse. The
difficult issue is the question of the degree to which the producer (operator/promoter)
has to take into account a possible misuse by the user. The yardstick is subjective in the
sense that the expectations of the injured concerning the use of the product have to be
taken as the starting point. However, these individual expectations deserve protection
only as far as they are legitimate.444
In principle the courts impose a rather heavy burden on the producer of leisure facilities.
Leisure facilities have to be “risk-free as far as possible” (möglichst gefahrlos).445 It
means that leisure facilities must be construed to protect the user against risks which
reach beyond the usual risk, are not foreseeable and cannot easily be recognised.446 The
producer of playgrounds has to take into account that slides are also used by adults
taking little children on their lap.447 He must be aware of dangers resulting not directly
from the playground but from the direct local environment.448 The same way of thinking
may be found in the field of skiing. Skiers may expect to be protected against risks
resulting from uncushioned trees and/or uncushioned pylons located within the ski
slope,449 – cyclists participating in a cycle race may not claim the same level of
protection450 – or wires stretched between fence-posts,451 or unsecured steep slopes.452
443
See Ch. Joerges/J. Falke/H.-W. Micklitz/G. Brüggemeier, Die Sicherheit von Konsumgütern und die
Entwicklung der Europäischen Gemeinschaft, 1988, 42.
444
See for the concept of legitimate expections, H.-W. Micklitz/L. M. Michel, ZMR 1991, 203 is
operating with the subjective and objective expections of children using playground facilities.
445
See the landmark decision of the BGH, 1.3.1988, VersR 1988, 632.
446
OLG Köln, 20.7.2000, VersR 2002, 859, 860.
447
OLG Hamm, 19.8.1995, VersR 1996, 1518.
448
OLG Hamm, 2.6.1995, VersR 1996, 1516 (embankment planted with bushes).
449
OLG Dresden, NJW-RR 1999, 902 (revision in the Supreme Court pending 00); and before BGH,
NJW 1985, 620.
450
BGH, 29.4.1986, VersR 1986, 705; thereto E. Scheffen, NZV 1992, 388 with explicit reference to the
deviating decision of the BGH, 23.10.1984, VersR 1985, 63) with regard to unplostered pylons of a
ski course.
451
BGH, NJW 1982, 762.
452
OLG Karlsruhe, 15.7.1987, 13 U 129/96, unreported, quoted by J. Pichler/J. Fritzweiler, SpuRt 1999,
11.
153
Hans-W. Micklitz
If, however, the accident occurs outside the ski slope, i.e. if the skier leaves the
protected area of the prepared ski slopes, he may no longer be entitled to claim
damages.453 In riding lessons, the teacher has to be aware that children that are not under
custody may venture into dangerous explorations in the paddock.454 In essence, the
operator of leisure activities may not be held liable for risks which belong to the sphere
of risks for which the injured party is held responsible or which are too far away from
what is foreseeable and what can reasonably be expected.455
The overall yardstick for measuring whether or not conduct was wrongful is usually
derived from technical standards as elaborated by the German Standardisation
Institution, the Deutsches Institut für Normung (DIN). These technical standards are not
binding. Manufacturers usually comply to these standards as they benefit from the
presumption of compliance with mandatory safety laws laid down in the
Gerätesicherheitsgesetz and the Produktsicherheitsgesetz. The FIS standards developed
to provide rules for the adequate behaviour of skiers play a similar role. They are of
particular importance in collision accidents between skiers and might serve as a
yardstick to confirm or deny liability.456 The legal quality of the regulations for the
prevention of accidents (Unfallverhütungsvorschriften) distinguishes them from
technical standards as they impose binding rules on the operator of any activity, e.g. ski
lifts. These regulations can be held to provide protection to skiers or third parties in
general.457
If the courts accept that the technical standards define the adequate level of safety, the
operator may not be held liable where he has observed them.458 However, level of safety
enshrined in the technical standards may turn out to be insufficient. Courts do not feel
bound to these standards. If expertise demonstrates that accidents happen despite
compliance, the tortfeasor may be held liable.459 An interesting example is provided by
two court decisions both dealing with a technical standard which defines the safety
453
OLG München, 2.3.1978, AZ 14 U 596/77, reported by J. Pichler/J. Fritzweiler, SpuRt 1999, 9, as
well as OLG München, 10.4.1997, as confirmed by LG Traunstein, SpuRt 1998, 35.
454
OLG Celle, 8.2.1995, VersR 1996, 1511.
455
OLG Koblenz, 17.10.2000, NJW-RR 2001, 526 – no liability of the organiser of a baseball game if a
ricochet hits a spectator despite a 14 meter high net stretched to guarantee protection.
456
See in particular LG Bayreuth, 11.7.1995, SpuRt 1997, 32 and J. Pichler/J. Fritzweiler, SpuRt 1999, 8
with further references from Austrian cases.
457
OLG Nürnberg, 20.12.1996, ZfS 1997, 127 with regard to the „Vorschriften für den Betrieb und den
Bau von Schleppaufzügen“, which are binding law in the Land Bayern; OLG Brandenburg, 11.3.1999,
ZfS 2000, 287 with regard to Sicherheitsregeln für Bäder.
458
OLG Karlruhe, 30.3.2000, ZfS 2000, 245 – no liability of the organiser of a rock concert if the volume
of the music remains in between the boundaries set out in DIN 15905 “Tontechnik in Theatern und
Mehrzweckhallen”.
459
This conclusion is constantly reiterated in case, BGH, VersR 1985, 64 = NJW 1985, 620 sowie BGH,
VersR 1984, 154 = NJW 1984, 801, OLG Hamm, 19.8.1995, VersR 1996, 1517; most recently OLG
Köln, 25.5.2000, VersR 2002, 448, in a thorough reasoning.
154
requirements for the nature of the ground case of a fall from leisure facilities (slides and
alike). The technical standard required soft ground if the height of fall was over 1 meter.
The court of first instance in Aachen released the operator of a playground from liability
because the height of fall was less than 1 meter, although the ground consisted of
hardened concrete,460 whereas the Court of Appeal of Cologne confirmed the operator’s
liability because the height of fall was over 1 meter.461
There are numerous cases at hand in which the courts conclude the existence of an
objective violation of the operator’s duty of care from the non-respect of technical
standards.462 That is why the operator of an amusement park has been held liable
because a slide for children did not comply with DIN-standards.463
dd) Causation
The general standard of causation in contract and tort law is the same.
ee) Fault
German tort law requires fault, i.e. intent or negligence on behalf of the tortfeasor. If the
tortfeasor does not comply with underlying relevant technical standards, his negligence
will be presumed. He is supposed to know the relevant technical standards, and if he has
difficulties in understanding and interpreting them he must seek competent advice.464
Particular rules apply if the accident results from the unsafe construction of the sports
ground, § 836 BGB. Addressee of the liability may be the owner of the sports ground as
well as the organiser who has rented the sports ground. § 836 BGB presumes the
liability of the owner/operator in case a spectator has been injured or even killed. He/she
can only escape liability, if he/she can prove that he/she has taken all necessary
measures to protect the spectators against injuries and/or fatal accidents.
The main reason why the claimants refer to tort law over contract law has been the
chance to claim damages for pain and suffering. Normally, once the liability of the
tortfeasor is established, the injured parties may therefore recover their non-material
damage.
460
LG Aachen, 10.4.1991, VersR 1992, 895.
461
OLG Köln, VersR 2002, 448.
462
Quite outspoken, OLG Köln, 25.5.2002, VersR 2002, 448.
463
LG Frankfurt, 12.9.1997, NJW-RR 1999, 904.
464
OLG Köln, 25.5.2000, VersR 2002, 448.
155
Hans-W. Micklitz
However, there is a notable exception to be reported, which gains ground mainly in

leisure activities organised by public schools as part of their education programmes.
Pupils who suffer from accidents may sue their school to claim compensation, inter alia
for pain and suffering. § 636 “Reichsversicherung” privileges the state as tortfeasor:
while the state may be held liable to pay compensation, damages for pain and suffering,
however, can only be compensated if the accident results from the state acting in
“Teilnahme im allgemeinen Verkehr” (which is something like “participation in general
life/business”) in contrast to mere internal administrative procedures (innerbetrieblicher
Vorgang). The underlying reasoning is that professional suppliers should not be obliged
to pay compensation for pain and suffering to his/her employees. In so far they are
privileged.
Usually two sets of issues arise, namely whether or not the supplier at stake must be
regarded as a professional supplier and whether or not the injured party has to be
regarded as an employee who was violated in performing his contractual duties towards
the employer. German courts have long accepted that the state too may act as a
professional supplier.465 The more difficult question is to what extent pupils and similar
persons can be regarded as “employees”. The issue came up in a still pending case on
the possible liability of a school for an accident which occurred on a community run ski
slope. The Court of Appeal of Dresden accepted the exclusion of liability.466 The
Supreme Court is expected to decide over the issue on appeal.467
The question of whether the child’s behaviour can be regarded as contributory

negligence has always raised particular concern. Until the reform of the German BGB in
2002, German courts applied § 254 BGB in relation with § 828 BGB. § 828 BGB
required the child’s capacity to realise that it had acted negligently. The now amended §
828 BGB is meant to strengthen the position of minors against tort law claims. Para (1)
underlines that children under seven are not legally responsible for tortious acts, para (2)
extends this rule to children under 10 years when they are involved in traffic accidents,
para (3) formulates the general rule that minors under 18 are not responsible for tortious
acts if they lack the necessary understanding to recognise his-er responsibility.468 The
new rule might reduce the willingness of the courts to turn down the tortfeasor’s
liability. However, § 829 BGB establishes an obligation to compensation on grounds of
465
See also in this context OLG Hamm, 28.6.1993, SpuRt 1995, 67 – on the applicability of § 636 RVO
in case of spontaneous help (stopping a horse which is out of control).
466
OLG Dresden, 14.10.1998, NJW-RR 1999, 902.
467
OLG Dresden, 14.10.1998, NJW-RR 1999, 902.
468
See for more details, H.-W. Micklitz/S. Bittner, § 828 Rdnr. 1, in: W. Kohte/H.-W. Micklitz/P. Rott/K.
Tonner/A. Willingmann (Hrsg.), Das neue Schuldrecht – Kompaktkommentar, 2002.
156
equity (Billigkeitsgründe). Courts might make more use of the equity rule in order to
balance the interests of the tortfeasor and the injured party, particularly in cases in
which the child has a liability insurance.469 So far the courts are quite reluctant in
accepting any contributory negligence of children under seven years of age. However, it
seems as if the courts take the seven-year benchmark seriously. Children (only slightly
older than seven) who participated in riding lessons were regarded as being capable of
realising the danger of approaching a horse from behind.470
The question remains open whether legally relevant contributory negligence might
result from the parent’s violation of their duty to custody. Legal doctrine has struggled
hard to legally qualify the relationship between the parents, the child and the tortfeasor.
The point at stake is the difference between § 278 BGB and § 831 BGB. However, the
Supreme Court has made clear that any violation of the duty of supervision is irrelevant
as long as the child is not responsible for tortious actions.471
The prescription period for tortious liability is three years, § 195 BGB. It begins once
the injured party becomes aware of or should have become aware of the violation of the
duty of care. Prescription periods did not play a role in any of the cases reported here.
The organisers of playground facilities have long tried to exclude their liability by
indicating that “parents are liable for their children” (Eltern haften für ihre Kinder).
Legally they have no effect.472
aa) Burden of proof
The burden of proof has already been dealt with for fault and causation. The injured
party has to provide evidence for his or her damage, be it the health damage or
economic loss. Particular problems arise with regard to the amount calculated to
compensate immaterial damage.
469
H.-W. Micklitz/S. Bittner, § 828 Rdnr. 24, in: W. Kohte/H.-W. Micklitz/P. Rott/K. Tonner/A.
Willingmann (Hrsg.), Das neue Schuldrecht – Kompaktkommentar, 2002 with further references.
470
OLG Celle, 8.2.1995, VersR 1996, 1511 (20 % contributory negligence).
471
BGH, 1.3.1988, VersR 1988, 632, long standing case law, see already BGH, VersR 1952, 240.
472
L. H. Michel, ZMR 1991, 206.
157
Hans-W. Micklitz
Specific institutions dealing with leisure accidents do not exist. Due to the lack of out of
court settlement procedures, the injured parties seek their rights in the courts. This
might explain why the courts in Germany have to shoulder a heavy workload. The
numerous cases, the development of sub-categories in the field of leisure activities
provide evidence on the very German way of dealing with these matters.
e) Case study
A good candidate for a comparative case study might the case-law on the liability of the
operator of water slides. Here abundant case-law exists. At the heart of the conflict was
the question as to whether a particular technical standard, elaborated by the German
standardisation institution – DIN 7937 –, can be understood to define the borderline of
the operators’ liability or whether his-er liability reaches beyond the technical
standards.473 The law has been settled in the thoroughly reasoned judgement of the Court
of Appeal of Cologne.474 The defendants went to the Supreme Court, which, however,
did not accept appeal. Therefore the judgment of the Court of Appeal must and should
be regarded as the present benchmark for the liability of the operators of leisure
facilities.
473
See J. Fritzweiler/E. Scheffen, SpuRt 1998, 148, who are analysing the case-law prior to the decision
for the court of Appeal of Cologne.
474
OLG Köln, 20.7.2000, VersR 2002, 859.
158
Leisure service Italy
4. Italian Law
Literature: F. Agnino, La limitata risarcibilità delle lesioni da fallo di gioco, Riv. dir. sport. 2000, 195;
G. Alpa, La responsabilità civile in generale e nell’attività sportiva, Riv. dir. sport. 1984, 471; C. Barbieri,
Nota a Trib. Milano 21.9.98, Riv. dir. sport. 1999, 561; A. Baratto, L’equitazione e la responsabilità del
gestore del maneggio, Giur. it. 1999, III, 2048; R. Beghini, L’illecito civile e penale sportivo, 1999; G.
Benacchio, Diritto privato della comunità europea, 2001; M. Capecchi, Responsabilità del gestore di
maneggio e prova liberatoria, Nuova giur. civ. comm. 1999, I, 751; C. Carreri, Sull’attività di guida
alpina, Giur. merito 1998, 1132; G. Chinè, La responsabilità del giocatore di calcetto tra «rischio
consentito» e violazione delle regole del gioco, Riv. dir. sport. 2000, 192; G. Cian/A. Trabucchi (a cura
di), Commentario breve al codice civile, 2002; R. Frau, La r.c. sportiva, Il diritto privato nella
giurisprudenza (a cura di P. Cendon), La responsabilità civile, X, Responsabilità extracontrattuale, 1998,
361; R. Frau, Nota a Trib. Monza 5.6.97, Resp. civ. e prev. 1998, II, 1531; R. Frau, Rischio sportivo e
responsabilità degli organizzatori, Resp. civ. e prev. 1997, II, 701; G. De Marzo, Profili della tutela
giuridica del calciatore dilettante, Riv. dir. sport. 1997, 101; P. Laghezza, Nota a Trib. Genova, 4.5.2001,
Foro it. 2001, 1402; P. Laghezza, Caviglia del tennista e responsabilità (per buca nel campo) della società
sportiva, Riv. dir. sport. 1996, 91; G. Liotta, La responsabilità civile dell’organizzatore sportivo:
ordinamento statale e regole tecniche internazionali, Eur. e dir. priv. 1999, 4, 1180; F. Pantaleoni, La
dichiarazione (di esonero da responsabilità civile) imposta agli atleti dalla federazione internazionale di
sci: considerazioni sulla validità anche alla luce della recente normativa sulle clausole abusive, Resp, civ.
e prev. 1999, I, 548; T. Piccirilli, Attività sportiva e responsabilità civile, Giur. it. 1999, I, 265; C.
Poncibò, Gioco, sport e responsabilità aquiliana, Giur. it. 2002, 1167; A. Scialoja, responsabilità sportiva,
Dig. disc. priv., sez. civ., XVII, 1998, 410; R. Simone, Nota a Cass. 21.5.98, n. 5086, Riv. dir. sport. 1998,
154.
Within the Italian doctrine, it is not easy to find information, which confronts the topic
of civil liability connected to leisure services in a systematic way nor has there been a
sufficient contribution of judicial findings on this subject. In fact, the courts seem to
have followed a case by case approach in this area.
There is however a greater interest shown with regard to the more specific area of civil
liability in sports. This can be easily explained by considering the fact that this area,
though it does not fall outside of the principles laid down in the civil code or of the
traditionally consolidated principles of civil law,475 undoubtedly presents peculiar
problems and is characterized by a high degree of interdisciplinarism, which often
contributes to an overlapping between the criminal regime of liability and the civil
one.476 Even in this restricted area the courts seem to proceed through “one could say
475
G. Alpa, La responsabilità civile in generale e nell’attività sportiva, Riv. dir. sport. 1984, 473.
476
See on this issue v. R. Beghini, L’illecito civile e penale sportivo, 1999.
159
Stefano Troiano
erratic decisions, without following an autonomous, organic or coherent system”.477

Moreover the principles elaborated in relation to civil liability in sports are only rarely
extended by the courts to other leisure time activities.478
a) Contractual Liability
Within the Italian doctrine and also the courts, the topic of compensation for damages to
the person suffered through the pursuit of a leisure service is nearly always dealt with
under the auspices of tortious liability rather than contractual liability. There are two
reasons for this. On the one hand, in the majority of cases in the leisure sector it is
impossible to recognize a contractual relationship between determined subjects from
which a breach could be reasoned in an individual case.479 On the other hand, even in
cases in which it would be possible to fit the facts into contractual liability, the judicial
norms which allow for the concurrence of both contractual and tortious liability actually
mean that in the majority of cases the facts are only examined from a tortious
perspective. In fact a tortious action is more favourable than contractual, under certain
circumstances, as it also allows for compensation of unforeseeable damages and
moreover for the recovery of non economic damages in the light of article 2059 c.c.
(moral damages),480 something that is excluded, at least that appears to be the prevailing
opinion, in the case of contractual liability.
aa) The parties
i) Contract parties
Among the cases which have been redirected to contractual liability, in the first place
that of the liability of an event organizer (whether a sporting event or not) with regard to
the paying spectators can be highlighted.481 It is in fact a consolidated opinion that the
latter, through payment of the entrance ticket, actually conclude an atypical contract
with the former (the so called “contratto di spettacolo”) – according to some similar to a
transport contract – in light of which the organizer is obliged to allow attendance to the
477
G. Alpa, La responsabilità civile, cit., 472.
478
The decisions which move in this direction are sporadic. See in particular Cass. 9.4.2001, n. 7909, in
Giur. it. 2002, 1166, con nota di C. Poncibò.
479
And even in the case that a contract had been made it could still be extremely complicated to
individualize its content, above all when the contract has been concluded orally: in this sense please
see P. Laghezza, Nota a Trib. Genova, 4.5.2001, Foro it. 2001, 1402.
480
This does not however take away the fact that whenever other aspects are relevant (like prescription or
burden of proof) it could be that the contrary applies (and that a contractual action would instead be
preferable for the injured party)
481
V. R. Frau, La r.c. sportiva, Il diritto privato nella giurisprudenza (a cura di P. Cendon), La
responsabilità civile, X, Responsabilità extracontrattuale, 1998, 361 ff.
160
event and to adopt all necessary measures to guarantee the safety of the spectators
themselves both during the entrance and the exit of the event structure.482
Moreover, the courts have at times also recognized a contractual liability on behalf of
the organizer of a sporting activity (or the manager of the installation of a sport facility)
with regard to the participating athletes in the sport itself. Think, for instance, of the
racing track manager’s liability for damages suffered by riders483 (in at least one case,
the particularly lively nature of a horse has even been assimilated to the damage of a
localized object484) or the manager’s liability for ski lifts for damages suffered by
these.485 Another example is that of the liability of the sporting organization for breach
of its obligation to supervise the correct and safe development of the sport which was
assumed in the stipulated contract (even in oral form) with the athlete.486 However it
should be highlighted that the courts sometimes have considered it necessary to
distinguish the case of the professional athlete from that of the amateur athlete,
excluding in the latter case the formation of a contract with the sports club/organization
to which he/she belonged.487
Finally it is of merit to mention the liability of the mountain climber guide (which
normally is assimilated to that of a ski teacher488) with regard to his/her client. In
particular, according to the courts, the guide’s contract should be an atypical contract,
which also gives rise to the obligation of the guide to protect the physical safety of the
client-learner.489
ii) By-standers and Others
482
V. Trib. Milano 21.9.98, Riv. dir. sport. 1999, 556, con nota di C. Barbieri. V. anche Trib. Milano
21.3.1988, Riv. dir. sport. 1989, 62.
483
However this has sporadically been interpreted in terms of contractual liability (see for example App.
Venezia 30.10.1977, unedited, and is preferred, both by the doctrine and by the courts as recognized
under extracontractual liability under article 2043 ff. c.c.
484
Trib. Firenze 23.9.1981, unedited.
485
According to some, such contractual liability should be redirected to article 1681 c.c. (which governs
the topic of contracts of passenger transport), according to others, however, it should be regulated by
the general norms of breach of obligations in article 1218 ff. c.c. See amplius R. Frau, La r.c. sportiva,
cit., p. 365 and A. Scialoja, responsabilità sportiva, Dig. disc. priv., sez. civ., XVII, 1998, 417. With
regard to the question of the applicability or not of article 1681, there is a tendency to distinguish
moreover among transport with funicular lifts or with closed cabin lifts, and those that are sledge lifts
or ski lifts: in the latter cases, the application of the norms seems doubtful as it is difficult to redirect
back the cases in which the service requires the necessary collaboration of the user (and not only
collaboration) as is the case with ski lifts (therefore it seems preferable to talk of autotransport) to the
true and proper transport of the person.
486
See Trib. Genova, 4.5.2001, Foro it. 2001, 1402, with a comment from P. Laghezza.
487
In this regard see Trib. Napoli, 29.1.1996, Riv. dir. sport. 1997, 91.
488
See R. Frau, La r.c. sportiva, cit., p. 373.
489
See C. Carreri, Sull’attività di guida alpina, Giur. merito 1998, 1132.
161
Stefano Troiano
It is considered that illegal spectators, together with those who attend an event which
does not require the payment of a entrance ticket and in general third parties can all
claim, with regard to the organizer of an event, for damages caused during such an
event exclusively on the base of tortious liability.490 This same conclusion is moreover
valid, in general, for all cases of damages suffered by a third party with respect to the
contract. An example of this, is the liability of the mountain climber guide with regard
to third parties who are not client-learners.491 The configuration of a contract with
protective effect towards third parties is sometimes also used by the Italian courts492 but
does not seem to have been done in the area of liability connected to the enjoyment of
leisure services.
iii) Vicarious Liability
In this area it is no doubt possible to find the application of the general provisions of
article 1228 c.c. in the light of which the debtor who, in breach of his obligations, uses
auxiliaries/workers, is also liable for their negligent or malicious acts. In particular,
think of the liability of event organizers (whether sporting or not) that are assisted by
the collaboration of a great number of people. For example a sports club for martial arts
(karate) has been held responsible for the acts of the instructor, who worked for the club
and who imprudently invited a young female student to fight with a black belt which
caused her to break her meniscus.493
In terms of liability of the mountain climber guide, it seems on the other hand that the
special provisions of article 2232494 must be applied (not article 1228 c.c.), in the sense
that the service supplier must personally follow the assumed task and then take
advantage, under his/her own direction and responsibility, of substitutes or auxiliary
workers only when there is consent in the contract for the collaboration of others or this
is allowed by customs and it is not incompatible with the object of the service supply.
bb) Bodily Injury to the claimant
Except for the brief considerations about the reasoning of damage and compensation, it
appears that injury to the person does not present specific problems in this material
herein discussed. Please see the short report on liability in Italian law.
490
491
492
See A. Zaccaria, sub art. 1411, IV, Commentario breve al codice civile, a cura di G. Cian e A.
Trabucchi, 2002, 1364.
493
See Trib. Genova, 4.5.2001, Foro it. 2001, 1402 ff., which on the other hand does not make an express
reference to the application of article 1228 c.c.
494
On this see: C. Carreri, Sull’attività di guida alpina, cit., 1133.
162
cc) Violation of contractual duty of care.
In general, article 1176 c.c. states that the debtor should, when in breach of its
obligations, use the “diligence of a good father of a family”.
With regard to an event organizer, whether sporting or not, both doctrine and judicial
findings affirm that it is considered to be obliged to take all the necessary measures to
remove risks of damages to spectators and athletes (or also artists). Moreover and
precisely, such subjects must control the technical means/apparatus used by the athletes
(or artists); verify the suitability of the place (so as to keep the above-mentioned people
unharmed from future dangers) and weigh up the physical and psychological conditions
of the athlete.495 To give some examples, the manager of ski lifts must assure that the
regular function of these is in accordance with normal conditions;496 the sporting
association has the duty to organize their activity in such a way so as to assure the
protection of the safety of the athlete;497 the organization of a professional football
match must protect the paying spectators from the risks of injury to their health, in
particular (among others) by providing the necessary controls with the aim of avoiding
anything harmful getting inside the stadium.498
According to the second section of article 1176 c.c. if there is a breach of obligations
inherent to the exercise of professional activity “the diligence must be assessed with
regard to the nature of the activity”. The application of such a rule is invoked in relation
to the liability of the professional mountain climber guide (who, as already mentioned,
has the contractual obligation to protect the personal safety of his client). More
precisely, reasonable diligence is required from the mountain climber guide (as is, in
more general terms, the professional), that means reasonable professional preparation
and attention; moreover highlighted among the rules of conduct concerning professional
preparation are those acquired by consent and consolidated experimentation; moreover
professional diligence requires the client to be pre-informed of the difficulties and
possible risks.499
495
See R. Frau, La r.c. sportiva, cit., 354.
496
See Trib. Aosta 5.12.80, Riv. dir. sport. 1982, 339.
497
See Trib. Genova, 4.5.2001, Foro it. 2001, 1403.
498
See Trib. Milano 21.9.98, Riv. dir. sport. 1999, 557.
499
In analogous terms see C. Carreri, Sull’attività di guida alpina, cit., 1134.
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Stefano Troiano
Concerning the duty to supervise and control the technical equipment being used, it is
usually considered to be the duty of, as already mentioned, the head of the event
organizer. The suitability of the condition of the place must be controlled at the start as
well as during the course of the event and with regard to the technical means, these must
be tested for safety even in the case that these “means” are the property of the athlete
(and not of the organizer).500
i) Fault requirement?
In the area that is here being discussed it also seems to be a general problem and one
that is widely debated, whether or not negligence should be considered as a premise of
contractual liability or not,501 a problem which the courts above all seem to resolve
under the former solution, that is to say, under contractual liability.
In any case it must be remembered that the rules of mitigation of liability in article
2236502 are applied to the mountain climber guide and therefore if there are particular
technical difficulties, this must be considered to correspond to damages exclusively
limited to malice or gross negligence.503
According to the seemingly prevalent theory (for further details see the general
introduction) article 1218 provides for a “presumption of fault” on behalf of the debtor
first, and this is usually repeated also in relation to cases of contractual liability
concerning the enjoyment of leisure services.504
With regard to the liability of the manager of a ski lift, it is considered – as has already
been said – necessary to go back to article 1681 c.c. (which deals with transport of
people) (at least in some cases: see previous footnote 12) according to which the ground
carrier of people is responsible for the accident which happens to the travellers “if it
does not prove that it adopted all the necessary measures to avoid the injury”. This rule
does not appear to be stricter than the general liability rules: in fact, the adoption of all
500
See R. Frau, La r.c. sportiva, cit., 354 ff.
501
On this point and more see A. Zaccaria, sub art. 1218, I, Commentario breve al codice civile, cit.,
1176 ff.
502
On this see C. Carreri, Sull’attività di guida alpina, cit., 1134.
503
It should be highlighted that caselaw still affirms that mitigation of liability only considers cases of
skill and not those of negligence and imprudence: see P. Pitter, sub art. 2236, II, Commentario breve
al codice civile, cit., 2276.
504
See for example R. Frau, La r.c. sportiva, cit., 362.
164
the necessary measures must always be evaluated in the light of the standard of
professional diligence required from the carrier.505 Therefore it always deals with a
presumption of fault only.506
With respect to the contractual liability of the professional mountain climber guide
some authors wonder whether the presumption of negligence in article 2050 c.c. is
applicable. However this has been given a negative response by the Court of Cassation
which has excluded the possibility of applying article 2050 c.c. to activities which are
dangerous per se and for which the legislators have already provided a specific
discipline with regard to liability (a specific discipline which in this case would be
redirected to article 2236 c.c.).507
iii) Standard of Fault (if applicable)
The general rule of objective criteria,508 which the evaluation of fault must follow, does
not seem to be contested in this area.
The area regarding exemption clauses to the benefit of event organizers is widely
debated – and also due to its importance in practice. Above all, it is highlighted that
clauses of this nature contained in sporting regulations do not appear to have any effect
with regard to third parties non-participants and that whenever the same clauses foresee
an exclusion of liability in cases of malicious or gross conduct they must be considered
to be void under article 1229 c.c. independent of the type of injured party involved
(athlete, spectator or other).509 Moreover, when these clauses are prewritten by the
organizer on the tickets on sale to the public, article 1342, 2o co. applies according to
which the exemption clauses contained in printed forms or documents are void if they
are not specifically approved in writing by the other party. In the case that such an
agreement is stipulated in a contract between a professional (the organizer) and the
consumer (the spectator) the rules of article 1469 bis ff. c.c. are also applicable (which
implements as already said directive 93/13/CEE) and in particular article 1469 bis, 3o.,
1, and 1469 quinquies, 2o., n.1 all of which claim that exemption clauses or clauses that
505
506
507
See C. Carreri, Sull’attività di guida alpina, cit., 1135.
508
In general on this point see A. Zaccaria, sub art. 1176, Commentario breve al codice civile, cit., 1143.
509
See R. Frau, La r.c. sportiva, cit., 363. See amplius on this point, F. Pantaleoni, La dichiarazione (di
esonero da responsabilità civile) imposta agli atleti dalla federazione internazionale di sci:
considerazioni sulla validità anche alla luce della recente normativa sulle clausole abusive, Resp, civ.
e prev. 1999, I, 548 ff.
165
Stefano Troiano
limit professional liability in cases of death or personal injury of the consumer510 are all
ineffective.
ee) Causation
The causal link – which as already mentioned, must exist between the breach of the
obligation and the injury itself – does not, in terms of liability for personal injury in
relation to leisure services, present any particular problems. Therefore see the general
part on this point.
The rules which are generally considered to be inferred from article 1223 c.c., that is to
say those of adequate causation, are also applicable to this area.
ii) Omissions
In the area of omissive causation there do not appear to be particular considerations with
respect to the general ones. In particular, liability for personal injury connected to
leisure services is very frequently recognized. To give some examples, this is the case
for the liability of the sporting association which did not look out for the physical safety
of the athlete511 or the liability of the organizer of a football match who did not control
the suitability of the installations to guarantee the safety of the spectators.512
In the area of burden of proof – except for what has been said with regard to the proof
of fault – it also seems that no special rules exist.
It is useful to remember that one of the differences between contractual liability and
tortious liability is that in the former, unlike the latter, compensation is limited only to
the damages foreseeable at the moment of commencement of the obligation (article
1225 c.c.).
i) Damage to Health
In relation to compensation for biological damages, for both contractual and tortious
liability, no problems other than the general issues arise in this area.
510
511
See Trib. Genova, 4.5.2001, Foro it. 2001, 1403.
512
See Trib. Milano 21.9.1998, Riv. dir. sport. 1999, 557.
166

The compensation of moral damages (or non economic damages) in article 2059 c.c. is
only due – at least according to the prevailing opinion – in cases of tortious liability
(and always when action is taken in one of the “cases determined by the law” to which
article 2059 refers, the most important of which is the committing of a crime). The
question is not very important in the practice, due to the fact that, in all the above
mentioned cases of contractual liability, as a rule it is considered that there is a
concurrent tortious liability.
iii) Quantification (measure) of damages
In caselaw, with regard to the problem of quantification of damages in relation to

damages suffered by an athlete, there tends to be a distinction between amateur sport
and professional sport with regard to the determination of the amount of monetary
damages which in the latter amounts to a more substantial sum of compensation;
however with regard to biological damages, the judges apply the general case law rules
on this subject.513 It is worth remembering in this case, that the impossibility to entertain
normal recreational activities is also considered to be a kind of biological damages.514
Just like the general rules for breach of obligations, the possible contribution of fault of
the creditor in the causation of a breach of obligation can lead to a reduction in
damages; moreover compensation is not given when the creditor himself could have
avoided the damages by exercising reasonable diligence (article 1227, comma 1o and
2o). These rules are applied, for example, to exclude liability of the mountain climber
guide in the case of an accident in which the client him/herself did not exercise the
necessary precautions.515
hh) Limitation Period (time limits)
The limitation period for an action concerning contractual liability is the usual 10 year
period in article 2946 c.c. However, as already highlighted above, some of the cases
which have been discussed can be redirected to the area of transport contracts and in
these cases the contractual action prescribes after one year (article 2951 c.c.).516
513
See also R. Frau, La r.c. sportiva, cit., 378.
514
See for example Cass. 10.10.92, n. 11096, Mass. Foro it. 1992, 932.
515
516
167
Stefano Troiano
It is confirmed that in Italian caselaw, civil protection against personal injury derived
from leisure activities (and above all sporting activities) comes under the area of
tortious liability and also in the limited cases that the existence of a contractual liability
is recognized, there tends to be an affirmation that both liabilities are concurrent.
aa) The parties
With regard to the people responsible under tortious liability for personal injury in the
field of leisure services (and above all in sport) there tends to be a distinction between
the liability of the athlete and the liability of other subjects, namely the event organizer,
the manager of the installation, the owner of the installation, public administration,
sports doctors, parents, instructors, referees, third party non-participants and – the list is
not exhaustive – the manufacturer.
In relation to the athlete, it is argued whether he/she can possibly be liable for personal
injuries to third parties non participants and for that of other athletes. In the former case
it is affirmed that it would not be possible to configure the injuries to third party non
participants within the legal notion of sport risks517 which the athlete accept to assume
(this notion will be further clarified later under the sub-heading Exclusion and
Limitations). Therefore the exclusion of the athlete’s liability that has respected the
rules of the game, are considered to be based on the objective absence of the injuror’s
fault (and not from the assumption of risk on behalf of the third party). In each case, the
injury caused by an athlete that has respected the rules of sporting conduct to a third
party will fall on the event organizer for a violation of its obligation to adopt all
necessary precautions to protect the safety of third parties.518
In the second case, that of injury to other athletes, it is affirmed that the athlete’s
liability must be more strictly evaluated when the injury is suffered in a friendly game
or in a training session (and not in a true competition).519
The organizer of a sporting event is held liable for damages, suffered by an athlete or
spectator (and if these are paying spectators a concurrent contractual liability may also
exist), which arise from the breach of his/her obligations. These obligations have as
their object, mainly, the control of the technical equipment used by the athlete, the
517
Except for a few particular categories of third party non participants, for example photographers at the
edge of the playing field, in which case their voluntary exposure to the danger of receiving an injury
would seem to be argued.
518
On this topic R. Frau, La r.c. sportiva, cit., 323.
519
168
guarantee of the installation’s safety and the obligation to check the health conditions of
the athlete.
Also the installation manager is obliged to control the safety of the installation, and in
cases of omissive behaviour the injured party can claim for damages under tortious
liability.
It is not possible to assimilate the mere sponsor to the organizer520 in terms of liability.
Whenever there is a possibility that the installation manager is someone other than the
owner, the latter is also liable if the building collapses or falls into ruin according to
article 2053 c.c.
Among commentators, public administration is also considered to be liable in cases of
negligent omission of the giving of authorization or controlling the observance of safety
rules.521
The sports doctor could be held liable for erroneously considering the athlete fit to
practise his/her sport.522
The liability of parents, teachers and instructors is regulated under articles 2047-2048
c.c. The first article states that, in the case in which the injury is caused by a person who
is unable to understand and exercise his/her will, liability falls on his/her supervisor,
unless the latter proves that it was impossible for him/her to stop the injury from
happening. According to caselaw, this is direct liability, based on negligent supervision
on the behalf of the supervisor (fault is exceptionally presumed in this case).523 Article
2048 c.c. in turn state that parents and teachers are liable for torts carried out by minors
and pupils respectively, if the former do not prove that it was impossible for them to
avoid injury. According to caselaw, liability is always based on the parents and
teachers’ negligence (and according to each individual case, negligence while educating
or negligence while supervising) that is presumed also in these cases.524
Referees, who are entrusted with the task of making sure all sport equipment conforms
to the laws of sports and who have the task of reprimanding improper conduct on behalf
of the athletes, can be held liable (in both contract and tort) to the athlete for any
omission that may have led to cause injury.525
520
On this see Cass. 21.5.98, n. 5086, Riv. dir. sport. 1998, 148, with a comment from R. Simone.
521
522
V. R. Frau, La r.c. sportiva, cit., 368.
523
Cass. 1972, n. 3617.
524
Cass. 2000, n. 5957.
525
169
Stefano Troiano
Moreover, the conduct of third party non-participants which is contrary to safety rules
of reasonable prudence could actually mean that liability is imputed to the third parties
themselves.
On some occasions, in this area, manufacturer’s liability for damages arising from a
defective product has also been recognized. For example in the case of a cyclist who
received injuries because of the loosening of the handle bars on his mountain bike.526
On the subject of vicarious liability, the sporting club of which the athlete is a member
can be held liable under article 2049 c.c. for injury caused to that athlete by another
athlete or by a third party non-participant. This is especially the case for professional
athletes, which are linked to the club contractually. However, the applicability of article
2049 c.c. must also be admitted in general terms, if one considers how the Cassation
Court tends to give a very wide interpretation to the provisions of this article,
considering that it also applies whenever there is a merely temporaneous link (i.e. no
true and proper relationship of dependency) between the client and the person who
executes the task and whenever the link between the task and the person executing it in
the interests of the client is the mere “occasion” for the damage to occur.527
Still on the lines of vicarious liability, the organizer of an event or the installation
manager are also held liable, again under article 2049 c.c. for the acts of their
employees: for example it is considered the liability of the ski lift installation manager
when an employee acts in a negligent way.528 Moreover the club to which instructors
belong529 and the Minister of Public Education for its teachers are normally held liable
for damages caused by these employees.
Additionally and more in general, the provisions of article 2049 c.c. can be applied in
relation to the damaging act of all the above mentioned subjects whenever these are
involved with a dependent link or even a type of “occasional link” like those discussed
above, with an employer or with a client in the sense that this article provides.
Finally, as a last example, a theatrical organization has been considered liable for
biological damages caused to one artist, during a ballet, by another artist employed by
the organization.530
526
See Trib. Monza 21.7.93, Resp. civ. prev. 1994, 141.
527
For an analogous consideration R. Frau, Nota a Trib. Monza 5.6.97, Resp. civ. e prev. 1998, II, 1531.
Also see M. V. De Giorgi- A. Thiene, sub art. 2043, Commentario breve al codice civile, cit., 2009.
528
See Trib. Bolzano 22.5.87, Riv. dir. sport. 1988, 404.
529
See for example Cass. 6.3.98, n. 2486, Giur. it. 1999, I, 265 (with a comment from T. Piccirilli,
Attività sportiva e responsabilità civile, which considers the liability of the organizer of a football
match for having an instructor who omitted all necessary precautions to avoid personal injuries
reported by a minor from another team member during the game which was played under the
supervision of the former.
530
Cass. 25.9.97, n. 9396, Mass. Giust. civ. 1997, 1769.
170
It can be confirmed that bodily injury to the claimant does not present specific
problems.
The sport legal system, in the field of its normative sphere of power, also comprises
technical rules. Among these, some are determined with the general aim of protecting
the nature of a certain sport, while others are determined more precisely to protect the
physical safety of the participants. In relation to the latter there is a question of whether
the mere observance of these rules on behalf of the participants could or could not
exclude tortious liability. The question has been widely debated,531 although in caselaw
the prevalent idea is that the mere observance of sports rules is not enough to exclude
the liability of the subject, as the law requires something more, that is to say that the
athlete is vigilant and displays humanitarian respect to the physical integrity not only of
other athletes but also of third parties. However caselaw tends to highlight the
importance of technical rules, affirming that if the conduct conforms to these rules there
is a presumption of licitness, which is only overcome in cases where contrary elements
of an objective character exist.532
However the organized sporting event (which falls under the above considerations)
must be distinguished from the non organized type, which instead only falls under the
criteria of prudence, diligence and skill connected to the general principles of neminem
laedere, except for those participants who agreed to follow the official behaviour rules
provided for by the sport being played.533
One analogous solution is also valid for organizers.534 In fact, caselaw affirms that the
observance, on behalf of the latter, of sports technical rules (especially those which
indicate the preparation of the playing field) is not sufficient to exclude liability.535
Commentators, similarly, highlight that besides the need to respect sport rules, whoever
is in charge of the sports installation is also liable for the general obligation of vigilance
and prudence.536
531
According to some the nature of sports law is recognized as true and proper norms of law with general
efficacy and the observance of these would exclude any liability, even tortious liability. On this theory
see amplius R. Frau, La r.c. sportiva, cit., 313 ff.
532
533
See R. Frau, La r.c. sportiva, cit., 320 ff.
534
See G. Liotta, La responsabilità civile dell’organizzatore sportivo: ordinamento statale e regole
tecniche internazionali, Eur. e dir. priv. 1999, 4, 1180.
535
See for example Trib. Rovereto 5.12.89, Riv. dir. sport. 1990, 502.
536
171
Stefano Troiano
dd) Causation
With regard to the causal link in terms of tortious liability, the general rules are applied,
by virtue of which there is a tendency to distinguish factual causation which links the
conduct to the damaging event from legal causation which instead concerns the adverse
economic consequences which arise from the tort and is regulated by article 1223 c.c.537
ee) Fault
In the first place – except for special cases of presumption of fault or more accurately of
strict liability – among the premises of tortious liability fault is also present, understood
in its two forms of malice or negligence (article 2043 c.c.). The problem of whether
fault should or should not also be considered to be a premise of liability of this area
herein being examined must be confronted by distinguishing the various categories
(already mentioned above) of possible responsible subjects.
In the first place, considering athletes, organizers and managers (and sports clubs), both
doctrine and caselaw usually distinguish the specific sporting discipline. In particular,
with respect to the liability of the mountain climber –leaving out contractual liability as
this has already been discussed – it must be remembered that only a minority follow the
theory that the presumption of fault present in article 2050 on the topic of the exercise
of dangerous activities538 should be applicable to this same activity. In motor car racing,
judges have recognized the liability of the competition enrolers under article 2049 c.c.
for injury caused by the drivers; often, however, liability of the driver is excluded if in
the meantime the liability of the event organizer for breach of obligations is recognized.
Concerning equestrian sports, the manager of the riding school (his/her contractual
liability has already been mentioned above) is sometimes considered to be exercising a
dangerous activity and therefore is liable under article 2050 c.c. in particular with regard
to riders that are learning (though there is a tendency for the dangerousness to be
excluded when the rider is an expert);539 other times, however, and still in relation to the
manager of a riding school, reference has been made to liability (strict liability
according to a part of the doctrine and liability based on presumption of fault according
to others) under article 2052 c.c. (injury caused by animals) which falls on the owner or
on whoever looks after an animal for the period in which it is used in relation to injuries
caused by the animal to the pupil during practice.540
537
M. V. De Giorgi- A. Tiene, sub art. 2043, cit., 1983.
538
539
See for example Cass. 11.2.94, n. 1380, Giur. it. 1995, I, 1, 1733
540
On this topic see Cass. 23.11.98, n. 11861 e Cass. 4.12.98, n. 12307, in Giur. it. 1999, III, 2048, with
a comment by A. Baratto, entitled L’equitazione e la responsabilità del gestore del maneggio; also see
172
The general rules of liability in article 2043 have the same application for skiers, but
sometimes there is a need to use special rules, those of article 2054 (regarding
circulation of vehicles) or (once more) article 2050 c.c.541 In relation to nautical sports,
however, liability derived from the circulation of swimmers and boats regulated under
article 2054 is distinguished from that relating to the circulation of racing sailing boats
(which have a length of more than 24 metres), which is regulated instead by specific
provisions contained in the sailing code.542
Sometimes liability is referred to article 2051 c.c. (damages to things being held in
care/custody) – according to some through presumption of fault and to others through
strict liability – for example a sports club was held liable for the injury suffered by a
tennis player after he tripped over a hole on the tennis court.543
The liability of an event organizer is usually redirected to the general rules on liability
under article 2043 c.c. However according to a more recent position a liability based on
presumption of fault (or as mentioned above according to another opinion more
precisely on strict liability) should be spoken of based on article 2050 c.c.
With regard to the liability of a sports installation manager, this is sometimes based and
depending on the type of installation and the type of sport practised there, on article
2043 c.c. and other times on article 2050 c.c. To give some examples of this, in caselaw
there is a tendency not to categorize the management of a football stadium as
constituting a dangerous activity,544 the dangerousness of management of a go-kart track
is usually admitted and there appear to be two positions concerning the management of
a swimming pool, one for and one against.545
Whenever the owner of the installation is not the manager of the same, it is possible – as
already mentioned – that the provision is also applicable to him/her, prevalently
understood as strict liability, under article 2053 c.c. which sanctions the liability of a
building proprietor for damages caused from the bad condition of the building (except if
it can be proved that the bad condition was not due to a lack of maintenance or to a
construction defect).
along the same lines Cass. 23.11.98, n.11861, Nuova giur. civ. comm. 1999, I, 745, with a comment
by M. Capecchi entitled Responsabilità del gestore di maneggio e prova liberatoria.
541
See G. Alpa, La responsabilità civile, cit., 487.
542
See amplius R. Frau, La r.c. sportiva, cit., 349.
543
See Cass., 28.10.95, n. 11264, in Riv. dir. sport. 1996, 87, with a comment by P. Laghezza entitled
Caviglia del tennista e responsabilità (per buca nel campo) della società sportiva.
544
For example App. Milano 30.3.90, Riv. dir. sport. 1990, 498. On the other hand in more recent
caselaw the opposite was pronounced, see Trib. Milano, 21.9.98, n. 10037, Riv. dir. sport. 1999, 2,
561.
545
See, for some examples, R. Frau, La r.c. sportiva, cit., 365.
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Stefano Troiano
With regard to the liability of Public management, referees and third party non
participants the general rules of liability in article 2043 c.c. must be referred to in all
these cases. The same conclusion is taken for sports doctors except that it must be said
that in this case the above-mentioned general provisions seem to be weakened by article
2236 c.c. in which the professional is only liable for damages caused through technical
problems of a particular difficulty if there is malice or gross negligence.546
Coming now to the liability of parents, teachers and instructors for acts committed to
their children or pupils, the provisions of articles 2047-2048 c.c. pose a series of
problems, however it is not possible here to go into detail. It is enough to remember that
the argument revolves around whether such rules foresee a presumption of fault or
whether, more accurately, they must be framed within the area of strict liability.547
Finally with regard to the liability of the manufacturer, it is enough to mention that even
though law d.lgs.n.25 2001 has been enacted (implementing Directive 99/34/CE),
Italian caselaw still sometimes continues to apply the civil code, in particular articles
2049,2050 and 2051, which were previously applied.548
With regard to compensation of damages, it is possible to restate the previously

formulated considerations relating to tortious liability, but it is also necessary to
reaffirm that compensation for moral damages in the case of a crime (article 2059 c.c.
and 185 c.p) is only due for tortious illegal acts according to the prevalent opinion.
The quantification of moral damages tends to be based on equity under articles 2056
and 1226 c.c.
The provisions of article 1227 c.c. as detailed in the area of contractual liability, also
apply to tortious liability, in virtue of article 2056 c.c. To give an example, the
behaviour of a spectator who reported injuries, after getting onto the field during a
competition game, was condemned by the courts, which established that 70 % was the
fault of the athlete and 30 % was the fault of the injured.549
546
On the meaning of the provisions of article 2236 see amplius retro.
547
See amplius R. Frau, La r.c. sportiva, cit., 370 ff.
548
See amplius G. Benacchio, Diritto privato della comunità europea, 2001, 339 ff.
549
See Trib. Aosta 16.11.1989, in Riv. dir. sport. 1990, 67.
174
With regard to the limitation period, it is useful to remember that contractual liability
actions are subject to the usual limitation period of ten years (article 2946 c.c.) but that
tortious liability actions are subject to a shorter term of five years (article 2947, 1o co.,
c.c.), more precisely this is reduced to two years when the damages are derived from the
circulation of vehicles (article 2947, 2o co., c.c.). A longer period may arise, in illegal
tortious actions, but only when the act is considered to be a crime in the eyes of the law
and as for a crime there is a longer prescription period, then this is also valid for the
related compensation action (article 2947, 3o co., c.c.)
With regard to the exclusion of liability, both doctrine and caselaw have elaborated on
the theory of the so called “sport risk”. In particular, seeing that the conduct of the
athlete must be addressed with regard to the reasonable athlete (rather that to the
reasonable person in general), it is considered that the athlete who consciously decides
to participate in a sport assumes therefore the risks of the sport, understood to mean the
acceptance of the consequent injuries regarded as normal for the sport being played.550
However, both the courts and the doctrine do not appear to be settled on what can be
considered to be normal risk. The courts seem to understand this notion in particularly
wide terms, in so much as it also comprises the legal figure of the so called “generic risk
of fault”. In other words the athlete also assumes the risk of violent acts, which violate
the rules of play, except when these actions are voluntary and so violent as to imply that
a serious danger for the adversary is foreseeable.551
Moreover, regarding the assessment of the risk (quantum) there is a tendency to
distinguish the risk itself, in descending order, with regard to three types of sport: sport
with institutionalized contact (like for example karate); sport with possible contact
(football for example) and sport where contact is prohibited (like tennis). Sometimes –
550
See R. Frau, La r.c. sportiva, cit., 316. The Judicial basis of this theory has had various followings:
according to some, such a basis should be recognized under a wider notion of fortuitous event; others,
however, base it on the consent of having a legal regime; others recognize a tacit agreement by the
participants to assume the risks. However, considering the law’s reluctance to physical integrity (at
least partially: remember that article 5 c.c. prohibits acts regarding the disposition of the body itself),
it would seem preferable to recognize the basis of this theory, especially in acts performed by the
athlete, as strict liability of conduct that falls within the normal conduct for the sport which is being
played.
551
Cass., 20.2.1997, n. 1564, Resp. civ. e prev. 1997, II, 701, with a comment by R. Frau. In a similar
way see the sentence of Trib. Milano, 20.12.99, Riv. dir. sport. 2000, 189, with a comment by G.
Chinè, entitled La responsabilità del giocatore di calcetto tra «rischio consentito» e violazione delle
regole del gioco and also a comment by F. Agnino, entitled La limitata risarcibilità delle lesioni da
fallo di gioco.
175
Stefano Troiano
as already stated before – a distinction is made with regard to the type of competition
(whether competitive, friendly or a training session).
It has already been seen how, except for exceptional cases, it is not possible to
recognize the assumption of risk on behalf of the spectators (liability for these falls
above all mostly on the organizer rather than the athlete).552
The theory of sport risk is of fundamental importance for also assessing (as well as
evidently the liability of the athlete) the liability of the organizer towards the athlete. In
fact, the Court of Cassation affirms that, on the one hand, competitive activity implies
that an acceptance of the risk is inherent on behalf of the organizer as well as the
participant and so they have to accept possible injuries which fall within the normal
risk”, and, on the other hand, that “it is sufficient for the organizer, to exclude any
liability, to follow the normal precautions which would contain any risk within the
confines of the specific sport being played with respect to the sporting rules.”553
aa) Burden of proof
According to the prevalent opinion, article 1218 c.c. foresees for contractual liability “a
presumption of fault”. On the contrary, the general rules of tortious liability (article
2043) require from the injured party the proof of fault of the injuror. There are,
however, as already stated, special rules (even for tortious liability) which follow a
presumption of fault, if not rules of strict liability.
bb) Specific institutions (ombudsman, claims board, etc)
In the sector of professional sports, the affiliated members of the sport federation
recognized by the C.O.N.I. (Italian National Olympic Committee) are obliged to resolve
any controversy which may arise between themselves through a specific proceeding,
very similar to arbitration, which takes place inside the association, except for cases
where the competent organs of the sport federation are obliged by the law to apply for
ordinary justice.
Moreover various institutions exist, especially with a social insurance function, for
example, “Cassa di previdenza per l’assicurazione degli sportivi” (Sportass), a public
entity with competence for the insurance of athletes (also other sports related workers
like referees, coaches etc) from accidents and from civil liability for third party injuries.
552
553
Cass., 20.2.1997, n. 1564, Resp. civ. e prev. 1997, II, 701, with a comment by R. Frau.
176
To give another example with regard to hunting, consider the “Fondo di garanzia per le
vittime dell’attività venatoria” (Fund for victims of hunting activities) in article 25 of
l.n.157 of 1992.
e) Case Study
Cass. civ., 20.2.1997, n. 1564, Toffaldano c. Motoclub Gubbio and others.554

The case at hand concerns a claim for compensation against the organizer of a motor
racing competition, made by a participant involved in a collision with a sidecar of
another contestant. The claimant stated that the cause of the accident was due to the
omission of the organihzer to adopt normal security measures (in particular because of
the hosing down of the race track) and because of this omission the organizer should be
held liable under article 2050 c.c. because – as the claimant affirmed – of the dangerous
character of the racing competition in itself.
The Court of Cassation, however, confirmed the correctness of the previous sentences
decided in the lower court, which had demonstrated that the organizer had adopted all
the necessary precautionary measures. In particular the Court stated that in competitive
activities there is a connected acceptance of risk on behalf of the competitor in relation
to the risk which is considered to be normal for that activity and the Court affirmed that
in this case the event must therefore be considered to fall within the normal risk for a
competition of this kind. In the Court’s opinion, in fact, the organizer, to exempt itself
from liability, simply had to adopt normal measures to keep the risks within the normal
limits of this specific sporting activity.
Having decided to exempt the organizers liability for the above reasons, the Court did
not even have to consider whether article 2050 c.c. should apply (widely debated in
relation to various sports sectors as already mentioned above) to this type of case.
554
Resp. civ. e prev. 1997, II, 701.
177
Leisure service Spain
5. Spanish law
The general liability system applies, thus the normal rules of fault based liability as
stated in the codigo civil. There is no special legislation. However, even though most
liability cases in the field of leisure are theoretically contract based, jurisprudence tends
to refer to extra-contractual liability rules in order to award damages. This tendency is
supported by the general habit of the Tribunal Supremo to not clearly state the grounds
on which compensation is given, see above.
aa) The parties
One must distinguish between the person offering the leisure activity and the one
beneficiary of the leisure activity and third persons.
In general, the defendant is liable with his personal means. However, there often is the
possibility of a sports insurance paying all damages caused by the injured party. In such
cases, the insurance company is directly liable.
Body injuries will be compensated, however, it must be noted that most cases of
liability for leisure will be based on tort law.
A violation of a contractual duty of care can be:

When the necessary security standard has not been observed concerning the facilities
where the leisure activities take place. In such case, there is no room for the question of
a plaintiff assuming a certain risk since he often uses the facilities in order to minimize
the leisure activities inherent risk.
Also, there is violation of the contractual duty of care when the necessary precautionary
measures, concerning organization or instruments for a certain leisure activity, to avoid
accidents, have not been taken.
Another violation of a contractual duty of care exists when even though facing someone
who has never exercised the special leisure activity before, no specific security
measures have been taken. The standard of diligence to be observed then is higher than
usual. In such case, the theory of assumption of risk cannot be applied since the
participant resembles more a passive and dependent party than an active protagonist.
179
During the execution of a leisure event, the organizer is obliged to act carefully and
diligently, the standard being the buen padre de familia. The organizer must also ensure
the contracting parties body integrity.
Concerning the participants to the leisure activity, the liability is fault-based.

Spanish courts deny strict liability on the grounds that at least the sportsman assumes
the risk by deciding voluntarily to undertake a certain risky activity. The owner of sport
facilities as well as the organizer of sport activities shall only be held liable for the
damage caused by its fault or negligence, not just for the risk created and voluntarily
assumed by the sportsman as a protagonist. For example, when renting horses for riding,
the Tribunal Supremo applied this theory of assumption of risk.555
On the other hand, where the participant has only a passive role in the exercise of a
dangerous sports or in parts of it, the standard of diligence to be observed by the owner
or the organizer is higher. This is true for rafting, for paragliding,556 for skiing as far as
the phase is concerned where the skier does not descend a slope (but not as far as the
lifts are concerned).
According to Art. 63 and 69 of the Ley del Deporte (sports law provisions), spectators
(thus third parties) receive all-over protection: all damages suffered are being
compensated on a strict liability basis. The person liable in concreto is the one having
control over the element having caused the damage. For example, in 1999, the Tribunal
Supremo557 awarded damages to a spectator having suffered serious ear injuries while
attending a football game, because some unknown people made fireworks explode. The
court held the organizers and the owner of the field responsible for the damage since
they had violated their security and vigilance obligation resulting from Art. 69 of the
Ley del Deporte.
Concerning funfair attractions, some courts have considered it a matter of strict liability,
but most courts demand fault and thus apply the theory of assumption of risk. As the
Regional Court of Guadalajara put it:558 Under exceptional circumstances sought by the
protagonist on a voluntary basis and known as presenting a vital, notorious and qualified
danger, there is no room for strict liability. The owner of such attraction is held liable
when it is proven that he did not adopt the necessary precauionary measures to avoid a
damage which is the case where the owner does not warn the public about the risks the
555
STS October 16, 1998; RJ 1998, 8070.
556
SAP Valladolid September 21, 1994; AC 1994, 1397.
557
STS December 22, 1999, RJ 1999, 9206.
558
SAP Guadalajara July 27, 1994; AC 1994, 1190.
180
attraction presents or where there is no due instruction about how to use the attraction or
where there is insufficient maintenance of the attraction. Special precautionary
measures have to be taken where a fall is part of the attraction. Only when the
consequences of a fall are smoothened, so that they are not dangerous the defendant is
not held liable. Even though a participant in a dangerous fair attraction searches for just
this danger, he also counts on the attraction to be equipped with elements that cushion
the foreseeable dangerous consequences.
Concerning swimmingpools and aquatic amusement parks, jurisprudence never applies
the theory of assumption of risk. Thus, the standard of care is quite high. In the majority
of cases, the Tribunal Supremo held the owner of the institution liable either for a lapse
in prevention or non-compliance with the legal requirements concerning the
management of the institution. For example, the Tribunal Supremo held liable for lack
of appropriate supervision and assistance,559 for non-compliance with the provisions of
the Orden Ministerial of May 31, 1960 demanding the staffs instruction and training
concerning the rescuing of people,560 for not having taken notice of the victims
submersion due to the swirls of the water.561
ee) Causation
The general rules of causation apply.
All sorts of damages are compensated.
Contributory negligence plays a very important role since courts presume that the
plaintiff has assumed a certain risk of injury when undertaking a leisure activity.
In 1996, the Tribunal Supremo denied damages to a skier claiming them from a skiing
station.562 The courts main argument was that the skier had assumed a certain risk by
doing the sports. Even though the risk in the given case was particularly high, the court
found that one, the risk was assumed nonetheless and two, the skiing station could not
be held liable since the damage occurred without having any relation with the stations
activity.
559
STS November 23, 1982; RJ 1982, 6558.
560
STS April 10, 1988; RJ 1988, 3116.
561
STS April 2, 1993; RJ 1993, 2986.
562
STS March 20, 1996, RJ 1996, 2244.
181
hh) Prescription period
The general rules apply.
b) Tortious liaiblity
aa) Wrongful conduct
In general, this type of liability arises among participants to the same leisure activity.
There must be a correlation between the type of leisure activity undertaken and the
damage occurred. The wrongful conduct will in most cases arise from a violation of a
regulation of the game.
A good example is the case the Tribunal Supremo had to decide in 1992:563 During a
game of pelota with rackets played by two friends, one suffered a serious eye injury
from the ball that his friend had hit hardly with his racket. The courts main problem was
whether it were a case of strict liability or whether the normal standard of fault had to be
applied. The court decided for the latter stating the specific risk inherent in that type of
sports and material had been materialized. The person exercising the sports must bear
the risk with all its typical consequences. This is true for all cases in which the
participants conduct is within the rules of the game and there is no heavy violation of
the rules.
bb) Causation
The general rules of causation apply. In cases of strict liability, the causal link must be
clearly established and cannot be based on a string of presumptions. In 1997, the
regional court of Segovia decided that inflatable castles did not create any risk but only
the activity exercised within the castle, which was at the victims own responsibilty.
Also, the mere participation at the same activity does not create an obligation to
compensate in itself, even though in the field of strict liability: The specific harmful
conduct must be clearly identified.
cc) Fault/Strict liability
Concerning the active participant, first of all the above mentioned criteria of assumption
of a risk must be taken into account. Hence, in general, in sports cases, there will be no
strict liability. As the Regional Court of Vizcaya said in 1999 concerning a
563
STS October 22, 1992, RJ 1992, No. 8399; see also STS April 14, 1999, RJ 1999, 3140, AP
Valladolid September 21, 1994, AC 1994, 1397.
182
mountaineering case:564 sports activities significantly differ from the cases where one
person obtains a benefit or an advantage for the realization of the activity or the use of
certain objects presenting a risk for the other person involved, thus justifying that the
first person has to bear the risk, compensate the damages too, without looking whether
there is fault or not. A person doing sports is more than a mere passive object of the
activity but her protagonist, thus accepting the risk and playing with it on her own
choice and will.
However, if the organizer of an event in which the participant takes place exceeds what
is socially acceptable, he is liable for all damage resulting from his negligence. The
minimum standard of care is the one given by the law, in the case of bull festivals the
measures enumerated in the Ley 10/1991, dating April 4, 1991. However, fulfilling the
legal written requirements may not be sufficient in a particular case. The standard of
care in a given case may demand supplementary measures. Anyway, as far as bull-fights
are concerned, courts show a certain tendancy to apply strict liability.565 Other courts
however apply the theory of assumption of risk also to bull festivals.566 A participant to
a bull festival assumes the risk to be reasonably expected when dealing with dangerous
animals, including death. The organizer has to adopt all precautionary measures
preventing unexpected harmful results.
Concerning the spectator, no fault is necessary. It is always a strict liability, no matter
what field of action is concerned.567
Strict liability is justified – according to Spanish courts568 – where the activity in
question implies a risk considerably anormal according to average standards. It is not to
be applied to all activities of daily life. Spanish courts insist on the fact that Spanish
liability law remains fault-based in principle.
dd) Damage and Compensation
ff) Contributory negligence
As in contract law, the criteria of contributory negligence plays an important role.

Especially concerning bull festivals (festejos taurinos), one must distinguish between
the normal and the anormal risk. The notion of normal risk describes the one that can be
564
SAP Vizcaya March 15, 1999; AC 1999, 881.
565
STS December 31, 1996, RJ 1996, 9053, STS September 17, 1998, RJ 1998, 7282, December 5, 2000,
RJ 2000, 9887.
566
STS February 13, 1997; RJ 1997, 701, STS October 17, 1997; RJ 1997, 7269.
567
SAP Navarra, May 28, 1993; AC 1993, 1031, SAP Castellón March 27, 1999; AC 1999, 1142.
568
STS April 13, 1998; RJ 1998, 2388, SAP Baleares January 23, 2001.
183
rationally expected to occur and must be born completely by the participant. In bull
festivals, dealing with those unruly animals bears the normal risk to be killed. The
notion of a normal risk excludes any exoneration from liability for contributory
negligence and describes all unforeseeable damages that could have been prevented by
adopting corresponding efficient measures.
In one case, the court exonerated the defendant from all liability where the plaintiff had
glided on the snow on a plastic but exterior to the normal runs and collided with a
transformer booth and hurt himself. The plaintiffs behaviour was considered to be the
unique and exclusive cause of the damage.569 In another case, the defendant (the local
company running the swimming-pool) was not held liable either: here, the plaintiff
attended a birthday party held at the bar in the local swimming-pool. Drunken, the
plaintiff decided later to jump into a pool, but did not pay attention that he was jumping
into the low level pool for children and not in the deeper pool for adults. He fell on his
head which was badly hurt and so was his spinal column so that finally he became
tetraplegic. The plaintiffs drunkenness was considered to be the unique and exclusive
cause of the damage.570
Contributory negligence can even exonerate in case of strict liability, especially
applicable in cases where a spectator is hurt. In a case decided in 1998, the Tribunal
Supremo denied damages exactly on this grounds:571 A spectator to a fireworks
spectacle suffered lost an eye due to an explosion of a pyrotechnic article. However, the
court found it were the victims fault only since he had gone too close to the place of
fire-off, fully aware of the danger that one of the firecrackers might hit him.
gg) Prescription period
c) Exclusion and limitation
aa) Burden of proof
The general rules apply in principle.
569
STS March 18, 1999; RJ 1999, 1658.
570
STS April 13, 1998; RJ 1998, 2388.
571
STS July 21, 1998; RJ 1998, 6196.
184
Where the victim is a passive participant, there often is a presumption of fault so that
the defendant must prove the exclusive fault of the victim to be exonerated from
liability. However, the Tribunal Supremo has shown to be reluctant according the
benefit of a presumption of fault to the victim in sports liability cases.
When the victim is an active participant, the defendants liability only exists if the victim
proves his negligence. In the decision of September 2, 1998, rendered by the AP de
Castellón,572 the accident suffered by a cart car driver was caused because he pressed the
accelerator instead of the brake pedal. The driver brought an action against the
defendant claiming strict liability. The court dismissed this argument because the victim
had assumed the risk and had not proven any fault on the part of the defendant.
bb) Specific institutions
There are special courts dealing with liability questions in the fields of sports. This
jurisprudence is administrative in nature. The courts apply the general rules of liability
though, thus penal and civil law. There is little case law. The same applies for bull
festivals. Especially in the latter, also the municipality can be held liable if the festival
has not been organized in accordance with the provisions of the Ley 10/1991 about the
administrative powers in the field of bull spectacles. There are several regional
regulations about the same matter.573 The municipality must provide for a sufficient
control of the streets (streets must be empty and free of obstacles) and adopt and inform
about safety measures. The municipalities liability then can coexist to the organizers
liability.
e) Case study
In 1996, the regional court of Gerona decided a skiing case.574 A skier had died from an
accident on the slope. The skier had booked a course with the skiing center. However,
the court did not award damages to the plaintiffs, for the skier had assumed the risk
inherent in a skiing activity. The type of liability discussed was contractual. The
plaintiff had definitely known about the risk and should have about the fact that his own
personal activity might increase the risk considerably. The court found that skiing can
give way to situations of real dangers, containing the risk of physical or economic
damage, without the interference of a third person in the production of that damage
being necessary. This risk is even increased when the slope presents a particular
difficulty requiring a perfect control over the body movements by the person using the
572
AC 1998, 1716.
573
See for example Decreto Foral Navarra 249/1992, June 29, 1992; Decreto del Gobierno Valenciano
60/2002, April 3, 2002.
574
SAP Gerona, February 2, 1996; Ar.C. 440/96.
185
slope. The plaintiff had used the slope and therefore assumed the risk. It did not matter
that the plaintiff was not an expert in skiing. The slope was fit for the skills the skier had
and it was the least dangerous of the ones open for skiers with the same skills as the
deceased. No accidents had occurred on the others. The company running the slope had
had the contractual obligation to maintain the slope in a state fit for normal use and had
satisfied this duty. The obligation also existed to the benefit of the plaintiff, as it did to
all users. However, there was no proof of an insufficient state of the slope. On the
contrary, the slope had been in perfect condition. Thus, there was no fault on the part of
the skiing center maintaining the slopes.
186
Leisure service Sweden
6. Swedish Law
International Encycopedia of Laws (cited: A. Adlercreutz); B. Bengtsson, Torts and Insurance, in: S.
Strömholm (ed.), An Introduction to Swedish Law, 2nd ed. 1988, 297 ss.; U. Bernitz, Market and
Consumer Law, in: S. Strömholm (ed.), An Introduction to Swedish Law, 2nd ed. 1988, 267 ss.; B. W.
Dufwa, Compensation for Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.), Compensation for
Personal Injury in a Comparative Perspective, 2003, 293 ss.; B. W. Dufwa, Contributory Negligence
under Swedish Law, in: U. Magnus/M. Martín-Casals (eds.), Unification of Tort Law: Contributory
Negligence, 2004, 197 ss.; J. Hellner, Contract and Sales, in: S. Strömholm (ed.), An Introduction to
Swedish Law, 2nd ed. 1988, 233 ss.; J. Hellner/S. Johansson, Skadestandsrätt, 6th ed. 2001; Karnov,
Svensk Lagsamling med kommentarer, 2003-2004; J. Ramberg, Köplagen, 1995; J. Ramberg, Allmän
avtalsrätt, 4th ed. 1995; L. Wendel, The Impact of Social Security Law on Tort Law in Sweden, in: U.
Magnus (ed.), The Impact of Social Security Law on Tort Law, 2003, 176 ss.; H. Witte, Schweden, in:
Ch. v. Bar (ed.), Deliktsrecht in Europa. Schweden. Schweiz, 1993, 1 ss.
Leisure law as a specific branch of law and a complex of its own does not play a distinct
role in Sweden. It can also be observed that there is a dearth of cases decided in the
courts dealing with personal injuries through leisure activities. One of the reasons for
this is the extensive protection through insurance, the “Swedish model” in liability
law.575 For instance in the field of leisure activities as far as participants of team sports
are injured in most cases collective insurance agreements provide for compensation.576
Neither lacking negligence of the organiser or injuring participant nor contributory
negligence of the injured participant then matter and affect the injured person’s
compensation unless intent or gross negligence on the latter’s part are present (and can
be proved).577 Therefore the following text can do little more than restate the general
rules on contract and tort, which are likely to be applied in case the courts have to
decide respective conflicts. It has to be reminded what J. Hellner, one of Sweden’s
outstanding lawyers, has observed:
“However, the Swedish law of contract dissolves into a penumbra of uncertainty when we
leave the field where legislation applies with full force. The very uncertainty may be the
reason why parties hesitate to bring lawsuits, which they may equally lose or win. It is
therefore possible that the uncertainty is self-perpetuating.”578
575
See the comprehensive overview by U. Bernitz, Torts and Insurance, in: S. Strömholm, An
Introduction to Swedish Law, 297 ss.
576
See Tomth, Skada och Ersättning No. 1, 1989, 275 ss.
577
Compare chap.6 § 1 Damage Act (Skadestandslag, Act 1972:207).
578
J. Hellner, Contract and Sales, in: S. Strömholm, An Introduction to Swedish Law 264. Hellner’s
observation is strongly supported by the fact that for instance the commentary to the provisions of the
Consumer Sales Act in Karnov, Svensk Lagsamling med kommentarer, 2003-2004, can quote almost
no case law.
187
Ulrich Magnus
There does not exist a general statutory regulation of contracts of services of all kinds.
In 1985 Sweden has, however, enacted the Konsumenttjänstlag (Consumer Services
Act)579 which deals with certain services rendered to consumers, namely with contracts
for work on movables, immovables and for the keeping of movables (under the Act
movables do not include livestock). Thus the Consumer Services Act does not refer to
contracts of services of the kind here under review. Nevertheless, the Act is also of
importance here since it contains a number of provisions, which can be generalised and
applied by analogy to other services contracts. But it must be stated that it is uncertain
and not settled by case law whether and to which extent and to which contracts that
analogy can be drawn.
aa) The parties
i) Contract parties
According to the concept of privity of contract, which is the starting point580 in principle
only the direct contract parties are obliged and entitled under the contract. But also
further persons come under the protection of the contract and can rely on the specific
contractual duties if the contract parties intended that the contract was concluded also to
benefit them.581
Mere by-standers cannot rely on the contract. Their protection depends generally on tort
law. However, the extensive Swedish insurance coverage may often avail them.
The service provider is liable without excuse for damage caused by his or her
employees in the course of their employment.582
579
Act 1985:716.
580
581
See A. Adlercreutz, no. 288 ss.
582
See to this rule as a general principle J. Ramberg, Köplagen, 358 ss.; B. W. Dufwa, Compensation for
Comparative Perspective, 313. See also the general regulation in chap. 3 § 1 Damage Act, though this
Act primarily deals with tortious liability.
188
Bodily injury includes physical as well as immaterial harm.
As mentioned a general statutory regulation of contracts for services is lacking.

However, the Consumer Services Act contains some provisions, which can be applied to
services contracts outside the exact scope of application of that Act.
The central duty of the Consumer Services Act is the service provider’s obligation to
perform the contract in a professional manner with due care to the recipient’s interests
and as far as appropriate in consultation with him or her.583 It has been suggested that
this duty to act professionally with due respect to the recipient’s interests can be taken
as a general obligation inherent in all contracts for services.584
The Consumer Services Act prescribes the service providers obligation to ensure that
safety provisions or similar administrative regulations are complied with in order to
protect the recipient against respective risks.585 It is very likely that this obligation can
also be generalised and applied to all kinds of services contracts.
The Consumer Services Act is based on an almost strict liability or at least very strictly
presumed liability as far as the non-performance of the specific duties of those services
is concerned which this Act covers. § 31 of the Act provides that the service provider is
exempted from liability if he or she can prove that the failure of performance was due to
an impediment beyond the provider’s control (so-called control liability).586 This
formulation is taken from the Vienna UN Convention on Contracts for the International
Sales of Goods of 1980 (CISG)587 and can also be found in the Swedish Sale of Goods
Act 1990. The rule does not state a firm strict liability of the respective contract party
but constitutes a rather strict presumption of negligence which can be rebutted by the
583
584
See L. Grobgeld, in: Karnov, Svensk Lagsamling med kommentarer, 2003-2004, 592 no. 19.
585
See § 5, Consumer Services Act.
586
Consumer Services Act, § 31; see thereto A. Adlercreutz, no. 344.
587
See Art. 79 par. 1 CISG.
189
Ulrich Magnus
party in breach.588 But the presumption is only overcome by strong reasons, namely if
circumstances outside the control of the party in breach can be proved which have
impeded the performance. Therefore, under the Consumer Services Act the service
provider’s negligence is presumed, and the rebuttal of the presumption is rather
difficult.
However, the Consumer Services Act explicitly orders that its provisions on
compensation of damage do not extend to personal damage.589 And since the Consumer
Services Act refers only to certain contracts, namely for work on movables, immovables
and keeping movables for which regularly a result can be guaranteed in any case its
general concept of liability cannot simply be transferred to other contracts of services
where it is less easy and convincing that a result can be guaranteed. It has further to be
taken into account that the control liability extends only to direct damage.590 Therefore
to the rather divergent kinds of contracts of services in the broad leisure sector the
general concept of contract liability must be applied which is still based on fault.
Generally fault is not presumed as far as services are concered, which are not covered
by the Consumer Services Act as will be regularly the case with services in the leisure
sector. The claimant must therefore regularly prove the negligence of the service
provider.591 Formal rules to ease this burden of proof like the doctrine of res ipsa
loquitur or the like appear not to be recognised by the courts.592
iii) Standard of fault
As mentioned it has been proposed that the general duty to exercise professional care as
provided in the Consumer Services Act593 can be generalised and applied to all kinds of
contracts of services. This duty has to be defined with respect to the specific service and
according to objective standards.594
588
See thereto A. Adlercreutz, no. 344.
589
590
591
592
See B. W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.),
Compensation for Personal Injury in a Comparative Perspective, 315 (though primarily in the tort
context).
593
594
190
The already noted provision of the Consumer Services Act which exempts the service
provider from liability only if he or she can prove a cause beyond control, which
hindered the correct performance cannot be invoked because the Act does not apply to
personal injuries. Therefore this exemption provision cannot be extended by analogy to
such cases. The general fault requirement, which therefore governs the cases here under
review does not raise the question of exemption.
ee) Causation
The general rules on causation as stated in the survey on Swedish law apply. It can be
referred to the remarks there.
i) Damage to health
If the recipient of a leisure service has been bodily injured in the course of the rendition
of a leisure service the resulting economic damage has to be compensated which
includes the expenses for healing as well as lost income. This is expressly provided for
by chap. 5 § 1 no. 1 and 2 Damage Act. In case of death the decedents of the killed
person are entitled to compensation of the burial expenses and, if any, of their lost
maintenance.595
In case of bodily injury non-pecuniary harm has likewise to be compensated. According

to chap. 5 § 1 no. 3 Damage Act compensation of this kind of loss includes the
sustained pains, permanent impairments and further inconveniences. In case of death
near relatives of the killed person are entitled to compensation of their emotional
distress.596
For assessing personal injury damages the provisions of the Damage Act can be applied.
The Act prescribes in greater detail how the pecuniary loss with regard to lost income
and lost maintenance has to be calculated.597
595
Chap. 5, § 2 Damage Act.
596
See on this recent modification of the Damage Act: H. Sandell, Sweden, in: H. Koziol/B. C.
Steininger (eds.), European Tort Law 2002, 2003, 393 ss.
597
See chap. 5, §§ 1, 3 – 5.
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Ulrich Magnus
The Damage Act allows further for a discretionary reduction of the amount of damages
if the obligation to compensate the full damage would be unduly burdensome to the
defendant tortfeasor in the light of the circumstances.598
As a general rule chap. 6 § 1 Damage Act provides that in case of bodily injury the
contributory negligence of the injured person is to be disregarded except where the
injured acted with intent or gross negligence. Therefore simple negligence of a bodily
injured person which contributed to his or her damage does not affect a claim for
compensation in any way.
hh) Limitation
The general limitation period for claims in contract is ten years unless otherwise
provided by special statutory provision.599
As mentioned civil tort liability plays a limited role only due to the fact that personal
injuries are compensated mainly by the means of voluntary or mandatory third party
insurance.
aa) The parties
Generally it is the provider (organiser/operator etc.) of the leisure service who is obliged
and it is the injured person him- or herself who can claim damages in tort. Only in case
of death of the recipient of the service also indirectly affected persons (heirs and
dependants) can be entitled to claim their damage.600
As in contract law equally in tort law a service provider is liable for negligent acts of his
or her employees who in the course of their employment cause damage to the recipient
of the service or even to mere bystanders.601
Bodily injury includes physical as well as immaterial harm; in case of death even
immaterial harm of close relatives of the deceased.602
598
599
600
See chap. 5, § 2 Damage Act.
601
192
In general and unless strict liability is either ordered by legislation or in rare cases by
the judiciary, it is a requirement of tortious liability that the actor has violated a duty
which he or she was obliged to observe. This requirement appears, however, to be part
of the general requirement of fault.
dd) Causation
Again, with respect to causation reference can be made to the general survey on
Swedish law. Nothing special has to be taken into account here.
ee) Fault
Tortious liability in the leisure sector requires generally fault. Neither statute nor the
courts appear to have introduced strict liability here. But the standard of required care is
regularly high.603 If the recipient of the service is injured the standard will be set by the
duties owed under the contract, in particular the duty to act with reasonable professional
care. But also to bystanders or other outsiders a high standard of care is owed.604
The recipient of a leisure service who has been injured through the negligence of the
service provider is entitled to compensation of the pecuniary and non-pecuniary loss. As
to the heads and calculation of these losses it can be referred to a) ff) above. In general
full compensation is owed. However, according to chap. 6 § 2 Damage Act the court has
a rather wide discretion to reduce the amount of damages if full liability would unjustly
overburden the defendant tortfeasor.
With regard to personal injuries contributory negligence of the injured victim plays
almost no role since contributory negligence has to be disregarded unless the victim
acted with intent or gross negligence.605
hh) Limitation
602
603
See generally to this standard B. W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A.
604
605
193
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The general period of limitation applies. Therefore an action in tort prescribes regularly
within ten years.
The provisions of the Damages Act are deemed to be dispositive.606 However, contract
clauses which provide for the general exclusion or unreasonable restriction of liability
for negligently caused personal injury may be challenged under § 36 Contracts Act.607
aa) Burden of proof
The burden of proof for damage, causation and negligence lies generally with the
claimant both in contract and tort where injuries during the rendition of services are
concerned and where the services are of the kind discussed here.608 Swedish law does
not know of formal rules like res ipsa loquitur or the like which shift the burden of proof
in certain situations onto the defendant party.609
Though Swedish law is particularly known for out of court procedures to deal with legal
disputes no specific institutions appear to exist particularly for the leisure sector. But
consumers can always direct their complaints to the “Allmänna Reklamationsnämnden”
(Public Complaints Board). The Board handles disputes between consumers and
entrepreneurs concerning goods and services and gives a recommendation which if not
complied with can be transformed into a court judgement by a simplified court
procedure.610
606
See B. Bengtsson/U. Nordenson/E. Strömbäck, in: Karnow, Svensk Lagsamling med kommentarer,
2003-2004, Skadestandslag, n. before no. 1.
607
See thereto A. Adlercreutz, no. 235 ss.
608
See A. Adlercreutz, no. 344; B. W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A.
609
610
Swedish Law, 293.
194
e) Case study
As already mentioned there is almost no case law in Sweden with respect to personal
injuries caused through leisure services. Due to this dearth of cases it would be but
misleading to cite cases.
195
Leisure service United Kingdom
7. Law of United Kingdom611
Literature: M. J. Beloff/T. Kerr/M. Demetriou, Sports Law, 1999; J. Chitty on Contracts, 28th ed. 1999;
J. Cooke/D. Oughton, The Common Law of Obligations, 3rd ed. 2000; P. H. Winfield/W.V.H. Rogers/J. A.
Jolowicz, Winfield & Jolowicz on Tort, 15th ed. 1998.
As typical for services here under review they cover a broad variety of rather different
kinds of services. Leisure services are mainly rendered on a contractual basis like most
sports events, concerts, theatre performances, amusement parks etc. where visitors are
admitted only if they pay an entrance fee and conclude a contract with the service
provider. Eventual liability towards visitors who are being injured while attending the
event can then be based both on contract and tort. But partly these services are rendered
also on a non-contractual basis like in cases of cycle races or motor rallyes where
numerous spectators can freely observe the spectacle without having to pay and
concluding a contract or as is also the case with public sports grounds or playgrounds
which may be used by everyone. Though it could be argued that a contractual bond
comes into existence even in cases of this latter kind here an eventual liability can
regularly only be based on tort. The following text addresses services of the first kind
under the topic of contractual liability and under the topic of tortious liablity those of
the second kind.
There exist no specific statutes or regulations in the United Kingdom concerning
specifically leisure services in general and as such; therefore the general rules on civil
liability apply. However, some statutory provision is made in particular for the safety of
public sporting events, mainly by the Safety of Sports Grounds Act 1975612 and by the
Sporting Events (Control of Alcohol, etc.) Act 1985613 but also by some further
statutes.614 Also the Occupiers Liability Acts 1957 and 1984 play a role.
Conclusion of contract and contractual liability do not pose particular problems with
respect to leisure services. The only specific question is the standard of care that the
service provider is obliged to exercise towards the visitors. As regularly, contractual
liability requires a contract, the violation of a contractual duty, damage and causation.
611
M. J. Beloff/T. Kerr/M. Demetriou, Sports Law, 1999; J. Chitty on Contracts, 28th ed. 1999; J.
Cooke/D. Oughton, The Common Law of Obligations, 3rd ed. 2000; P. H. Winfield/W.V.H. Rogers/J.
A. Jolowicz, Winfield & Jolowicz on Tort, 15th ed. 1998.
612
See thereto M. J. Beloff/T. Kerr/M. Demetriou, 109.
613
M. J. Beloff/T. Kerr/M. Demetriou, 110.
614
See M. J. Beloff/T. Kerr/M. Demetriou, 109 ss.
197
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aa) The parties
i) Contract parties
The parties to a contract concerning leisure services are on the one hand the service
provider who organises the event (concert, sports competition, amusement etc.). S/he is
very rarely at the same time also the person performing the event but has regularly
organised that other persons (artists, sportspeople, employees etc) perform the event
who in turn are no contract parties to the visitors.
On the visitors’ part it is generally the person who buys the ticket who concludes the
contract. But also certain third persons like accompanying family members are very
likely to be protected by the contract even if they themselves have not concluded a
contract with the service provider. This consequence which does away to some extent
with the English concept of consideration615 can now be drawn from sec. 1(1) and (3)
Contracts (Rights of Third Parties) Act 1999616 but was to some extent recognised
already before the Act by the decision in Jackson v. Horizon Holidays Ltd.617 in the field
of tourism. It is however necessary that the third person is identifiable by name, class or
other description in order to limit the number of possible persons benefitting from the
protective scope of the contract.618 The text of the Act requires insofar that the “third
party must be expressly identified in the contract by name, as amember of a class or as
answering a particular description”. But if for instance a father buys four tickets for
himself, his wife and his two children it is rather probable that the wife and the children
are entitled to contract rights since it is more or less selfevident that no-one buys several
tickets for the same event for him/erself.619
Mere by-standers and other persons do not enjoy contractual benefits620 though it is
probably a rare occurrence that at events like concerts, football matches etc. mere by-
standers are being injured since they must have succeeded in getting entrance without
having paid and having concluded a contract. In any event there appears to be no case
law on that type of case.
615
Consideration is a necessary element of an enforceable contractual right and requires that a party who
wants to enforce the promise of the other party can do so only when s/he has given something of value
“in consideration” of the other party’s promise; see in detail J. Chitty, no. 3-001 ss.
616
See thereto J. Cooke/D. Oughton, 113 ss.
617
[1975] 3 All E.R. 92.
618
See sec. 1 (3) Contract (Rights of Third Parties) Act 1999.
619
See also the discussion by J. Cooke/D. Oughton 114 s.
620
See Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310.
198
Also policemen, firemen and other rescuers who are called to the scene after an –
sometimes catastrophic621 – accident has happened do not come under the shield of the
original contract with the visitors whom they try to rescue.
But since the duty to take care is almost the same in contract as in tort by-standers and
other persons who cannot rely on any contractual position may still invoke tortious
liability.
The service provider is liable for negligent acts by which his/er employees cause
damage to the other contract party, here the visitor.622 The employee – for instance staff
like actors, players, guards etc. – must have acted within the scope and in the course of
employment. The damaging act must not have been committed only at the opportunity
of the employment. Vicarious liability is thus regularly incurred for negligent acts of
employees executing their duties but it is less likely that the employer is held
vicariously liable if the employee has acted with intent.623 For instance, if ice hockey
players start fighting and injure a spectator with their sticks they themselves have been
held liable but not their clubs who organised the game.624
The service provider/employer is, however, generally not liable for damaging acts of
independant contractors. In particular, concert organisers may often not be the employer
of the performing artists who on the contrary may be, and often are, independant
contractors. If they have neglected duties of care, for instance for the safety of the
audience, the organiser would only be liable for own faults concerning duties which
could not be delegated to the artists.625
As to the injury that could give rise to liability nothing special applies with respet to
leisure services. Any kind of bodily injury including pain and suffering and also
medically recognisable psychiatric illness would attract liability and constitute a
recoverable damage.
621
See in particular the Hillsborough stadium catastrophe of 1989 and thereon Hicks v. Chief Constable
of South Yorkshire [1992] 2 All E.R. 65; Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C.
310; White v. Chief Constable of South Yorkshire [1998] 3 W.L.R. 1509.
622
623
See M. J. Beloff/T. Kerr/M. Demetriou, 128 s for cases in sports.
624
See the Canadian case Payne and Payne v. Maple Leaf [1949] 1 D.L.R. 369, cited with approval by
M. J. Beloff/T. Kerr/M. Demetriou, 121.
625
See on non-delegable duties J. Cooke/D. Oughton, 612.
199
Ulrich Magnus
However, a short period of fear of the impending death does not result in a separately
damage which then the estate of the deceased could claim.626
The central requirement of liability is the violation of a duty of care. Which duties have
to be observed depends on the circumstances of the case. But in general a professional
service provider is obliged to act with reasonable care and skill.627 As for the other kinds
of services reviewed in this study under English law this duty is not different for
liability in contract and in tort. To incur liability the service provider must have violated
the duty, too.
The service provider/organiser of the event is under a duty – not only in contract but
also in tort – to act with such reasonable care and skill as the circumstances require. The
organiser has to take reasonable measures for the safety of spectators and visitors, for
instance install safety ropes at a stock-car race which do not catapult spectators into the
air when the ropes are hit by a car.628 The same duty of reasonable care for the safety of
persons involved applies in case of participants.629 The organiser of a boxing contest is
therefore under a duty to care for immediate ringside medical treatment of an injured
boxer who suffered brain damage because of the failure of such measures.630
Spectators of dangerous events have, however, to bear themselves the ‘ordinary’ risk to
be injured through activities which are usual and inherent in such events like a spectator
being hit by an ice hockey puck631 or by a discus thrown at an athletics ground632 or even
by a racing car leaving the track633 unless it were an extraordinary peril to which the
spectator was exposed and unless no reasonable safety measures were taken.634
626
Hicks v. Chief Constable of the South Yorkshire Police [1992] 2 All E.R. 65.
627
See sec. 13 Supply of Goods and Services Act 1982.
628
White v. Blackmore [1972] 2 Q.B. 651.
629
Watson v. British Boxing Board of Control Ltd. [2001] Q.B. 1134.
630
See Watson v. British Boxing Board of Control Ltd. [2001] Q.B. 1134.
631
Murray v. Harringay Arena [1951] 2 K.B. 529.
632
Wilkins v. Smith [1976]73 Law Soc. Gaz. 938.
633
Hall v. Brooklands Auto-Racing Club [1933] 1 K.B. 205.
634
See Hall v. Brooklands Auto-Racing Club [1933] 1 K.B. 205; M. J. Beloff/T. Kerr/M. Demetriou, 120
s.
200
The organiser is probably also under a duty not to permit an excessive number of
spectators or visitors to enter635 and under a duty not to permit known hooligans to
enter.636
The service provider is also obliged not to provide malfunctioning equipment such as a
collapsing stand at a horse race637 or in a football stadium.638
To incur liability fault is required. Service providers/organisers are not under a strict
duty but under a duty to act with reasonable care and skill. This duty must have been
negligently neglected. This is, however, the case if that standard of care is not met that
was required in the circumstances. As far as sports events are concerned this standard
appears to be not too high as the cited case law shows where spectators are left with a
certain risk of injury.
Fault is not presumed. The normal rules on burden of proof apply.639 The claimant must
prove that a duty of care existed and that the organiser has violated it. As generally the
maxim res ipsa loquitur may, however, avail the claimant.
ee) Causation
With respect to causation no specific rules apply to personal injury caused through the
provision of leisure cases. But in one of the Hillsborough desaster cases it was decided
that the mere witnessing of the desaster via television though causing injury to near
relatives would not entitle these relatives to compensation.640
635
See Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310, where this was, however, the
responsibility of the police.
636
Cunningham v. Reading Football Club Ltd., The Times, 20 March 1991 (there the club was liable
towards policemen who were injured by football hooligans whose violence was known to the club).
637
Francis v. Cockerell [1820] 5 Q.B. 501.
638
Brown v. Lewis [1896] 12 T.L.R. 455.
639
M. J. Beloff/T. Kerr/M. Demetriou, 185 s.
640
Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310.
201
Ulrich Magnus
The normal standard of causation is met if without the defendant organiser’s/service

provider’s conduct the damage would not have happened. Furthermore, the damage
must not be too remote.641
ii) Omissions
If the organiser or service provider omitted reasonably required safety measures

causation requires that these measures if they had been taken would probably have
avoided the damage.642
The claimant must prove causation which is not presumed. If the organiser had omitted
to provide adequate safety measures the claimant must prove that the provision of such
measures would have prevented or at least mitigated the damage.643
i) Damage to health
Again, leisure services cause no specific problems concerning damage to health; the
general rules apply.644
As generally, injured persons, be they spectators or visitors, be they other persons

protected by the contract for leisure services, can claim compensation for their pain and
suffering. Even if they sustain psychiatric illness without being bodily injured because
of justified fear for their own life and safety, for instance in a general panic at a stadium
or in a concert hall, they can recover their damage.645
641
As to the general rules on causation see supra B. VI. 2. a cc.
642
643
644
See M. J. Beloff/T. Kerr/M. Demetriou, 250.
645
See Dulieu v. White [1901] 2 K.B. 669 (however a tort case); to this type of case (though in tort): P.
H. Winfield/W.V.H. Rogers/A. Jolowicz, 161 ss.
202
Again, leisure services pose no specific problems with respect to the measure of
damages; the ordinary rules on the assessment of damages apply.646 As to these rules it
can be referred to the general survey on English law.647
Contributory negligence is of particular importance in the field of leisure services since

the services often involve a certain, regularly small risk which is partly responsible for
the attractivity of the service; it is this “thrill” that particularly attracts spectators and
visitors. If that very risk materialises the maxim volenti non fit iniuria often applies and
may relieve the service provider from liability.648 If a visitor exposes him/erself
knowingly to a certain risk standing for instance too near to the race track the organiser
may raise this defence which is also preserved under sec. 2(5) Occupiers Liability Act
1975.649 Also where a photographer standing rather near to the cours of horses at a horse
show was denied compensation altogether when a hoerse got out of control and the
frightened photographer stumbled into the path of the horse and was injured. It was held
that no duty of care had been violated towards the photographer who had taken the risk
to be injured by a participant’s conduct which was not reckless disregard of the
spectator’s safety.650
But the defence is not available where for example it is the safety measures that expose
the spectator to risk as in White v. Blackmore651 where the safety ropes at a stock-car
race catapulted the claimant into the air.
hh) Limitation
The cause of action prescribes in three years from the date when the cause of action
accrued or, if later, when the claimant acquired knowledge of the relevant facts.652 But
the court has a discretion to prolong the period.653
In tort, liability is regularly based on the tort of negligence.654 Since the essential
element of negligence is the duty of care and since this duty corresponds to the same –
646
In the same sense M. J. Beloff/T. Kerr/M. Demetriou, 250 (with respect to sports law).
647
See supra B. VI. 2. b.
648
M. J. Beloff/T. Kerr/M. Demetriou, 124 s.
649
650
Woolridge v. Sumner [1963] 2 Q.B. 43.
651
[1972] 2 Q.B. 651.
652
See sec. 11 Limitation Act 1980.
653
203
Ulrich Magnus
implied – duty in contract unless the parties have varied that duty by agreement most of
what has been stated above for the contractual side applies here as well.
aa) The parties
Some differences exist; however, between contract and tort as far as the parties are
concerned. On the defendant side everbody who has caused the damage or can be made
vicariously liable for the damage can be sued irrespective whether or not a contract with
him/er exists. As to vicarious liability in tort the same rules as in contract apply.655
Furthermore it is here rather often not or not only the provider of the leisure service but
the occupier of the ground or the authority or institution (e.g., school) responsible for
the supervision of the ground or installation which is to be made liable.
On the claimant’s side – unlike in contract – also mere by-standers and other injured
persons not protected by contract (policemen, firemen etc.) can be entitled to
compensation. Their protection depends in essence on how far the duty of care of
providers of leisure services extends.
With respect to the recoverable harm when a person is bodily injured tort and contract
do not differ. It can be referred here thereefore to the respective passages on contract.656
Any bodily impairment but also any medically recognisable psychiatric illness gives
rise to tortious liability if negligently caused by the service provider. However, in case
of death of a person for which the service provider is liable certain third party rights are
recognised under the Fatal Accidents Act 1976. Dependants of the deceased can claim
their lost maintenance; the surviving spouse and parents who have lost a minor
unmarried child can recover the fixed sum of L 7.500.- as bereavement.657
The tortfeasor, here the provider of the leisure service or the institution responsible for
the supervision of the service, must have been under a duty towards the person who
claims compensation. The general duty is to take reasonable care to avoid injury to
another person. What is reasonable depends, however, on the circumstances. In general,
the standard is the same as in contract. But in tort the duty is owed only to those who
654
M. J. Beloff/T. Kerr/M. Demetriou, 112: “Negligence is the dominant tort; indeed in the views of some
it threatens to absorb or outflank almost every tort in the field.“
655
See supra a aa iii.
656
See supra a ff.
657
Sec. 1 Fatal Accidents Act 1976 as amended in 1982; see further supra B. VI. 3. b.
204
ought reasonably to be in the contemplation as being affected by the tortfeasor’s

particular act658 while in contract some different scope of protection can be agreed upon.
Thus the case material cited above659 is also relevant here. Further duties of supervision
may exist even in the absence of a contractual bond. For example, a school has the duty
to enforce a ban on full size leather balls by which pupils can easily and severely be
injured even if pupils play with it on the schoolground before the school day begins.660
But duties of that kind appear to extend only to playgrounds and playing installations at
school. A school is not under a duty to prevent damage to its pupils for example on the
bus to and from school (in the instant case psychiatric injury of a pupil from bullying on
the bus by other pupils of the same school).661
dd) Causation
Causation is dealt with and adjudicated in tort and in contract according to the same
rules.662
ee) Fault
Liability is only incurred if the organiser/service provider had acted negligently and
neglected the reasonable care which would have been expected of an ordinary, normally
careful organiser/service provider in the same situation. Personal shortcomings do not
relieve from liability. But as the above mentioned case law663 highlights there is also a
considerable remaining risk that spectators of dangerous events have to bear themselves.
The heads of damage and the assessment of damages do not vary from contract to tort.
In case of death specific statutory provision grants rights to dependants and certain near
relatives of the deceased.664
It can be entirely referred to the respective remarks on contract.665
658
See the leading case Donoghue v. Stevenson [1932] A.C. 562 (Lord Atkin’s so-called “neighbour
principle”).
659
Supra a cc.
660
Kearn-Price v. Kent CC [2002] 146 Sol.J.L.B. 248.
661
Bradford-Samrt v. West Sussex CC [2002] 1 F.C.R. 425.
662
See supra a dd.
663
Supra a cc.
664
See supra b bb.
665
See supra a gg.
205
Ulrich Magnus
hh) Limitation
The same three years-period as in contract applies also in tort.666
Only where a contract between the parties exists the parties may vary, as far as the law
permits, their legal position by their consensus. But as far as standard form contracts are
concerned a term excluding or limiting the service provider’s liability for a consumer’s
personal injury or death is presumed to be unfair and therefore prima facie invalid.667
aa) Burden of proof
As already indicated above the claimant has to prove his/er damage, a duty of care
which has been violated by the service provider and causation. Only in specific cases
the maxim res ipsa loquitur may ease this burden of proof.
Concerning injuries in sports events there are often arbitration boards established by the
respective sports associations in order to settle such claims, if disputed, between
members of the association.668 With respect to claims of spectators, however, no similar
institutions appear to exist.
e) Case study
White v. Blackmore.669
In this case Mr. White, a spectator who was also a participant of a stock-car race
(“jalopy” race) was standing very near to the rope that was installed to secure the race
track. When a car hit the rope Mr. White was catapulted into the air by the rope and
fatally injured. The organiser was in principal liable to compensate the widow’s damage
since he had neglected his duty to install ropes which had not that detrimental effect.
666
See supra a hh.
667
See Sched. 2 par. 1 lit. a Unfair Terms in Consumer Contracts Regulations 1999 which replaced the
Unfair Terms in Consumer Contracts Regulations 1994 which had in turn transposed the EU Directive
on Unfair Terms in Consumer Contracts of 5 April 1993. The 1999 Regulations follow even more
closely the language of the provisions of the Directive than the 1994 Regulations; see further the
detailed discussion by Chitty no. 15-004 ss.
668
See thereto M. J. Beloff/T. Kerr/M. Demetriou, 253 ss.
669
[1972] 2 Q.B. 651.
206
However, the defendant organiser had published warnings and excluded its liability on
the tickets. The majority of the Court of Appeal therefore then (1972) denied the
organiser’s liability. Today such exclusion would be ineffective.
207
Leisure Service United States
8. Law of the United States

Literature: Corpus Juris Secundum, A Contemporary Statement of American Law as Derived from
Reported Cases and Legislation, vol. 30A, 1992 (Suppl. 2003), Entertainment and Amusement; Sports
(cited: C.J.S. §); W.T. Champion, Fundamentals of Sports Law, 1990; N.G. Courmoyer, Hotel,
Restaurant, and Travel Law, 1978; G.T. Schwartz, Causation under US Law, in: J. Spier (ed.), Unification
of Tort Law: Causation, 2000, 123; G.T. Schwartz, Contributory Negligence under United States Law, in:
U. Magnus/M. Martin-Casals (eds.), Unification of Tort Law: Contributory Negligence, 2004; S.M.
Speiser/Ch.F. Krause/ A.W. Gans, The American Law of Torts, 4 vol., ed. 2003.
It is difficult to draw a clear dividing line between services related to leisure and those
related to tourism. But in general a certain entertaining element and the organisation of
this entertainment by the service provider prevails in leisure cases as understood here.
The focus is here on the liability of providers of leisure services as far as personal
injuries of those persons are concerned who attend such organised events or facilities.
Liability towards employees, collaborators or independent contractors is outside the
scope of this study.
Leisure services of the various kinds, in particular sport or cultural events but also the
use of sports grounds or amusement devices are frequently rendered on a contractual
basis and customers have to pay for the participation. At the same time rather many
such services are also offered on a non-contractual basis like public parks and
playgrounds, recreational paths and walkways or similar possibilities. The obligations of
the providers of these services be the duties either imposed by contract or by law
necessarily vary according to the specific service which requires always specific
measures and precautions. However, the main duty of the operator or provider of such
service is to observe that standard of care that is reasonable and can be expected under
the particular circumstances of the case. However, if that duty has been negligently
violated and personal injury has ensued then this case is regularly treated as a case of
liability in tort despite the concurrent contract background.
aa) The parties
i) Contract parties
209
Ulrich Magnus
On the part of the provider the contract party is regularly the person offering the
services and, as the case may be charging entrance or admission fees. Here it is rarely
doubtful who the contract party is.670
On the part of the spectator, visitor or user of the service different classes of persons
have to be distinguished. Their contractual protection – but likewise their protection in
tort – differs according to their status. It is only an invitee or business visitor who is
regarded as contract party while so-called licencees and trespassers (see under ii)) are
much less protected and are no party to a contract. An invitee is a person who enters the
premises or who uses the facilities of the service provider with the latter’s express or
implied permission and for the provider’s or for their mutual advantage.671
Mere licencees are those who are allowed to use the service provider’s premises or
facilities but do so solely for their purposes and not to the advantage of the provider.672
They must at best be warned of hidden dangers which the provider knows of and which
could endanger the licencee.673
Trespassers are those who enter the provider’s premises or use his or her facilities
without permission or other justified reason. Towards them the provider owes merely
the duty not to cause personal injury in a willful or wanton way.674 They enjoy therefore
nearly no protection.
The provider of leisure services is also liable for negligent acts of employees who act
within the scope of their employment.675 As in general contract – and tort – law it is no
excuse that the employee, servant or agent was carefully selected and controlled.
However, where the service provider employed an unqualified person whose conduct
caused damage that in itself may constitute negligence of the provider.
As almost self-understanding physical injury is the normal prerequisite of liability in

personal injury cases and any pecuniary and non-pecuniary damage resulting from it has
670
But see also the situations addressed in C.J.S. § 73 ss. (concerning also lessees or concessioners as
possibly liable parties though not necessarily contract parties).
671
Compare W.T. Champion, The Fundamentals of Sports Law § 9.1; C.J.S. § 54.
672
W.T. Champion, The Fundamentals of Sports Law, § 9.1; C.J.S. § 54.
673
See W.T. Champion, The Fundamentals of Sports Law, § 9.1.
674
W.T. Champion, The Fundamentals of Sports Law, ibid.
675
See, e.g., Babb v. Crescent Amusement Co., 266 Ky. 382, 99 S.W. 2d 199.
210
to be compensated. But also mere emotional harm without physical harm may attract
liability though only in specific cases where the spectator, visitor or user is treated in a
wrongful and humilating manner.
If injuries are caused with intent or particularly gross negligence during the rendition of
leisure services also punitive damages may be awarded.676
cc) Violation of contractual duty of care677
The provider of those services here under review is not an insurer of the invited user’s
safety.678 But he or she has rather far-reaching obligations to care for the safety of
invitees. “The duty to an invitee is one of ordinary and reasonable care, including
protection from negligence and reasonably discoverable hazards created by a third party
and an obligation to inspect premises and make them safe for a visit, also, there is a duty
to warn of known, unsafe conditions.”679 However, as already indicated the standard of
reasonable care depends on the status of the visitor or user. The citation refers to
invitees who go on the premises of the provider and use the facilities there with the
provider’s permission and for the latter’s or for their mutual advantage.680 Only invitees
like sports participants or spectators enjoy the cited protection. Licensees who are
allowed to enter for their own purposes only must only be warned of hidden dangers
known to the provider. And mere trespassers must not be willfully or wantonly injured;
but no further duties are owed to them. Thus for instance a swimmer who was injured
when diving into a water-filled gravel pit could not recover his damage from the owner
of that gravel pit. The owner had not prohibited the public from using the gravel pit but
had not charged anything for the use nor was he aware of the swimming activities. His
only duty was therefore not to willfully or wantonly injure the claimant.681
The duty of ordinary and reasonable care towards invitees extends to all kinds of
entertaining events; its concrete requirements depend on the nature of the entertainment
and have to protect invitees against those risks, which can be discovered by ordinary
and reasonable means.682 The premises must therefore be kept in a safe condition. For
example, where the proprietor of a roller skater rink is aware of moisture on the rink and
676
See W.T. Champion, The Fundamentals of Sports Law, § 15.1.
677
As to the different obligations in the different fields of leisure services see S.M. Speiser/Ch.F.
Krause/A.W. Gans, The American Law of Torts, 2A § 9:42 ss.
678
See also W.T. Champion, The Fundamentals of Sports Law, § 9.1.
679
W.T. Champion, The Fundamentals of Sports Law, § 9.1.
680
W.T. Champion, The Fundamentals of Sports Law, ibid.
681
Brown v. Scott Paper Co., 684 F. Supp. 1392 (S. D. Miss. 1987).
682
See C.J.S. § 52 with references.
211
Ulrich Magnus
a skater slips and is injured because of wet spots the proprietor has been held liable in
negligence even if he had tried to dry the surface by air conditioners but had let skating
go on.683 Likewise a ball park proprietor has to protect spectators near the playing field
by screens or the like against the risk of being injured by the ball. However, this duty is
fulfilled if screens would protect as many spectators as may reasonably be expected to
sit there and being endangered.684 Likewise the proprietor of a health club has been held
not to be negligent where an inexperienced person acting on his own placed too much
weight on an otherwise safe leg machine so that a weight jarred off when the weights
were let down and injured that person.685 It was held that it was unforeseeable that the
victim would act in such an unauthorized way without proper supervision and
instruction.
A service provider is also under a duty to protect his or her visitors or users as far as
reasonable from being injured either by other visitors or users or by third persons and to
exercise reasonable care in that respect.686
The provider of leisure services is under a duty to care for safe technical equipment.
Any appliances or devices, for instance a merry-go-round,687 must therefore be kept in a
safe condition. “The owner or proprietor of a place of public amusement impliedly
warrants that the premises, appliances, and amusement devices are safe for the purposes
for which they are designed, the doctrine being subject to no other exception or
qualification than that he does not contract against unknown defects not discoverable by
ordinary or reasonable means.”688 Ignorance of unsafe conditions cannot exempt the
provider from liability. But he or she must be allowed a reasonable time to discover a
risk and to take measures against it. Therefore, the provider’s knowledge is essential
with regard to liability for latent defects. Knowledge may be either actual or
‘constructive’ meaning that the provider could and should have discovered the danger
when he or she had exercised reasonable care.689 Constructive knowledge is imputed to
the provider if the dangerous condition remained unattended for a sufficiently long
time.690 The burden of proof for this fact lies with the claimant.691
683
Creamer v. Empire Fire & Marine Ins. Co., 405 So. 2d 651 (La. App.).
684
Akins v. Glens Falls City School Dist., 53 N.Y. 2d 325, 441 N.Y.S. 2d 644, 424 N.E. 2d 531 (1981).
685
Duncan v. World Wide Health Studios, Inc., 232 So. 2d 835 (La. App. 2nd Cir. 1970).
686
See C.J.S. § 59.
687
See Jeroma v. McNally, 324 Mass. 385, 86 N.E. 2d 638.
688
C.J.S. § 52 with further references.
689
See C.J.S. § 53.
690
See, e.g., Kuehn v. Bennett, 193 Or. 485, 238 P. 2d 787.
691
See Perry v. Macon County Greyhound Park, Inc., 514 So. 2d 1280 (Ala.).
212
It is the general rule that the provider of leisure services is not strictly liable for any
personal injury caused through the service. He or she is not regarded as an insurer of the
customers or users safety.692 Liability is in principle only incurred if some fault or
negligence occurred on the part of the provider. The provider must have neglected the
standard of ordinary and reasonable care. He or she is for instance not liable when roller
skaters on a skating rink collide and no amount of supervision could have prevented the
accident.693 But the operator of a campground is liable for the injury of a boy (7 years)
camping with his parents there who fell from a playground device where the operator
had asphalted the ground under the device though that was not recommended by the
device manufacturer.694
However, there are few exceptions to the general fault requirement. If what the service
provider offers is in the kind of a product instead of a service strict liability may apply.
This has been so held in a case where go-carts were made available and a design defect
of that device caused the injury of the customer.695
The negligence of the service provider is not presumed.696 The injured person must
prove that the provider of the leisure service owed a duty of care and negligently
violated it.697 Since in case of injury through unsafe premises negligence requires that
the provider had actual or constructive knowledge of the unsafe condition the claimant
must also prove the provider’s knowledge. However, this knowledge may be presumed
where the unsafe condition resulted either from from faulty construction698 or where the
condition existed so long that a reasonable person could and should have known about
it.699
692
W.T. Champion, The Fundamentals of Sports Law, § 9.1.
693
Blashka v. South Shore Skating, Inc., 598 N.Y.S. 2d 74, 193 A.D. 2d 772 (2nd Dept. 1993).
694
Hart. v. Western Investment and Development Co., 417 F. 2d 1296 (Utah 1969).
695
Golt by Golt v. Sports Complex Inc., 644 A 2d. 989 (Del. Super.).
696
See, e.g., Parsons v. National Dairy Cattle Congress, 277 N.W. 2d 260.
697
Compare C.J.S. § 91 with numerous references.
698
See Texas Consol. Theatres v. Pittman, 93 F. 2d 21 (C.C.A. Tex.).
699
See Texas Consol. Theatres v. Pittman, ibid.
213
Ulrich Magnus
The standard of fault is an objective one. The service provider must exercise such care,
which a reasonable provider of the same service would exercise under the same or
similar circumstances.700 The provider of leisure services must for instance act
reasonably in rendering medical care.701
In principle contractual releases from liability or exemption clauses are valid and
enforceable if they are clearly formulated, readable and do not exclude the provider’s
liablility for injuries caused with intention or gross negligence.702 Thus where a husband
signed a release before his participation in an automobile race in which he was burned
that release was held to bar a claim of his wife for loss of consortium.703 In the other
hand, in a case where a husband had signed a release of claims against a race track and
was thereafter injured when been a mere spectator that release was held to be no bar for
the wife’s claim of loss of consortium.704
However, some US states as for instance New York have enacted statutes according to
which exemptions and releases are void if they attempt to exempt places of public
amusement or recreation from liability even though users have to pay for their
admission.705 On the contrary, statutes limiting liabilitiy have likewise been held
operative.706
ee) Causation
Causation is established when the service provider’s negligence was the proximate
cause of the visitor’s injury.707 This implies regularly a two-step approach: first, the
injury should not have occurred but for the negligence of the provider. Secondly, the
injury must have been the proximate, namely the foreseeable and direct consequence of
the provider’s negligence.708
700
See C.J.S. § 58 with references.
701
Lundy v. Adamar of New Jersey, Inc., 34 F. 3d 1173 (C.A. N.J.).
702
Compare W.T. Champion, Fundamentals of Sports Law § 11.2; C.J.S. § 56 both with references.
703
Groves v. Firebird Raceway, Inc., 849 F.Supp. 1385 (D. Idaho 1994).
704
Huber v. Hovey, 501 N.W. 2d 53, 54 A.L. R. 5th 867 (Iowa 1993).
705
See Meier v. Ma-Do Bars, Inc., 484 N.Y. 2d 719, 106 A.D. 2d 143 (3rd Dept.).
706
Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P. 2d 1159.
707
See C.J.S. § 91.
708
On causation in general see G.T. Schwartz, Causation under US Law, in: J. Spier (ed.), Unification of
Tort Law: Causation, 123 ss.
214
ii) Omissions
Rather often it will be some omission of care that caused the injury. In such situation it
must be sufficiently certain that the omitted act if undertaken would have prevented the
damage.
Also causation is not presumed. The injured visitor or user must prove that the service
provider’s negligence was the proximate cause of his or her damage.709 If for instance a
visitor of a race slips on a wet substance on the floor resulting in bodily injury a claim
for compenation can only be successful if the injured person can prove that the
substance had been there for such period of time that the organiser could and should
have noiced its presence.710
But as generally the maxime of res ipsa loquitur may ease the claimant’s burden of
proof also here. “Where a patron of a theater or other place of public amusement is
injured, and the thing that caused the injury is wholly or exclusively under the control
and management of the defendant, and the accident is such as in the ordinary course of
events would not have happened if proper care had been exercised, its occurrence raises
a presumption or permits of an inference of negligence on the part of the defendant.”711
The general rules on compensation of damage and the assessment of damages apply. In
principle they are the same in contract and tort. In case of intentional or grossly
negligent infliction of harm even punitive damages can be awarded.
i) Damage to health
In case of death the various wrongful death statutes of the US states provide for rights of
the surviving spouse and other dependants.
If other physical harm was inflicted any resulting loss has to be compensated.
Also pain and suffering resulting from bodily injury have to be compensated in terms of
money.
709
See C.J.S. § 91.
710
Perry v. Macon County Greyhound Park, Inc., 514 So. 2d 1280 (Ala.).
711
AmJur, § 92.
215
Ulrich Magnus
The general aim of damages is to put the victim in the position he or she would have
been in had the accident not occurred. The measure of damages for the pecuniary loss in
case of bodily injury is the reasonable costs for healing including necessary medical
expenses. Loss of future earnings and of earning capacity is calculated on the basis of
all relevant circumstances like the prior earnings, the impairments through the injury, an
eventual reduction of life expectancy.712
Damages for pain and suffering are calculated in a discretionary manner taking into
account the gravity of the injury and the consequences of impairment. A number of US
states has placed general ‘caps’ (maximum amounts) on damages for pain and
suffering.713
Where punitive damages are available these damages are designed to deter this and
other potential tortfeasors from the tortious conduct. As already mentioned in the
general part on US law the Supreme Court has restricted the amount of punitive
damages to ten times the amount necessary for compensation.714
Damages awards are granted by the jury, which is instructed by the trial judge who
explicates the legal principles on the assessment of damages. Jury awards can, however,
be challenged but only if they are largely excessive.715
The general principles on contributory negligence apply. Where a spectator or user of a

leisure service has neglected the ordinary care that can be expected of a reasonable
person a claim for compensation is either excluded or the recoverable amount is reduced
depending also on whether the relevant US state follows the concept of comparative
negligence or regards contributory negligence or at least prevailing contributory
negligence still as a complete bar to an action.716
Particularly in sports and other active entertainments but not only there rather often the
doctrine of assumption of risk excludes any recovery. Especially where the danger to be
injured is obvious and nevertheless voluntarily assumed the participant cannot claim
712
D. Dobbs, Remedies.
713
See thereon G.T. Schwartz, Damages under US Law, in: U. Magnus (ed.), Unification of Tort Law:
Damages, 177.
714
See above: United States 2. b).
715
See G.T. Schwartz, Damages under US Law, in: U. Magnus (ed.), Unification of Tort Law: Damages,
177.
716
See W.T. Champion, Fundamentals of Sports Law, § 10.3; generally on contributory negligence G.T.
Schwartz, Contributory Negligence under United States Law, in: U. Magnus/M. Martin-Casals (eds.),
Unification of Tort Law: Contributory Negligence, 2004, 223 ss.
216
compensation of his or her damage from the organiser or other provider. It has therefore
been held that a spectator of an ice hockey match has assumed the risk of being hit by
an errant puck although he had bought seats behind plexiglas which protected against
direct shots.717 Also the risk of collision of skaters who train for group figure skating is
to be borne by the skater718 while a beginning skier has not assumed the risk of injury
due to particularly hazardous parts on the novice trail.719
The general limitation periods for contract actions apply here which depend on each
state’s statutory regulation and extend frequently to five or six years. But where
compensation for bodily injury is claimed this is, however, regularly dealt with as a tort
case with the generally shorter limitation period there (about two or three years).720
The limitation period begins to run with the accrual of the claim. In cases of bodily
harm this is either the date when the injury occurred or when the victim gained or could
have gained the necessary knowledge of the damage whichever last happened.
As mentioned above the strict distinction between contract and tort liability has been
mainly vanished. The duties a provider of leisure services has to observe resemble those
in contract while the consequences of their violation is more or less taken from tort law.
aa) The parties
As already discussed in relation to contractual liability the factual service provider is

generally the person liable. On the part of the visitors or users of the leisure service the
distinction between invitees, licencees and trespassers remains relevant and results in
different obligations of the service provider towards the different classes of patrons.
In case of death the various wrongful death statutes provide for remedies for decedents.
In case of other bodily harm negligently caused by the service provider the latter’s
liability extends to the resulting pecuniary and non-pecuniary damage as already
discussed above in the contractual context.
717
See Pestalozzi v. Philadelphia Flyers Ltd., 394 Pa. Super. 420, 576 A. 2d. 72 (1990).
718
Staten v. Superior Court, 45 Cal. App. 4th 1628, 53 Cal. Rptr. 2d 657 (1st Dist. 1996).
719
Sytner v. State, 645 N.Y.S. 2d 654, 223 A.D. 2d 140 (3rd Dept. 1996).
720
See already above under B. VIII. 2. a) und 3.
217
Ulrich Magnus
Mere emotional distress may also attract liability but only in specific situations.
Again, reference can be made to the remarks above on contractual liability. Liability in
tort is only incurred if a duty of care has been negligently violated. The obligations cited
above721 apply to the same extent in tort. In particular, the different obligations towards
different classes of visitors and users have the same relevance in tort as in contract.
dd) Causation
Causation is a necessary requirement of tortious liability. This element has the same
meaning as in contract.722
ee) Fault
It has already been stressed that fault is a further general prerequisite of liability of a
service provider. As discussed above fault requires negligence, and with respect to
liability for unsafe conditions of the premises negligence normally presupposes actual
or constructive knowledge of the unsafe state.723
As far as damage and compensation under tort law are concerned there are no
differences of principle when compared with contract law. Therefore it can be referred
here to the above remarks on this issue.724
The general rules on contributory negligence stated under a) gg) apply without
exception also here. Thus for instance the visitor of an amusement park cannot recover
when slipping and falling on a wet ramp when she has noticed that other people – and
therefore also the ramp – were wet from a raft ride.725
721
See above under a) cc).
722
See above under a) ee).
723
See above under a) dd).
724
See above under a) ff).
725
Brownlow v. Six Flags Over Georgia, Inc., 172 G. App. 242, 322 S.E. 2d 548.
218
As to the limitation period in tort and when it starts running see already above under a)
hh).
Exclusion of liability by agreement is possible but contract clauses to this effect are
disfavoured by the courts.726
aa) Burden of proof
The claimant has to prove the own damage, the service provider’s negligence and the
necessary causal link between both.727 But the service provider has to prove the
prerequisites of defences.
Both parties can rely in certain cases on the maxime of res ipsa loquitur namely where a
typical result allows the inference or rebuttable presumption of another event.
Where sports are professionally organized mediation or arbitration procedures are very
familiar but only for those inside the system namel for club owners and professional
players.728
726
See thereto already above under a) dd) iv).
727
Compare C.J.S. § 91.
728
See thereto W.T. Champion, Fundamentals of Sports Law, § 25.5.
219
Medical malpractice France
III. Liability for health services
1. Description
Health services have become increasingly important in the last decades mainly for two
reasons: the average age increased tremendously, namely doubled in Europe over the
last century, having the effect that today the number of persons has enormously grown
who are in need of health care due to their age and/or illnesses. The second main reason
is the progress of medical science which enables to cure diseases which were incurable
and therefore a death verdict in former days. Very often it is not an inevitable fate that
decides on life or death but the doctor. Because of this situation people expect and
demand today a high standard and perfection of medical treatment.
In almost all cases of personal injury through medical malpractice a contract or quasi-
contract (negotiorum gestio) is in the way though the contract may only exist between
the medical institution, namely the hospital, and the patient but not between the patient
and the doctor who is employed by the medical institution.
The medical activities which cause or may cause bodily injury cover most kinds of
medical treatment; even omissions can do serious harm. Typical and difficult problems
are, however, regularly tied with the question of causation, the standard of care which
has to be met and frequently also with the extent of damages.
• Significant fields of damaging medical activities
chirurgical operations
gynecological treatment (birth)
other medical treatment
• Specific kinds of failures
errors of diagnosis
non-compliance with state of the art
failure to disclose the risks
failure to document
• Link between medical treatment and damage
causal nexus
loss of chance
presumptions
221
Hans-W. Micklitz
• Standard of care
ascertainment of right standard of care
professional/beginner
duties of organisation and supervision
• Addressee of liability
direct contract between doctor and patient
employed doctors or other medical personal
medical institutions
2. French law
Literature: J. M. Auby, Le droit de la santé, 1981, 404; Encyclopédie Dalloz, Répertoire de Droit Civil,
2nd edition, Tome VI, Relais Printemps 1996; J. Penneau, Landesbericht Frankreich, in: Ärztliche
Verantwortung im europäischen Rechtsvergleich, Vol. 7, 1999; the same, France, in: Medical
Responsibility in Western Europe – Research of the European Science Foundation, 1985; R. Savatier,
Impérialisme médical sur le terrain du droit, D. 1952, Chron. 157.
The risks proceeding from medical techniques/procedures and medical devices have
become unavoidable. The exercising of theses procedures challenges the usual diligence
which could be expected from a medical professional acting to the best of his
knowledge and belief.729
The importance of liability claims arising from the professional misconduct occurring
during medical treatment which is provided by a group of medical professionals should
not be underestimated. The determination of the origin of the fault often raises serious
difficulties as the injured parties is limited in regards to information on the
circumstances of the accident which occurred the damage.730
In 1936, the French Supreme Court (La Cour de cassation) established the principle of
contractual liability for medical malpractice which had not been overruled since.731 Yet,
it constitutes a principle only, and there are claims for damages arising from tortious
liability.
729
Encyclopédie Dalloz, Répertoire de Droit Civil, 2ième édition TOME VI, Individualité à Nom-
Prènom, Relais Printemps 1996, No. 481.
730
Cf. Fn. (1), No. 482.
731
Civ. 20 May 1936, D.P. 1936. 1. 88 concl. Matter, rap. Josserand, note E.P., S. 1937. 1. 321, note A.
Breton.
222
a) Contractual liability for medical malpractice
The French Supreme Court furthermore established that the physician’s contractual
obligation amounts to an obligation de moyen, reasoning its decision by stating that
every medical procedure carries an inexorable risk. Thus, a physician cannot be required
to provide a specific result, unless he expressly states different.
The voluntary termination of pregnancy constitutes an obligation de moyen. The mere
fact that the medical intervention did not effectively terminate pregnancy does not
create the physician’s liability.732
Yet, a physician can be held liable if he delegates the checkup which proceeds the
medical intervention to another physician who could have revealed the continuing of the
pregnancy.733
In regards to plastic surgery, the administration of justice differentiates between
surgeries which are carried out to repair congenital or acquired infirmities and surgeries
which are conducted to repair natural disgraces according to the patient’s notion. In
general, plastic surgery creates an obligation de moyen,734 whereas the second field of
plastic surgery creates an obligation de résultat.735
Dental surgeons providing their professional services will be assessed in the scope of an
obligation de moyen as the use of the instruments which are therefore needed represent
an inherited danger.736
Yet, there are a few exceptions and beside the obligation de moyen, physicians can be
obliged to provide a specific result (obligation de résultat).
A physician who contractually promises to examine a patient at a set day and time
creates an obligation de résultat.
Current lab-examinations such as the determination of the cholesterol and blood sugar
level do not constitute any risk. The laboratory assistant is obliged to provide a certain
result (obligation de résultat).737
Dental technicians are required to deliver dentures free of fault and they must serve the
needs the patient could reasonably expect.738
732
Riom, 6 July 1989, D. 1990. 284, note Ph. le Tourneau, et 1991. Somm. 180, obs. J. Panneau.
733
Paris, 5 July 1984, Gazette du Palais 1984, 2. Somm. 290.
734
Civ. 1re, 22 September 1981, D. 1982, I.R. 274, obs. J. Penneau, Bull. civ. I, No. 268.
735
V. Paris, 28 September 1990, D. 1991. Somm. 359, obs. J. Penneau.
736
Civ. 1re, 14 April 1967, Gazette du Palais 1967. 2. 107, 12 July 1990, D. 1991. Somm. 358, obs. J.
Penneau, Bull. civ. I, No. 162.
737
G. Durry, obs. Revue trimestrielle de droit civil, 1974, 822.
738
12 July 1990, D. 1991. Somm. 358, obs. J. Penneau, Bull. civ. I, No. 162.
223
Hans-W. Micklitz
aa) The parties
Contractual liability arises only between the contractual parties which are usually the
treating physician and the patient. A third party suffering damage may only assert
claims based on tortious liability.
i) Injuror/injured
Usually, the physician injures or incurs a loss to the patient during the execution of a
medical treatment or an operation. Thus the physician is the injuror and the patient the
injured party. Third parties having suffered a loss/damage may assert derivative claims.
While exercising a medical intervention at a patient, the surgeon injured one of his
assistants with a medical instrument. The court found the surgeon responsible on the
grounds of tortious liability.739
ii) In case of death
A third party having suffered a loss/damage arising from the patient’s death cannot
invoke the contract which had been concluded between the physician and the patient.
Liability may only arise from tort law.740
A physician normally requires the cooperation of medical staff to accomplish his

medical acts. If the medical stuff acts under the physician’s authority and the patient
who entered into a contract with the physician incurs damage then the physician can be
held contractually liable for the wrongful conduct of his staff and not as per Art. 1384
al. 5 C.civ.
A physician who accidentally injures a patient with a medical device in the course of a
medical intervention will be held liable for the damage incurred.
During a chirurgical intervention a gynecologist unintentionally injures the patient by
slitting the recto-vaginal partition resulting in complications. The court found the
gynecologist liable for clumsiness.741
739
Civ. 1947, D. 1948. 127.
740
T. civ. Marseille, February 10, 1938, D.H. 1938, 252.
741
Cass. 1re Civ. January 7, 1997, C 95-10.939, Recueil Dalloz 1997, C. Somm. 319/20.
224
A court found an anesthetist in violation with his contractual duty of care as he failed to
take necessary precautions prior to the anesthesia. The anesthetist failed to conduct any
general or complementary examination of the patient. Furthermore he did not take any
premedical precautions recommended.742
i) Duty to render professional treatment
Generally a physician is free to render or to refuse his professional treatment. Yet, this
principle is restricted by the application of legal provisions, such as C. pén., Art. 63 al.
2; nouv. C. pén., Art. 223-6, al. 2 and C. déont., Art. 39.
According to Art. 39 C. déont. a physician is allowed to refuse rendering his
professional treatment, e.g. if it does not concern an emergency.
A physician promised to medically treat a patient. Furthermore, the physician even
started to medically treat him. The physician then abandoned the treatment without
ensuring that it would be continued. The physician was held liable for the damage
arising from its absence.743
The same applies to a physician who left during a delicate medical treatment.744 In
another case a physician left the patient with an assistant who was not specialized. Upon
the physician’s return he refused to assist his colleagues with their diagnosis and in that
delayed an urgent operation.745
ii) Duty to use best efforts
A physician is required to use his best efforts and necessary competency. But as already
stated every medical procedure carries an inexorable risk. Thus, in regards to medical
treatments/operations, a physician cannot be required to provide a specific result, unless
he expressly states different.
Moreover, since medicine is a very broad working field, in particular general physicians
may be obliged to seek advice from a specialist if required by the circumstances.
Already the physician’s delay in consulting a specialist constitutes gross negligence.746
A diagnostic error does not constitute a professional fault unless if it arises from the
physician’s misjudgement of the relevant state of scientific research.747
742
Paris, 1re ch. B, January 23, 1992, Recueil Dalloz 1992, C. Somm. 25/26.
743
T. civ. Marseille, February 10, 1938, S. 1938. 2. 52; comp. T. civ. Grasse, May 27, 1935, Gaz. Pal.
1935. 2. 341.
744
Paris, December 2, 1957, D. 1958 Somm. 96.
745
Civ. 1re, October 29, 1963, D. 1964 Somm. 56, Gaz. Pal. 1964. 1. 124.
746
T. grande inst. Mulhouse, March 9, 1976, Gaz. Pal. 1977. 1. Somm. 55; V. C. déont., Art. 55.
747
Civ. 1re, November 24, 1987, D. 1989. Somm. 61, obs. J. Penneau.
225
Hans-W. Micklitz
A surgeon was mistaken about the diagnosis he made prior to the operation. He
diagnosed his patient a cyst. Instead the patient was suffering from cancer of the sciatic
nerve. The patient’s treating physician had already given the same misjudgment. The
court found that the surgeon did not violate his duty to use best efforts. Experts stated
that physicians and surgeons were frequently mistaken about that particular
differentiation and that the misjudgement was difficult to avoid.748
However, the requirements in regards to the efforts exercised by the physician cannot go
beyond the applicable relevant state of scientific research (données acquises de la
science).749
The patient’s treating physician and the obstetrician applied a delivery-method which
experts found obsolete and dangerous for the child to be born. The court found that
both, the physician and the obstetrician were violating their duty to use best efforts.750
iii) Duty to supervise and control technical equipment
A physician is required to constantly supervise patients which confide in him. Yet, the
surveillance itself can be of a relatively general character.751 The duty includes the
supervision of the patient prior to an operation, during and after the operation/medical
treatment.
A physician failed to supervise one of his patients during the final days of the
pregnancy. The cour found that the physician violated his duty to supervise.752
A physician is responsible for any fault which arises from bad maintenance of his
working materials, such as instruments, medical equipment etc.
iv) Duty to inform of risks
A physician is always obliged to inform his patient about the exact prognoses of his
disease753 but at the very least, regardless of the circumstances, he is obliged to inform
about the danger of the therapy or the scheduled examination as well as about the
consequences of the operation or the medical act planed. The physician’s failure to
748
T. civ. Nimes, October 20, 1953, D. 1954. Somm. 22.
749
Civ. May 20, 1936, préc.; Civ. 1re, January 15, 1957, D. 1957. 161.
750
Civ. 1re, July 9, 1963, Bull. civ. I, No. 378, D. 1964. 38.
751
Paris, November 26, 1968, D. 1969. Somm. 72.
752
Orléans, January 9, 1975, D. 1975. Somm. 62 and Civ. 1re, June 1, 1976, D. 1976. Somm. 63, JCP
1976. II. 18483, note R. Savatier.
753
V. C. déont., Art. 42; R. Savatier, Impérialisme médical sur le terrain du droit, D. 1952, Chron. 157.
226
advise the patient prior to a justified medical procedure may only give rise to civil
liability. This is consistent with the established practice of the courts.754
Normally, the physician’s duty to inform is aimed at the patient. If the patient is legally
incapacitated then this particular duty arises against the incapable person’s legal
representative; respectively in the case of the incapacity of a minor against his parents.
A physician transferred a patient to a radiologist to have a radiological examination
performed. The court ruled that both the physician and the radiologist were required to
inform the patient about possible risks arising from the examination.755
Generally, the physician is not required to provide the information in writing.756 Yet, a
physician might, under certain circumstances, be obliged to put the provided
information in writing, e.g. in the event the patient is deaf.757 Furthermore, in particular
cases, the legislator might impose the requirement to provide the information in writing
on the physician.758
With regards to the manner the information is to be provided to the patient, the
physician must conduct professionally, which means that he is not to provide every
single scientific detail. Brief, the physician must consider the patient’s level of
comprehension and certain psychological necessities.
As the patient was unaware of the term “mucocele”, a physician used the term
“sinusitis” to explain to her the sickness she was suffering from. The court ruled that the
latter term could be applied without giving rise to possible claims for damages.759
A surgeon referred to an operation as being “simple and without essential function”. He
furthermore pointed out that the operation was neither absolutely necessary nor urgent
regardless of the detachment of a tumor which resulted in the patient’s loss of the use of
a limb. The court found that the surgeon had been in violation of his duty to inform of
risks.760
In regards to plastic surgeries which are carried out to repair congenital or acquired
infirmities the above mentioned principle applies. In regards to plastic surgeries which
are conducted to repair natural disgraces according to the patient’s notion, the patient is
754
JCP 1970. II. 16507, note R. Savatier.
755
Civ. 1re, May 29, 1984, 2e esp., D. 1985. 281, note F. Bouvier.
756
V. FN 16.
757
Paris, May 5, 1987, D. 1987. Somm 419, obs. J. Pennau.
758
Cf. the taking of blood proceeding the blood-typing, C. santé publ. Art. L. 666-6.
759
Civ. 1re, February 21, 1961. D. 1961. 534, JCP 1961. II. 12129, note R. Savatier.
760
Civ. 1re, October 27, 1953, D. 1953. 658.
227
Hans-W. Micklitz
to be comprehensively informed about the entire range of the risks which might occur
during the operation.761
A plastic surgeon performed an operation at the patient’s eyelid. The operation resulted
in the patient’s blindness. The surgeon had failed to inform the patient about the
possibility – although it appeared to be very unlikely and exceptional – of a possible
blindness. The court found the surgeon in fault with his obligation to inform about the
risks of the operation.762
In regards to the transplantation of organs and biomedical research the particular
physician respectively researcher is required to provide exhaustive information. In the
first case the physician is required to inform the donor about the possible impact the
transplantation might have on the donor’s personnel and professional as well as family
life. Moreover, a voluntary termination of pregnancy for personal reasons requires the
physician to inform the mother about the medical risks for herself and for future
pregnancies. Furthermore, the physician is obliged to inform the mother of the
biological gravity of the operation.
v) Duty to document
Generally, an obligation to keep a medical record is affirmed.763 The physician is

therefore required to keep the medical record up-to-date. A medical record should
contain the patient’s name, address, sex and profession. Furthermore it should contain
the patient’s medical history on that particular subject matter as well as the physician’s
evaluation of the patient’s situation, e.g. a diagnosis and last but not least the proposed
treatment.
vi) Duty to obtain the patient’s prior consent
In general, the physician is required to obtain the patient’s consent prior to any medical
treatment. This is consistent with the established practice with the courts.764 A physician
cannot proceed with an operation without obtaining the patient’s consent unless it is
required by an evident necessity or an immediate danger.765
761
Paris, November 23, 1989, D. 1991. Somm. 182, obs. J. Penneau.
762
Civ. 1re, November 17, 1969, D. 1970. 85; January 14, 1992, et Versailles, February 21, 1991, D.
1993. Somm. 29, obs. J. Penneau.
763
Cf. C. d’arbitrage, July 13, 1989, No. 20/89.
764
Civ. May 29, 1951, D. 1952. 53, JCP 1951. II. 6421, note R. Perrot, S. 1953. 41, note R. Nerson, Gaz.
Pal. 1972. 2, Doct. 428.
765
Civ. 1re, October 11, 1988, D. 1989. Somm. 317, obs. J. Penneau, JCP 1989. II. 21358, note A.
Dorsner-Dolivet.
228
In a first attempt, French courts merely referred to serious faults by expressing their
point of view not to get involved in complicated scientific discussions on subject
matters they were not familiar with. Eventually, it became the courts’ established
practice that even the slightest fault committed by a physician would give rise to
liability, notwithstanding if it arose from contract or tort.766
In determining the fault, the physician’s conduct is referred to a standard. If the

physician’s conduct is not in compliance with that standard then the requirement of fault
can be affirmed. The standard refers to the conduct of a reasonable professional (bon
professionnel) whose category and rank correspond with those of the physician whose
conduct is at question.
Any clumsiness, carelessness and negligence arising from the execution of medical
treatment constitute a fault.767
It is the established practice of the courts that a physician can be held liable for
accidents which occur in connection with the injection of medication. A court found an
anesthetist liable for completely sectioning a nerve whilst providing anesthesia on the
grounds of having conducted clumsy.768
Article 668-10 C. santé publ. establishes liability without fault for centres of blood
transfusions in regards to the donor who asserts a claim for damages arising from the
taking of the blood.
In regards to medical liability a fault is to be affirmed if causation can be established

between the medical act taken and the arising of a damage.
766
Req. July 21, 1862, p. 62. 1. 818; July 21, 1919, D.P. 1920. 1. 30; Toulouse, May 25, 1938, Gaz. Pal.
1938. 2. 363.
767
Bordeaux, July 11, 1934, D.H. 1936. Somm. 4; Civ. 1re, October 1968, JCP 1969. II. 15799, note R.
Savatier.
768
Civ. 1re, November 15, 1955, D. 1956. 113.
229
Hans-W. Micklitz
A physician can exempt from liability in the case of force majeure.769 Furthermore, the
physician can also exonerate himself by proving that an external reason had caused the
damage.
ee) Causation
Causation must be evident between the damage claimed and the physician’s fault – the
non-performance of his contractual obligation.
If causation between the damage claimed and the physician’s malpractice/misconduct
cannot be established, then the physician cannot be held liable.770
During the performance on an operation the functioning of an oxygen tent had been
affected. The patient died in the course of that operation. Yet, the failure of the oxygen
tent had no impact on the patient’s death. The court found that there were no grounds to
award damages.771
To establish causation it can be sufficient that the physician’s fault is among those faults
which caused the damage.
A physician treated a patient who had a broken member. The physician fixed the plaster
inappropriately. The patient was forced into an unsuitable posture which resulted in the
patient’s physical handicap. The court found that the physician was liable for the
entireness of the damages.772
ii) Omissions
The omission to abide with prophylactic, essential provisions constitutes a fault.

An obstetrician omitted to examine a patient’s placenta. The patient died form a
pulmonary embolism as a result of an internal infection as parts of the placenta had
remained inside the body. The court found that the obstetrician had conduct negligently
in omitting to exercise an essentially prophylactic examination.773
769
Comp. T. civ. Grasse, May 27, 1935, Gaz. Pal. 1935. 2. 341.
770
Civ. 1re, July 10, 1962, D. 1963. Somm. 4.
771
Civ. 1re May 25, 1971, JCP 1971. II. 16859.
772
Angers, January 24, 1951, D. 1951. 210.
773
Crim. June 14, 1957, D. 1957. 512.
230
The patient bears the burden of proof if the physician is in charge of an obligation de
moyen.
Since the judgment of the French Supreme Court, on May 29, 1951774 it became the
established practice of the courts that the patient has to prove that the physician
conducted without the patient’s consent and without having sufficiently informed.
Moreover, the patient bears the burden of proof for establishing the physician’s fault.
Therefore, the patient’s reasoning must be precise and not be based on presumptions.775
Furthermore, the patient is obliged to provide evidence that the physician’s fault had
caused the damage. In regards to the loss of the chance to get cured or to survive the
jurisprudence is satisfied with a more general proof of causation, causation is presumed
and the physician can only exonerate himself by proving that an external reason had
caused the damage.
The patient often accumulates numerous presumptions in that the physician
automatically collects documents proving his professional conduct.
Yet, if a physician is legally or contractually obliged to provide any particular
information bears the burden of proof for its performance.776
The nature of damage arising from medical misconduct/malpractice varies enormously.

It may merely concern a pecuniary/non-pecuniary loss resulting from issuing a faulty
medical certificate. But it may also concern damage arising from the impending of the
bodily integrity, disability or death. Damage claims arising from medical
misconduct/malpractice do not differ from “ordinary” damage claims. However, a
patient’s invalidity which might have been existent prior to the medical treatment
concerns a particular issue of medical law. It is difficult to determine the damage arising
from the medical treatment. The determination in that depends on the appreciation of
the causality.777
According to the ruling of a Parisian court the non-pecuniary loss arises from the
impossibility to prepare oneself to overcome the psychological misfortune which results
from the unexpected occurrence of the damage.778
i) Damage to health
774
D. 1952. 53, note R. Savatier.
775
Civ. 1re, April 4, 1973. Somm. 79.
776
Cass. 1re Civ., February 25, 1997, Bull. civ. I, No. 75, Recueil Dalloz S. Comm. 319.
777
Cf. Rev. trim. dr. civ. 1976. 1.
778
Paris, February 9, 1984 D. 1984 Information rapides, 459.
231
Hans-W. Micklitz
It is particularly difficult to determine the damage if the initial medical problem can be
cured but the same medical treatment incurs a new damage.
A patient had been reanimated by the use of electroshocks. The reanimation was
successful. But through the physician’s fault the patient incurred a fracture of one of his
members. Although the court found considered the physician’s curing measures it still
found that the physician is liable for the entire damage which arose from the fracture.779
In regards to damages to be awarded which arise from medical misconduct, it might be

necessary to calculate damages taking a sociological point of view rather than merely
applying mathematics. Damages are mainly awarded in HIV-cases, where patients got
infected in hospital when obtaining contaminated blood transfers. In more detail the
following cases may be reported:
A physician negligently brushed a patient’s penis with pure acetic acid instead of acetic
acid with a concentration of 5 %. The patient could not engage in sexual intercourse
during two and a half months. The court found that the average French couple engaged
in sexual intercourse once a week. Thus the claimant had been deprived of ten sexual
intercourses. The court awarded 3000 F for suffering.780
The non-performance of a contractual obligation does not give rise to award damages if
the non-performance results from a personal fault of the patient which the physician
neither could have predicted nor avoided.781
hh) Limitation
Medical contractual claims arising from a damage which had been incurred during the
physician’s visit, medical operation or which resulted from the prescribed medication,
hose claims are subject to an abridged limitation period of two years, as per Art. 2272,
al. 3 C.civ.
The objectives of contracts may be illegal; a dangerous medical experiment not having a
curative purpose or an unnecessary mutilation. In these cases the contract is rendered
779
Lyon, November 17, 1952, JCP 1953 II 7541, note R. Savatier.
780
TI Saintes, January 6, 1992, Recueil Dalloz 1993, S. Comm. 28.
781
Civ. 2e, December 18, 1956, D. 1957. 231.
232
void and claims may be asserted on the grounds of tortious liability. Furthermore,
tortious liability arises if the physician is acting against the patient’s will or if the
physician refuses to provide his medical services to an injured person whose state of
health poses an immediate threat to life.
According to the established practice of the French criminal courts a physician’s
liability, which in principle is contractual, will be considered tortious if the non-
performance of his obligations arises from recklessness or negligence. Furthermore, the
recklessness or negligent conduct must constitute a violation of Art. 319 code pénal
(French Criminal Code).782
A radiologist asked a surgeon to continue the injection of radiopaque material without
obtaining the patient’s prior agreement. The court found that the surgeon and the patient
had not entered into a contract and that damages could be awarded merely on the
grounds of tortious liability.783
The same applies to the relations between a sick/injured person and the medical staff of
a public hospital. Damages may only be awarded on the grounds of tortious liability.784
A physician’s liability in regards to a third party is necessarily tortious. Thus a surgeon
who injures an assistant in the course of a surgery can be held liable on the grounds of
tortious liability.785
aa) The parties (vicarious) liability for employees
In regards to tortious liability a patient and physician may become a parties to the action
if, e.g. the physician is acting without the patient’s agreement. Furthermore, third parties
such as an assistant being injured during an operation can become a party to the action.
A physician may also be responsible for the professional misconduct of his employees.
In regards to patients who are legally incapable liability may only arise from tort law as
they cannot legally enter into a contract.
Under contract law, it is almost clear that only a contracting party can have rights under
the contract. Under tort law, in a similar way, any other directly injured party is entitled
to claim compensation.
782
Crim. December 12, 1946, D. 1947. 94, J.C.P. 1947. II. 3621, note R. Rodière.
783
Civ. 1re 20 February 1979, D. 1980, I.R. 171, obs. J. Penneau.
784
J. M. Auby, Le droit de la santé, 1981, 404 et seq.
785
Civ. December 29, 1947, D. 1948. 127.
233
Hans-W. Micklitz
A physician who refuses to render his medical treatment to a person whose life is at risk
commits a civil wrong and a crime, as per Art. 63, al. 2 C. pén. and will be held liable.786
dd) Causation
The physician’s fault must have caused the damage. In regards to tortious liability the
patient bears the burden of proof. The chain of causation between the physician’s
court case the patient has to provide evidence for a chain of causation between the non-
performance of that obligation and the damage arisen.
ee) Fault
In a first attempt, French courts merely referred to serious faults by expressing their
point of view not to get involved in complicated scientific discussions on subject
matters they were not familiar with. Eventually, it became the courts’ established
practice that even the slightest fault committed by a physician would give rise to
liability, notwithstanding if it arose from contract or tort.787
ff) Damage
The nature of damage arising from medical misconduct/malpractice varies enormously.

It may merely concern the loss of the chance to get cured but it may exceed to the loss
of survival in the event a physician refuses his expertise and there had been an
immanent threat to the patient’s life.
The physician can exonerate himself from liability in the event of force majeure. If the
patient’s at least negligent conduct contributed to the damage then the physician will be
partly exonerated.
hh) Vicarious liability
A physician normally requires the cooperation of medical staff to accomplish his

medical acts. On the premise that there is a contractual relationship between the patient
and the physician the latter will be held contractually liable for the wrongful conduct of
his staff acting under the his authority. If there is no contractual relationship between
786
Crim. May 31, 1949, D. 1949. 347, JCP 1949. II. 4945, note J. Magnol.
787
Req. July 21, 1862, p. 62. 1. 818; July 21, 1919, D.P. 1920. 1. 30; Toulouse, May 25, 1938, Gaz. Pal.
1938. 2. 363.
234
the physician and the patient then the physician is responsible for the staff’s
professional misconduct as per Art. 1384 al. 5 C.civ.
ii) Burden of proof
The party having suffered the injury/loss bears the burden of proof for fault and the
causality of the tortious conduct.
jj) Limitation
As there exists no abridged limitation period for medical claims arising from tort law,
the ten-year limitation period applies, as per Art. 2270-1 C.civ.
c) Exclusion clauses
aa) Exclusion clauses in contractual relations
Physicians might at least in theory exclude or restrict their liability. If they do so in

standard business conditions, they have to comply with the requirements of directive
93/13/EEC which prohibits clauses aimed at excluding or limiting the doctors’ liability
for personal injuries.
bb) Exclusion clauses in tortious liability
If there are exclusion clauses they may exclude tort law claims as well. However, they
are subject to the same restrictions as set out above.
It is the established practice of the courts that for any medical treatment which is based
on a contractual relationship between patient and physician the principle of non-cumul
of contractual and tortious liability applies and thus prohibits the application of Art.
1384 al. 1 C.civ. if damage arises from things, such as medical instruments, medication,
X-rays etc.788
aa) Burden of proof by issue
Outside the rules on causation and fault the general standards of burden of proof apply.
788
Civ., February 1, 1937, S. 1937. 1. 361, note R. Morel.
235
Hans-W. Micklitz
There are no particular out-of-court settlement procedures to be reported which are

playing a major in conflict resolution.
e) Case study
Cass. civ. 1re, January 4, 1974; Claisse v. Mutuelle générale française accidents et
autres.
The plaintiff, Jean-François Claisse, was suffering from backaches. Therefore, he had
been taken to the hospital in Neuilly-sur-Seine. Prior to the operation the physician
Chome took blood tests. As a result of the blood tests he diagnosed a malignant tumour,
cancer. The physician ordered a medical treatment with cobalt. But the treatment did not
show any results. Subsequent to the futile treatment, the physician recognized that he
had reached an erroneous conclusion regarding his analysis of the blood test. The
plaintiff had not been suffering from cancer. The diagnosed tumour had been benign.
The plaintiff sued for damages against the physician and his insurance company
Mutuelle générale française accidents. He puts forward that he had entered into a
contract with the physician and that the latter bore an “obligation de résultat”. He
claims for the fees of the medical treatment which had been prescribed to him as a result
of the erroneous conclusion of the analysis of the blood test. The court found against the
plaintiff reasoning that according to experts the misinterpretation of the analysis of the
blood test is normally possible and justifiable under the relevant state of scientific
research and the established practice of the physicians at that time. Furthermore, the
court stated that the interpretation of histological findings is particularly delicate. Thus,
the physician merely bore an “obligation de moyen”
236
Medical malpractice Germany
3. German law
Literature: H. Bley/R. Kreikebohm/A. Marschner, Sozialrecht, 8th ed. 2001; E. Deutsch/A. Spickhoff,
Medizinrecht. Arztrecht, Arzneimittelrecht und Medizinprodukterecht, 5th ed. 2003; W. Frahm/W.
Nixdorf, Arzthaftungsrecht. Leitfaden für die Praxis, 2nd ed. 2001; K. Geiß/H.-P. Greiner,
Arzthaftpflichtrecht, 4th ed. 2001; H. Hirte, Berufshaftung. Ein Beitrag zur Entwicklung eines
einheitlichen Haftungsmodells für Dienstleistungen, 1996; Ch. Katzenmeier, Arzthaftung, 2002; A. Laufs,
Arztrecht, 5th ed. 1993; A. Laufs/W. Uhlenbruck, Handbuch des Arztrechts, 3rd ed. 2002; E. Natter, Der
Streit um die öffentlich-rechtliche Schadensersatzpflicht des Kassenarztes, NJW 1986, 1529; F. M. Petry,
Medical Practioner’s Liability in Germany, in: M. Faure/H. Koziol (eds.), Cases on Medical Malpractice
in a Comparative Perspective, 2001, 34; F. Schnapp, Die Rechtsbeziehung zwischen Kassenzahnarzt und
sozialversichertem Patienten nach dem Gesundheits-Reformgesetz, NJW 1989, 2913; A. Spickhoff, Die
Entwicklung des Arztrechts 2002/2003, NJW 2003, 1701; J. v. Staudinger, Recht der Schuldverhältnisse,
2. Buch, §§ 611-615, 13. Bearbeitung 1999; E. Steffen/W.-D. Dressler, Arzthaftungsrecht. Neue
Entwicklungslinien der BGH-Rechtsprechung, 8th ed. 1999.
At the outset it has to be stressed that in Germany medical law (“Medizinrecht”,

“Arztrecht”) and in particular liability for medical malpractice (“Arzthaftung”) has
developed over the last two or three decades as a subject almost of its own. A number of
pecularities distinguishes this branch of law from the general contract and tort law. To
some extent the traditional differences between contract and tort law have lost their
importance or do not even exist here. For some writers “Arzthaftung” therefore appears
already as a leading example of a new type of professional liability (“Berufshaftung”)789
which bridges the gap between contract and tort and establishes a new third category
merging the rules on liability under contract and tort law. This development is still on its
way. The most recent law reforms in Germany have, however, considerably added to
this development. Thus, the reform of the law of damages of August 2002 did away
with the distinction that immaterial loss (pain and suffering) could not be compensated
under contract law but only under tort law;790 the reform of the law of obligations of
January 2002 unified the limitation periods for contract and tort claims concerning
personal injury cases.791 Thus, few differences between contract and tort law remain
which really matter (liability for others, burden of proof, damage of third parties). And
in medical malpractice cases they are partly further levelled by the courts.
789
See thereto H. Hirte, Berufshaftung. Ein Beitrag zur Entwicklung eines einheitlichen Haftungsmodells
für Dienstleistungen, 1996.
790
See the new § 253 BGB.
791
Compare the new §§ 195, 199 BGB.
237
Ulrich Magnus
Medical treatment is almost always rendered on the basis of a contract though this is
denied by the Federal Social Court792 and writers on social security law793 where socalled
Kassenärzte (doctors who are admitted to private practice by their respective
professional association) are involved. Here it is argued that these doctors are obliged
under the relevant social security law to medically treat patients. A civil contract would
neither be necessary nor in fact be present though the obligations under the social law
relationship follow closely private contract law.794 The almost unanimous view of civil
law courts795 and civil law writers796 is to the contrary. In any event, in the end private
contract law governs the rights and obligations between doctor and patient. This
contract is classified as a contract for services since the doctor cannot guarantee the
success of the treatment.797
The contract is either concluded – rather often explicitly and not rarely in writing –
when the patient goes to hospital or visits the doctor for the first time but also often
implicitly when the patient just asks for medical treatment and receives it. Only in case
of necessary treatment of unconscious accident victims no prior contract can be
concluded.
If a contract for medical sevices exists this does, however, in no way mean that liability
cannot be based on tort law any more. Just on the contrary, German law allows for
concurring claims both under contract and tort law.798
Despite the general contractual basis on which medical services are normally rendered,
in the past most medical malpractice claims were based on tort law in Germany. The
main reason was that compensation for pain and suffering (so-called Schmerzensgeld)
could only be awarded under tort law799 but not under contract law.800 Since almost all
other damage was – and mainly is – covered by social security the only relevant civil
claim was that for compensation of immaterial loss which had therefore to be based on
tort law. This has been changed in August 2002 when the Civil Code was amended.
Now pain and suffering can also be recompensed under contract law.801 In particular in
792
See BSGE (decisions of the Federal Social Court) 158.
793
See, e.g. H. Bley/R. Kreikebohm/A. Marschner, Sozialrecht, 8th ed. 2001, no. 664; F. Schnapp, NJW
1989, 2913.
794
This is provided by § 76 Book IV Social Code (Sozialgesetzbuch, SGB).
795
BGHZ 76, 259, 261; BGHZ 97, 273, 276; BGHZ 100, 363, 367.
796
Ch. Katzenmeier, 96 ff.; E. Natter, NJW 1986, 1529, 1530.
797
Palandt-H. Putzo, Einf. vor § 611 no. 18 f.
798
Ch. Katzenmeier, 79 f.
799
This was provided by the former § 847 BGB.
800
As provided by the former § 253 BGB.
801
New § 253 par. 2 BGB; see in more detail supra B II 2 b bb.
238
medical malpractice cases the amendment will probably have the effect that claims will
be mainly based on contract law.
aa) The parties
i) Injuror/injured
The parties to the contract are on the one hand regularly the medically treated persons.
Only in case of minors it is not infrequently held that parents who conclude a contract
for the benefit of their child are themselves the party to the contract.802 The child then
has merely rights but no obligations under the contract.803
Who on the other hand is the contractual party of the victim depends on the
circumstances of the case. Different situations have to be envisaged:804 When patients
are treated in hospital the contracting party is regularly the person or body running the
hospital. It does not matter here whether the hospital is privately or publicly owned.805
Normally there is no contractual tie to the doctor or other hospital personal who render
the medical service. They can only be held liable under tort law.
An exception is, however, the case that the patient requests and contracts for special
treatment by a particular specialist of the hospital, e.g. by the chief doctor. Then a
further contract between the patient and this specialist comes into existence.806 A further
exception is the so-called Belegarzt. This doctor rents bedroom and nursing facilities in
a clinic for his patients; he is directly liable in contract to his patients but the clinic
remains liable for the services rendered by it.807
Patients treated in doctors’ private practices have the doctor as their contractual partner.
Where several doctors run the practice jointly they are also jointly liable in contract.808
Where the patient dies because of the medical malpractice his or her heirs inherit those
claims which the deceased already had at the time of death. But unlike in tort law no
802
See, e.g. BGHZ 89, 266.
803
804
Compare A. Laufs/W. Uhlenbruck, § 40 and § 93; Palandt-H. Putzo, Einf. vor § 611 no. 18 f.; F. M.
Petry, 35 f.; Staudinger-R. Richardi, Vorbem. zu §§ 611 BGB no. 1247 ff.
805
In this case a so-called “complete hospital admission contract” (totaler Krankenhausaufnahmevertrag)
is concluded covering the complete treatment.
806
This type is called “hospital admission contract with added physician contract” (Krankenhausauf-
nahmevertrag mit Arztzusatzvertrag).
807
This type of contract is called “split hospital admission contract” (gespaltener Krankenhausaufnahme-
vertrag).
808
BGHZ 97, 273.
239
Ulrich Magnus
further contract claims for instance for lost maintenance etc. of the heirs or dependants
would lie since the heirs or dependants are no party to the contract between the
deceased patient and the doctor or hospital.809
As far as a claim for compensation of injuries through medical malpractice can be based
on a contract also the general contract rule on vicarious liability applies. According to
this rule (§ 278 BGB) the doctor or the hospital is liable for failures of those persons
employed by the doctor or the hospital. The negligence of the employee is attributed to
the doctor or hospital as if they themselves had acted and irrespective of any own fault
or excuse on the doctor’s or hospital’s side.
For the purposes of this study the underlying assumption is that the patient has been
bodily injured through the medical treatment. With respect to the requirement of bodily
injury German law does not distinguish between contract and tort law. Also under
contract law personal integrity is protected, and particularly so in contracts with doctors
and hospitals. Also the notion of bodily harm does not differ between contract and tort
law meaning that either body or health must be injured and including medically
recognisable psychic damage. But mere psychic impairment without medically
diagnosable somatic consequences does not give rise to any – contractual or tortious –
liability.
The central requirement of contractual liability is the violation of a contractual duty.

First, such duty must be identified. In medical malpractice cases typical duties have
been developed by the courts which are at least impliedly contained in any contract for
medical treatment (see infra i – v). Secondly, the violation of the duty must be
established. It has been observed that the main failures are treatment errors and
insufficient information of the patient.810 It has further correctly been stated that the
duties and standards of care in medical malpractice cases do not vary among contract
and tort law.811
809
See, e.g. OLG Saarbrücken, NJW-RR 1995, 986; compare also infra b ff.
810
See Ch. Katzenmeier, 272; see also F. M. Petry, 37 ff.
811
Ch. Katzenmeier, 272; F. M. Petry, 37.
240
The doctor – which includes for the following the hospital – is always under a general
duty to render professional treatment even if this duty is not expressly mentioned in a
written contract. That means that s/he has to act according to the standards and
recognised rules of medical science and research.812 The standards and rules are those
which medical science has developed for the special medical discipline in which the
patient requires treatment, e.g. in the field of gynaecology. Thus, a doctor who is
concerned with the birth of a child must act in accordance with the techniques and
knowledge a normal gynaecologist would be required to have. Otherwise s/he must
refuse treatment or must request the help of an expert (if time allows).813 Since medical
science is in constant development the treatment must further comply with the generally
recognised standard at the time of treatment. However, this standard is not the highest
possible standard814 but the minimum standard that has to be met by the normal doctor
or specialist in the specific field or by the normal hospital.815 But also this standard is a
rather high one.
The main duties concerning the medical treatment as such are: first, the doctor has to
diagnose as correctly as possible the medical reason for the patient’s illness or
complaints. But a wrong diagnosis gives only rise to liability if it is in the circumstances
an entirely untenable diagnosis or if the normal diagnostic methods are not applied.816
“Normal” diagnosis errors – which are not infrequent – can generally not found a
compensation claim.817 Secondly, the doctor is generally obliged to choose and apply the
therapy and medical treatment which is most likely to help the patient in the safest
way.818 If s/he uses an accepted but considerably riskier method this must be justified by
special reasons such as significantly faster healing or the like.819
Although a doctor is expected to possess the capacities of a normal doctor or a normal

specialist in the specific field of medical disciplines in which s/he acts if s/he diposes of
higher qualities s/he is also obliged to use them.
812
E.g. BGH, NJW 1987, 2291.
813
See for such a case BGH, NJW 2001, 1786.
814
BGH, VersR 1988, 179.
815
BGH, VersR 1988, 495.
816
E.g. OLG Oldenburg, VersR 1991, 1141; OLG Köln, VersR 1991, 1288.
817
818
See, e.g. OLG Köln, VersR 1990, 856.
819
BGH, NJW 1987, 2927.
241
Ulrich Magnus
The doctor or the hospital is also under a duty to dispose of and apply such technical
equipment as is the accepted standard for like practices or hospitals. The use of outdated
machinery that would bring about higher risks than modern equipment is in itself a
violation of the required standard.820 The doctor (and the hospital as well) is also under
the further duty to control or to have controlled any technical equipment which s/he
uses.821 In particular, dangerous equipment as for instance x-ray machines, has to be
controlled in due time. The doctor is obliged to employ an expert for that control.
Financial or other constraints are – even in public hospitals – no reason to omit such
control and to use unsafe medical equipment.
Great practical importance is accorded to the doctor’s duty to inform the patient of the
method and in particular of the risks of the medical treatment. Any bodily treatment
without prior information – and consent – of the patient is wrongful and gives rise to
liability for any ensuing damage let alone for criminal prosecution. This is even true in
cases where the medical treatment as such is correct. The mere neglect to inform the
patient and to get his or her consent makes the doctor liable for all damage that can be
attributed to the non-consented form of treatment.822
The duty to inform is founded on the patient’s right of selfdetermination.823 It is the
patient who is entitled to decide whether s/he be treated. To form a reasonable decision
the patient must therefore be given adequate information of the possibilities and risks of
the treatment. Even of rare but extreme consequences of a specific therapy or operation
must the patient be informed.824 Again, the failure to provide adequate information as
such arouses liability.
The doctor has, however, a discretion to choose the method of treatment when different
ways of similar risks exist.825 But if one method is significantly riskier than the other,
again, the patient must be informed and decide him- or herself.826
In certain extraordinary circumstances the duty to inform is limited or even excluded.
When the patient is unable to understand and react on the information and/or needs
unavoidable and immediate treatment (e.g., the severely injured or unconscious patient)
820
E. Deutsch, no. 263.
821
See thereto E. Deutsch, no. 259.
822
BGHZ 106, 153 (no consent to vaginal birth – therefore liability for all damage that occurred to child
because of that method of birth which was not in itself an incorrect medical treatment).
823
BVerfG, NJW 1979, 1925.
824
BGH, NJW 1980, 633.
825
See BGHZ 106, 153.
826
See also BGHZ 106, 153.
242
prior full information is not or only in a restricted form required.827 Moreover, no

information is owed where the information itself would result in a severe and
unavoidable injury to the patient.828
There is no specific form the duty to inform is bound to meet. However, the information
must be such – be it orally or in writing – that the concrete patient can understand it and
form his or her view. Therefore the doctor must use terms and language that reaonably
corresponds to the intellectual and educational level of the patient.829
If the fact of adequate information and valid consent is diputed the doctor bears the
burden of proof.830
v) Duty to document
The doctor is also under a duty to document in writing the essential facts of the medical
treatment of the patient. This includes the anamnesis, diagnosis, therapy, in particular
medication, the given information, the patient’s consent and all other relevant facts.831
The courts apply a presumption that medical measures which have not been documented
have not taken place.832
i) Fault requirement
Contractual liability for medical malpractice requires fault on the part of the person
treating the patient.833 Fault is either intent or negligence (§ 276 BGB). In particular in
medical malpractice cases negligence is understood in an almost entirely objective way.
In a recent case the Federal Civil Court held that an assistant doctor in a birth clinic was
negligent because he had objectively violated the required standard of correct medical
treatment even though this violation “in his personal situation might subjectively appear
as excusable.”834 The young but not completely inexperienced doctor had tried to extract
the child by pulling the child’s head and had thereby injured the child because he had
overlooked a birth impediment, namely a shoulder dystopie which however an
experienced doctor would have taken into consideration.
827
See, e.g. BGH, NJW 1973, 556; BGH, NJW 1994, 801.
828
BGHZ 29, 46; BGHZ 90, 103.
829
See E. Deutsch, no. 134.
830
See already RGZ 68, 431 but also, e.g. BGH, VersR 1985, 361.
831
See in particular BGH, NJW 1978, 1681; BGHZ 72, 132.
832
BGHZ 129, 6; BGH, NJW 1999, 3408.
833
E. Deutsch, no. 177 f.; A. Laufs/W. Uhlenbruck, § 97 no. 4; Ch. Katzenmeier, 150 ff.
834
BGH, NJW 2001, 1786, 1787.
243
Ulrich Magnus
In fact, it is a very strict standard of negligence which the German courts apply and
cases are very rare where liability has been denied despite an objective violation of the
required standard of medical diligence.835
The principal distribution of burden of proof requires the claimant to prove the
defendant’s fault. But according to general contract law the debtor’s personal fault is
presumed where s/he has violated an objective duty of care. However, the courts did
never apply this latter rule to contracts for medical services.836 In their view such a
presumption would lead to doctors’ liability for the result of their treatment which they,
however, cannot guarantee. The patient had therefore the full burden to prove first that
the doctor had violated an objective duty of medical diligence and secondly that the
doctor was personally at fault. Yet, it has been rightly observed that practically no cases
existed where the courts found an objective violation of a medical duty but nevertheless
denied the doctor’s fault.837 The German “Schuldrechtsreform” of 2002 changed the
respective provision of the Code which now expresses much clearer the cited
presumption.838 It is now an open question whether the courts will continue their former
practice or whether they will apply the new provision now also to contracts for medical
services. This is strongly supported by influential writers839 and would mean that the
patient had to prove only an objective violation of a medical duty. The doctor would
then have to rebut the presumption that he was at fault.
It could be such a rebuttal for instance that at least at the time of treatment the medical
measure was not yet regarded as an objective violation of medical duties but was
generally viewed as such only – even slightly – later.840
A further specific rule for the burden of proof concerns the socalled fully controllable
risks (“voll beherrschbare Risiken”). These are risks which originate from equipment
(like the operation table) and can be at least in theory completely avoided by due care. If
for example part of the table on which the patient lies is moveable and claps down so
that the patient is hurt then the doctor’s fault in not fixing the moveable part is
presumed.841
835
One of the rare cases is OLG Köln, VersR 1991, 1288 (here a diagnosis error was judged as not
unsustainable and therefore not as negligent).
836
BGH, NJW 78, 1681; BGH, NJW 1991, 1540.
837
See the statement by Palandt-H. Heinrichs § 280 no. 42 but see also, e.g. OLG Köln, VersR 1991,
1288.
838
See § 280 par. 1 sent. 2 BGB in its version after the “Schuldrechtsreform”.
839
See, e.g. Palandt-H. Heinrichs § 280 no. 42; A. Spickhoff, NJW 2003, 1705.
840
E.g. OLG Düsseldorf, VersR 1996, 755.
841
See OLG Hamm, MedR 2002, 196.
244
ee) Causation
The general standard of adequate causation (“adäquate Kausalität”) applies in medical

malpractice cases as well.842 The failure of the doctor must therefore have been a
condition without which the damage would not have happened and which increased the
probability of a damage of the kind which in fact occurred. Only conditions of very rare
and improbable occurrence are regarded as inadequate. Applying these principles the
courts have for instance held that a doctor who has wrongly treated a patient’s broken
finger has also caused a negligent mistreatment by a second doctor who cut the tendon
of the finger when trying to correct the first doctor’s failure. Only if the second doctor
had grossly neglected all rules of due medical diligence then his intervention would
have interrupted the chain of causation.843
ii) Omissions
In general omissions can constitute a cause of damage only if the respective person was
under a duty to act and if the required act would have avoided the damage.844 The same
concept applies to medical malpractice cases. A doctor is therefore for instance obliged
to care in a reasonable way for old patients that they do not fall from the operation table
after the operation is finished.845 The omission of any safety measure is the cause of the
damage the patient suffers when falling down.
The burden to prove that a certain medical treatment has caused the damage falls in
principle on the patient.846 But a number of exceptions is recognised.847 The most
important one is the rule that a grave medical failure of the doctor (“grober
Behandlungsfehler”) is presumed to have caused the patient’s damage provided that the
failure could in general have caused a damage of the kind that occurred.848 The doctor
then must rebut the presumption and prove that not his or her failure has been the cause
of damage but another reason. A further exception is the prima facie-proof. Where a
certain typical chain of events has happened – e.g. an forgotten instrument in the
842
See thereto E. Deutsch, no. 270 ff.
843
BGH, NJW 1989, 767.
844
BGHZ 7, 204; Palandt-H. Heinrichs, Vorbem. vor § 249 no. 84.
845
LG Koblenz, NJW 1988, 1521; many further cases are recorded by A. Laufs/W. Uhlenbruck, § 157.
846
See BGH, VersR 1974, 1222; E. Deutsch, no. 302 f.; A. Laufs/W. Uhlenbruck, § 107 no. 10.
847
A full survey is presented by E. Deutsch, no. 305 ff. and A. Laufs/W. Uhlenbruck, § 108 ff.
848
See, e.g. BGH, NJW 1981, 2513; BGH, VersR 1989, 851.
245
Ulrich Magnus
patient’s stomach after an operation and an inflammation at that part of the body shortly
thereafter – then a causal link between both is presumed and the patient has prima facie
poved his or her case.849 The doctor is then liable unless s/he can rebut the prima facie-
proof by showing that untypical circumstances were present which may have caused the
damage. Then again, the patient has the full burden of proof.850
Furthermore a reversal of burden of proof takes place where the doctor failed to
document the relevant medical measures provided that only the correct documentation
could have revealed a failure of the doctor which in turn could have caused the patient’s
damage.851 The same rule applies in cases where the doctor – or the hospital – did not
collect or secure the relevant documents, for instance the original x-ray pictures.852
Compensation for damage that results from medical malpractice does not pose specific
problems which differ from other fields where bodily injury is to be recompensed.
i) Damage to health
Compensation for damage to health includes the cost of healing, of rehabilitation

measures, of lost income or other financial consequences caused by the injury. A mere
abstract loss of earning capacity is however not compensable.853
Since very recently (2002) also in contract law the patient can claim compensation for
pain and suffering. The assessment of that head of damage follows entirely the lines
which had previously been developed in tort law.854 The main factors which have to be
taken into account are the gravity and duration of the pain and the lasting consequences
of the injury (if any); but also age, sex, personal situation of the victim, degree of fault
of the actor or further specific circumstances of the case play a role.
849
See, e.g. BGH, NJW 1981, 462.
850
For details see E. Deutsch, no. 305 ff.
851
See e.g. BGH, VersR 1986, 788; BGH, VersR 1996, 330.
852
Compare E. Deutsch, no. 310 f. with further references to court decisions.
853
Palandt-H. Heinrichs, Vorbem. vor § 249 no. 36 with further references.
854
See the remarks in O. Jauernig/A. Teichmann § 253 no. 3 ff.; Palandt-H. Heinrichs, § 253 no. 18 ff.
with many references.
246
As generally in contract law – but equally in tort law – contributory negligence of the
victim has also to be taken into account in medical malpractice cases. But it plays a
smaller role here than in general contract and tort law. First, a doctor cannot invoke the
patient’s contributory negligence as far as the origin of the illness is concerned.855 Even
if the patient was grossly negligent in attracting the illness it is the doctor’s duty to treat
him or her according to the required standard. For any failure the doctor remains fully
liable.
Secondly, a patient’s contribution has to be taken into account when it frustrates the
doctor’s efforts, for instance where a patient does not comply with the doctor’s
instructions, does not take the ordered medicin etc.856 However, if it is the very character
of the illness that the patient tends to hurt him- or herself or cannot follow the doctor’s
advice anymore then s/he also cannot be blamed for contributory negligence.857
hh) Limitation
The normal limitation period of three years858 applies to medical malpractice cases as
well. The period starts running by the end of the year in which the malpractice took
place and in which the patient acquired knowledge of the damage and of the author or
must have acquired such knowledge.859 In any event (when the patient does not know of
the damage and its author, for example in case of infections with very long incubation
periods or in case of radiation damage) the limitation period ends thirty years after the
damaging act.860
As already indicated the differences between tort and contract law have been greatly
diminished in recent years. Therefore, the following can focus on those remaining
differences and for the further requirements of tortious liability in medical malpractice
cases refer to what has been stated supra for contract law.
The central provision for tortious liability is § 823 par. 1 BGB. The provision generally
requires that the tortfeasor has violated certain protected rights enumerated in the
provision and that s/he has acted wrongfully and at least negligently. Then s/he is liable
for all damage caused by the faulty act. This provision applies without restriction to
medical malpractice cases.
855
BGH, VersR 1971, 1123.
856
E. Deutsch, no. 282; A. Laufs/W. Uhlenbruck, § 106 no. 10, 12.
857
BGHZ 96, 98.
858
§ 195 BGB.
859
§ 199 par. 1 BGB.
860
§ 199 par. 2 BGB.
247
Ulrich Magnus
aa) The parties and their (vicarious) liability for employees
The parties of a tort claim for medical malpractice are the victim – the patient – on the
one hand (but see also infra bb) and on the other in the first line the direct tortfeasor –
the doctor or other medical staff person who has performed the injuring medical
treatment.
As far as vicarious liability of the hospital or of a doctor as employer for their staff is
concerned this liability is significantly more restrictive than in contract law. If the
employed doctor or other staff has wrongfully injured a patient the employer is
presumed to be liable for the damage as well. But the employer may rebut this
presumption by proving that the employee was selected, supervised and controlled with
reasonable care.861 This possibility of excuse does not exist in contract law. The
exoneration of the employer is not easily accepted by the courts; nonetheless it can
succeed.862 The possibility of exoneration has been criticised since long and rather often
the courts hold instead employers – hospital or employing doctor – liable because of
insufficient organisation of the clinic or practice.863 Nevertheless with respect to
vicarious liability tortious liability is less favourable towards patients than contract
liability.
Under contract law it is more or less clear that only a contractual party can have rights
under the contract – or those few persons who also come under the protective scope of
the contract. Under German tort law it is in a similar way only the directly injured
person who is entitled to compensation. Persons who are merely indirectly affected have
normally no right to claim their damage. This is in particular true where near relatives
have to face the death or severe injury of near persons. Under German law they are not
entitled to any compensation of their own pain unless they themselves suffered by that
event from a direct and medically recognisable injury or illness like heart-attack, serious
sleeplessness etc. (so-called shock damage, “Schockschäden”).864
An exception to the rule that only directly injured persons are entitled to compensation
applies where dependants of a killed person are involved. If the doctor or hospital is
responsible for the death of the breadwinner then those who are legally entitled to
maintenance from him or her can claim their lost maintenance from the responsible
861
See § 831 BGB. For a detailed discussion in relation to medical staff see E. Deutsch, no. 235 ff.; A.
Laufs/W. Uhlenbruck, § 104.
862
See, e.g. OLG Köln, VersR 1989, 708 (failure of experienced and qualified surgeon – hospital not
liable).
863
E. Deutsch, no. 238 ff.
864
BGHZ 56, 163; BGH, NJW 1989, 2317.
248
person.865 But this rule does not apply if the breadwinner is “only” injured and for that
reason unable to maintain those he is legally obliged to maintain.866 Then the dependants
have not lost their maintenance right which might only be not enforceable against the
injured.
German tort law requires that the tortfeasor has acted wrongfully. In case of injury to
the victim’s life, body or health wrongfulness is presumed and can only be denied if the
injury is justified. In case of medical treatment this has the consequence that every
bodily intrusion is wrongful unless justified by the consent of the patient.867 The consent
of the patient is in turn only valid if the patient was correctly informed of the treatment
and its risks.868 The contents and extent of the information the doctor is obliged to give
is governed by the same standard as in contract law.869
dd) Causation
Causation in tort law does not differ from that in contract law.
ee) Fault
As in contract law in tort law as well fault is required to incur liability in medical
malpractice cases. Again, in both fields the same standards apply with respect to fault.
The doctor is obliged to perform the duties, which are expected to be performed by a
careful doctor in the same situation. The only difference lies in the fact that in contract
the precise scope of fault can be influenced by the terms of the contract between the
doctor and the patient. This contract can state specific duties whose negligent violation
would then render the doctor liable. By contrast, in tort law and absent any contract no
such additional duties have to be performed and taken into account.
ff) Damage
In general the notion and assessment of damage is identical in tort and contract law. In
particular immaterial loss can now be claimed under both contract and tort law.
865
§ 844 par. 2 BGB.
866
BGH, NJW 1986, 984; Palandt-H. Thomas, § 844 no. 6.
867
BGHZ 106, 153 (no consent to vaginal birth – therefore liability for all damage that occurred to child
because of that method of birth which was not in itself an incorrect medical treatment).
868
See E. Deutsch, no. 100, 111.
869
See supra a cc iv.
249
Ulrich Magnus
A difference lies in the fact that if a patient dies because of medical malpractice his or
her heirs are entitled to the costs of an adequate burial.870 Such a right to claim exists
only in tort law. Moreover and as already mentioned, those persons who were entitled
under family law to maintenance from the deceased can claim their lost maintenance
from the tortfeasor.871 There is also no such right in contract law.
Contributory negligence serves in the same way as a defence in contract law as well as
in tort law.
hh) Burden of proof
The general rule is that the patient has to prove all facts on which s/he founds a tort
claim. Therefore the patient must prove the doctor’s fault, causation and damage.
Unlike in contract law there is no general presumption that the tortfeasor was at fault
when s/he has objectively violated a duty of care. Nevertheless, also in tort law the
courts have eased the patient’s burden of proof up to a full reversal.872 A full reversal is
accorded – as in contract law – with respect to causation. Where the doctor made a
grave and serious mistake it is presumed that this mistake caused the patient’s damage
provided that it was not too improbable that a mistake of that kind caused that kind of
damage.873 Also the prima facie-proof may apply.874
i) Limitation
Since the “Schuldrechtsreform” the limitation period for personal injury claims is
identical for contract and tort law.875
Hospitals and doctors can limit their liability only in very rare cases. In an individual,
non-standard contract a doctor (or the hospital) can exclude the own liability for
negligence, even for gross negligence and can further limit the liability for staff personal
870
§ 844 par. 1 BGB.
871
See supra bb.
872
See thereon E. Deutsch, no. 302 ff.
873
BGH, NJW 1997, 794; BGH, NJW 1997, 796.
874
See thereon supra 3. a ee iii.
875
See supra 3. a hh.
250
even in case of the latters’ intent.876 But individually negotiated exclusion clauses in
contracts with hospitals or doctors are evidently very rare and unusual if they occur at
all. In standard form contracts on the other hand any exclusion of liability for personal
damage is invalid irrespective whether the doctor or staff person acted with intention,
gross or simple negligence.877 Even any limit in amount or any reduction of the
limitation period would be invalid.878
bb) Exclusion clauses and tort liability
To the very limited extent to which exclusion clauses can be valid they exclude tort
claims of the contractual partner as well. However, this possibility can be almost
neglected. Since almost all exclusion clauses are invalid they, however, neither affect
tort nor contract claims.
The burden of proof has already been dealt with for fault and causation. The patient has
the further burden to prove his or her damage. In particular for lost future income a
sufficient proof can be difficult. § 252 BGB lowers for that reason the standard of
certainly which a claimant’s proof normally must meet. Lost future income must be
proved with probability only while the normal standard requires probability next to
certainty. In certain cases where the damage is sure but the amount difficult to assess the
courts are also allowed to estimate the damage.879
bb) Specific institutions
The different German Physicians’ Chambers (Ärztekammern) have instituted either

mediation boards (Schlichtungsstellen) or expert commissions (Gutachterkommis-
sionen) or both expert and mediation boards for medical malpractice cases.880 The
reason was to offer a speedy and cheap procedure in order to cope with the increasing
number of medical malpractice cases. The mediation boards deliver a decision on the
disputed question between the patient and the doctor whether a claim is founded in
principle (but not on the amount of any compensation) whilst the expert commissions
state an opinion on the question only whether or not a certain medical treatment
876
§§ 276 par. 3, 278 sent. 2 BGB.
877
§ 309 no. 7a BGB; see also BGHZ 96, 95; but contrary, e.g. Palandt-H. Heinrichs, § 307 no. 41.
878
See O. Jauernig/A. Teichmann, § 309 no. 8.
879
§ 287 ZPO.
880
See thereto E. Deutsch, no. 330 ff.; A. Laufs/W. Uhlenbruck, § 113.
251
Ulrich Magnus
complied with the required medical standard. The coupled expert and mediation boards
do both. All these kinds of procedures are entirely voluntary. Neither the patient nor the
doctor can be forced to approach the board or commission. And neither the board’s
decision nor the commission’s opinion is formally binding on the parties though both
have some persuasive authority in proceedings before a civil (or criminal) court.881 The
procedure before the board or commission is free of charge.
e) Case study
BGH 13 February 2001.882

In this case the plaintiff was injured during his birth. The second defendant was a
physiscian employed by the first defendant, a hospital, where the plaintiff was born.
During the plaintiff’s birth a birth impediment – a shoulder dystoky – occurred. To
overcome it first the midwife and then the second defendant who was the doctor in
charge drew with relative strength at the plaintiff’s head. This possibly caused
permanent injuries namely a paralysis of nerves for the left arm and the face. The lower
court had dismissed the plaintiff’s claim for damages since the doctor did not act
negligently. Though it was an objective mistake to draw the child’s head the doctor was
not negligent. The lower court had argued that the doctor when drawing could not know
at that time that a dystoky was the cause of the birth impediment. The lower court had
held that the second defendant was allowed to assume then that the mere largeness of
the child hindered the furthering of the plaintiff’s birth. In this acute state of necessity
the doctor could have tried to draw with rather great strength without being negligent.
The Federal Court reversed that judgment. It held that the doctor was negligent in not
clarifying the reason for the birth impediment with safer methods. It was no excuse that
the second defendant perhaps personnally could not really be blamed being no true
beginner in this field of medicine but a doctor with still limited experience. But the
objectivated notion of negligence requires that the involved physician reaches the
standard of the recognised state of the art in the respective field.
881
See for example OLG Düsseldorf, VersR 1988, 38.
882
NJW 2001, 1786.
252
Medical malpractice Italy
4. Italian Law
Literature: G. Alpa, La responsabilità medica, Resp. civ. prev. 1999, 315; C. M. Bianca, Diritto civile. 5.
La responsabilità, 2000; M. Bilancetti, La responsabilità penale e civile del medico, 2001; C. Castronovo,
Profili della responsabilità medica, Vita not. 1997, 1222; G. Cattaneo, La responsabilità del
professionista, 1958; Id., La responsabilità medica nel diritto italiano, AAVV, La responsabilità medica,
1982; S. Coppari, Riflessioni in tema di responsabilità dell’ente ospedaliero per fatto dannoso del
dipendente, Foro it. 1993, 264; M. V. De Giorgi, Danno IX) Risarcimento del danno da uccisione, Enc.
giur. Treccani, X, 1999; A. De Martini, La responsabilità civile del medico, Giust. civ. 1954, 1223; R. De
Matteis, La responsabilità medica, 1995; A. Donati, Consenso informato e responsabilità da prestazione
medica, Rass. dir. civ. 2000, 1; P. Forchielli, Il problema della determinazione della colpa medica, AAVV,
La responsabilità medica, 1982; F. Galgano, Contratto e responsabilità contrattuale nell’attività sanitaria,
Riv. trim. dir. proc. civ. 1984, 710; P. Iamiceli, La r.c. del medico, Cendon (a cura di), Il diritto privato
nella giurisprudenza. La responsabilità civile. Responsabilità contrattuale, VI, 1998; L. Mengoni,
Obbligazioni “di risultato” e obbligazioni “di mezzi”, Riv. dir. comm. 1954, 185; M. Portigliatti Barbos,
voci Cartella clinica e Certificati medici, in Digesto delle discipline penalistiche, II, 1992, 94 ss., 164 ss.;
A. M. Princigalli, La responsabilità del medico, 1983; R. Pucella, Nota a Cass. 1° marzo 1988, n. 2144,
Nuova giur. civ. comm. 1988, 609; V. Querci/F. Pasquini, In tema di responsabilità del medico
dipendente del servizio sanitario nazionale, Riv. it. med. leg. 1987, 467; V. Roppo, La responsabilità
civile dell’impresa nel settore dei servizi innovativi, Contratto e impr. 1993, 891; P. Sanna, Osservazioni
critiche in tema di contratto di spedalità, Resp. civ. prev. 1998, 1554; G. Visintini, Trattato breve della
responsabilità civile, 1999; M. Zana, Responsabilità medica e tutela del paziente, 1993; V. Zeno
Zencovich, La sorte del paziente. La responsabilità del medico per l’errore diagnostico, 1994.
In Italian legal practice, medical liability has become, over the course of the last 30
years, increasingly important. The phenomenon has come about through, on the one
hand, the growing consciousness on behalf of the public with regard to progress and
limitations of medical science883 and on the other hand the impressive development of
great hospital structures (first public and then also private) which has signalled the
transition from the individual practice of medicine to the collective practice, to the
extent that the traditional figure of the single professional doctor is relegated to a
marginal position. In this way it is said that there has been a transition from doctor’s
liability (“responsabilità del medico”) to medical liability (“responsabilità medica”).884
It is not easy, when speaking of medical liability, to make a clear distinction between
contractual and extracontractual or tortious liability. In fact bad medical treatment, apart
from constituting a breach of the obligation to cure which unites the doctor and the
patient, in the majority of cases also causes damage to the patient’s health, that is to say,
883
C. Castronovo, Profili della responsabilità medica, Vita not. 1997, 1223.
884
G. Alpa, La responsabilità medica, Resp. civ. prev. 1999, 315.
253
Stefano Troiano
it violates an absolute protected right of the latter: both types of liability (contractual
and tortious liability) may therefore apply in any given case. For this reason, the Courts
increasingly tend to interchange contractual rules with tortious ones, applying them
indifferently and contemporaneously when judging the doctor’s behaviour. This has
contributed to the creation in this sector of a type of special regime of liability
composed of principles taken from both types of liability.885
Apart from a few isolated opinions,886 it is agreed that liability deriving from medical
practice falls within the area of contractual liability. In fact, doctors as well as medical
organisations – public887 or private whichever it may be – from the moment in which
they accept (often only tacitly) to cure the patient, conclude a contract with the latter,
the object of which is the supply of diagnostic and therapeutic services. However, this
conclusion is probably not true when the supplier of medical services deals with an
unconscious patient (fainted, or in coma etc.) as he or she is incapable of giving the
necessary consent for the conclusion of the contract.888
aa) The Parties
i) The Injuror/The Injured
In the typical case in which the contract is concluded by the patient with the individual
free professional doctor, it will be obvious that the patient will have a contractual action
for damages against the doctor herself/himself. When, however, a patient goes to
hospital – whether public or private – it should be (only) the hospital which should
respond in a contractual way, as the parties to the contract are the patient and the
hospital, and no obligatory type of relationship is formed with a member of the hospital
staff (i.e. doctor, nurse, etc.) who has in fact performed the act which has caused harm
885
Medical liability, under the court’s reconstruction, derives from a sort of “sub-system of civil liability”
(R. De Matteis, La responsabilità medica, 1995) or, it is also referred to as a “trans-typical regime” (V.
Roppo, La responsabilità civile dell’impresa nel settore dei servizi innovativi, Contratto e impr. 1993,
894).
886
See P. Sanna, Osservazioni critiche in tema di contratto di spedalità, Resp. civ. prev. 1998, 1554 ss.
887
There is no doubt anymore about the fact that the public nature of the entities which form part of the
Italian National Health Service cannot be an obstacle to the recognition of a contract between them
and the patient: for a thorough analysis of this problem see F. Galgano, Contratto e responsabilità
contrattuale nell’attività sanitaria, Riv. trim. dir. proc. civ. 1984, 710 ss.
888
See above all A. De Martini, La responsabilità civile del medico, Giust. civ. 1954, 1259. There are
some authors however that, by applying the rules of negotiorum gestio, affirm, even in these cases, the
existence of an obligation to cure and the consequent contractual liability of the doctor: A. M.
Princigalli, La responsabilità del medico, 1983, 17.
254
to the health of the patient. In this latter case the patient can apply for extracontractual
damages.889 The courts, however, initially followed this school of thought,890 but then
towards the end of the 1980s they began to redirect liability of the employed doctor to
the area of contractual liability. This solution is sometimes justified on the basis of a
supposed “common root” for both the liability of the hospital entity and that of the
employed doctor.891 More recently, the Italian Corte di Cassazione has based contractual
liability of the employed doctor on the existence of a so called “obbligazione senza
prestazione” (literally “obligation without performance”) that is an obligation which
does not arise from a contract but from a factual relationship (a “social contact”, using
the words of the Court): in the Court’s opinion, the mere fact that the patient is taken
into the hospital, gives rise to a special obligation of the employed doctor to cure the
patient , though no contract between them is concluded.892
In the case of death of the patient, the identification of the injured party – and the type
of damages that the latter could complain of in court – changes according to whether an
appreciable interval of time passes between the moment in which the patient suffered
the injury and the moment in which, because of this, death takes place. According to the
doctrine893and to the courts, it would only be possible in the first case for the next of kin
of the deceased to claim compensation for the damages – economical, biological894 and
or moral – that the deceased suffered in the period between the injury and the death,
taking advantage of the right to compensation for damages that is transmitted from the
deceased (de cuius) to them by way of succession. On the other hand, in the case of
death immediately after the illicit act, the immediacy of the fatal event impedes any type
of damages895 arising on behalf of the deceased (de cuius). The next of kin of the
deceased, therefore, can only ask for those damages which may have occurred in their
own economical and moral sphere and therefore exercise a right which has directly
arisen in their own sphere (iure proprio).
889
This is recognised by the majority of the doctrine: see A. De Martini, La responsabilità, cit., 1260; A.
M. Princigalli, La responsabilità, cit., 265; F. Galgano, Contratto, cit., 722; G. Visintini, Trattato
breve della responsabilità civile, 1999, 247.
890
See above all Cass. 24 March 1979, n. 1716, Foro it. 1980, I, 1115.
891
See above all Cass. 1 March 1988, n. 2144, Foro it. 1988, I, 2296.
892
Cass. 22 November 1999, n. 589, Corr. giur. 1999, 441.
893
See M. V. De Giorgi, Danno IX) Risarcimento del danno da uccisione, Enc. giur. Treccani, X, 1999, 1
ss.
894
See in particular, the Constitutional Court 27 October 1994, n. 372, Foro it. 1994, I, 3297, and Cass. 2
April 2001, n. 4783, Resp. civ. prev. 2001, 555.
895
Biological damages arise from an injury to health and therefore require a residual health to exist after
the injury, that is to say that the injured party is still alive.
255
Stefano Troiano
In the case that the contract is made between the patient and the medical organization, it
is necessary to identify the legal instrument, which permits the imputation of the illicit
act of the doctor (or other professional) to the organization itself with regard to the
injury of the patient. If the organisation is a private one, there does not seem to be any
doubt about the applicability of article 1228 c.c., that is to say the general rule regarding
the liability of debtors for the acts of their auxiliaries.896 However, if it is a public
organisation, it is argued whether article 1228 c.c. applies (the solution preferred by the
doctrine897) or whether the redirecting of the doctor’s (or other professional) act to the
organisation itself should happen through the legal configuration of the so called
“organic relationship” which, having identified the act of the dependent doctor (or
other) with the act of the entity, would allow the finding of direct liability of the latter
under article 1218 c.c. (the solution preferred by the courts898). From both perspectives,
the liability of the health entity is therefore an objective liability, which leaves out of
consideration any inquiry about the fault of the entity.899
In the case that the patient concludes the contract with a free professional doctor, who
then has assistance from an auxiliary (for example a nurse) to fulfil his obligations, the
doctor must take responsibility for the act of her/his staff (assistant) following the
fundamental rule in article 1228 c.c.900
bb) Bodily Injury to the Claimant
In the strict interpretation, the existence of an injury to health (that means the worsening
of the ill-person’s health) is not needed to affirm the contractual liability of the health
service provider: since the latter has to provide a health treatment which is able to
improve the state of health of the sick person, then a deficiency in such a treatment
(which may also not cause any injury to the patient’s health, but simply not make any
improvement or decline in health) represents a breach of his/her obligations and is
therefore enough for contractual liability to arise.
This theory, however, is not recognised by the courts, which constantly link the liability
of the doctor (or the hospital), also linked to the patient by the contractual obligation to
896
See above all, A. M. Princigalli, La responsabilità, cit., 265.
897
F. Galgano, Contratto, cit., 720; G. Visintini, Trattato breve, cit., 247; G. Cattaneo, La responsabilità
del professionista, 1958, 350.
898
See above all Cass. 1 March 1988, n. 2144 (cit.) and, in literature, S. Coppari, Riflessioni in tema di
responsabilità dell’ente ospedaliero per fatto dannoso del dipendente, Foro it. 1993, 264.
899
G. Cattaneo, La responsabilità medica nel diritto italiano, AAVV, La responsabilità medica, 1982, 15;
V. Querci e F. Pasquini, In tema di responsabilità del medico dipendente del servizio sanitario
nazionale, Riv. it. med. leg. 1987, 480.
900
G. Cattaneo, La responsabilità del professionista, cit., 355.
256
cure, to the existence of an injury to the ill person’s health, that is to say an “unlawful
injury” (danno ingiusto) under article 2043 c.c.901 In this way, the courts extend the
requirement of extracontractual liability to the doctor’s contractual liability, thus
increasing the above-mentioned confusion and overlapping of the rules from both
contractual and extracontractual liability, as will be further outlined in the following
paragraphs.
The doctor, not only from a legal point of view, but also according to social conscience
and common sense does not have to guarantee the patient’s recovery: because of the
limitations of science there can never be an exact control or foreseeability of all
reactions of the human organism. For this reason the object of the doctor’s obligations is
not the patient’s recovery,902 but a “complex treatment to cure: in short a good cure”.903
If one looks at the classic separation of obligations concerning the means (“obbligazioni
di mezzi”) and those concerning the end result (“obbligazioni di risultato”) (the
limitations of which will be discussed at a later paragraph) it can only be affirmed that
the obligations of the doctor are obligations concerning the means.
The suitability of the diagnostic and therapeutic activity chosen by the doctor leading to
the patient’s recovery is regulated by the rules of professional diligence in article 1176,
comma 2o, c.c., which comprises the three diverse profiles of diligence, prudence and
above all, skill (the latter meant as knowledge and observance of the technical rules of
the medical profession (ars medica). In the majority of cases, the diligence that the
supplier of the health service should observe is “reasonable” diligence (diligenza
media), that is to say the diligence of a professional having received a reasonable
education and giving reasonable care in the exercise of his own activity.904 However
there are cases in which a superior or inferior diligence becomes relevant to that just
mentioned, as will be discussed at the following paragraphs.
i) Duty to provide professional treatment
According to widespread opinion, the supplier of health treatment services – whether

this is a free professional doctor or a health organisation, either public or private –
cannot refuse the cure to the patient, having the obligation to assist whoever needs
assistance. A specific obligation to assist is criminally sanctioned under article 593 of
901
R. De Matteis, La responsabilità medica, cit., passim.
902
Except, it is understood, when the parties specifically agreed on this result to be achieved or the doctor
had explicitly promised the success of the patient’s treatment.
903
L. Mengoni, Obbligazioni “di risultato” e obbligazioni “di mezzi”, Riv. dir. comm. 1954, 189.
904
See above all Cass. 21 December 1978, n. 6141, Giur. it. 1979, I, 953.
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Stefano Troiano
the Italian criminal code, but can be recognised also when this article cannot apply, due
to the fact that such an obligation to cure is directly derived from deontological and
customary rules, every time someone wants medical assistance. Moreover for public
hospitals the obligation to contract with the patient is also derived from law, owing to
the nature of the public service they supply to the collective.905
As already seen the doctor has to act according to the criteria of reasonable diligence
and skill. However, in the courts’ opinion, to possess a superior skill to the average is
often translated into a more strict evaluation of negligence and this happens when
dealing with cases where there is a particular professional qualification906 as well as
cases where there is a personal talent of experience and intelligence.907
The courts recognise that the general duty of diligence, which is expected from the
doctor also implies the duty to carefully control the apparatus used in the practice of the
treatment and to maintain it in an efficient state. In this way, for example, the liability of
the health entity and its staff for a tetanus infection contracted by the patient due to the
bad sterilization of the operating theatre and its instruments has been affirmed by the
courts,908 also for injury caused to the patient by radiological equipment with a
manufacturing defect which was not previously checked by the doctor of the university
clinic.909 With an aim to provide more protection for the injured patient, part of the
doctrine has proposed910 the application of the strictest rules of liability contained in
article 2051 c.c. (liability for dangerous activities) however this has not yet had
acceptance from the courts.
iv) Duty to inform of the risks
In light of the principle of inviolability of personal freedom in article 13 of the Italian

Constitution – which also includes the freedom to protect one’s health and one’s own
physical integrity911 – an essential requirement for the legitimacy of all medical
905
F. Galgano, Contratto, cit., 712; S. Coppari, Riflessioni, cit., 267.
906
Cass. 13 October 1972, n. 3044, Foro it. 1973, I, 1170.
907
Trib. Milano 12 March 1987, Resp. civ. prev. 1987, 654.
908
Trib. Casale di Monferrato 6 July 1966, Resp. civ. prev. 1968, 622 ss.
909
App. Napoli 14 November 1979, Foro pad. 1979, I, 202 ss.
910
M. Zana, Responsabilità medica e tutela del paziente, 1993, 80; A. M. Princigalli, La responsabilità,
cit., 185 ss.
911
See above all Cass. 15 January 1997, n. 364, Foro it. 1997, I, 711. Also the majority of the doctrine
places consent to medical treatment among the forms of exercise of personal freedom: see above all,
258
treatment is the consent of the patient. Such consent, to be valid, must be conscious, that
is to say expressed by the patient after being adequately informed by the doctor.
However it is still being discussed whether this obligation already exists before the
contract with the patient is concluded – thereby basing its actual origin on the obligation
of pre-contractual good faith in article 1337 c.c., the breach of which should lead to a
pre-contractual liability912 – or whether it arises from the contract – in which case it
should constitute a true and proper performance owed by the doctor, a breach of which
should be a contractual liability under article 1218 c.c.913
The information facilitated by the professional must not be excessively detailed,
because information of this type could end up hindering the medical activity and be
incomprehensible for the patient914 or trouble the latter so much that he/she may refuse
to undergo even a trivial treatment only to prevent a remote risk of failure.915 Rather,
since the rationale of the right to informed consent lies in the protection of the patient’s
interests to achieve the best therapeutic result, it must be considered that the medical
information must be directed to show the advantages and disadvantages connected to
the proposed treatment, in a way that the patient can decide whether or not it is
opportune to undergo such treatment after having made an adequate and conscious
comparison of the (probable) costs and benefits.916
According to the general principle of freedom of contract formalities, the courts
recognise the validity of a consent that is implicitly given, that is to say demonstrated
through corresponding behaviour.917 This argument however is criticized by the doctrine
which brings to light how in many judgments the formula of implicit consent has
allowed the consideration of demonstrations of will which have been anything but
certain and unequivocal.918
A violation of the obligation to give information is punished by laying the liability for
the injury sustained from the health treatment upon the doctor. This sanction applies
even when the treatment has been carried out perfectly; in fact, because the patient was
not in a position to know the so called “inevitable risk” of the treatment – consisting of
A. M. Princigalli, La responsabilità, cit., 194; R. De Matteis, La responsabilità medica, cit., 72 ss.; on

the contrary, however, see ; A. Donati, Consenso informato e responsabilità da prestazione medica,
Rass. dir. civ. 2000, 1 ss.
912
See for example Cass. 15 October 1997, n. 364 (cit.).
913
Cass. 8 August 1985, n. 4394, Giust. civ. 1986, 1432; A. Donati, Consenso informato, cit., 7 ss.
914
A. Donati, Consenso informato, cit., 10.
915
Cass. 15 January 1997, n. 364 (cit.).
916
See also Cass. 15 January 1997, n. 364, cit.
917
See above all Cass. 26 March 1981, n. 1773, Arch. civ. 1981, 544.
918
G. Cattaneo, La responsabilità del professionista, cit., 67; P. Iamiceli, La r.c. del medico, in Cendon (a
cura di), Il diritto privato nella giurisprudenza. La responsabilità civile. Responsabilità contrattuale,
VI, 1998, 433.
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Stefano Troiano
damages which due to imperfections of medical science are caused even if the treatment
follows the rules of the profession – such a risk is laid upon the doctor even where
nothing can be demonstrated against him in terms of professional negligence.919
However where there has been professional negligence in the execution of the health
treatment, the violation of the obligation to give information nevertheless becomes
irrelevant.920
v) Duty to Document
In Italian law, in general, the obligation for the doctor to create a document which
certifies his activity does not exist. Nevertheless, any person that carries out work in the
health profession must issue a “medical certificate” upon demand, whenever, according
to a specific legal rule, a patients right depends on a certain fact which is then
documented in the certificate and the patient needs it to prove the occurrence of such a
fact. For the drafting of this document, many diverse forms and models exist (in
particular the document can assume the form of a public act as well as a private
document, or special types of one or the other). As to its substantial requirements,
completeness, clarity and veracity921 must be considered necessary (the latter is also
protected by criminal law).
The most important instance in which the doctor has the obligation to create a document
of his own activity is that of the “Clinical record” which must be compiled and kept,
whether in a public hospital or in a private clinic, to gather all the data which all the
health staff have collected on the patient in the course of his/her stay in hospital.
Though the compilation of such a document is entrusted to many people not
individually listed by law (practically, all medical and paramedical staff who have
treated the patient), however, the law states that liability for the irregular compilation of
such a record will fall upon the hospital head.922
i) Fault requirement?
It is agreed that medical liability is based on negligence.923 The traditional doctrine
reaches this conclusion by arguing that the doctor’s obligations should be considered to
be obligations regarding the means (“obbligazioni di mezzi”). However, it must be
919
See above all Cass. 26 March 1981, n. 1773, cit.
920
921
M. Portigliatti Barbos, voce Certificati medici, in Digesto delle discipline penalistiche, II, 1992, 166.
922
For an in-depth analysis of this see M. Portigliatti Barbos, voce Cartella clinica, in Digesto delle
discipline penalistiche, II, 1992, 94.
923
See in particular P. Iamiceli, La r.c. del medico, cit., 351, for both doctrinal and judicial examples.
260
outlined that the same conclusion is also shared by a number of commentators that
recently believe that the distinction between obligations of the means and the
obligations as to the end result (“obbligazioni di risultato”) only has a descriptive role
and bears no meaning at all as to the choice of criteria of imputation of liability nor the
distribution of the burden of proof (for further details, see the short report on Italian tort
law).924 Although, under this opinion, the framing of the doctor’s obligations within the
area of the obligations of the means does not imply in itself the necessary reception of
negligence as the criteria of imputation of liability, no one doubts that the doctor is only
liable for fault and not for the fact in itself that the result is not achieved.925 Considering
the imperfections and the inaccuracy of medical scientific knowledge, it would be
unreasonable to attribute strict liability to the doctor, to which he would only be exempt
if he could demonstrate an objective impossibility impeding the perfect execution of the
treatment (consisting, as is known, of a fortuitous event, act of God or act of third
party). On the contrary, it must be recognised that the doctor is exempt form liability if
he can demonstrate that he acted with due professional diligence.
According to some authors,926 and followed by some rare court judgments927 a different
conclusion must be reached when judging liability (not of the single health operator but)
of the health organisation, whether public or private. In these cases, there are at least
two factors which suggest leaving aside the criteria of negligence and framing the
matter in hand into the area of objective liability: on the one hand the greater
availability of the means, human or material, which the health entity has and the single
doctor does not928; on the other hand, the fact that the health entity does not only offer a
cure to the patient, but also a series of other services (for example the food and lodgings
in the case of the hospital stay etc) which do not present the same uncertainty that
characterises the strict diagnostic and therapeutic aspects. Therefore, the contract
concluded between the hospital and the patient considerably differs, as to its contents,
from the contract between the free professional doctor and the patient: the latter is a
924
R. De Matteis, La responsabilità medica, cit., 376.
925
See P. Iamiceli, La r.c. del medico, cit., 351, and the courts’ judgments to which the author refers.
926
G. Cattaneo, La responsabilità medica nel diritto italiano, cit., 14; A. M. Princigalli, La responsabilità,
cit., 265; V. Querci/F. Pasquini, In tema di responsabilità del medico dipendente, cit., 471 ss.
927
Trib. Lucca 18 January 1992 (Foro it. 1992, I, 264) applies article 1228 c.c., which is a typical case of
strict liability, to the liability of the hospital entity. The Tribunal of Udine 13 May 1991 (Foro it. 1992,
I, 549), however only in obiter dictum, talks of an “«objectivisation» of liability of the entity which
…is framed… from the tendency towards an increased protection of health and an easier socialisation
of the risks”. More recently, Cass. 8 January 1999, n. 103 (Resp. civ. prev. 1999, 683) extended this
by affirming that the liability of a private clinic was so strict that it was not even necessary to consider
the negligence of the doctor who worked for the clinic, based on the application of article 1228 c.c.,
even though the rule speaks expressly of “negligent and wrongful acts” of employees.
928
R. Pucella, Nota a Cass. 1 March 1988, n. 2144, Nuova giur. civ. comm. 1988, 612.
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professional work contract929 (“contratto d’opera professionale”) to which the special

limitation of liability contained in article 2236 c.c. (see below) applies, the first one is
rather an atypical contract, i.e. a so called “hospital contract”, to which article 2236 c.c.
is not applicable.930 However, the majority of court decisions – together with the other
part of the doctrine931 – still tend towards applying the rules of the professional work
contract either directly932 or indirectly933 to hospitals and thereby judging liability
according to the standard of negligence, exactly as it is done for an individual doctor.
The topic of burden of proof is one in which the distinction between the obligations of
the means and those of the end result has caused the most confusion. Traditionally it has
been affirmed that, due to the fact that a breach by the doctor does not consist of the
non-recovery of the ill-person but of the violation of the duty of skill and diligence
inherent in his/her activity (article 1176, 2nd comma c.c.), the patient always has the
onus to prove the negligence of the medical staff even where the patient can apply a
contractual action. This means that, in the case of a doctor’s liability (like in all cases of
breach of an obligation of the means), the rules of proof in article 1218 c.c. are inverted,
because the patient has to prove the negligence of the doctor, so that the burden of proof
is very similar to that which applies to tortious liability (in which the victim has to
prove not only the injury but also the negligent conduct on behalf of the injuror). As a
matter of fact, however, this is not a true inversion of the burden of proof. The doctor’s
“negligent behaviour”, that is to say the incorrectness and the negligent execution of
her/his medical work, which the patient has to prove, is nothing more than the breach of
the doctor’s contractual obligations, as the latter is not expected to steer the patient to
complete recovery but to provide him/her with a good cure. For this reason, in practice,
the laying of the burden of proof on the patient constitutes the direct application of the
rules in article 1218 c.c.: that is to say the burden of the creditor to prove the breach of
the debtor.934 The fact that the doctor’s obligation is an obligation of the means only
influences the proof the creditor patient must give.935
The traditional argument according to which (as the doctor’s obligation is an obligation
of the means) the burden of proof of the medical negligence falls upon the patient,
929
See R. Pucella, Nota, cit., 610; G. Visintini, Trattato breve, cit., 243 ss.; F. Galgano, Contratto, cit.,
721 ss.
930
See M. Bilancetti, La responsabilità penale e civile del medico, 2001, 918.
931
A. De Martini, La responsabilità, cit., 1261; M. Bilancetti, La responsabilità, cit., 918.
932
See among the most recent Cass. 7 October 1998, n. 9911, Foro it. 1998, I, 357.
933
Cass. 27 May 1993, n. 5939, Foro it., Rep. 1993, voce Professioni intellettuali, n. 114; Cass. 27 July
1998, n. 7336, Resp. civ. prev. 1999, 996.
934
C. Castronovo, Profili, cit., 1224.
935
262
forms the basis of the judicial position, constantly followed by the courts during the last
thirty years and which individualises a presumption of negligence in cases of medical
treatment which are easy to perform.
In particular, according to the courts, when the treatment is routine and simple,
thoroughly studied by science and by practice (in other words “easy to perform”),
however causes an unfavourable worsening of the patient’s health condition, the
inadequate and non diligent performance of the professional treatment (medical
negligence) is presumed.936 Consequently it will be sufficient for the patient to
demonstrate these two circumstances to be exempt from the more difficult burden of
proof, that is to say that which refers to negligence (which as has already been seen falls
within the breach of the doctor’s obligations) of the doctor. In this case, the latter can
liberate him/herself from liability only by proving that “the treatment was followed well
and the unfavourable result was caused by an unforeseeable event or by the pre-
existence of a particular physical condition of the ill-person which was unverifiable by
adopting the criteria of ordinary professional diligence”.937 If, however, we agree on the
fact that, though the doctor’s obligation is an obligation of the means, this does not
affect the burden of proof but affects the content of the proof, the judicial references to
the concept of the presumption of negligence938 seem to be misleading. In reality, by
using this incorrect terminology, the courts want to recognise that, in the case of an easy
to perform treatment, the object of the obligation changes: it is no longer the “good
cure” but is now the true and proper good result of that same cure.939
Due to the fact that, as already seen, in most cases the doctor has to perform with
reasonable diligence, he is therefore liable, by law, for violations of this type of
diligence that is for ordinary negligence. However, in some cases, which will be dealt
with in the paragraphs below, the doctor’s liability requires gross negligence.
936
The sentence which first introduced this rule is Cass. 15 December 1972, n. 3616, Foro it. 1973, I,
1474. Cass. 21 December 1978, n. 6141 (cit.) has signalled the definite inclusion of this rule in
judicial findings.
937
Cass. 15 January 1997, n. 364 (cit.).
938
Such a presumption (until proved to the contrary under article 2727 c.c.) of negligence would be based
according to the courts, on the principle of res ipsa loquitur borrowed from Common law.
939
C. Castronovo, Profili, cit., 1227. According to one author (F. Galgano, Contratto, cit., 717), in this
way it meant a true and proper transformation of the doctor’s obligations from obligations of the
means to obligations of the end result.
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Under article 2236 c.c.“ if the service implies the solution of technical problems of
particular difficulty, the supplier of the service is not liable for damages unless in case
of gross negligence or malice”. One part of the doctrine and of the courts940 have
interpreted from this rule a true and proper exemption from liability in favour of the
doctor, derogating article 1176 comma 2 c.c. The prevailing opinion however rejects
this argument, by showing that in this way the following totally unreasonable result
would be reached; that is to require from the professional the least effort when the
difficulties that he/she must confront are greater.941
In the latter opinion, it has been affirmed therefore that article 2236 c.c., which imposes
an evaluation of negligence with regard to the particular difficulties of the service (that
is to say to the exact circumstances of the given case), could be on the contrary a
specific application of the rules contained in article 1176, comma 2 c.c.; the rule
according to which the debtor has to perform adopting the diligence of the “good father
of a family” (bonus paterfamilias, at comma 1).942 However according to the clearly
prevalent943 interpretations which are followed by the courts and which are confirmed by
the Constitutional Court,944 it would be necessary to clearly distinguish between the
evaluation of the skill on one side and the evaluation of the diligence and prudence on
the other side: with regard to particularly difficult cases, that is to say, the limitation on
the requirements of the doctor’s behaviour concerns only the first aspect (the skill),
while in relation to the other two the law does not entail any lowering of the requisite
standard; on the contrary the persistent applicability of article 1176 c.c. calls for the
professional to make a superior effort to normal in terms of diligence and prudence, to
enable him/her to face the difficulties of the case.945
To this it should be added that the courts also tend to interpret in very restrictive terms
the requisites of the particular difficulties of the services required under article 2236 c.c.
(“if the service implies the solution of technical problems of particular difficulty”): in
the courts’ opinion, this requirement only exists if the case is “not sufficiently
experimented or studied or… still being debated with reference to the therapeutic
methods that should be followed”.946 From this premise, the courts show their reluctancy
940
P. Forchielli, Il problema della determinazione della colpa medica, AAVV, La responsabilità medica
106. In case law see Cass. 18 June 1975, n. 2439, Giust. civ. 1975, I, 1389; Cass. 26 March 1990, n.
2428, G. it. 1991, I, 600.
941
See above all L. Mengoni, Obbligazioni, cit., 206.
942
A. M. Princigalli, La responsabilità, cit., 160; M. Bilancetti, La responsabilità, cit., 862. In case law
see Trib. Verona 15 October 1990, Resp. civ. prev. 1990, 1039; Cass. 7 August 1982, n. 4437, Resp.
civ. prev. 1984, 78.
943
See above all Cass. 1 August 1996, n. 6937, Rep. F. it. 1996, voce Professioni intellettuali, 158; Trib.
Vicenza 27 January 1990, Nuova g. civ. comm. 1990, I, 734.
944
Corte Cost. 28 November 1973, n. 166, Resp. civ. prev. 1973, 242.
945
R. Pucella, Nota, cit., 611; R. De Matteis, La responsabilità medica, cit., 141 ss.
946
Cass. 26 March 1990, n. 2428 (cit.).
264
to recognise the existence of such a requirement, for instance taking advantage of the
pretext that medical progress is constantly advancing;947 but when they do recognise it,
they rarely allow the doctor to be exempt from liability for the lack of requirement of
gross negligence. Moreover, in many cases the close examination of the problem
relating to the existence of special difficulties is omitted because it is considered to be
of no use, as the courts have already ascertained gross negligence on behalf of the
doctor.948
The problems arising from article 2236 c.c. become even more complicated when the
doctor works for the public health service, because in this case private law rules conflict
with the limitation of liability for public entity staff in articles 22 and 23 of the d.p.r.
10.1.1957, n.3 (the applicability of which is expressly ratified by article 28 of the d.p.r.
20.12.1979, n.761 for the workers/dependents of USL, Local Health Authorities). In
particular, though the norms of public law firmly maintain the liability of the public
service (and the right of the latter to take advantage of its staff), they nevertheless limit
the liability of public service employees towards third parties to all those cases in which
the employees acted with gross negligence or malice and therefore provides a wider
limitation of liability than that in article 2236 c.c., which in turn requires the assumption
of a special difficulty in the service. There is therefore the need to verify which of the
two sets of rules should apply to the doctor working for the National Health Service.
The Courts clearly949 tend to give preference to article 2236 c.c. reasoning that the
norms of public law, according to article 28 of the Constitution, only concern the cases
of injury which are caused to a third party by State employees through the exercise of
public powers; on the contrary they do not regulate those activities of State employees
which have a mere technical and material nature and therefore do not imply the exercise
of power, as is the case for the hospital doctor curing a patient.950
ee) Causation
The area of causation is one in which the courts have created major confusion between
contractual and tortious liability. As has been discussed in the short Italian report on
liability, according to the prevailing opinion, tortious liability recognises two phases in
the valuation of causation: the first, tending to reconstruct the causal link between the
conduct and the injurious event (“danno-evento”) (so called “natural causation”
947
See for example App. Firenze 20 September 1966, Arch. civ. 1967, 1037.
948
Trib. Milano 9 January 1997, Resp. civ. 1997, 1220.
949
The doctrine is still divided. For those in favour of the prevalence of article 2236 c.c. see for example,
M. Bilancetti, La responsabilità, cit., 922 ss. However among those that sustain that public law norms
should prevail, see V. Querci e F. Pasquini, In tema di responsabilità del medico dipendente, cit., 477.
950
See above all, Cass. 1 March 1988, n. 2144 (cit.).
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regulated by articles 40 and 41 c.p.); and the second, which takes into consideration the
legal link between the injurious event and the damages arising from it (“danni-
conseguenza”), i.e. the economic consequences of such an event (so called “legal
causation” regulated by article 1223 c.c., which article 2056 c.c. extends to tortious
liability).
However, contractual liability recognises (if understood correctly) one single phase in
the evaluation of causation, as in the sequence conduct/injurious event/damages, the
link of natural causation is in res ipsa, because the breach (i.e. the conduct)
automatically results in the injury to the creditor’s right of obligation (there is no need
to prove that an absolute right has been violated, such as the right to health); as a result
of this, if the breach is proved (and therefore if it is sure that the debtor will be liable)
only one phase of evaluation remains: the assessment of the damages arising from the
breach according to the criteria established by article 1223 c.c. Therefore a correct
reconstruction of a doctor’s contractual liability imposes on the patient to prove, as well
as the breach of the health worker (consisting of the conformity of his/her service to the
behavioural model outlined in article 1176, comma 2, c.c.), only those damages which
according to the criteria of legal causation under article 1223 c.c. are the “immediate
and direct consequence” of the breach itself. However, judges show that they consider
the existence of an injury to the patient’s health as a necessary requirement for
contractual liability of the doctor to arise. They require the patient to demonstrate the
material causal link between the negligent (or wrongful) conduct of the doctor and the
injury to health (as well as the link between this event and the damages which arise
from it under article 1223 c.c.).951 In this way however the judges confuse injury to
health of the ill person (which is an ulterior consequence of the breach and not the
injurious event on which contractual liability depends) with the breach of contract
itself.952
i) Normal Standard of causation
The Courts and doctrine953 agree on the need to use, for the valuation of the causal link,
the criteria of “scientific probability” (criterio probabilistico which is a specification of
the criteria of adequate causation). No other criteria seems to be suitable: in particular,
951
For an in-depth analysis of the problem of the causation of the doctor’s liability see R. De Matteis, La
responsabilità medica, cit., 397 ss.
952
In fact, the dictum constantly repeated in sentences is that, even in cases of contractual liability of the
doctor, “it falls on the patient, who claims to have suffered injury, the burden to prove the defectuous
or inadequate professional performance, the existence of the injury and the causal link between the
defectuous or inadequate professional performance and the injury”: Cass. 21 December 1978, n. 614
(cit.).
953
M. Zana, Responsabilità medica e tutela del paziente, cit., 53 ss.; V. Zeno Zencovich, La sorte del
paziente. La responsabilità del medico per l’errore diagnostico, 1994, 69.
266
bearing in mind the uncertainty which dominates medical science, it would not be
reasonable to refer to the requirement of certainty of an event nor on the other hand does
it seem opportune to adopt the wider criteria of simple possibility (which would widen
the boundaries of liability too much).954 The reasonableness of the criteria of probability
is confirmed by the fact that scientific laws themselves are based on probability and
statistic observations.955
ii) Omissions
From the point of view of general principles, the judgment of commissive causation
must be differentiated from omissive causation. In fact when the incorrect medical
intervention materialises into a miscalculated therapy or in an operation which does not
conform to the technical rules of medical art, the analysis of the causal link will be
based on the “real” evidence of the causal efficiency of that treatment on the patient’s
state of health. However, in an already advanced pathological process when an omission
and not an action occurs (this could be a diagnosis omission or an omissive cure), it is
not possible to proceed to a natural type of evaluation to evaluate the causal link and the
only possibility is to configure a causal relationship which is only “normative”: the
judgement of the causation must therefore be formulated through a hypothetical
judgement based on probability on whether an action could stop the event from
happening.956 However, the importance of this distinction diminishes if one bears in
mind that (as stated in the previous paragraph) in the sector of medical liability, the
evidence of the causation is necessarily based on scientific laws which usually adopt a
statistical and probabilistic language: the judgement of causation therefore unfolds in
the same way with regard to positive and negative behaviour.957
iii) Presumption and burden of proof
The courts use a presumption of causation, first of all, in the area of “easy to perform”
treatments: in these cases it is enough for the patient to prove the easiness of the
operation and the unfavourable result to demonstrate that the latter has been caused by
the erroneous execution of the medical service. Another case in which the courts use a
presumption of the existence of the causal link is in those cases – no matter the grade of
difficulty of the treatment – in which the doctor has to respect a series of behavioural
rules which are not only well studied and codified, but also very precise from the strictly
technical point of view (prestazioni ad alta vincolatività – heavily binding services). In
these cases, when there is a failure in the treatment, this failed result is attributed to the
954
Cass. 13 May 1982, n. 3013, Foro it. Rep. 1982, voce Professioni intellettuali, 45.
955
Pret. Genova 13 November 1991, Foro it. 1992, II, 586.
956
957
V. Zeno Zencovich, La sorte del paziente, cit., 54; P. Iamiceli, La r.c. del medico, cit., 375.
267
Stefano Troiano
health employee, if the result were foreseeable and technically attainable with
reasonable certainty through the observance of these rules.958 According to some authors
there should also be a presumption of medical negligence this time without the
possibility of proving the contrary.959
i) Damage to health
According to the direction which has now been consolidated by the Italian Courts,
injury to health, that is injury to physical and psychological health (biological damages)
is always capable of compensation whether or not it had caused negative consequences
of an economical nature to the ill-person (for example, medical expenses, loss of
earning capacity etc). These rules affirmed by the Constitutional Court sentence n.184
1986960 obviously also consider biological damage which is the source of the contractual
breach.
According to the trend, which is still wide-spread, in the field of contractual liability
only economic damages will be capable of compensation and not damages that are not
in the strict sense economical. The compensation of the latter is regulated by article
2059 c.c. (a rule which in the traditional interpretation only refers to subjective moral
damages, consisting in pain and suffering of the mind of the injured person). In every
case, even if article 2059 is considered applicable also for contractual moral damages,
the compensation of this damage should be admitted only in few cases, being
exceptional the cases of breach provided for by criminal law as cases of punishable
offences.961 However it must be remembered that compensation of biological damages is
allowed, without limits.
958
See for example Pret. Modena 16 September 1993, Giur. it., 1994, I, 2, 1032, e Trib. Genova 15 April
1993, in R. De Matteis, La responsabilità medica, cit., 385, both relative to the sector of medical
odontology.
959
R. De Matteis, La responsabilità medica, cit., passim.
960
Corte Cost. 14 July 1986, n. 184, Giur. it. 1987, I, 392, which has changed the previous way of
thinking – whether doctrinal or judicial – which only considered capable of compensation those
damages to the person which had caused economic loss. For an in-depth analysis of this question see
the Italian short report on liability.
961
Article 2059 c.c. in fact allows for compensation of non economical damages only in cases provided
for by law, the most important of these are those which are in art. 189 c.p., that is to say where the
illicit fact constitutes a crime.
268
The negligent conduct – or wrongful – of the injured patient could cause a reduction in
the compensatory damages, in light of article 1227 c.c. every time the patient has not
observed his/her duty of cooperation with the doctor, whenever the cooperation is
necessary for the correct fulfilment of the diagnostic and therapeutic treatment. The
duty of cooperation on the behalf of the patient means, first of all, that the latter must be
ready to receive the medical treatment: missing treatments or not following doctor’s
orders, talking to the doctor at a later stage instead of at the onset of the problem, or
negatively influencing the success of the treatment, may all contribute to determine a
failure of the treatment. In other cases the necessary cooperation implies that the ill
person has to give up any behaviour or conduct which would make it difficult for the
doctor to do his job. More problems arise, however, in cases where, due to medical
negligence, a first treatment has not been successful or has created negative
consequences which can only be remedied by a second treatment to which the patient is
opposed: in fact it can be asked whether this negative conduct can be “punished” with a
reduction in compensation under article 1227, comma 2, c.c. The courts tend to respond
in a negative way, admitting the possibility of making the patient undergo the second
treatment only when such treatment is very simple and quick, in such a way that it does
not put the person at risk at all.962
hh) Limitation
In the area of limitation the courts have not been able to avoid the difference between
contractual and extracontractual liability. While contractual liability actions take a
limitation period of 10 years (article 2946 c.c.), tortious actions take five years (article
2947 comma 1o c.c.). However it should be remembered that if the doctor’s act
constitutes a crime, and for crime there is a longer limitation period,963 then the civil
action will also be subjected to that longer period.
The most relevant problem in the area of limitation is from when the time should run. In
fact it is possible that the carrying out of the act, the producing of the injury and the
actual manifestation of that injury do not coincide in time: moreover, even in the case
that there is such a coincidence in timing, over the course of time further effects could
arise from the same pathological process and if that occurs when the original action has
already prescribed, then such damages could remain without protection. The courts have
given the following solution to such problems. With regard to the latter, the distinction
between “new injuries” (injuries which add to the initial injury and constitute
962
Cass. 10 December 1986, n. 7372, Giust. civ. 1987, I, 560.
963
The case could be one of murder with intent or premeditated which has a limitation period of fifteen
years; not, however, death through negligence or negligent injuries – which are more frequent by a
doctor – which have a limitation period of five years.
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themselves damage) and “aggravated previous injuries” (further symptoms connected to

the original injury already occurred) has been recognised: while in the latter protection
remains on the act connected to the original event, in the former however it is admitted
that a new limitation period should run.964 With regard to the cases in which the injury,
which can be immediately verified, manifests itself externally only over a certain time,
the adopted solution has been to commence a new limitation period starting from the
moment in which the event itself became known.965
b) Tortious Liability
In parallel with what happens in the area of contractual liability also in the field of
tortious liability there is a question as to whether the act of a public organisation
medical worker should be found liable according to the “common” legal norms in
article 2049 c.c. (as the doctrine above affirms966) or according to the theory of organic
relationship (the preferred solution by the courts). In both perspectives, the liability of
the public entity assumes therefore the character of strict liability.967
bb) Bodily injury to the claimant
Damage to the physical and psychological integrity of the patient forms the constitutive
element of the tortious liability of the doctor, given the lack of an obligation to improve
the health of the ill-person. On the other hand, as already seen above, the courts require
an injury to the health of the ill-person in order to affirm the contractual liability of the
doctor.
The conduct and its qualification in illegal terms, is another one of those areas of
medical liability in which the differences between contractual and extracontractual
liability vanish, due to the recognized applicability in both cases of the criteria
contained in articles 1176 and 2236 c.c. That means a return to the more general
tendency to reconstruct in objective terms the concept of fault in tortuous liability.968 In
particular the limitation of liability in article 2236 c.c. is analogously extended to
964
Cass. Sez. Un. 6 May 1971, n. 1282, Giust. civ. 1971, I, 1417; Cass. Sez. Un. 15 March 1975, n. 1001,
Foro it. 1975, I, 2274.
965
Cass. 24 March 1979, n. 1716 (cit.).
966
See supra 17.
967
See supra 19.
968
See above all, C. M. Bianca, Diritto civile. 5. La responsabilità, 2000, 575 ss.
270
tortious liability; in the first place because this limitation – at least according to part of
the doctrine – constitutes an example of the criteria of professional negligence in article
1176 comma 2 c.c. and is therefore a general principle, common to all types of
negligence;969 and in second place, due to its rationale (i.e. to protect the professional
from the fear of unfair retaliation from unsatisfied clients) which comes into
consideration every time the doctor carries out his work, notwithstanding the fact that
the doctor does it within the framework of a pre-existent obligatory relationship or
not.970
dd) Causation
The evaluation of the causal link as already seen is carried out according to the same
criteria in the area of contractual as in extracontractual liability: therefore refer back to
the above mentioned on contractual liability.
ee) Fault
It has already been seen that negligence is evaluated in the same terms for contractual
liability as for tortious liability. See above paragraphs.
ff) Damage
Damages caused by the incorrect medical treatment are dealt with in the same way as
for contractual liability. Refer to the above-mentioned.
gg) Contributory Negligence
The laws relating to the negligence of the injured party under article 1227 c.c. for
contractual liability can also be applied to tortious liability in virtue of the express
content of article 2056 c.c. See above.
This has already been dealt with under paragraph aa).
i) Burden of proof
In the area of tortious liability there are no presumptions which assist the injured
patient: in this case he or she, having to prove all of the facts which constitute the basis
969
970
G. Cattaneo, La responsabilità del professionista, cit., 311. In case law see above all Cass. 24 March
1979, n. 1716 (cit.).
271
Stefano Troiano
of his/her right, must demonstrate the incorrect execution of the health service provided
(that which in contractual liability would constitute the breach), as well as the
imputation of negligent (or fraudulent) liability to the doctor, the damages to health
which have resulted and the causal link between the conduct and the injury. It has
already been seen, on the other hand, that the very same burden of proof is attached to
the patient by the Courts in the area of contractual liability. With regard to the burden of
proof that the professional must satisfy to free him/herself from liability, however, the
assimilation between contractual liability and tortious liability occurs from the area of
the former, in that the doctor is required to prove (not only the absence of negligence,
but) that “the imperfect execution of the service was due to a fortuitous event or an act
of God”.971
jj) Limitation
The action of tortious liability has a limitation period, as already said previously, of five
years under article 2947 c.c. comma 1 c.c. The same problem arises as for contractual
liability to determine the individual moment of commencement of the limitation period.
Please see above paragraph hh) referring to contractual liability.
In light of article 1229 c.c. regarding contractual liability, any agreement which
excludes or limits the liability of the debtor for malice or gross negligence is void.
However consent given by the patient to the therapeutic treatment must never be
considered to exempt liability: through informed consent the patient accepts the risks
connected to the intervention which is carried out in a normal way (in such a way that as
seen above if this consent is lacking the inevitable damages must be compensated by the
doctor) so that in case of negligence or malice on behalf of the doctor the liability stays
the same and cannot be either a problem of application of article 1229 c.c.972 This article
comes however into consideration in the case that the patient exempts the doctor from
liability for negligence committed in the course of the performance of the therapeutic
treatment; but such a clause – which obviously has no place in practice – bearing in
mind the indisposable nature of the interests in play, must be considered void because
contrary to public law, according to comma 2° the law is hardly recalled.973
971
Cass. 21 December 1978, n. 6141, cit.; Cass. 18 June 1975, n. 2439, cit.
972
973
272
As it is pacifically recognised that article 1229 c.c. is applicable for tortious liability,974
please see the previous paragraph.
d) Procedural Questions
Apart from the aspects, which have been examined when speaking of proof of
negligence and causal link, the general rules are applied with regard to the burden of
proof.
bb) Specific Institutions (ombudsman, claims board, etc.)
In Italy there are no institutions or special procedures to resolve the controversy

regarding tortious medical liability.
e) Case Study
The following is a comment on the sentence of the Tribunal of Monza 7 July 1995,975
which demonstrates the growing importance that the liability of health organisations is
assuming with respect to that of single health operators whether free professionals or –
as in some special cases – whether working as the organizations interns.
A young patient after having had two operations on his eyes and having been therefore
discharged, was again affected by glaucoma in his eyes found during the course of a
control visit. Some days after being admitted to hospital he suffered convulsions of
increasing intensity, of which unable to explain the cause, the doctor on duty decided to
ask a neurologist and a paediatrician. The intervention of the two specialists, which, and
above all, was requested in good time (and in fact the abovementioned doctor on duty
was acquitted in the criminal court because the court found that “there was no crime”)
however was not followed up immediately: in fact one of them was not traceable by
phone while the other one found it impossible to leave his own doctor’s rounds as he
was the only doctor available. When finally the paediatrician turned up (after 90
minutes had gone by from the initial request) he encountered serious problems to the
point of finding the patient comatose and in fact the patient did not come round from the
coma and some days after died.
974
C. M. Bianca, La responsabilità, cit., 66.
975
In Resp. civ. prev.1996, 389.
273
Stefano Troiano
Faced with these facts the tribunal decided to absolve the medical personnel involved
and to condemn the hospital, by returning the liability to the latter “ as defects of the
organisation” which did not allow for a quick visit to the patient on behalf of the
specialists, in light of the principle that “contractual liability of the organisation must
not necessarily derive from the behaviour of the individual employee who forms part of
the organisation itself, but may additionally result from the fault of the head of the
complex hospital structure being considered”. In this case the deficient action of the
organisation is highlighted when it is affirmed that “the required visit by the
paediatrician and the neurologist… if they had been done at once, would have probably
determined a different causal development, and it is inconceivable that a hospital is
structured in such a way as to render it difficult to intervene (work) on other wards, in
view of the size of the wards and of the possibility that in a determinate moment there is
only one medical staff present (as was the case with the paediatrician who was alone).”
In summary, that means that the reproach to the hospital was because it had organised
its own structure in such a way that it was unable to confront medical emergencies in an
efficient way. The length from one ward and the next, together with the exact
impossibility of a contemporaneous presence of many doctors, of many specialists in
the same moment, in the same hospital pavilion and the same ward signified a “deficient
organisation” that the judges considered sufficient on which to base liability of the
hospital entity, and therefore exempting the hospital employees from all blame.
274
Medical malpractice Spain
5. Spanish Law
In case the physician is working for a publically run hospital, the following statements
principally do not apply. In such cases, one is dealing with a case of civil liability of the
Administration. However, the differences are, apart from the question of the right
jurisdiction, minor. The basic principles for liability are the same, so that the following
can be understood as guideline even for liability for medical malpractice in a publically
run hospital.
Also, any action against INSALUD, the social security organization, is qualified as
administrative and thus must be brought before an administrative court.976
In general, physicians are held liable on a contractual basis. Art. 1101 codigo civil
applies. However, when the same facts can be qualified as non-performance of a
contractual obligation as well as tort, the plaintiff is free to choose between damages
according to art. 1101 codigo civil and art. 1902 codigo civil.977 In the field of medical
malpractice the question of the concurrence of actions is a very important one.
aa) The parties
The general rule applies, no matter whether the contract for services was concluded with
the physician himself or with the hospital or establishment the physician is working for.
There is also room for contractual vicarious liability, even though this is not stated in
the codigo civil at all. In 1991, the Tribunal Supremo decided a case where the claimant
had gone to a private dental clinic for treatment.978 During the treatment, the gimlet
broke and the claimant suffered heavy injury. The damage was caused either by a fault
of the dentist or by a defect of the material used. The Tribunal Supremo uses the
principles of art. 1903 para 4. codigo civil (thus tort liability provisions) in order to
award damages. The courts aim seemed to be to reach a fair and just result rather than
to proceed correctly from a dogmatic point of view.
A loss of profits and earnings is compensated, too. The harm caused must be real,
though.
976
STS December 30, 1999; RJ 1999, 9496, STS June 11, 2001; RJ 2001, 5674.
977
STS April 8, 1999; RJ 1999, 2660.
978
STS February 22, 1991, in: ADC 1993, 915ff.
275
In general, physicians have an obligación de medios since they are not obliged to cure
the patient (thus obtain a certain result, as it were the case with an obligación de
resultado) but only must do his best and make the patient undergo the necessary
(according to the actual standard and knowledge in the field of medicine)
treatment. However, dentists and cosmetic surgeons are often regarded as having an
obligación de resultado, which makes things easier for a potential plaintiff. The notion
of due diligence (diligencia) is important as well.
i) Duty to respect the lex artis ad hoc standard
According to the Tribunal Supremo, physicians have to respect a lex artis ad hoc
standard of care, meaning that the physician has to apply the most actual knowledge
and skills to a particular given medical case, the same as any other normal professional
would apply respecting the particular circumstances of the individual case. Physicians
thus must use all adequate remedies that medical science knows and that the
physician has at hand at the time of the intervention/treatment. 979
In the leading decision from 1991, the Tribunal Supremo held a gynecologist liable,
concerning the following facts: The patient had undergone a hysterectomy as well as an
anexectomy. During the operation, the patients right urethra was affected, a ligature of a
urethra occurred. During the immediate post-operation, there was a vaginal fistula,
motivating another, third, operation. During this last one, a progressive deterioration of
the right kidney could not be avoided ending in the removal of the kidney. The court
denied any compensation on the grounds that a physician only had to act lege artis ad
hoc, thus taking into consideration the actual case in which the medical treatment took
place as well as the particular circumstances of the case thus the inseparable incidences
of the normal professional behaviour.980 The court added that lex artis ad hoc meant an
evaluation criteria taking into account the particular characteristics of the professional,
the profession, the multiformity and the vital importance of the patient and in this
particular given case, interference of other endogenous factors – such as the identity of
the treating institution, the patient and her relatives – applicable to the professional
working in the field of medicine (research or practical work), in order to determine
whether the action at stake complies with the required normal technical standard or not.
ii) duty to assist
979
STS February 7, 1990; RJ 1990, 668, STS June 29, 1990; RJ 1990, 4945, STS March 11, 1991; RJ
1991, 2209, STS March 23, 1993; RJ 1993, 2545.
980
STS March 11, 1991; RJ 1991, 2209.
276
The physician also has a duty to assist and treat the patient until the latter can check out
of hospital as cured.
iii) duty to inform
The physician also has an obligation to inform the patient about his disease and the
treatment to be given in order to obtain the patient's consent. The physician must inform
about the means and methods to be taken, the analysis and possible consequences, bad
and good ones. The duty to inform also obliges the physician to tell the patient about the
possible result which the patient normally should be able to expect from the treatment as
well as about the risks. The physician must also tell the patient when the institute where
the patient wants to undergo a certain treatment disposes of means that might reveal
themselves as insufficient only, so that the patient or his relatives are able to choose
another place for the treatment with more appropriate means.
If the physician does not fulfill this obligation he will be responsible for all unusual
direct damage resulting from an unknown treatment. If he fulfills the obligation or
when it can be presumed that the patient knows exactly all risks there is no room for
the physicians responsibility. Of course, in case of immediate danger, there is no
obligation to inform. The physician might act immediately without being held
responsible for unusual damage.
Even though in most cases, physicians have to meet an obligación de medios (only),
there is also a result oriented obligation, the obligación de resultado. This is particularly
true for sterilization and cosmetic surgery.
In order to speak of a physician´s obligación de resultado, Spanish courts have
developed the following criteria: the relationship between the physician and the patient
must have been established on a complete voluntary basis, i.e. the patient must not
suffer from a disease making the physician´s intervention necessary. The voluntariness
is shown by the goal of the intervention seeked: What the patient wants is a
transformation of his own organism/body in some sort and not its healing. This is
particularly true in cases of sterilizations, as shown above. Another indication is the
patients voice in the case as well as the ancillary circumstances that make all medical
action focus on the aim only and that situate the physicians obligation somewhere
between an obligación de resultado and an obligación de medios.981 The physicians
activity unfolds on a strictly voluntary basis since the only aim he pursues is the
suppression of a normal biological function (in cases of sterilization) or the
enhancement of the personal looks (in cases of cosmetic surgery). The person seeking
the physicians assistance does not come as a patient in a situation of need since he is not
981
See above.
277
ill nor does he suffer pain, but comes as a client. He does not seek reparation but the
creation of a totally new biological situation.
The physician has a duty to inform also in case of voluntary surgery (cosmetic,
sterilization), thus obligación de resultado and it is even wider than in case of an
obligación de medios since the physician cannot refer to a case of emergency. The
physicians explanations must refer to every aspect of the treatment or the result desired
and must not omit any circumstance that more or less predictably could obstruct the
outcome of the operation or influence its consequences.
Spanish jurisprudence considers it a matter of violation of a duty to inform, in case of

wrongful birth, that is a case of failed termination of pregnancy or sterilization. In one
case, a man consulted a physician about sterilization, a step he finally took.
Nonetheless, his wife got pregnant afterwards. The Tribunal Supremo held the
physician liable. Even though the contract between patient and physician should be
qualified as contract of services and not contract of manufacture, the duty to inform
would amount to something similar to a contract of manufacture since it were an
obligación de resultado: The originally existing obligación de medios intensifies itself
to an obligación de resultado. The duty to inform comprises information about the risk
of the medical intervention, about the chance that the intervention will not lead to the
wanted result, about the precautionary measures and actions to be taken in order to
guarantee the wanted result as well as about the medical analysis of the physical
constitution and the type of intervention necessary to obtain the best result. In this
particular case, the information had been insufficient leading to liability.982 Thus, in
order to find a physician liable, there has been either no information at all or insufficient
information about the on the part of the physician about the possibility of a failure so
that he can be held liable. In such cases, Spanish courts only award damages for the
surplus of costs caused by an additional child.983
Of course, the very same activity or treatment a physician is taking can qualify as
obligación de medios in one case, but obligación de resultado in another, depending on
the situation.
In cases of wrongful life, thus when a child is born with physical defects or other
handicap, there is usually no room for damages. In one case where a baby was born with
the Down Syndrome and no abortion had taken place, the Tribunal Supremo said that
982
STS April 25, 1994; RJ 1994, 3073.
983
SAP Barcelona September 20, 2000.
278
the only other possible alternative to the birth of the child with defects would have been
that he was not born at all and that thus the birth itself was no patrimonial damage.984
In the not so infrequent cases in which a disease or pain reveal themselves as
recidivism, chronicor or progressive, the physician must inform the patient about the
necessity to undergo all preventive analysis and treatment that will avoid aggravation or
recidivism of the pain.
The physicians liability is fault based, for violation of one of the above mentioned
duties, since it finds its legal source in art. 1101. codigo civil. There is no strict liability.
ee) Causation
This aspect of liability for medical malpractice has proven to be the most difficult one
in practical life. The fault or the negligence committed while fulfilling his contractual
duties has to be the cause for the damage (de causa a efecto). The general rules of
causation apply, thus the physicians action must have been adequate cause to the
damage, be it direct or indirect.
However, in order to make things easier for the plaintiff and to smoothen the rigid
consequences of the theory of adequation, the Tribunal Supremo often considers that the
physicians behaviour can be singled out as being the only one capable to produce the
unwanted result,985 thereby holding the physician liable.
In 1990, the Tribunal Supremo exonerated the defendant from all liability for default of
causation. The plaintiff had submitted herself to a chirurgical intervention. During the
operation, there was a retrocular hematoma producing an otropia of the right eye with
considerable limitation of the movements of the eye downwards and sidewards. Since
there was no direct proof, the court found it had to rely on presumptions but could only
do so in case of an “unanimous relation between the damaging fact and the prior
treatment, meaning that the result could not be attributed to any different circumstances
since especially in the field of medical treatment unwanted consequences could often be
attributed to unforeseeable complications”.986
984
STS June 6, 1997; RJ 1997, 4610.
985
STS July 13, 1987; RJ 1987, 5488.
986
STS February 7, 1990; RJ 1990, 668.
279
Daños and perjuicios (direct and remote damages) are compensated. This results
from the generally applicable rule of Art. 1101 codigo civil.
The physician will be exonerated in case of act of God, chance or other exterior non
previsible causes.
hh) Limitation
The limitation period is 15 years, according to art. 1964 codigo civil.
Besides contractual liability, a physician and his patient may also confront each other on
the basis of tortious liability, for example if the physician had acted without the patient's
consent in a given case. This is particularly true in cases of emergency where the
patient cannot express his consent to the medical intervention. However, physicians
have to do their best to obtain the patients consent, if possible in any way. Spanish
jurisprudence thus would prefer physicians to act on a contractual basis as often as
possible.
In one case, a woman underwent a cesarian, after she had given birth to her first child in
the same way. A cesarian was medically indicated in order to avoid a rupture of the
uterus. The physician had also asked the plaintiff whether she, on the occasion, wanted
to get sterilized as well in order to avoid further pregnancies, a question negatively
answered by the plaintiff. During the operation, the uterus tore and the physician asked
the plaintiffs husband whether the plaintiff should be sterilized in the course of the
complicated operation. The husband only answered that the physician should save
mother and child. However, when the plaintiff woke up from anesthesia, she found
herself sterilized. The Tribunal Supremo awarded damages.987 For the greater part of the
intervention, the physician had obeyed the lex artis standard, considering the specific
situation and the medical history of the plaintiff, thus avoiding a great risk for her, and
since he were in a situation of emergency, he did not need the plaintiffs consent for his
actions. In a case of emergency, a physician is free to choose the means and methods to
cure. However, if there is no emergency, the patient has the right to determine the scope
of the medical treatment and intervention. The physician must present all options
possible and the patient choses. Here, the sterilization was not part of the emergency
situation, and the physician had even tried to get the plaintiffs consent which she had
987
STS May 24, 1995; RJ 1995, 4262.
280
denied. Thus the gynecologist was held liable on an extra-contractual basis, since the
consent the plaintiff had given before the operation did not cover the sterilization and
thus this was beyond the contractual scope.
Of course, in case a contract cannot be considered to be valid, there is room for tort
liability, too. In such a case, the relation is based in the law.
There is room for vicarious liability especially in case of professional misconduct of

employees.
The Tribunal Supremo seems to be particularly generous in applying the principles of

tort liability to the hospitals employing the physician. For example, the court ruled in
1988 that the hospital itself was directly responsible for a negligent behavior on the part
of the physician and had to compensate remote damages resulting from a physician's
treatment concerning an open fracture and a gas burn.
A loss of profits and earnings is compensated, too, as is the loss of life. The harm
caused must be real, though.
For example, in 1988, the Tribunal Supremo988 awarded damages to a woman having
suffered a tetanus infection in the aftermath of a caesarean resulting in the woman's
incapacity to develop a normal physical activity.
Any breach of diligence and foresight is deemed to be a fault. The physicians duty is to
treat the patient according to the lex artis standard, even in extra-contractual situations.
The lex artis standard means that he physician has to act according to the special
circumstances of the case.
dd) Causation
The general rule of causation applies. Causation in case of negligence should be

deemed to exist, if the harmful result would have been avoided with diligent conduct.
ee) Fault
988
STS May 12, 1988.
281
Spanish law knows the notion of medical fault (culpa medico), too. This means, that
the physician's behavior is referred to the standard of a reasonable professional whose
category and rank correspond with those of the physician whose conduct is at question.
There has been some cases where the Tribunal Supremo regarded medical liability as
strict liability and thus applied the principles of product liability law, but this
jurisprudence was unique and not confirmed at all later: In 1997, the Tribunal Supremo
decided on the basis of Art. 28 of the LGDCU (ley general para la defensa de los
consumidores et usuarios) saying that civil liability according to this law would
comprise the medical services as well, but only those under the regime of INSALUD,
thus publically run hospitals but not individual professionals. This strict liability would
cover the damages arising from the correct use of the services. The services had to
observe certain standards of security, cleanliness and efficiency determined
objectively.989
ff) Damage
The nature of damage arising from medical misconduct varies enormously. It may
merely concern the loss of the chance to get cured but amount to the loss of life, too, in
case a physician refuses to use his experience and knowledge to cure an immanent
threat to life.
Contributory negligence exonerates the defendant, whether partially or wholly depends

on the degree of contribution.
Art. 1903 codigo civil is applicable, thus there is vicarious liability which concerns
foremost the employing hospitals liability. The vicarious liability is taken into
consideration where the patient did not pick a particular physician but went to a hospital
to seek medical help.
ii) Burden of proof
The usual rules apply. In case the physician had to obey an obligación de resultado,
things are easy for a plaintiff, since he must only prove that the result agreed had not
been reached. In case of an obligación de medios, however, the plaintiff must prove
989
STS July 1; RJ 1997, 5471, STS July 27; RJ 1997 5523, STS December 9, 1998; RJ 1998, 9427, STS
June 29, 1999; RJ 1999, 4895, STS September 24, 1999; RJ 1999, 7272, STS December 30, 1999; RJ
1999, 9496.
282
all, violation of the duty, fault and causation. A reversal of the burden of proof to the
benefit of the plaintiff is absolutely rare.
However, in case of an unusual damage, the physicians fault is presumed so that the
defendant has to prove that the damage was caused by another event exterior to his
behavior in order to be exempted.990 A Tribunal Supremos ruling of December 1,
1987, taking into account the difficulties a patient would face in proving fault on the part
of the physician in the application of radiotherapy reversed the burden of proof, when,
in establishing the latters liability, it considered it was sufficient to recognize the
causal link between the injuries suffered by the patient and the harmful conduct –
excessive dose of radiotherapy – without the defendant having proven that he had used
all his diligence in using a means considered to be dangerous.
jj) Limitation
The limitation period is one year, starting with the day when learning of the damage, the
general rule of art. 1968-2 codigo civil being applicable.
Since there is freedom of contract, such clauses are generally accepted. However, they
must respect the limits of art. 1102 codigo civil. The jurisprudence controls their
content recognizing the imbalance of power between the parties.991
Such clauses are accepted but have to respect the legal limitations and imperative
standards.
Especially with view to the different periods of limitation and the difficulty to determine
in a special case whether the physician acted on a contractual basis or not, Spanish
courts show a tendency to admit the accumulation of actions, admitting both types of
action, contract-based and tort law based.
As said above in the beginning, one must distinguish the competent jurisdiction
according to the nature of the defendant: in case the defendant is a publically run
990
STS June 7, 1989; February 12, 1990; June 28, 1990.
991
AT Bilbao May 22, 1987, La Ley 1987, 125; AT Oviedo July 6, 1988, La Ley 1989, 669.
283
hospital, the administrative jurisdiction is competent, in case the defendant is a

physician acting individually (which in the wider sense comprise insurance companies,
privately run clinics), the civil jurisdiction is competent.
The patient or his heirs have to prove the physicians fault as well as the chain of
causation when dealing with contractual responsibility. Sometimes, the fault is being
presumed, in case where it is clear that the necessary treatment has been omitted and
there is a predicable and evitable damage.
In case the defendant is not of public nature, thus the civil jurisdiction were competent,
there is also the possibility to go to arbitration, according to the law of 1988 (Ley
36/1988, December 5, 1988). The permanent, nation wide installed, arbitral institutions
offer their services especially to the physicians and other professionals related with
medical and health services, including psychologists and dentists.
e) Case study
In 1988, the Tribunal Supremo had to decide a case where a gynaecologists liability was
at question. The court considered the following facts as being established:
A) The lecture of the medical texts attached in photocopy displayed that the ligature
of a urethra during a hysterectomy would be a fatal and inevitable accident, fate the
exposure to which came close to a possible risk and with this sentence it was
clearly said that the identification of the urethra concerning its exact course would be
essential to avoid its injury. The appropriate chirurgical techniques were indicated to
avoid this malign accident so that the risk would be reduced to something unforeseeable
and inevitable during a hysterectomy; that the patient had to submit himself to caso
fortuito. The attention had to be drawn to the risks that could occur during the treatment
in order to open the possibility to take all necessary precautions. B) The defendant
stating the positions recognized that the avoidance of a ligature of a urethra was one of
the basic precautions to be adopted by a surgeon during the hysterectomy. C) The
physician- defendant showed a negligent behaviour especially when considering that he
were a gynaecologist whom one would attribute a certain experience concerning his
technical abilities but this estimation was deceived in this particular case by not taking
the highest precautions in order to avoid the ligature of the urethra even though the
medical technology has means at hand to control a haematoma and to identify the
urethras with sufficient visualization avoiding such error as occurred. D) The defendant
should have realized the risk by his own knowledge and should have adjusted his
284
behaviour by observing the necessary diligence in order to avoid the foreseeable direct
damages. By not doing so, he revealed a negligent behaviour. Even though the
negligence was of minor degree, it was sufficient to hold the defendant liable for all
direct damage suffered by the plaintiff.
285
Medical malpractice Sweden
6. Swedish Law
Literature: C. Dahlmann/L. Wendel, Sweden, in: M. Faure/H. Koziol (eds.), Cases on Medical
Malpractice in a Comparative Perspective, 2001, 188; B. W. Dufwa, Compensation for Personal Injury in
Sweden, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective,
2003, 293; B. W. Dufwa, Contributory Negligence under Swedish Law, in: U. Magnus/M. Martín-Casals
(eds.), Unification of Tort Law: Contributory Negligence, 2004, 197; J. Hellner/S. Johansson,
Skadestandsrätt, 6th ed. 2001; L. Wendel, The Impact of Social Security Law on Tort Law in Sweden, in:
U. Magnus, The Impact of Social Security Law on Tort Law, 2003, 176.
More than in other countries is medical care in Sweden a matter of the public sector.
Medical care is mainly provided by state hospitals and institutions, which are run by the
local communities. The whole system is primarily financed via the national health
insurance system by the tax-payer and only by small contributions of the patients who
pay minimal fees for medical services.992 Medical service on a contractual basis seems
to be very rare.993 “To build the liability for patient injuries on contract law was never
even discussed in the legislation work.”994 Moreover, since 1997 health care service
providers are obliged to take a mandatory insurance which recompenses injured patients
for their damage through medical treatment irrespective of any fault of the health care
service provider who has caused the injury.
This madatory insurance has now been regulated by the Patientskadelagen (Patients’
Injury Act),995 which entered into force in 1997. Under this Act patients are entitled to
compensation when it is sufficiently likely that their injuries have been caused by either
(1) medical treatment if another kind of treatment could have avoided the injuries,996 (2)
defective medical-technical products or health care equipment or its incorrect use
through the health care provider, (3) incorrect diagnosis if a skilled and experienced
specialist would have made a correct one, (4) an infection through contagious
substances with which the patient came into contact during treatment including
examination, (5) an accident in connection with the medical treatment, and (6) illegal
992
C. Dahlmann/L. Wendel, Sweden, in: M. Faure/H. Koziol (eds.), Cases on Medical Malpractice in a
Comparative Perspective, 188; L. Wendel, The Impact of Social Security Law on Tort Law in Sweden,
in: U. Magnus, The Impact of Social Security Law on Tort Law, 181.
993
Comparative Perspective, 188.
994
995
Act 1996:799. See thereto B. W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A.
Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective, 303 ss.
996
It may deserve mentioning that in 2001 the scope of the Patients’ Injury Act was extended to injuries
resulting from circumcision of boys if the circumcision was executed by a registered doctor with
qualifications for this kind of surgery; see Lagen om omskärelse av pojkar (Act on Circumcision of
Boys) (Act 2001:499).
287
Ulrich Magnus
prescription of drugs.997 It is not necessary that patients prove any fault on the part of the
health care sevice provider. However, there are some limits on compensation under the
Patients Injury Act, which try to avoid compensation for ‘natural’ consequences of
illness and treatment as well as time limits and maximum limits in amount.998 But within
these rather generous limits999 a patient whose physical or psychical damage has been
caused by medical malpractice is entitled to compensation of his or her pecuniary and
non-pecuniary damage. The patients damage is calculated more or less in the same way
as prescribed by, and practised under, the general rules concerning civil liability as
provided for in the Skadestandslagen (Damages Act).1000 This Act deals primarily with
tort liability but is also applied to contractual liability unless specific contract terms or
specific legislation otherwise provides.1001 The patients’ injury compensation is
administerd by the respective insurance. To deal with complaints by patients a Patient
Claims Panel has to be established.1002
Since the Swedish patient insurance covers most cases of injuries patients sustained in
connection with medical health care in a broad sense it is regularly unnecessary for
patients to rely on civil liability rules in order to receive compensation for their personal
injuries caused through medical malpractice. Therefore, in the field here under review in
particular contract cases but also tort cases tried in the courts are very rare. It has been
observed: “Tort law is only seldom put into practice when damage occurs in connection
to medical services.”1003 And even more general: “It rarely happens that a patient goes to
court and if it happens, it is highly unusual that a patient makes legal claims for a
particular treatment.”1004
As indicated above contractual relations between a hospital and a patient do regularly

not arise because of the publicly organised nature of the Swedish health care system and
health care institutions. Between a physician and a patient a private contract for medical
997
See in detail thereon: C. Dahlmann/L. Wendel, Sweden, in: M. Faure/H. Koziol (eds.), Cases on
Medical Malpractice in a Comparative Perspective, 194 ss.
998
a Comparative Perspective, 196 s.
999
The maximum amount for a single patient is set at 200 times the basic index amount (the basic index
amount was 1999 fixed at ca. 4.400 €).
1000
Act 1972:207.
1001
See B. W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.),
Compensation for Personal Injury in a Comparative Perspective, 308 s.
1002
See sect. 18 § 1 Patients’ Injury Act.
1003
1004
Comparative Perspective, 188 s.
288
treatment may be concluded though this is also rare in Sweden. Therefore the points
concerning contractual liability for medical malpractice can be dealt with rather short.
aa) The parties
i) Injuror/injured
Where a private contract for medical services encounters the parties are on the one hand
the physician and on the other the person who concludes the contract. Further persons
like family members may be expressly or impliedly included.
In case of death of the patient the heirs inherit all claims the deceased had. The heirs
eventual own loss – in particular lost maintenance – can, however, also be claimed.1005
Under contract law a physician employing others is liable for their negligent or
intentional acts by which they cause damage to patients as long as they act within the
scope of their employment.1006 Own diligence in selecting and controlling the employee
does not excuse.
On the contrary, where the physician has not properly instructed an employee the
physician may be liable for this failure even if the employee acted in a way for which
the employee could not be made liable. Thus where a nurse was not instructed to apply
a modern, less dangerous method of medical treatment though she could not be aware of
this new development of medical science a hospital was held liable for negligently
failing to instruct the nurse accordingly.1007
Bodily injury includes also immaterial harm.
1005
See chap. 5, § 2 Damages Act.
1006
J. Hellner/S. Johansson, Skadestandsrätt, 2001; see also B. W. Dufwa, Compensation for Personal
Injury in Sweden, in: B. A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a
Comparative Perspective, 312 s.
1007
Högsta Domstolen (Supreme Court, cited: HD), Nytt Juridiskt Arkiv 1974, 476.
289
Ulrich Magnus
The general responsibilities and obligations of medical staff are regulated by statute,
namely by the Lag om yrkesverksamhet inom hälso- och sjukvarden (Act on
Professional Activities in the Health Care Sector).1008 However, no corresponding rights
of patients have been formulated by the legislator. It is therefore for the courts to
precisely identify these rights though the Act on Professional Activities in the Health
Care Sector may give some guidance in this respect.
The Act on Professional Activities in the Health Care Sector requires physicians to act
generally in accordance “with scientific knowledge and professional experience”.1009
The standard of care derived from this general guideline is rather high. In a case
concerning a wrong diagnose of a luxation the Swedish Supreme Court held a physician
to have acted negligently although only an exceptionally careful examination would
have prevented the wrong diagnose.1010 Nonetheless it is stated that a doctor “is probably
excused from liability if the error could just as well have been made by a careful and
experienced specialist.”1011
As indicated a physician has generally to comply with the standard at least of a careful
and experienced specialist in the respective medical field. Partly, the courts expect
compliance even with the standard of an exceptionally careful specialist.1012
The medical staff is also obliged to reasonably supervise and control technical
equipment, which is used for health care purposes.
Physicians are under a far-reaching duty to adequately and properly inform the patient
as fully as possible before treating him or her medically.1013 This obligation relates to
every aspect of the treatment, even to methods of diagnose or suspected diagnoses,
further to results of diagnose, to alternatives of treatment and certainly to risks of
1008
Act 1998:1513.
1009
Chap. 2 § 1 Act on Professional Activities in the Health Care Sector.
1010
HD, Nytt Juridiskt Arkiv 1974, 99 (the only and therefore leading case on an erroneous diagnose).
1011
1012
See HD, Nytt Juridiskt Arkiv 1974, 99.
1013
See also 2b§ Hälso- och sjukvardslag (Health and Medical Care Act) (Act 1982: 763).
290
treatment.1014 The foundation of this obligation is the patient’s constitutional right of

self-determination which must be respected.1015
v) Duty to document
It appears that thus far no specific and formal duty to document all steps of medical
treatment has been recognised. For purposes of evidence it might be nonetheless
advisable for medical staff – and to some extent usual – to document these steps.
Liability in contract for medical malpractice requires fault. The obligations of the
physician are not strict.
Fault is not presumed. The patient must prove that the physician was negligent.
As already indicated the general standard of care is rather high. Thus, negligence has
been held to be established where only an exceptionally careful examination would have
led to a correct diagnose.1016 On the other hand, negligence has been denied where two
doctors decided during an operation (which would be very difficult to repeat) to take the
chance and to cut off a certain nerve fiber though they had not informed the patient
before. The operation failed, however, to relieve the patient from her pains. But since it
was “medically adequate” in the circumstances to act as the doctors did the Supreme
Court dismissed a claim for negligent malpractice.1017
1014
See thereon C. Dahlmann/L. Wendel, Sweden, in: M. Faure/H. Koziol (eds.), Cases on Medical
Malpractice in a Comparative Perspective, 189 s., 192.
1015
1016
See HD, Nytt Juridiskt Arkiv 1974, 99.
1017
HD, Nytt Juridiskt Arkiv 1990, 442.
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Ulrich Magnus
Exemption clauses excluding or limiting compensation for personal injury are viewed
with disfavour by the courts. They are regularly considered as unreasonable and
therefore invalid under Section 36 of the general Contract Act.1018
ee) Causation
Causation is a necessary ingredient of contractual but as well of tortious liability. The

standard, which the courts apply in order to establish causation does not vary for both
branches of law. A minimum requirement is that the conditio sine qua non-test must be
met – the damage must not have happened without the actors conduct. But further
considerations have to be applied. Thus, in cases of more than one possible cause it
must be “clearly more probable” than not that the cause on which the victim relies was
the effective cause.1019
ii) Omissions
In medical malpractice cases in particular the omission to properly inform the patient
may play a role. Here the court must be convinced that after correct information the
patient would have refused the proposed treatment. In this respect it has been stated: “It
is very difficult to convince the court that this is the case.”1020
Causation is not presumed. The injured party has the burden to prove that the
physician’s treatment had caused the damage. No formal rules – like in England or the
USA the doctrine of res ipsa loquitur – exist in Sweden, which shift the burden of proof
from the claimant onto the defendant physician in certain typical cases.1021
As already mentioned the main rules on damage and compensation are laid down in the
Damage Act, which is also applied to contractual obligations unless provided otherwise
by specific legislation or special contract terms.
1018
Act 1915:218.
1019
See to cases of that kind: HD Nytt Juridiskt Arkiv 1977, 176; HD Nytt Juridiskt Arkiv 1982, 421; HD
Nytt Juridiskt Arkiv 1991, 481; HD Nytt Juridiskt Arkiv 1993, 764.
1020
1021
Compare B. W. Dufwa, Compensation for Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.),
292
i) Damage to health
Any physical or psychical injury entitles (if the further requirements of liability are met)
to damages, which include lost income and any extra expenses caused by the injury. In
case of death the decedents are entitled to compensation of the burial expenses and to
their own loss of maintenance.1022
Immaterial consequences of injuries have likewise to be compensated in terms of money

including. There are three different heads of immaterial harm for which recovery can be
sought: temporary pains (“sveda och värk”), permanent harm and disability (“lyte eller
annat stadigvarande men”) and special inconveniences (“särskilda olägenheter”).
In case of negligently caused death close relatives of the deceased are entitled to obtain
compensation for their non-pecuniary harm. This has been recently codified by the
legislator.1023
Where personal injury has been inflicted according to chap. 6 § 1 Damage Act
contributory negligence of the victim can only be invoked if the victim has acted with
intent or gross negligence.1024 In practice contributory negligence does not play a great
role in personal injury cases and can almost entirely be disregarded since intent or gross
negligence of a victim is a but rare occurrence.
hh) Limitation
The general rules on limitation apply.
It has to be stressed again that tort liability plays a rather unimportant direct role in
medical malpractice cases in Sweden due to the fact that most such injuries are subject
to compensation under the patients insurance scheme shortly described in the
introductory remark. However, tort law remains relevant in the few cases not covered
by the patients insurance. By far greater importance of tort law results from its indirect
1022
1023
Modification of Damage Act, entering into force on 1 January 2002; see thereto H. Sandell, Sweden,
in: H. Koziol/B. C. Steininger (eds.), European Tort Law 2002, 393 ss.
1024
See thereto B. W. Dufwa, Contributory Negligence under Swedish Law, in: U. Magnus/M. Martín-
Casals (eds.), Unification of Tort Law: Contributory Negligence, 199.
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Ulrich Magnus
conclusiveness for several crucial questions concerning compensation under the

insurance scheme like the calculation of damages or the issue of causation etc. because
these questions are decided in accordance with the rules of tort law.1025
aa) The parties
On the part of the health care service provider it is the physician or other medical staff
or the hospital that can be made liable either for own acts or for acts of employees.
On the part of the patient it is normally the patient him- or herself who is entitled to
claim compensation. In case of death the decedents of the deceased patient are entitled
to be recompensed for the burial expenses, for lost maintenance and also for own
emotional distress.1026
Bodily injury includes physical but also psychic harm for which the injured patient can
claim compensation. But it has to be reminded that mere psychic injury can be
recovered also under the patient insurance scheme.
Though this appears to be rarely explicitly stressed liability in tort presupposes that the
actor – physician or hospital or either’s employee – has violated a duty of care.
Incidentally the examination of this requirement is, however, included when the courts
decide whether the required standard of care was met.
dd) Causation
Causation in tort does generally not differ from causation in contract. Therefore it can
be referred here to the respective part on contract law.1027
ee) Fault
Though patients may claim compensation for medical malpractice from the patients’
insurance without any need to establish fault on the other hand fault is an essential
requirement of tortious liability of physicians and hospitals. Swedish law does not hold
physicians or hospitals strictly liable for their acts, which cause damage to patients. On
1025
a Comparative Perspective 197.
1026
See already above under a) ff).
1027
294
the contrary neglect of the necessary standard of care is required. The general standard
of care for physicians is rather high and may sometimes even exceed the degree of
diligence that an ordinarily careful physician of the same special profession is expected
to exercise.1028 The remarks on the respective part of contract law can be referred to for
tort law.1029
ff) Damage
Also here reference to the respective part on contract law can be made.1030
As already mentioned above1031 contributory negligence as a defence to a claim for

compensation is almost meaningless in cases of personal injury because it has to be
neglected unless the victim acted with intent or gross negligence.1032
Also in tort a physician is liable for negligent acts of his or her employees as long as
they act within the course of their emploment.1033
ii) Burden of proof
The patient must prove the factual requirements of all elements of his or her claim in
particular the negligence of the physician and the causal link between the negligence
and the own injury.1034
jj) Limitation
The general periods of limitation apply, namely three years after the victim became
aware of the damage but no later than ten years after the damage happened.
1028
See HD, Nytt Juridiskt Arkiv 1974, 99, and above under a) dd) ii).
1029
1030
See above under a) ff).
1031
See above under a) gg).
1032
See chap. 6 § 1 Damage Act
1033
See again above under a)
1034
295
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As mentioned with respect to contract law1035 disclaimers and exemption clauses

restricting liability for personal injury which otherwise would be incurred are
disfavoured by the courts and regularly rejected.
aa) Burden of proof
It is the claimant’s burden to prove the facts that found his or her claim, in particular a
damage, the physicians negligence and a causal link between these two elements. It
appears that Swedish law does not know of formal rules shifting this burden of proof
onto the defendant.
Apart from the specific patients insurance and the Patient Claims Panel instituted under
the Patient Injury Act there appear to be no further specific institutions dealing with
medical malpractice cases and there is apparently no need for further such institutions.
The Patient Claims Panel is to be financed by the Patient Insurance Association and its
members must include representatives of patients’ interest.
e) Case study
Due to the fact that patients are insured against medical malpractice in Sweden there is
no relevant case law of recent years.
1035
See above under a) dd) iv).
296
Medical malpractice United Kingdom
7. Law of United Kingdom
Literature: J.W.G. Blackie, Länderberichte England und Schottland, in: G. Fischer/H. Lilie (eds.),
Ärztliche Verantwortung im europäischen Rechtsvergleich, 1999, 195; R. M. Jackson/J. L. Powell, on
Professional Negligence, 4th ed. 1997; M. A. Jones, Medical Negligence, 2nd ed. 1996; R. Lewis, The
Impact of Social Security Law on Private Tort Law in England and Wales, in U. Magnus (ed.), The
Impact of Social Security Law on Tort Law, 2003, 56; R. Nelson-Jones/F. Burton, Medical Negligence
Case Law, 2nd ed. 1995; H. Rogers, Compensation for Personal Injury in England, in: B. Koch/H. Koziol
(eds.), Compensation for Personal Injury in a Comparative Perspective, 2003; H. Rogers, United
Kingdom: England, in: M. Faure/H. Koziol (eds.), Cases on Medical Malpractice in a Comparative
Perspective, 2001, 226; H. Rogers, Damages under English Law, in: U. Magnus (ed.), Unification of Tort
Law: Damages, 2001, 55;.
In the United Kingdom medical care is mainly provided by the National Health Service
(NHS) which is state run and whose services are not being rendered on a contractual
basis.1036 It is estimated that 90 % of all medical services are provided by the NHS.1037
Only for the rest private contract law matters whilst for both the private and the state
health care sector tort law remains fully applicable. But the private health care sector is
growing in recent years.1038 It is, however, stressed that a doctor’s duties are usually not
different in contract and tort law1039 and that in practice most claims for medical
malpractice are brought in tort and most of these claims are in turn based on
negligence.1040 In the United Kingdom the focus in medical malpractice cases is
therefore very much on tortious liability for negligence.1041
As indicated above contract law plays a relatively unimportant role in medical

malpractice cases although where a private agreement on medical treatment has been
made the private patient is entitled to, and will normally, sue both in contract and
tort.1042
The private contract, where it exists, obliges the doctor in the first line to treat the
patient with reasonable skill and care. The same duty applies, however, also in tort. In
1036
See Pfizer Corp. v. Ministry of Health [1965] A.C. 512.
1037
J.W.G. Blackie, 199; see also thereto H. Rogers, in: M. Faure/H. Koziol (eds.), 241; H. Rogers, in: B.
Koch/H. Koziol (eds.), 76.
1038
H. Rogers, in: M. Faure/H. Koziol (eds.), 241.
1039
See, e.g. Hotson v. East Berkshire Area Health Authority [1987] 1 All E.R. 210; R. M. Jackson/J. L.
Powell, no. 6-03; M. A. Jones, no. 2-002.
1040
M. A. Jones, no. 2-002.
1041
J.W.G. Blackie, 209 s.; M. A. Jones, no. 2-002; R. Nelson-Jones/F. Burton, 26.
1042
R. Nelson-Jones/F. Burton, 26.
297
Ulrich Magnus
the absence of any clear indication to the contrary, the contract does not impose an
obligation to achieve or guarantee a certain result.1043 Only in specific situations such an
obligation may be inferred from the contract or from the circumstances, for example
where a plastic surgeon assures that a cosmetic operation will have a satisfying result so
that the patient will be very happy with it although the outcome is a scarred and
misshapen nose.1044
aa) The parties
i) Injuror/injured
On the medical practioner’s side only the doctor (or the private hospital) with whom the
contract for private medical treatment has been agreed upon can be made liable under
the contract. S/he or his or her staff for which s/he is vicariously liable must therefore
have injured the patient.
On the patient’s side it is the patient as the party to the contract who is entitled under the
contract. As to third parties as the spouse or other family member the doctor owes duties
of care which arise independantly of the contract. Thus, the doctor must for instance
warn the patient that s/he may infect his or her spouse (sexual partner) by HIV. This
duty is owed to the patient’s spouse (sexual partner) and entitles the spouse (sexual
partner) to compensation when s/he is indeed infected by the patient.1045
Where the patient dies due to the doctor’s negligent treatment the estate inherits all
causes of action of the patient which were founded at the time of his or her death.1046 So-
called loss of dependancy – the lost maintenance of dependants of the deceased – is
awarded on a statutory basis.1047 The contract does not allow for compensation of such
kind of loss of third parties.
1043
See Thake v. Maurice [1986] 2 W.L.R. 337; Eyre v. Measday [1986] 2 W.L.R. 488 (unsuccessful
sterilisation).
1044
See the Canadian case La Fleur v. Cornelis [1979] 28 N.B.R. (2d) 569, cited with approval by R.
Nelson-Jones/F. Burton, 27.
1045
See R. M. Jackson/J. L. Powell, no. 6-19 and M. A. Jones, no. 2-048 s., both relying on the Canadian
decision in Pittman Estate v. Bain [1994] 112 D.L.R. (4th) 257.
1046
This is provided by sec. 1 (1) Law Reform (Miscellaneous Provisions) Act 1934.
1047
See sec. 3 (1) Fatal Accidents Act 1976.
298
As far as contract law comes into play in medical malpractice cases the normal rules of
vicarious liability apply. That means that the general practitioner or the private hospital
is liable for negligent acts of their employees.1048 In the case of the general practitioner
these are nurses, the receptionist and other staff,1049 in the case of private hospitals also
doctors and further staff who are employed by the hospital.1050
Bodily injury includes – even in contract law – immaterial harm.1051
The central element of contractual liability is the duty to act with reasonable skill and
care which the doctor owes to the patient.1052 This duty is rarely explicitly expressed in
contracts but is in most cases implied by the courts and corresponds entirely with the
same duty in tort.
Whether or not a doctor has met the required standard of care is adjudicated according
to the following principle, the so-called Bolam test named after the respective case:
“The test is the standard of the ordinary skilled man exercising and professing to have
that skill. A man need not possess the highest expert skill; it is well established law that
it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising
that particular art.”1053 The Bolam test has been approved many times and applies to
every kind of medical work.1054
The duty of reasonable skill and care is an objective one in the sense that the doctor
owes that kind of diligence that is required in the specific circumstances. It is therefore
for instance no excuse that the doctor is a young and inexperienced physician who
personally does not possess the normally required skill.1055
1048
See thereon R. Nelson-Jones/F. Burton, 20 ss. with references.
1049
Compare Lobley v. Going [1985] reported by R. Nelson-Jones/F. Burton, 431.
1050
Roe v. Minister of Health [1954] 2 Q.B. 66; see thereto R. Nelson-Jones/F. Burton, 22 s.
1051
R. M. Jackson/J. L. Powell, no. 6-199.
1052
See already Shiells & Thorne v. Blackburne [1789] 1 Hy. Bl. 159; further, e.g. Morris v. Winsbury-
White [1937] 4 All E.R. 494.
1053
Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 (per McNair J.).
1054
See, e.g. Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871 (H.L.); Gold v. Haringey
Health Authority [1988] Q.B. 481; Re F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1; Airedale
N.H.S. Trust v. Bland [1993] A.C. 789; Taylor v. West Kent Health Authority [1997] Med.L.R. 251.
1055
Wilsher v. Essex Area Health Authority [1987] Q.B. 730.
299
Ulrich Magnus
It is the very core of the Bolam test that the doctor is obliged to render such medical
services as comply with the professional standard of treatment necessary under the
circumstances of the case. This standard is in principle fixed by the recognised state of
medical knowledge and science at the time of treatment.1056 Where “a reasonable body
of medical men skilled in that particular art”1057 would approve of the doctor’s method
of medical treatment negligence has regularly to be denied.1058 But the final say which
standard is appropriate is not left to the medical community but to the courts. They will
themselves fix the correct standard only very rarely but at least reserve such a
possibility for cases where a common medical practice is the outcome of mere tradition
or even inertia rather than of reasoned analysis and full consideration and may put the
patient to unnecessary risk.1059
The required standard depends, however, also on the specialisation of the doctor. For
instance, a neuro-surgeon is expected to possess the knowledge and know the
techniques an ordinary neuro-surgeon normally commands of.1060
The standard of reasonable skill and care includes also the doctor’s obligation not to
undertake kinds of treatment beyond his or her competence and to realise when the case
should be referred to other doctors1061 or when specialists should be approached.1062
When the doctor should know this depends again on the knowledge an ordinary doctor
in the same position and situation would and should have.
If different methods of medical treatment exist and are each supported by respected
schools of medical thought a doctor applying one of these methods does not violate the
reasonable standard of care.1063
The doctor is under no duty to exercise the highest possible standard of care nor must
s/he possess the highest possible skill. It is only required that the ordinary standard is
met.1064 On some occasions, a doctor’s duty to act always in the patient’s best interest
1056
Roe v. Minister of Health [1954] 2 Q.B. 66.
1057
See Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 (per McNair J.).
1058
Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582.
1059
See Bolitho v. Hackney Health Authority [1997] 4 All E.R. 771 and the discussion by H. Rogers, 226
ss; see thereto also J.W.G. Blackie, 212 ss.
1060
See Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871 (H.L.).
1061
Nickolls v. Ministry of Health, The Times, February 4, 1955 (terminally ill surgeon operates eight
weeks before his death on the plaintiff and injures nerves – no negligence in undertaking the
operation); see thereto also R. M. Jackson/J. L. Powell, no. 6-39.
1062
Payne v. St. Helier Group Hospital Management Committee [1952] C.L.Y. 2442.
1063
Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582.
1064
See again Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582.
300
seems to have been accepted.1065 However, it is thought that such a duty would add
nothing substantial to the duty to act with reasonable skill and care.1066
There appears to be no case law specifically dealing with an eventual duty to supervise
and control technical equipment which the practitioner or the hospital uses for the
treatment of patients.1067 But where drugs, blood products and the like cause damage to
the patient then the general principles of products liability are applied.1068 Though, it has
already been expressed that a lack of resources would be no relevant excuse where else
negligence is established.1069
A crucial point of the doctor’s obligations is the duty to inform and warn the patient
about risks. Moreover, the doctor is obliged to inform the patient of the method of
treatment. This duty is on the one hand integral part of the doctor’s duty to treat the
patient with reasonable skill and care. It forms on the other hand part of the patient’s
valid consent.1070 Without valid consent any medical bodily treatment is reagrded as
illegal and gives rise to liability. However, consent is still valid even if given without
adequate information though inappropriate information or lack of information may give
rise to a claim in negligence.1071
Which information must be given is again in principle governed by the Bolam test.1072
This standard grants the doctor a rather wide information discretion. Information only
“in broad terms of the nature of the procedure” is required.1073 The patient must be
informed of such risks “that disclosure of a particular risk was so obviously necessary to
an informed choice on the part of the patient that no reasonably prudent medical man
would fail to make it. The kind of case I have in mind would be an operation involving
1065
See Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871 (H.L.).
1066
Compare the discussion by R. Nelson-Jones/F. Burton, 28 with further references.
1067
See in the same sense J.W.G. Blackie, 236.
1068
See thereon M. A. Jones, no. 8-001 ss.
1069
Knight v. Home Office [1990] 3 All E.R. 237 (where however for prison hospitals a lower staff/patient
ratio than in other hospitals was accepted); see also Wilsher v. Essex Area Health Authority [1986] 3
All E.R. 801; see also M. A. Jones, no. 4-087 ss.
1070
See M. A. Jones, no. 4-032 ss.
1071
Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871 (H.L.); see also R. M. Jackson/J. L.
Powell, no. 6-83.
1072
Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871 (H.L.); Blyth v. Bloomsbury Area
Health Authority, The Times, February 11, 1987; M. A. Jones, no. 6-100; R. Nelson-Jones/F. Burton,
109 ss.; H. Rogers, 228.
1073
Chatterton v. Gerson [1981] 1 All E.R. 257 (265).
301
Ulrich Magnus
a substantial risk of grave adverse consequences, as for example, the ten per cent risk of
a stroke from the operation. In such a case, in the absence of some cogent clinical
reason why the patient should not be informed, a doctor, recognising and respecting his
patient’s right of decision, could hardly fail to appreciate the necessity for an
appropriate warning”.1074 Though the 10 % risk in this statement must be understood as a
mere example it indicates that not every risk but only very substantial risks of the
proposed treatment have to be disclosed. Moreover, if the patient asks the doctor
specifically s/he is entitled to an honest answer.1075
As to the form of information “the doctor, when warning of risks, must take reasonable
care to ensure that his explanation of the risks is intelligible to his particular patient. The
doctor should use language, simple but nit misleading, which the doctor perceives from
what knowledge and acquaintanceship that he may have of the patient (which may be
slight), will be understood by the patient so that the patient can make an informed
decision as to whether or not to consent to the recommended surgery or treatment.”1076
v) Duty to document
In England the doctor is under no specific duty to document the essential facts of
medical treatment. Even on the procedural level of proof no such indirect duty is
recognised. On the contrary, if for example a warning of the patient is recorded it is
presumed that it had been given whereas the failure of a recorded warning does not
evidence that the warning had not been given.1077
Liability in contract for medical malpractice requires generally that the doctor has
violated the duty to act with reasonable skill and care and has neglected the ordinary
standard of professional treatment of the patient.1078 Therefore, fault in the usual
objective sense is necessary to incur liability. The doctor is regularly not under a strict
contractual duty to achieve certain success of treatment since the success depends on
many further circumstances which the doctor cannot control. “Medicine is perhaps the
classic example of a profession in which results are not guaranteed and are not expected
1074
Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871 (H.L.) (900 per Lord Bridge).
1075
Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871 (H.L.); see further H. Rogers, 228.
1076
Smith v. Turnbridge Wells Health Authority [1994] 5 Med.L.R. 334 (339 per Morland J.).
1077
See, e.g. McLellan v. Newcastle Health Authority [1992] 3 Med.L.R. 215; McInnes v. Bromley Health
Authority [1992] (reported by R. Nelson-Jones/F. Burton, 446).
1078
See supra cc.
302
to be guaranteed.”1079 Nevertheless a doctor can undertake to achieve a certain result but

such a guaranty needs very clear words to this effect and is normally not inferred from
the contract.1080
The general rule is that the negligence of the doctor is not presumed and that the patient
as plaintiff must prove that the doctor has neglected the reasonable care.1081 But the so-
called maxim res ipsa loquitur may shift the burden of proof from the patient to the
doctor. This is not regarded as a formal reversal of burden of proof but as a prima facie
case of negligence which requires that the doctor explains it. The maxim has been
expressed in the following way: “There must be reasonable evidence of negligence. But
where the thing is shown to be under the management of the defendant or his servants,
and the accident is such as in the ordinary course of things does not happen if those who
have the management use proper care, it affords reasonable evidence, in the absence of
explanation by the defendants, that the accident arose from want of care.”1082 As to
medical malpractice cases the maxim of res ipsa loquitur can only be applied where the
patient’s injury is such that could not also occur as normal mishap even when the
patient is entirely correctly treated. Since, the injury could then have occurred also
without negligence. Therefore, the doctor‘s negligence is only presumed where, for
example, a surgeon left a swab in the body of the operated patient1083 but not where a
patient’s jaw became dislocated or was even broken during an operation by a dentist.1084
Thus, the maxim can avail the patient but in rather rare cases where a prima facie
negligence is to be inferred from the circumstances.1085
The defendant doctor can, however, rebut the prima facie presumption of res ipsa
loquitur by proving that s/he acted with due care or that the injury was caused by
another cause for which the doctor was not liable.1086
1079
R. M. Jackson/J. L. Powell, no. 6-05.
1080
See already supra a.
1081
M. A. Jones, no. 3-096.
1082
Scott v. London & St. Katherine Docks [1865] 3 H. & C. 596 (601 per Erle C. J.).
1083
Mahon v. Osborne [1939] 2 K.B. 14.
1084
Lock v. Scantlebury, The Times, July 25, 1963 (dislocated jaw); Fish v. Kapur [1948] 2 All E.R. 176
(broken jaw).
1085
For a survey of further cases see M. A. Jones, no. 3-111 s.
1086
See for example Roe v. Minister of Health [1954] 2 Q.B. 66; see further R. M. Jackson/J. L. Powell,
no. 6-74.
303
Ulrich Magnus
As already explained the normal standard of care is the standard of an “ordinary medical
man” in the circumstances in which the defendant doctor acted.1087
ee) Causation
In medical malpractice cases the general rules on causation apply.1088 The breach of the
duty to treat the patient with reasonable skill and care must have caused the patient’s
injury. If the damage is not too remote the patient then is entitled to full compensation.
However, in contract – in contrast to tort – the mere breach entitles the patient to
nominal damages where the breach has either caused no damage or was not the cause of
the damage that in fact ensued.1089
The normal standard of causation requires a two-step operation. First, causation in fact
must be established. Secondly, it must be established that the damage was sufficiently
forseeable and not too remote (causation in law). If the causation is uncertain the patient
will succeed when on the probabilities of the case causation is more likely than not.
However, prevailing probability (more than 50 %) suffices to establish causation.
Causation in fact relies very much on the “but for” test. The patient’s damage must have
happened but for the doctor’s negligent breach of duty.1090 The negligence must have
been the condicio sine qua non of the dmage. If the damage would have occurred in any
event causation is to be denied how negligent ever the doctor was.1091 Therefore, where a
casualty doctor refuses to see the patient and sends him home where he dies of arsenic
poisoning the obvious negligence of the doctor has not caused the death if even prompt
treatment would not have saved the patient’s life.1092 Specific rules which exist for
causation through several actors, intervening events and the like do not seem to have
particular bearing on medical malpractice cases.1093
It is particularly difficult to decide whether the negligence of the doctor caused the
patient’s damage if the patient contends that s/he would have opted for an alternative
treatment had s/he been given proper information on the different methods and risks.
1087
See the Bolam case cited supra.
1088
J.W.G. Blackie, 219.
1089
See thereon R. M. Jackson/J. L. Powell, no. 6-172.
1090
See thereon R. M. Jackson/J. L. Powell, no. 6-171 ss.; M. A. Jones, no. 5-004 ss.
1091
See, e.g. Barnett v. Chelsea and Kensington Hospital Management Committee [1968] 1 All E.R. 1068.
1092
See Barnett v. Chelsea and Kensington Hospital Management Committee [1968] 1 All E.R. 1068.
1093
See the discussion by M. A. Jones, no. 5-045 ss., citing only few medical malpractice cases relevant in
this respect.
304
Here the patient must prove that s/he would have so opted before the treatment, a proof
not easily accepted by the courts.1094
If the patient has lost a certain chance of healing due to the doctor’s negligence s/he will
be entitled either to full compensation – if the probability of healing was sufficiently
high – or to nothing.1095 The concept to compensate the patient for the lost chance
according to the percentage of that chance has been rejected by the House of Lords.1096
Even if the chain of causation is established the damage may be too remote because it
could not have been foreseen as a consequence of the doctor’s negligent act. However,
the courts are reluctant to exclude the doctor’s liability on account of remoteness of
damage.1097
ii) Omissions
In case of omitted measures of treatment no different rules of causation apply.1098 The

“but for” test is satisfied where the patient’s injury would have been avoided had the
omitted measures been applied in time.
There is no presumption of causation. As a matter of principle it is for the patient to

prove that the doctor’s negligence has caused his or her damage.1099 But the maxim res
ipsa loquitur may also assist the patient with respect to causation.
If the doctor’s breach of duty has caused the patient’s damage the patient is entitled to
full compensation. But even if the breach caused no damage the mere fact of the breach
of the contract – unlike in tort – gives rise to nominal damages which consist of a
symbolic sum.
i) Damage to health
1094
See, e.g. Chatterton v. Gerson [1981] 1 All E.R. 257; Hills v. Potter [1983] 3 All E.R. 716; Gregory v.
Pembrokeshire Health Authority [1989] 1 Med.L.R. 81.
1095
Hotson v. East Berkshire Area Health Authority [1987] 1 All E.R. 210 (C.A.); [1987] 2 All E.R. 909
(H.L.).
1096
See Hotson v. East Berkshire Area Health Authority [1987] 2 All E.R. 909 (H.L.).
1097
Compare the discussion of cases by R. M. Jackson/J. L. Powell, no. 6-196 ss.; M. A. Jones, no. 5-065
ss.
1098
See Barnett v. Chelsea and Kensington Hospital Management Committee [1968] 1 All E.R. 1068 (a
case of failure to treat, see supra).
1099
See thereon R. M. Jackson/J. L. Powell, no. 6-180 ss.; M. A. Jones, no. 5-011 ss.
305
Ulrich Magnus
The compensable damage to health comprises any bodily or psychic injury even if
aggravated by the patient’s particular vulnerability due to an unusual predisposition (so-
called “eggshell skull” rule).1100
Compensation covers the whole pecuniary loss resulting from the injury like medical
expenses or loss of earnings. The normal way of compensation is by way of lump sum;
payment by way of rent is only possible if either party agrees or where a settlement to
this effect has been made.1101
English Common Law knows of the possibility to grant aggravated damages – damages
which are higher than normal compensatory damages would be in order to reflect a
specific aggravated injury done to the victim. But in medical malpractice cases it has
been held that this kind of damages should not be awarded even when the patient’s
treatment had to be classified as “horrific”.1102
Exemplary damages which have a punitive nature and shall teach the tortfeasor that tort
does not pay, though known to English law in a limited nuber of situations, are in fact
not available in medical malpractice cases.1103
Even in contract pain and suffering can be compensated. This is achieved by a fair and
reasonable money award.
Where the patient’s own negligence has contributed to his or her injury or has
aggravated the damage the doctor has caused the latter can raise the defence of
contributory negligence and the amount of damages may then be reduced or even
excluded where the patient’s conduct id the sole cause of the damage.1104 But contract
contributory negligence is no defence where a strict contractual duty – where for
instance the doctor has guaranteed the result of the treatment – has been breached.1105
It has been observed that in medical malpractice cases the defence is only rarely
invoked and no English case appears to have been reported which has decided the issue
of contributory negligence against the patient.1106
1100
See thereto M. A. Jones, no. 5-077 ss.
1101
See M. A. Jones, no. 9-006 ss.; H. Rogers, in: U. Magnus (ed.), Unification of Tort Law: Damages 68.
1102
Kralj v. McGrath [1986] 1 All E.R. 54.
1103
See M. A. Jones, no. 9-005.
1104
See, e.g., Venner v. North East Essex health Authority, The Times, February 21, 1987.
1105
M. A. Jones, no. 4-118.
1106
306
hh) Limitation
The general limitation period for claims in contract as well as in tort of six years1107 does
not apply in cases involving personal injury caused by negligence. In such cases the
limitation period is three years.1108 The period starts running from the date when the
cause of action accrued – which in contract cases is normally the date on which the
contract was breached – or, if later, when the patient acquired knowledge of the cause of
action.1109 “Knowledge” means that the patient knows the actor and the cause of action
“with sufficient confidence to justify embarking” on legal proccedings.1110
But even after the period of limitation has lapsed the court has a discretion to allow the
claim according to sec. 33 Limitation Act 1980.1111
As already mentioned most claims for medical malpractice are brought in tort and based
on the tort of negligence. And except where specific contractual terms have been agreed
upon by the parties the requirements for contractual and tortious liability are identical.
The following can therefore refer to much of what has been already stated on
contractual liability for medical malpractice. In particular, the central duty to treat the
patient with reasonable skill and care is the same for both branches of law.
aa) The parties
While in contract the patient can sue only the contractual partner, in tort s/he can claim
compensation from any doctor or staff person who has caused the patient’s damage
whether or not a contract with that person exists. Moreover, English law recognises
damages for near relatives who can claim in their own right for so-called bereavement.
The spouse of a deceased patient or the parents of a deceased unmarried minor child are
entitled by statute to the fixed sum of L 7.500,-.1112
In certain cases also further parties may bring a claim against a doctor though only
indirectly affected by the doctor’s negligence. This can be the case where it is
foreseeable that the patient’s illness and its treatment will more or less necessarily affect
third parties as in the already mentioned case of an HIV-patient who must be warned
that the sexual partner can be infected.1113 Or, where a patient suffers from another
1107
1108
Sec. 11(1), (3), (4) Limitation Act 1980; see thereto M. A. Jones, no. 10-004 ss.
1109
1110
See Halford v. Brookes [1991] 3 All E.R. 559 (573 s. per Lord Donaldson M.R.)
1111
Compare for details with respect to medical malpractice cases: M. A. Jones, no. 10-036 ss.
1112
Sec. 3 (5) Fatal Accidents Act 1976 and the Regulations thereto.
1113
Giving the partner a right of claim; see supra a aa.
307
Ulrich Magnus
serious contagious infection which endangers family members, classmates etc. or where
a patient is a serious danger for others due to his or her specific bodily or psychic
impairment.1114
Bodily harm includes any intrusion to the bodily integrity of the patient and also
emotional trauma if it amounts to a psychiatric illness.1115
In medical malpractice cases tort liability requires that the doctor has violated his or her
professional duty to treat the patient with reasonable skill and care. The doctor is in tort
under the same duty as if s/he had made a contract with the patient where this duty if not
expressly mentioned is always implied.1116 In tort the duty to act with reasonable skill
and care is imposed by law.1117 As to the contents and extent of that duty therefore
reference can be made to the respective considerations for contractual liability.1118
Unlike in contract in tort the doctor’s duty to act with reasonable skill and care does not
only extend to the direct patient but in certain cases also to third parties.1119
dd) Causation
For causation in tort the same rules as in contract apply.1120
ee) Fault
Also as far as fault is concerned in tort the same rules apply as in contract. The doctor is
under the mentioned general duty to treat the patient with such skill and care as would
be reasonable in the circumstances. The standard of this care is the same in contract and
tort; the so-called Bolam test1121 has been developed in tort. In order not to be negligent a
doctor (or other medical staff) must therefore have acted in the same way as an ordinary
1114
For further cases and discussion see M. A. Jones, no. 2-047 ss. citing with approval the Canadian case
Spillane v. Wasserman (1992) 13 C.C.L.T. 267 where an epileptic while driving a lorry suffered an
epileptic seizure and killed a cyclist. The doctors treating the epileptic since years where held liable
since they had not warned the epileptic not to drive nor had they monitored whether the epileptic
complied with the ordered medication (what he did not do).
1115
H. Rogers, in: U. Magnus (ed.), Unification of Tort Law: Damages 65.
1116
1117
R. v. Bateman (1925) 94 L.J.K.B. 791; M. A. Jones, no. 2-023.
1118
See supra a cc.
1119
See supra b aa.
1120
See supra a ee.
1121
See supra a cc.
308
and reasonable doctor in the same situation would be expected to act. Whether or not
this is the case depends very much on the standard judged as reasonable by “a
responsible body of medical men skilled in that particular art.”1122 But as already
indicated the courts reserve themselves the final decision on that question.1123
ff) Damage
The recoverable damage in case of personal injury through medical malpractice covers
– as in contract – any bodily impairment of the patient and also any nervous shock if it
amounts to a psychiatric illness.1124 Also the patient’s pain and suffering as a result of
his or her bodily impairment is a recoverable head of damage and compensated in terms
of money.
Nervous shock to other pesons than the patient can give rise to liability if the other
person is a near relative of the patient and witnesses the pain or death of the relative
very closely and if (probably) even a person of reasonable fortitude would have been
shocked by the damaging event.1125
The compensation of the damage has to put the patient, as far as money can do, into the
position in which s/he would have been in if the negligent treatment had not occurred.
Therefore the patient can claim the full cost of medical treatment and care, of increased
expenses and in particular of lost future income. The latter is calculated in a rather
mathematical way: The courts multiply the patient’s annual net income (the
“multiplicand”) by the “multiplier”, that is the expected number of years the loss is
estimated to last. Deductions and corrections refine this calculation.1126 Moreover, social
security benefits must be deducted.1127
If the patient has by negligent conduct contributed to his or her own damage
contributory negligence can be invoked as a defence which may reduce or exclude the
patient’s claim for damages. But as already mentioned in medical malpractice cases this
defence is rarely invoked and has never been decided against the patient.1128
1122
Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 (585 per McNair J).
1123
See supra a cc 1).
1124
Kralj v. McGrath [1986] 1 All E.R. 54 („horrific treatment“ during delivery of child).
1125
See, e.g. Tredget v. Bexley health Authority [1994] 5 Med.L.R. 178; but see also Taylor v. Somerset
Health Authority [1993] 4 Med.L.R. 34; Sion v. Hampstead Health Authority [1994] 5 Med.L.R. 170;
R. M. Jackson/J. L. Powell, no. 6-15 ss.; M. A. Jones, no. 2-071.
1126
For details see, e.g. H. Rogers, in: B. Koch/H. Koziol (eds.), 88 ss.
1127
See thereon R. Lewis, The Impact of Social Security Law on Tort Law, in: U. Magnus (ed.), Tort and
Social Security Law, 63 ss.
1128
See supra a gg.
309
Ulrich Magnus
Again the same rules as in contract apply here. The doctor (or the hospital) is liable for
negligent acts of employees who have acted within the scope of their employment.
ii) Burden of proof
The injured person has to prove the doctor’s negligence, causation and damage.
However, in appropriate cases the maxim res ipsa loquitur can be invoked and ease the
claimant’s burden of proof.1129
jj) Limitation
In tort the same limitation period of three years applies as in contract.1130 Also the same
rules on the beginning of the period and on the discretion of the court apply to prolong
the limitation period.1131
Contractual restrictions on liability for personal injury through medical malpractice are
possible but only if negotiated individually. Any such exclusion through standard
contract terms falls under the Unfair Contract Terms Act 1977 and is invalid.
Exclusion clauses can take effect, if at all, only if both sides which are affected by such
a clause have agreed to it. A one-sided disclaimer will not suffice to limit liability. In
consequence, where liability can only be based on tort exclusion clauses are not capable
of limiting liability. Where, however, a contractual relationship exists there the same
rules apply with respect to tortious liability as have been stated in the preceding
paragraph with respect to contractual liability. Tort liability can only be limited if
individually so agreed upon and if the agreement must be construed in this sense. Any
exclusion by way of standard contract terms is on the other hand invalid.
1129
See thereto supra a ii.
1130
Sec. 11(1) Limitation Act 1980; see thereto supra a hh.
1131
See thereto supra a hh.
310
The burden of proof has been already addressed. The patient has the burden to prove a
breach of duty, causation and damage. The maxim res ipsa loquitur may ease this
burden but there are no specific subrules for specific situations where the maxim can be
invoked.
As yet there are no specific institutions like arbitration panels or mediation boards
although many medical malpractice cases are settled in practice.1132
e) Case study
Bolitho v. City and Hackney H.A.1133

The plaintiff was the mother of the two year old Patrick Bolitho who died after he
sustained a cardiac arrest and in consequence catastrophic brain damage when being in
the hospital of the defendant where he had been brought because of great difficulties to
breathe. The brain damage occurred because it lasted nine or ten minutes after the arrest
until the revival team began to revive Patrick. The question was whether the responsible
doctors were negligent because they had not anticipated the arrest warned by the prior
incidents to Patrick’s respiratory system and had not intubated the child.
The House of Lords accepted the decision of the lower courts which had dismissed the
claim. The expert evidence was split on whether an intubation with its considerable
risks was indicated before the final cardiac arrest. Since it is not for the judge to choose
between two or more reasonable and logical views of respected medical experts it was
correct to find that the doctors were not negligent.
1132
Compare H. Rogers, in: B. Koch/H. Koziol (eds.), 239.
1133
[1997] 3 W.L.R. 1151.
311
Medical malpractice United States

Literature: American Jurisprudence, vol. 61, 2nd ed. 2002 (Suppl. 2003) Physicians, Surgeons, etc. (cited
AmJur); J.D Calamari/J.M. Perillo, The Law of Contracts, 4th ed. 1998; P.M. Danzon, Medical
Malpractice, 1985; W. Freedman, Malpractice Liability in the Helping and Healing Professions, 1995;
D.M. Harney, Medical Malpractice, 3rd ed. 1993 (Suppl. 1997); V.R. Johnson/A. Gunn, Studies in
American Tort Law, 2nd ed. 1999; S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice,
vol. 3, 2nd ed. 1992 (Suppl. 2003); W.L. Prosser/W.P. Keeton on Torts, 5th ed. 1984; G.T. Schwartz,
Causation under US Law, in: J. Spier (ed.), Unification of Tort Law: Causation, 2000, 123; G.T.
Schwartz, Damages under US Law, in: U. Magnus (ed.), Unification of Tort Law: Damages, 2001, 175;
G.T. Schwartz, Liability for Damage Caused by Others under US Law, in: J. Spier (ed.), Unification of
Tort Law: Liability for Damage caused by Others, 2003, 279; I.J. Sloan, Professional Malpractice, 1992;
S.M. Speiser/Ch.F. Krause/A.W. Gans, The American Law of Torts, vol. 4, 2003; S. Williston on
Contracts, vol. 29, 4th ed. by R.A. Lord, 2002.
In the 70ies and 80ies of the last century US-America faced what had been called a
health care crisis. A growing number of alleged and real medical malpractice cases, an
increased claim consciousness and also the rapid evolution of medical science to its
outer limits resulted in many judgments establishing and extending civil liability of the
healing profession.1134 This in turn led to a significant rise of insurance premiums for
certain medical professions sometimes rendering the profession entirely unattractive.
For this reason some health care providers threatened to withdraw their services from
the public at all. Several US states reacted to that development by enacting Medical
Malpractice Acts. These Acts typically try to limit the general availability of court
actions in medical malpractice cases by providing for some specific procedures
(arbitration, pre-trial panel system or the like) and try to limit the recoverability of the
loss by introducing maximum amounts (‘caps’) or reducing the period of limitation or
the like.1135 These statutes apply irrespective whether liabliity is based on contract or
tort.
However, besides those and few other enactments relevant for medical malpractice
cases the general rules for civil liability govern this field which originate from the
Common Law and have been continuously developed by the courts. Therefore, despite
the many differences between the statutory regulations of the different US states one
can nonetheless, and in fact does, speak of and identify the (US) American Law of
Medical Malpractice.1136 But the health care crisis or the several crises in this particular
1134
See thereon P.M. Danzon, Medical Malpractice 58 ss., 89 ss., 97 ss.
1135
A short survey is provided by AmJur § 345 ss.
1136
Compare in particular S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice.
313
Ulrich Magnus
field have aroused a huge balk of literature1137 and to some extent a separate branch of
law.
As mentioned in the general survey on the US law cases of bodily injury are regularly
treated as tort cases even if the injury was caused in the course of rendering contractual
services.
aa) The parties
The parties to a contract of rendering medical services are generally the doctor who is
running a practice or the hospital on the one hand and the patient on the other. A
physician-patient-relationship usually comes into existence when the physician or the
hospital, as the case may be, accepts the patient for medical treatment. However, the
mere agreement that the doctor will see the patient is normally not sufficient to establish
the physician-patient-relationship.1138 The same has been held to be true where the
doctor merely examines the patient but does not treat him or her as may be the case
where physicians conduct examinations of persons for employers, insurers or the like.1139
But if the doctor – even an employed one – is on call in an emergency room of a
hospital and cares for the medical treatment of a patient then a physician-patient-
relationship is founded.
The physician-patient-relationship is a consensual one.1140 It is based on the free consent
both of the doctor and the patient. Normally the relationship will be a contract though
this is not always and necessarily the case.1141 The physician-patient-relationship with its
implied duties exists when medical treatment based on free consent of both parties is
rendered even if no formally valid contract has been concluded. But the courts apply a
presumption that a contract has been concluded when a physician-patient-relationship
has been established.1142
i) By-standers and others
1137
See, as few examples: American Jurisprudence, vol. 61, Physicians, Surgeons, etc.; P.M. Danzon,
Medical Malpractice; W. Freedman, Malpractice Liability in the Helping and Healing Professions;
S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice; I.J. Sloan, Professional
Malpractice.
1138
See AmJur § 130.
1139
See, e.g., Tumblin v. Ball-Incon Glass Packaging Corp., 324 S.C. 359, 478 S.E. 2d 81 (Ct. App.
1996). But see also contra Lambley v. Kameny, 43 Mass. App. Ct. 277, 682 N.E. 2d 907 (1997).
1140
S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, § 2:4; AmJur § 130.
1141
See AmJur, ibid.
1142
AmJur § 130.
314
In principle the direct parties of the contract can avail of the contractual protection. But
for instance also an unborn child has been accorded the status of a patient of his or her
mother’s physician so that after birth that child could rely on the duties, which the
physician-patient-relationship imposes on the doctor.1143
On the contrary, in a case where a husband claimed damages for mental anguish
because his wife had delivered a stillborn fetus because of some medical malpractice his
claim was rejected. It was held that there was neither a contract nor a physician-patient-
relationship between him and the responsible doctor.1144
ii) Vicarious liability
A hospital or a physician who employs other persons (doctors, nurses, technicians etc.)
is liable for negligent acts or omissions of that staff committed in the scope of the
employment when the patient suffers damage from that conduct.1145 This result derives
from principles of agency or of master and servant (‘respondeat superior’).1146 A person
who or an institution which, employs others is responsible when they negligently cause
damage to third persons. The employer cannot avoid liability by proving own diligence
in selecting or controlling the employee.
In personal injury cases any physical injury attracts liability if the other prerequitisites
of liability are met. In certain cases mere psychical damage suffices to make the treating
medical staff person liable for instance where a patient is incorrectly informed that she
delivered a stillborn fetus or like cases.
A particular issue is the so-called loss of a chance. Rather often the negligence of the
physician or other health care service provider substantially lessens the patient’s
prospects to fully recover or to recover at all, for instance if cancer is not timely
diagnosed. However, due to the hypothetical effect a timely diagnose would have had it
normally remains rather uncertain how far the patient’s pospects have been impaired. In
cases of this type it has been frequently held that also the loss of the chance is a
compensable damage which can be assessed in terms of money.1147
1143
See Moreta v. New York City Health and Hospitals Corp., 238 A.D. 2d 149, 655 N.Y. 2d 517 (1st
Dep’t. 1997).
1144
Krishnan v. Sepulveda, 916 S.W. 2d 478 (Tex. 1995).
1145
See AmJur § 264 and § 277 with many references.
1146
See AmJur § 264 and § 277 with references. See also S.E. Pergalis/H.F. Wachsman, American Law of
Medical Malpractice, vol. I, § 3:14.
1147
See thereon S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, § 5:1.
315
Ulrich Magnus
cc) Violation of (contractual) duty of care
When a contract between a doctor and a patient has been concluded the duties between
the parties depend in the first line on the specific terms of the contract. If the doctor
promises to achieve a certain result he or she is then in breach of the contract if the
result is not achieved. The physician may then be liable in damages for any ensuing
damage unless he or she can invoke some defence like contributory negligence of the
patient etc.
But every contract for the rendition of medical services also implies a physician-patient-
relationship which imposes a far-reaching duty of care on the physician. This duty does
not arise from contract but “has its foundations in public considerations which are
inseparable from the nature and exercise of (the physicians) calling; it is predicated by
the law on the relation which exists between physician and patient, which is the result of
a consensual transaction, and not necessarily one of contract.”1148
The core of the physician’s duty is the obligation to act with such skill and care as
ordinary and responsible members of the specific medical profession would exercise in
the same situation having also regard to the recognised standard of the medical
profession in the specific branch.1149 Liability can only arise when this standard of care
has been violated.
The medical staff is under a general duty to treat the patient in a professional way that is
accepted as ordinary treatment according to the standards developed in the specific
medical field. The standard therefore varies according to the particular branch of
medicine. Each member of the specific profession (surgeon, specialist, general
physician) must come up to the required standard of skill and diligence.
The physician is obliged to use his or her best efforts though this does not mean that the
highest possible standard must be reached. A mere error of judgment without neglect of
the ordinary care does not render a physician liable.1150
1148
AmJur § 186.
1149
See thereon S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, § 3:2 with
numerous references.
1150
AmJur § 188. S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, § 3:5
316
The medical staff persons are also under the duty to supervise and control any technical
equipment they use. But also this duty is based on fault and is not an absolute one.
Arguments to apply strict liability in these cases – like in product liability – have been
regularly rejected by the courts.1151
iv) Duty to examine and inform the patient properly and fully
The physician who has accepted a patient for treatment has the duty to examine him or
her carefully (with the necessary laboratory tests etc.) and also to take the proper
anamnesis.1152 In appropriate cases where the physician lacks the required special
knowledge he or she is under the duty to refer the patient to the respective specialist.1153
The physician must also fully inform the patient of his or her state of health or illness
and in particular of the specific dangers and risks of a treatment. The information shall
enable the (conscious and mature) patient to make an own and reasonably decided
choice whether or not to accept a proposed medical treatment.1154 Neglect of this duty
does attract the physician’s liability if a reasonable and fully informed patient would not
have consented to the – finally detrimental – treatment.
v) Duty not to abandon the treatment untimely
A particular duty obliges physicians and other health care providers not to abandon the
patient without good cause before the medical treatment has been successfully finished.
Especially a physician must not leave the patient unattended or even stop treatment in a
critical state where the patient is not able to procure substitute care.1155
vi) Duty to document?
Seemingly, US law on medical malpractice does not provide for a specific duty of the
physician to document all steps of medical treatment as does for instance German law.
But indirectly also such obligation may arise because the physician has to fully inform
the patient. In order to prove that that obligation – and also the other duties, which the
physician is obliged to perform – has been performed it is clearly advisable to document
such information and the steps on which such information was given. Nevertheless an
independant duty to document has thus far not been recognised.1156
1151
See, e.g., Dobisky v. Rand, 248 A.D. 2d 903, 670 N.Y. S. 2d 606 (3d Dept. 1998).
1152
S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, § 3:6 ss.
1153
S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, § 3:10.
1154
See AmJur § 211 with further references.
1155
Compare AmJur § 218 ss.
1156
See S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, § 3 and the list of
duties recorded there.
317
Ulrich Magnus
Liability of medical staff persons is based on fault. Even those medical specialist who
have to use, and to rely to a large extent on, technical machinery like x-ray and the like
cannot be made liable for defects of their machinery unless they are negligent for
instance in the ordinary technical care for the machinery.1157 It is therefore often said that
the doctor is not the patient’s insurer.1158
The doctor, nurse etc. must come up to the average standard in the respective field of
medicine. Any violation of that standard constitutes fault. A physician (nurse etc.) is,
however, not obliged to meet the highest possible standard of skill and care. If he or she
shows the skill and diligence of an average practioner of the medical specialty in
question no liability will arise.1159
Today, the average standard is a nationwide one.1160 Peculiar local forms of treatment,
which are not in line with widely recognised medical practice normally do not relieve a
practioner from fault.1161
As a rule the claimant must prove the physician’s fault. A doctor’s fault is generally not
presumed. Even if a medical treatment is not successful this fact alone does not give rise
to a presumption of fault since even best medical efforts may prove useless.1162
But the situation is different when it is established that the physician did not use the
ordinary care that could be expected of him or her and when an injury or negative result
of a type occurred that normally does not happen in the absence of negligence. Then the
doctrine of res ipsa loquitur may help otherwise unsuccessful claimants because it is
then rebuttably presumed that the fault has caused the injury of the patient.1163 The
doctrine has been applied for instance, in a case where a normal and healthy patient died
as a result of a tonsillectomy.1164
1157
See AmJur § 207.
1158
See, e.g., Ward v. U.S., 838 F. 2d 182, 24 Fed. R. Evid. Serv. 898 (6th Cir. 1988).
1159
See, for instance, Fusilier v. Dauterive, 764 So. 2d 74 (La. 2000).
1160
See thereon S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, § 3:4.
1161
See the extensive discussion by S.E. Pergalis/H.F. Wachsman, American Law of Medical
Malpractice, vol. I, § 3:4.
1162
See, e.g., Nold ex rel. Nold v. Binyon, 31 P. 3d 274 (Kan. 2001); AmJur § 191.
1163
Compare AmJur § 310.
1164
Cavero v. Franklin General Benevolent Society, 36 Cal. 2d 301, 223 P. 2d 471 (1950). For further
examples see AmJur § 311.
318
Fault is established when the average standard of required care is violated. A physician
is not obliged to meet the highest possible standard of skill and care. If he or she shows
the skill and diligence of an average practioner of the medical specialty in question no
liability will arise.1165
A doctor is, however, not negligent if he or she chooses one of several possible and
likewise recognized ways of treatment.1166
Exclusion clauses, which try to exclude in advance doctors or hospitals liability for
medical malpractice have been regarded as invalid.1167
ee) Causation
The general rules on causation apply.1168 The patient’s injury or any deterioration in his
or her condition must result from the treatment through the doctor. The test of causation
is whether the medical treatment was the proximate cause of the patient’s injury.1169
Similar to English Common Law a two-step operation has to be executed: First it must
be established that without the conduct of the physician or other health care provider the
injury would not have occurred. In addition, it must be established that the conduct must
have been the proximate cause of the injury.1170 The concept of proximate cause requires
that it is shown that it was more likely than not that a specific damage resulted from a
specific conducted. Certainty or even absolute certainty is not necessary.1171
However, it is not necessary that the physician’s conduct was the sole cause of the
patient’s injury. Where for instance in an action brought by the survivors of a deceased
patient it is shown that the physician had transsected an artery and a vein during an
attempted insertion of a catheter causation of the patient’s death 14 months later is
1165
See, for instance, Fusilier v. Dauterive, 764 So. 2d 74 (La. 2000).
1166
See AmJur § 185.
1167
Examples are Kozan v. Comstock, 270 F. 2d 839, 80 A.L.R. 2d 310 (5th Cir. 1959); Meiman v.
Rehabilitation Center, Inc., 444 S.W. 2d 78 (Ky. 1969).
1168
1169
See on proximate cause in medical malpractice cases D.M. Harney, Medical Malpractice, § 22.1 ss.
1170
See the discussion with references by S.E. Pergalis/H.F. Wachsman, American Law of Medical
Malpractice, vol. I, § 5:1.
1171
319
Ulrich Magnus
established even if the patient suffered also from cancer which might have been a
concurrent cause of the death.1172
On the other hand, causation has been denied in a case where a patient after her doctor
had incorrectly diagnosed breast cancer and a short life expectancy had sold her home
and given away her personal property. The resulting economic loss was held to have
been unforseeable and therefore irrecoverable.1173
Particular problems of causation arise in case of the loss of a chance, as for instance in
the case of negligently late diagnose of cancer. If it is more likely than not that a timely
diagnose – and treatment – would have improved the patient’s life expectancy then
causation is established.1174
ii) Omissions
If the patient’s claim is based on some omission of the physician then it must be
reasonably certain that the patient’s injury would have been prevented when the
required measure had been applied. The causative effect of an omission has been
asserted for instance in a case where a neurologist had omitted to conduct an annual test
whether the patient’s brain tumor had recurred. Though the omission had ‘only’ the
effect that the recurring tumor was discovered and treated later than in case of timely
examination the physician’s omission was held to be the proximate cause of the
patient’s injury, namely the a diagnosis in time would have given the patient the chance
that his physical and mental health could have been substantially improved and his life
expectancy could have been extended despite the recurring tumor.1175
If the claim is based on the allegation that the patient had not been fully informed and
therefore had not validly consented to the medical treatment then causation is only
established if the patient can show that in case of correct information a reasonable
person would not have consented.1176
Causation is not presumed but must be normally proved by the claimant. But as already
mentioned above1177 the principle of res ipsa loquitur shifts the burden of proof of
causation in certain cases on the physician. Where the latter’s negligence is established
1172
See Bird v. Saenz, 86 Cal. App. 4th 167, 103 Cal. Rptr. 2d 131 (2d Dist. 2001).
1173
Wyatt v. Longoria, 33 S.W. 3d 26 (Tex. App. El Paso 2000).
1174
See e.g., Roberts v. Ohio Permanente Medical Group, 76 Ohio St. 3d 483, 668 N.E. 2d 480 (1996);
Billman v. Saylor, 2000 PA. Super. 320, 761 A. 2d 1208 (Pa. Super. Ct. 2000).
1175
Betscher v. University of Cincinnati Hospital, 115 Ohio Misc. 2d 11, 760 N.E. 2d 481 (Ct. Cl. 2000).
1176
See AmJur § 183 with numerous references.
1177
See above under a) dd) ii).
320
and the injury of the patient is such as is the typical consequence of such negligence
then causation is presumed and in the absence of other reasonable explanations for the
injury established.1178
Where a physician’s or other health care provider’s negligence has caused damage to
the patient the latter can in principle claim full compensation of all of his or her
pecuniary and non-pecuniary damage. But as already mentioned several US states, for
instance California, have enacted limiting provisions. These provisions regularly
prescribe certain maximum amounts concerning damages for non-pecuniary loss – in
California for instance $ 250 000. Partly do they also exclude, or limit the amount of,
punitive damages and/or place limits on attorneys’ fees in medical malpractice cases.1179
The amount of damages is generally fixed by a jury after instruction on the law given by
the trial judge. The jury awards can only be challenged if they are “excessive” or
grossly inadequate.1180 In general the awards tend to be rather high as compared with
European standards.
In medical malpractice cases and where state legislation does not prescribe otherwise
also punitive damages can be claimed when the physician or other health care service
provider acted with gross negligence or even with intent or where the deviation from the
recognised standard of care was extreme, for example, when a nurse disconnects the
oxygen supply while moving the patient from one room to another so that the patient
dies because of insufficient oxygen supply.1181 Also punitive damages verdicts can only
be challenged because of excessiveness unless a statutory cap applies which has been
disregarded. In a recent judgment the US Supreme Court has, however, ruled that for
constitutional reasons the amounts of punitive damages in an action are no longer
allowed to exceed more than ten times the amounts awarded as compensatory damages
for the actual loss in the same case.1182
i) Damage to health
In case of death of the patient the various wrongful death statutes of the single US states
provide for rights of the surviving spouse and dependants.
1178
See further D.M. Harney, Medical Malpractice, § 23.1 ss.
1179
See S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. III, § 22:5.
1180
See thereon AmJur § 343.
1181
Manning v. Twin Falls Clinic & Hospital, Inc., 122 Idaho 47, 830 P. 2d 1185 (1992).
1182
Romo v. Ford.
321
Ulrich Magnus
In case of other bodily injury the patient him- or herself is entitled to compensation of
all pecuniary damage that is proximately caused by the negligence of the physician or
other health care provider.
i) Pain and suffering
The patient is also entitled to money compensation for any pains connected with the
negligent treatment that caused the injury. But if no specific pain and suffering is
connected with the failure of the doctor no non-pecuniary damages are due. If for
example a physician negligently fails to diagnose a disease that would cause no pains
(as for instance some types of cancer) and if the failure does not reduce the patient’s life
expectancy then no damages for pain and suffering are owed.1183
Mental distress of by-standers is generally not recoverable unless there is a physician-
patient-relationship also to the by-stander as is the case with the mother whose child is
negligently injured during birth.1184
Sometimes the US practice to compensate for pain and suffering appears to be rather
inventive. For instance, a Louisiana Court awarded $ 5.000 for deprivation of self-
determination, insult to personal integrity, invasion of privacy, anxiety, worry, and
mental distress in a case where the plaintiff alleged lack of informed consent because
the physician contrary to the express wish of the plaintiff had failed to use mesh to close
a wound although the plaintiff had not suffered any physical or pecuniary damage as a
consequence of this lack of consent.1185
ii) Measure of damages
The normal measure of damages for pecuniary losses is the reasonable costs of healing
like necessary expenses for medical care, medicine, and rehabilitation. Any loss of
future earnings has to be assessed according to the circumstances of the case, in
particular with regard to the degree of impairment and the probable life expectancy of
the patient.
In case of loss of a chance (e.g. delayed diagnosis of a cancer) the measure of damages
is the percentage of the chance – for instance 50 % - so that then also only 50 % of the
amount of full damages otherwise due are awarded.1186
1183
Gallagher v. Marguglio, 429 Pa. Super. 451, 632 A. 2d. 1309 (1993).
1184
See Burgess v. Superior Court, 2 Cal. 4th 1064, 9 Cal. Rptr. 2d 615, 831 P. 2d 1197 (1992).
1185
See Lugenbuhl v. Dowling, 701 So. 2s. 447 (La. 1997).
1186
See e.g., Roberts v. Ohio Permanente Medical Group, 76 Ohio St. 3d 483, 668 N.E. 2d 480 (1996).
322
Most US states follow today the concept of comparative fault, which allows an
apportionment of the damage according to the facts of the case while the former
contributory negligence rule excluded a claim for damages at all.
Patients are generally under a ‘duty’ to exercise due care with respect to the prescribed
treatment of their injury or illness and in particular to follow the advice given by the
physician.1187 But it is normally no contributory negligence if a patient trusts a wrong
advice of the physician.1188
hh) Limitation
The limitation periods vary from state to state. They also vary depending on whether the
action is brought in contract or in tort. In contract they tend to be longer than in tort. In
wrongful death cases further specific periods apply. Therefore it is generally necessary
first to decide which statutory provision applies. The statutory limitation period for
medical malpractice cases is often two years, the one for actions for breach of contract
often four or five years. However, where state legislation provides for specific limitation
periods for medical malpractice actions as most states do1189 then those limitation
periods apply irrespective of the procedural dressing of the action.1190
The period of limitation regularly starts running from the date of the injury or from the
date when the patient discovered the injury or could have discovered it whichever last
occurs.1191
Almost everything that has been said on the contractual side of medical malpractice
applies likewise to tort law. The reason for this is the fact that the physician-patient-
relationship is the central element for both kinds of liability. The duties arising from this
relationship are imposed by law when the sufficient factual contact between physician
and patient has been estabished. Tortious as well as contractual liability for medical
malpractice is therefore regularly based on a negligent breach of a duty arising from the
physician-patient-relationship. Within this relationship certain typical duties are
recognised and imposed on the physician irrespective of any contract.
Outside the physician-patient-relationship tortious liability can also be based on the
general tort of negligence. But a physician who does not stand in a physician-patient-
1187
See AmJur § 280.
1188
AmJur, ibid.
1189
A full account of the state legislation on limitation periods for medical malpractice cases is given by
S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. II, § 13:8.
1190
See AmJur § 295.
1191
See for further details AmJur § 297 ss.
323
Ulrich Magnus
relationship to the patient has in principle no duty to care for the latter. Therefore such
liability will rarely arise in connection with medical malpractice cases.
aa) The parties
Concerning the side of the injured patient like in contract in principle only those patients
can claim compensation in tort with whom the necessary physician-patient-relationship
exists. But in case of death of the patient specific statutory provisions entitle also few
indirectly affected persons, namely spouses and dependants to claim their damage.
Other by-standers who only notice the injury are not protected.
Concerning the side of the physician (or other health care service provider) liability only
arises if the physician has accepted the patient for treatment and thereby founded the
physician-patient-relationship.1192
bb) Vicarious liability
Concerning vicarious liability in tort the same rules apply as in contract.1193 A physician
or a hospital who employs persons is liable for damage which those employees have
negligently caused within the scope of their employment. The employer cannot escape
liability by proof of careful selection or control of the employee. On the contrary, a
physician or hospital may be also liable for employing unqualified persons or for failure
of their proper control.
cc) Bodily injury to claimant
Generally, physical injury is the prerequisite of tort liability for medical malpractice.
But in few situations mere psychic impairment can suffice where for instance a mother
shortly after birth is incorrectly informed that she delivered a stillborn fetus or
handicapped child1194 or where a doctor did not inform the patient that other methods
were used than expressly wished by the patient though no bodily damage resulted
therefrom.1195
dd) Wrongful conduct
As in contract also tort liability for medical malpractice is incurred when the physician
has negligently violated one of the duties arising under the physician-patient-
1192
See above a) aa).
1193
Compare S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. I, §§ 3:14 and
6:18.
1194
See e.g., Rivera v. Wyckoff Heights Hospital, 184 A.D. 558, 584 N.Y.S. 2d 648 (2d Dept. 1992).
1195
See Lugenbuhl v. Dowling, 701 So. 2s. 447 (La. 1997).
324
relationship. These duties are the same in contract and tort except where further specific
duties have been agreed upon by the parties of the physician-patient-relationship. The
core duty is the physician’s obligation to treat the patient with such skill and care as
would be ordinarily exercised by a reasonable and careful average practitioner of the
same profession in similar circumstances.1196
ee) Causation
With respect to causation the same principles as in contract apply also in tort. Only
where specific contractual duties have been agreed upon the question may arise whether
or not a certain consequence of the physician’s conduct was still within the
contemplation of the parties.
ff) Fault
Tort liability for medical malpractice presupposes fault. Like in contract it is no strict
liability but based on personal responsibility. But – again as in contract – an objective
standard of fault applies. The physician or other health care service provider must have
neglected the average standard of ordinary care the exercise of which is to be expected
of every person providing professional services in the specific health care field.
Personal shortcomings do not excuse any failure to observe the required standard of
care.
gg) Damage and compensation
Again, the same rules and standards as in contract apply to damage and compensation in
tort.1197
hh) Contributory negligence
Likewise as in contract contributory negligence is recognized in tort and can either

exclude a claim for damages or also lead to a mere reduction of the amount of damages
where the respective US state follows the doctrine of comparative negligence.1198
ii) Limitation
As already mentioned the limitation periods are prescribed by the legislation of the
single US states. In tort the limitation periods tend to be shorter than in contract. Where
1196
See above under a) cc).
1197
1198
See above under a) gg).
325
Ulrich Magnus
state legislation provides for specific limitation periods for medical malpractice actions
as some states do these periods apply irrespective of the procedural dressing of the
action.1199
It has been held that the liability of physicians and other health care service providers
can neither be excluded nor limited by exclusion clauses.1200 But on the other hand
covenants not to sue or releases have been regarded as valid.1201
It has to be stressed again that damages awards are made by juries in the US and that the
awards generally include contingency fees for the attorney. This explains to some extent
the generally higher level of amounts as compared to European standards.
aa) Burden of proof
The patient generally bears the burden to prove the own damage, the physician’s
negligence and the causal link between both. It is even for the claimant to prove the
required standard of care. But in certain situations the res ipsa loquitur doctrine is
available, namely where a certain result typically occurs when negligence is at stake.1202
Then negligence can be inferred from the occurrence. Equally, where negligence is
established and a certain result has occurred that is usual and typical in caase of
negligence then causation can be inferred from it.
A number of US states has instituted by statute either pretrial review panels to hear
medical malpractice cases or has introduced arbitration procedures for such cases. The
panels do normally not deliver a judgment. The panel procedure is intended to
encourage the settlement of medical malpractice cases. Evidence given before the panel
can be used in trial.1203
1199
See also above under a) hh).
1200
See Kozan v. Comstock, 270 F. 2d 839, 80 A.L.R. 2d 310 (5th Cir. 1959); Meiman v. Rehabilitation
Center, Inc., 444 S.W. 2d 78 (Ky. 1969); also AmJur § 133.
1201
Compare e.g., Colton v. New York Hospital, 98 Misc. 2d 957, 414 N.Y. S. 2d 866 (Sup. 1979).
1202
See already above under a) dd) ii) and a) ee) iii).
1203
See AmJur § 346; S.E. Pergalis/H.F. Wachsman, American Law of Medical Malpractice, vol. III,
§ 22:4.
326
On the other hand, where cases are submitted to arbitration the arbitration tribunal
delivers a binding award, which can only be challenged on specific reasons. However,
arbitration requires that both parties have agreed on it. Arbitration provisions encounter
rather often in admission forms of hospitals or like documents. When the patient signs
the form he or she is normally bound also by the specific arbitration provision, at least if
the provision follows the statutory directions on arbitration or if the patient is granted,
and informed of, a right of rescission within 60 days.1204
e) Case study
Fusilier v. Dauterive.1205
In this case the plaintiff Mary Fusilier had to undergo a laparoscopic cholecystectomy
because she had a gallstone in her gallbladder. Her surgeon was the defendant Dr.
Edward Dauterive. After the gall-operation had been finished he discovered that he had
perforated the plaintiff’s aorta, duodenum and mesentery. In his attempt to repair the
perforations he punctured her intestine and her splenic capsule. The lower courts denied
the defendant’s negligence relying on expert evidence of several physicians.
The Supreme Court of Louisiana reversed the judgment and remanded the case. The
court found that a physician “is not required to exercise the highest degree of care
possible; rather, his duty is to exercise the degree of skill ordinarily employed by his
professional peers under similar circumstances.”1206 But in this case, no plausible
explanation of the perforations had been given and therefore it was an unfounded
assumption of the lower courts that the perforations were only “unfortunate
complications”.1207
1204
See AmJur § 347.
1205
764 So. 2d 74 (La. 2000).
1206
Ibid. 79.
1207
Ibid. 81.
327
Liability for services France
IV. Liability for services related to tourism
1. Description
Tourism is closely linked to sport and leisure activities and is no longer defined by the
classical three elements of travel, hotel accommodation and food supply. Sport and
leisure activities are gaining ground and are becoming a fourth element in tourism, be it
in the form of package tours or individually organised holidays. Nevertheless, one
difference remains. Leisure services that provide the facilities for those activities usually
operate in local/regional or national circumstances. Therefore the question of who is
responsible towards whom is usually decided within the national legal order. The
situation is different for services related to tourism. The tourist changes his or her social
and cultural environment. Therefore it seems fair to relate the liability issue to the
varying spheres of influence.
The approach chosen here distinguishes between private spheres of risks, climate risks
and environmental problems, risks and surrounding fields and finally force majeure
issues. For each and every aspect it will have to be determined whether any disturbance
or defect has to be understood as a realisation of the tourist’s normal life risk or whether
the tour operator can be held responsible because he is in a position to protect the tourist
from an interference into his private sphere of risks. Once it is clear that the tour
operator is liable in some way or another, the kind of damage that must be compensated
will have to be determined. It will have to be shown that there is no clear-cut borderline
between defects justifying price reduction, compensation claims for wasted holidays
(vertane Urlaubszeit) and compensation for pain and suffering. Therefore it makes sense
to start from a broad perspective in order to find out to what degree the investigated
legal orders provide compensation even in cases in which the damages might be
restricted to pain and suffering alone.
• Private sphere of risks
traffic accidents (beyond transportation from the consumer’s home to the place
where he or she intends to spend his or her holidays),
fatal accidents or injuries (sports accidents resulting in injuries, tripping or slipping
and other sources of injuries, animal attacks)
sickness and illness, more particularly conditions resulting from mal-nutrition or
from spoilt food.
• Climate risks and environmental problems
weather situation and environmental circumstances (bad weather conditions, strong
wind, lack of snow),
329
Hans-W. Micklitz
information requirements on weather related decisions.

• Risks in surrounding fields
conditions of nature (no fish in the sea, jellyfish, noisy waterfalls, dying forests),
vermin and other animals at the holiday place.
• Public utilities
public transport,
beach (quality of the sand and water),
streets and paths (trespassing of rivers, travelling outside publicly run streets in open
areas),
behaviour of other tourists and disturbances by third parties (behaviour of other
guests, children and handicapped people),
criminal action (theft, degree to which hotel is under custody).
• Force majeure
natural disasters, mass infections, wars and danger of war, political insurrections,
airline, airport personal or air traffic controller strikes)
2. French Law
Literature: J. Calais-Auloy, Droit de la Consommation, 2000; A. Chemel, Jurisclasseur Droit Civil, Art.
1382, Fasc. 312-2, 77; K. P. Rodegra, Pauschalreisen – Allgemeines Lebensrisiko und hinzunehmende
Unannehmlichkeiten, MDR 2002, 919; K. Tonner, Basic legal problems arising from Directive
90/314/EEC on package travel, package holidays and package tours, 1992, 7.
French travel contract law is partly shaped by judge made law. According to the Cour
the agences de voyage have mostly had only an obligation de moyen (depending on the
type of contract concluded with the customer), but the liability became more and more
strict through duties of care, so that it became de facto an obligation de résultat,
although the Cour still often insisted on using the term obligation de moyen. In 1970 the
duties of the tour operator were said to be: “dápporter toute diligence pour assurer
léxécution du contrat, et, surtout en pays étranger, de porter assistance à son client dans
toute la mesure de ses moyens”. In a 1978 case a far reaching duty to inform was
introduced, which reduced the problems resulting from the failure of an obligation de
résultat. In July 1992, however, a law was passed transposing the European Directive
concerning travel packages into French national law ending the debate on obligation de
moyen and obligation de résultat for cases where travel agencies were involved. This
law confirmed the judicial development and upheld an obligation de résultat for all
agences de voyage, no matter whether it would carry out the contractual obligations
330
personally or by third parties it hired.1208 The liability therefore now is of legal nature.
The agency being liable for every defective performance of what has been contractually
agreed upon, the scope of the liability now mainly depends on the content of the
contract.1209 For maritime cruises, liability has been regulated by statute laws since 1966.
As said above, the travel agencies are now generally liable according to the provisions
of the law of 1992. However, these provisions do not apply when the agency only is
charged with the delivery of a ticket.1210 Here, in theory, the old distinction between
obligation de moyens and obligation de résultat, plays again. The delivery of a ticket
has always been qualified as obligation de résultat meaning that the agency has to
procure a valid ticket allowing to take off. Thus, a travel agency is held liable in case of
over-booking;1211 this is surely enough true as well when the agency sold a package
travel.1212 In 1978, the Cour held a travel agent liable whose duty it was to procure air
tickets from Réunion to India via Mauritius. The clients were not allowed to board the
aircraft at Mauritius. The decisive part of the reasons reads: «… lágence de voyage…
contracte lóbligation dássurer léfficacité du titre ainsi délivré». There was no need for
the clients to prove that the agent had taken all necessary steps; the fact that they were
not allowed to board the aircraft was sufficient.
aa) The parties
The parties concerned with a travel agent´s liability are, of course, the travel agency
itself and the consumer.
Those chosen in order to help the travel agency perform, may also be held directly
liable. However, an action against them often is difficult, due to the international
context and often proves to be unsuccessful1213. It is better to rely on the travel agency´s
liability: The travel agency also is responsible for the actions of those it chooses in order
to be able to render the service – thus the travel agency´s local performing partners. The
travel agency is held liable for its choice of hotelier, restaurateur, guides, short for the
organisation of the travel.
1208
Cour dÁppel Paris, 12 juin 1997: agency held responsible for the diseases the consumer contracted
due to non drinkable water offered by the performing local company; Cour de Cassation, Civ. 1iere,
16 février 1999: agency held responsible for the personal injury the consumer suffered when slipping
on a wet hotel floor.
1209
J. Calais-Auloy, 271; Cour dÁppel Paris, 22.5.1998; D. 1999, J.265.
1210
Cour dÁppel Paris, 10.6.1997, D. 1998. J.252.
1211
J. Calais-Auloy, 271.
1212
Tribunal dÍnstance Carcassonne, 3 août 1998.
1213
J. Calais- Auloy, 271.
331
Hans-W. Micklitz
Apart from the injured party herself, are entitled to compensation all those the now dead
party was legally obliged to pay maintenance to, thus the wife and children1214 but not
the sister, even if in reality the victim supported her.1215 Those entitled to compensation
can claim it by action based on contract law but can also act on the basis of tort law if
this proves to be more favourable for their cause.1216 However, this does not amount to a
cumul des responsabilités: The beneficiaries have to pick one type of action and then
must stick to it. Those not entitled have to rely on actions based on tort law where the
burden of proof of a fault is at their charge. This concept only exists in travel law and
has never been transferred to other legal fields. Plus, it is legally limited to the benefit of
the providers of the transport, in the field of air and sea transportation: The Loi du 2
mars 1957 and Loi du 18 juin 1966 allow the provider of the transport to invoke all
limitations possible, either of legal or contractual origin, no matter who is claiming
compensation and on what basis. As far as traffic accidents are concerned, the same
rules apply so that all limitations are taken into considerations when deliberating on
compensation for third parties.
The passenger in irregular situation (e.g. the passenger is going further than what his
ticket is saying1217) cannot refer to the obligation de sécurité. This passenger can only
rely on tort liability within Art. 1384 cciv.
This kind of damage is compensated under French travel law. There are numerous
examples in jurisprudence.1218
As said before, since the law of 1992, the travel agencies are liable for all discrepancy
between the service promised and the one rendered. All depends on the drafting of the
contract.
However, the scope of the contractual duties may differ depending on the type of
contract the parties concluded. There are two different types of contract concluded by
travel agencies: They can simply organise a trip, thus simply putting together the
provider of the service and the consumer. This is a mandate. In such case, liability is
1214
Cour de Cassation, Civ. 6 décembre 1932: Chemin de fer de Paris à Orléans c. dame veuve Noblet.
1215
Cour de Cassation, Civ. 24 mai 1933: Demoiselle Falduti c. Cheminde Fer de Paris-Lyon-
Méditerranée.
1216
Cour de Cassation, Civ. 2ième 23 janvier 1959: Cie des Messageries maritimes c. Cons. Le Roterf.
1217
Cour de Cassation, Civ. 1ere 12 décembre 1978, TGI Paris 5 mai 1982
1218
Cour de Cassation, Civ. 1ière D. 1983, 481; Civ. 1ière D. 1991, 56; Civ. 1ière 5 janvier 1961; Civ. 1ière 29
janvier 1991.
332
also determined by Art. 1992 cciv, applicable to mandates and imposing a general duty
of due diligence and reasonable care to the mandatory. Every fault during the
performance results in liability according to Art. 1992 cciv.
In case the travel agency really organizes the whole journey, it has to respect several
duties, the most important being the obligation de sécurité.
There is always an obligation de sécurité in travel contracts or alike, but it must be said
that it is not always qualified as obligation de résultat. Sometimes it is qualified as
being an obligation de moyens, depending on whether the customer keeps the possibility
of taking the initiative (then obligation de moyens) or cannot help what is happening to
him, thus is completely at the provider´s mercy. The criteria not being very precise the
variety of situations makes it difficult to find a straight line:
Have been qualified as having an obligation de moyens:
- Owner of an attraction not presenting any risk1219
- Owner of a horse riding school1220
- Owner of a hotel or a restaurant1221
- Owner of a vacation club1222
- Owner of a ski-lift1223
Have been qualified as having an obligation de résultat:
- Owner of a bob-sleigh run.1224
All through the respect of the different duties, the travel agency has to respect the
obligation de sécurité, thus it has to pay attention that the traveller´s safety is not put at
risk. This is particularly true concerning the first of a travel agent´s duties, the one of the
good and diligent choice of the means of transport and the hotel.1225 This duty may be
only fulfilled by the travel agent informing himself about the conditions. Thus, a
veritable obligation de renseignement can arise.
An older case, often quoted, concerned an accident in a taxi in Rio.1226 In this case an
agency organised a journey of two months to South and North America for two French
tourists. In the mountains the tourists were killed in a car accident during an excursion
1219
Cour de Cassation, Civ 1ière 5 janvier 1959.
1220
Cour de Cassation, Civ 1ière 8 février 1961.
1221
Cour de Cassation, Civ 1ière 6 mai 1946, Cour de Cassation, Civ 1ière 25 novembre 1969.
1222
Cour de Cassation, Civ 1ière 10 février 1993.
1223
Cour de Cassation, Civ 1ière 11 mars 1986.
1224
Cour de Cassation, Civ 1ière 17 mars 1993.
1225
Anne Chemel, Jurisclasseur Droit Civil, Art. 1382, Fasc. 312-2, at 8f.
1226
Cour de Cassation, Civ. 1ière 5 janvier 1961.
333
Hans-W. Micklitz
around Rio de Janeiro. For this excursion the agency had ordered a guide and a car
driver. But because of incidents between the tourists and the guide the tour to the
mountain was postponed. A new guide and car were ordered. But the new car driver
causing the accident was insolvent and not insured. The court found that the agency had
committed a fault by addressing itself to the first car coming along without verifying
that the driver was insured. This was considered an indispensable precaution in a
country where insurance is not mandatory. An agency has to know that lot of taxi
drivers in South America have no insurance and thus must take adequate precautions to
protect its clients.
In 1991 the Cour de Cassation decided that the organiser of a journey to a foreign
country charging a local transporter has to meet an obligation de surveillance
concerning this provider and must also take care of the correct and safe execution of the
transport. In the case, several passengers were injured during a transport in Turkey.1227
The agency is also responsible in case the chosen hotel does not meet the conditions
agreed upon in the travel contract. In a 1985 case, the tourist was injured by a
malfunctioning water heater.1228
In 1994, the Cour dáppel de Paris even established a contractual liability of an
organism organising language learning trips. The parents had entrusted their child with
an organism organising language learning trips. They had chosen to send their child to
the English region of Canada, but the day before the departure it was relocated to the
United States to a family of Pakistan origin whose cultural traditions concerning the
style of living were absolutely different from those of an English society. The general
conditions of the contract authorised the orientation to other regions as agreed upon and
even to different countries in the case of limited admission. In the opinion of the court,
the relocation engaged a contractual liability of the linguistic organism which had
committed a fault accepting enrolments for Canada without disposing of sufficient and
adequate host families.1229
Another very important duty is the one to control the actually performing partners
(obligation de surveillance). The travel agencies must supervise the good performance
of the contract. The decisive approximation to a real obligation de résultat was a case of
1983 which stated a duty to control independent suppliers of services.1230 Travellers
were hurt by an accident on a transfer bus at Bali. The Cour de Cassation did not
suggest fault because of a bad choice of supplier, which was not the case here, but held
that the tour operator had still to control the supplier´s safety standards after he had
1227
1228
Cour dÁppel Paris 20 novembre 1985.
1229
Cour dÁppel Paris 26 avril 1994.
1230
Cour de Cassation, Civ. 1ière , D. 1983, 481.
334
chosen him. It was not clear whether it was possible to fulfil this duty in practice. But a
case in 1990, where a tour operator escaped liability, because he had taken all due care,
shows that the prerequisites of the obligation de surveillance can indeed be fulfilled.1231
In another case, however, in which again a road accident was concerned, the tour
operator did not meet his obligation de surveillance, since it did not watch at that
someone from the travel agency went with the tourist on the tour but a completely
unexperienced person that even did not know her way around.1232
Travel agents also must respect a duty of good synchronisation of its services offered.
This concerns the cases where travellers did not get a room on the date they reserved it
or where travellers did not get tickets guaranteeing a fixed date of departure.1233 The
travel agent´s liability here is confirmed on the grounds that it did not inform its
partners of the promises it contracted with the consumers.
In transportation contracts, there is an additional obligation de sécurité. The provider of
the transport is always charged with an obligation de résultat, the one of the arrival.
Thus, the rail road company transporting a car with its night train is responsible for its
good and safe arrival.1234 One of the earliest decisions in travel transportation law and
having become famous, is a decision of 1911.1235 In this case, a boat passenger was
injured during the voyage by a falling barrel that had not been sufficiently secured. The
Cour de Cassation decided that the provider of the transport had the obligation de
résultat to transport the passenger unhurt to the destination agreed. It thus established an
obligation de sécurité.
Concerning contracts of transportation only, the Cour de Cassation decided in 1989 that
the provider has to fulfil an obligation de sécurité only during the time while the
contract is being executed, thus from the moment the passenger boards the means of
transport until the moment he alights from it. The alighting procedure is taken very
literally. In one case a lady fell of a ski-lift just before she should have left the lift thus
having loosened the rail according to the signs along the lift. The court found that this
did not amount to an alighting.1236 Everything that happens either before or after has to
be judged according to the general rules of tort law, thus Art. 1384 cciv. Anyways, the
obligation de sécurité entitles to an action based on contract law only.
1231
Cour de Cassation, Civ. 1ière , D. 1990, 151.
1232
Cour de Cassation, Civ 1ière 29 janvier 1991, D. 1991, 56.
1233
Cour de Cassation, Civ 1ière 13 novembre 1956.
1234
Cour de Cassation, Civ 1ière 25 février 2003: SNCF c. Drieux.
1235
Cour de Cassation, Civ 1ière 21 Novembre 1911: Cie Gén. Transatlantique c. Zbidi Hamida Ben
Mahmoud.
1236
Cour de Cassation, Civ 1ière 11 juin 2002: AGF c. Mlle Lauthe et autres.
335
Hans-W. Micklitz
A very important duty at the travel agent´s charge is the duty to inform the client. The
duty to inform comprises visa regulations and proceedings necessary during the
journey.1237 The Cour de Cassation held a travel agent liable for having informed the
client that the notion of «flight confirmed» meaning that all connecting flights would be
caught, was wrong in a particular case since the personnel of the connecting flights was
on strike; a fact that had been known to the travel agent before the contract had been
concluded.1238
A fault in the execution of the contract must exist, however, it is presumed in case of
proven discrepancy between the service promised and the one rendered. This is true
for the direct and for the vicarious liability.
ee) Causation
The general rules on causation apply.
Once a travel agent has not performed correctly, it is held liable for all damage
occurred, if there is no contributory negligence. This is particularly true for bodily harm.
Lost or damaged luggage is compensated in air transport, since here the consumer
entrusted it1239 to the transportation company. However, the obligation to bring a
traveller safe to his destiny by train does not cover the luggage if not presented and
given to the provider of the service for safekeeping.1240
Contributory negligence exonerates the travel agent, see Art. 23 of the law of 1992.
The general rules on limitation apply.
1237
Cour dÁppel Douai, 2 mai 1958, Gaz.Pal. 1958,1, p. 443 ; Cour dÁppel Nouméa, 7 juillet 1997.
1238
Cour de Cassation, Civ 1ière 10 novembre 1971.
1239
Cour dÁppel Bordeaux, 1ière Ch. Civ. 27 juin 1995.
1240
Cour de Cassation, Civ 1ière 25 février 2003: SNCF c. Drieux.
336
Since all travel law is considered to be contract law, there is no room for tort liability
due to the principle of “non-cumul des responsabilités”. Such liability might only arise
outside of the contract, thus concerning people that have no contractual relationship
with the agence de voyages or the tour operator1241. There might be cases where a travel
agent is held liable on the basis of tort law, this however does not present any
particularities compared with the general tort law. The mere involvement of a travel
business in such case seems to be purely random.
According to Art. 23 of the law of 1992, a travel agency is only exempt from liability in
case of force majeure or by proving that a third party that has nothing to do with the
contract at all and has nothing to do with its performance caused the damage. Another
cause of exoneration is, as mentioned above, the victim´s fault (contributory
negligence). However, the application of this article shows that exoneration is rather
rare. The travel agency finds itself often turned into a real assurance, compensating
every damage.1242
Only force majeure can exonerate from a responsibility for violation of the obligation
de sécurité. The Cour de Cassation denied an irresistible event in a case where a train
passenger was threatened, injured and robbed by another and thus established the
responsibility of the railroad company SNCF. The Cour de Cassation reproached SNCF
to not have taken all precaution possible in order to reach a deterrent effect on potential
criminals.1243
In a tort liability case, the Cour de Cassation denied contributory negligence where a
lady had helped her sister board the train and got off only when the train was already
moving. The doors of the train could still be normally opened even the train had been
moving for about 5 seconds at a speed of 7 km/h. The Cour de Cassation found that the
lady´s behaviour could not be regarded as being a unforeseeable event and that therefore
there was no exoneration.1244 In another case, the Cour de Cassation also denied
contributory negligence and thus did not exempt SNCF from its responsibility.1245 Here,
1241
Cour de Cassation, Civ. 2ième 23 janvier 1959: Cie des Messageries maritimes c. Cons. Le Roterf: the
heirs of a dead boat passenger are entitled to an action based on tort law against the transport
company.
1242
J. Calais-Auloy, 271.
1243
Cour de Cassation, Civ. 1ière 3 juillet 2002: SNCF c. Mme Mullet et autres, see also Civ. 1ière 12
décembre 2000; TGI Cambrai 23 janvier 2003.
1244
Cour de Cassation, Civ. 2ième 23 janvier 2003: SNCF c. épox Pernuit: see also: Civ. 6 octobre 1998,
Civ. 11 juillet 2002.
1245
Cour de Cassation, Civ.2ième 23 janvier 2003: SNCF c. consorts Sellas et autres.
337
Hans-W. Micklitz
a man crossed the rails at a point where crossings usually were allowed, but the level
crossing signal lights were blinking announcing the arrival of a train and the alarm bell
was ringing. The barriers were down as well. There was also a sign informing about the
danger when crossing the rails in such a moment. The man was run over by the train and
died. The Court found that the victim´s fault in crossing the rails did not amount to an
irresistible act and that SNCF had not taken all precautions to prevent such dangerous
behaviour. Thus, it does not matter whether the victim´s behaviour had been dangerous
or irresponsible: there is only exoneration in case the event had been irresistible and
unforeseeable.
In any case, a travel agency cannot be held liable for refusal of entry to a foreign
countries, this duty to inform is at the charge of the parents of the travelling child.1246
Limitation and exclusion clauses in the contracts are frequent. However, courts show a
tendency to interpret them restrictively.1247 General conditions are also subject to the
legislation concerning abusive clauses.
aa) Burden of proof
The general rules apply as far as obligation de moyen and obligation de résultat are
concerned. In case of a obligation de résultat, the consumer must only prove non
performance, the agency´s fault and liability then are being presumed. In case of a
obligation de moyen, the consumer must prove a negligent violation of a contractual
duty.
So far, there are no specific institutions in France concerned with travel law.
e) Case study
The following case shows how generous the French courts are in according
compensation and how far the liability of a travel agent goes:
During a vacation with his parents in Spain, a young boy fell into a bush with thorns on
the hotel grounds and hurt his eye badly. The journey had been organized by a travel
agent. The parents claimed compensation for the bodily harm. The court held the travel
agent liable. The court found that there were particularly many bush of that kind on the
1246
Cour de Cassation, Civ. 1ière 24 novembre 1998.
1247
A. Chemel, Jurisclasseur Droit Civil, Art. 1382, Fasc. 312-2, at 77.
338
way to the hotel´s entertainment area and that they were hidden in the shade. The plants
were particularly badly visible at night. The hotel had failed to adequately fulfil its
obligation of prudence by setting the hotel´s entertainment area in such place. The travel
agent had advertised the shows in the hotel in particular and also the hotel´s suitability
for a travelling with children. The hotel had not advised against a child´s participation in
the evening shows. The parents had not committed any fault concerning their duty to
supervise their child. The court thus found the travel agent liable on the same grounds as
the hotel itself which the travel agent employed to fulfil his contractual obligation. The
travel agent´s liability thus is based on a third person´s fault and liability.1248
The French courts thus have created a real contractual vicarious liability. The only
requirement for a travel agent to be held liable seems to be that the third person is liable,
too. This case is different from the other cases mentioned above as in the other cases,
the travel agent is liable for own faults, meaning that it violated for example the duty to
supervise. The court here makes no reference to a duty to supervise nor to any other
duty the travel agent has violated.
1248
339
Liability for services Germany
3. German law
Literature: W. Filthaut, Die neuere Rechtsprechung zur Schadenshaftung des Omnibusunternehmers und
-fahrers, NVZ 2001, 452; E. Führich, Die Verkehrssicherungspflicht des Reiseveranstalters, DB 1990,
1501; L. Röckrath, Die Haftung für Unfälle auf Berg- und Skireisen – am Beispiel des Lawinenunfalls im
Tiroler Jamtal, VersR 2002, 1193; K. P. Rodegra, Pauschalreisen – Allgemeines Lebensrisiko und
hinzunehmende Unannehmlichkeiten, MDR 2002, 919; R. Schmid, Rechtsprobleme bei der
Luftbeförderung im Rahmen von Flugpauschalreisen, NJW 2002, 3510; ders., Pauschalreiserecht – Die
Änderungen durch die Zweite Reiserechtsnovelle und die Schuldrechtsreform, MDR 2002, 789; ders.,
Neue Haftungsrisiken bei Personenschäden im Luftfahrtbereich, VersR 2002, 26; ders., Rechtsprobleme
bei der Luftbeförderung im Rahmen von Flugpauschalreisen, NJW 1994, 2451; R. Schmid/B. Sonnen,
Rechtsprobleme bei der Luftbeförderung im Rahmen von Flugpauschalreisen, NJW 1992, 464; O.
Tempel, Die Pflichten des vermittelnden Reisebüros, Zugleich zur Konditionenempfehlung „Allgemeine
Geschäftsbedingungen für Reisemittler“, NJW 1999, 3657; K. Tonner, Der Reisevertrag, Kommentar zu
§§ 651a – 651l BGB, 4. Aufl., 2000; ders., Münchener Kommentar, Schuldrecht Besonderer Teil, §§ 651
a-l, 3. Aufl., 1997; U. v. Jeinsen, Der Concorde-Absturz – Aspekte einer vergleichsweisen Regulierung,
VersR 2002, 30.
As early as 1979 the German legislator adopted the so-called Act on Travel Contract
Law “Reisevertragsrecht”.1249 The way had been well prepared by the Supreme Court,
who pushed the German legislator into action. An original project had been much more
ambitious. That governmental proposal advocated for the adoption of a
Reisvertragsgesetz outside of the BGB that should overcome the distinction between the
general rules on impairment of the performance of the obligation (allgemeines
Leistungsstörungsrecht) and particular warranty rules related to the type of contract at
issue (Gewährleistungsrecht). The idea was to bring to bear the concept of the CSIG.
During the legislative procedure, the proposal was considerably revised in an attempt to
adapt the law on travel contracts for integration into the BGB.1250 It might be worth a
footnote that the German legislator undertook a step in the very same direction in the
2002 reform of the German BGB. However, this time the primary focus was on sales
law due to the need of the German legislator to implement directive 1999/44/EC on
consumer sales. The next step in the history was the adoption of directive 90/314/EEC
on package tours. However, Germany was only prepared to fully implement Art. 7
providing for protection of consumers in case of insolvency of the tour operator after
1249
BGBl. 1979 I, 509.
1250
Short overview on the history, K. Tonner, Kommentar, Einleitung Rdnr. 21; in englisch H.-W.
Micklitz/N. Reich, Consumer Legislation in the Federal Republic of Germany, 1980, 247.
341
Hans-W. Micklitz
Dillenkofer.1251 The 2002 reform concerns the law on obligations. It affects the law on
traval contracts only indirectly.1252
Despite its integration into the BGB, “Reiserecht”, literally translated “travel law”, has
become an issue of its own, thereby leaving the narrow corridor of the BGB rules
behind and integrating all legal issues in and around the travel contract (transportation,
insurance, travel agencies etc). In Germany, travel law is a legal field governed by
specialists from all the sides: lawyers, courts and academia, tied together by a specific
law journal, “Reiserecht aktuell”. Like in most other fields of consumer law, the reach
and content of the parties’ rights and obligations is subject to intense battles in the
courts. There is an endless chain of cases that shape the essence of the travel law.
The bulk of decisions can be considerably reduced for the purposes of this study. Only
those cases in which a traveller has suffered from personal injury – outside
transportation – are relevant.1253 Unlike other fields of travel law, it seems as if only a
limited number of cases arose in the area relevant to this study. The reason for that
might be the overlapping of the traveller’s right to reduce the price if the journey turned
out to be defective and his-er unlimited right to claim damages for personal injuries.
Therefore, in a quite a number of cases in which the traveller suffered a violation of his-
er personal integrity, he/she may prefer the right to reduction over the right to claim
damages for a very simple reason: the right to reduction exists irrespective of whether
the tour organiser has acted negligently. If the two rights overlap, a kind of non-cumul
rule applies. The traveller is not allowed to reduce the price and claim compensation for
one and the same defect.1254
Therefore liability claims gain importance only in cases in which there is no
overlapping and where the violation of a particular duty of care leads to personal
damages that cannot be compensatd by simply reducing the price. In essence, liability
claims are rather rare. Until 2002, the traveller could not claim compensation for pain
and suffering under contract law. Here, as in the other fields of liability for services,
tortious liability provided the sole opportunity for compensation.
1251
Zweites Reiserechtsänderungsgesetz vom 23.7.2001, BGBl. 2001 I, 1658, see R. Schmid, MDR 2002,
789.
1252
R. Schmid, MDR 2002, 789, 792.
1253
See for an anlysis, R. Schmid, VersR 2002, 26; and the regular reports on transportation problems by
the same author, NJW 2002, 3510; NJW 1994, 2451; NJW 1992, 464; as wellas W. Filthaut, NVZ
2001, 452.
1254
BGHZ 92, 132 = NJW 1985, 132.
342
In contract law, the focus is on one single paragraph of the BGB, § 651 f), which reads
as follows:
(1) Der Reisende kann unbeschadet der Minderung oder der Kündigung
Schadensersatz wegen Nichterfüllung verlangen, es sei denn, der Mangel
beruht auf einem Umstand, den der Reiseveranstalter nicht zu vertreten hat.
(2) Wird die Reise vereitelt oder erheblich beeinträchtigt, so kann der Reisende
auch wegen nutzlos aufgewendeter Urlaubszeit eine angemessene
Entschädigung in Geld verlangen.
§ 651 f) raises complicated issues as to the relationship between the reduction of the
price for the package tour and liability claims. Liability claims are possible under § 651
f) BGB and even outside § 651 f) insofar as the tour operator has violated collateral
duties under the travel contract (Nebenpflichten).1255 The legal basis for the latter is
breach of contract, the ‘positive Forderungsverletzung’, now codified in § 280 BGB.
There is no need to discuss the intracies of German doctrine here. § 651 f) and
compensation claims based on the violation of collateral duties gain practical
importance only for damages which go beyond compensation for the reduced value of
the journey.1256 This is particularly true in case the traveller’s personal integrity has been
violated. However, if the traveller falls ill because he has eaten spoilt food, the value of
the journey maybe reduced, but only from that very moment. Therefore the price of the
journey may become an element of the damage.1257
Liability claims under § 651 f) have to be notified to the tour operator within four weeks
after the end of the package tour. This rule does not apply to claims based on positive
Forderungsverletzung. The Supreme Court has imposed a duty on the traveller to notify
the deficit to the tour operator under § 651 d) para 2 and /or to demand adequate
corrective measures under § 651 c) para 3 or § 651 e para 2.1258 This case law has been
heavily attacked, without success. However, the importance of the conflict should not
be overemphasized as non-notification can be considered contributory negligence under
§ 254 BGB.
aa) The parties
i) Contract parties
1255
See K. Tonner, § 651 f) Rdnr. 13.
1256
K. Tonner, § 651 f) Rdnr. 5.
1257
LG Frankfurt a.M., NJW-RR 1993, 1330.
1258
BGHZ 92, 132 = NJW 1985, 132.
343
Hans-W. Micklitz
In normal package tour transactions, there are at least three parties to be considered, the
traveller, the tour operator and the travel agency.1259 The traveller concludes two
contracts, one with the agency and the other with the tour operator. The German Law on
Package tours defines rules only on the relationship between the traveller and the tour
operator. The agency works as an agent empowered to conclude a contract with the
consumer on behalf of the tour operator.
The situation gets more complicated if the traveller makes the necessary booking on
behalf of his partner and/or his-er children, or if a teacher acts on behalf of his-er pupils.
The question then is whether or not the applicant is acting in his-er own name on behalf
of the other travellers and which legal standing the co-travellers should have. If the
applicant acts on behalf of the family members, it seems fair to conclude that he intends
to become the contracting partner for the whole family. Therefore he/she is obliged to
pay the full price or claim compensation on behalf of the other members of the
famility.1260 If an accident occurs, the co-travellers are within the contract’s scope of
protection. This is particularly true for minors who may, however, exceptionally
become partners to the contract.1261
The situation is different if no such family ties exist. The applicant, namely in group
travelling, usually is empowered to act as an agent on behalf of the other members of
the group. Therefore the contracts are simply cumulated.1262 Each traveller is responsible
for paying and claiming damages.
Tour operators do not run the hotels in the guest country and they do not own
transportation services. Therefore they need intermediary persons to run the hotels and
they need air lines or public transport systems to bring the consumers to the place of
vacation (Urlaubsort). These so-called “Leistungsträger” are regarded as vicarious
agents in fulfilling the tour operator’s main duty. When the package tour business
started decades ago, the tour operators tried to shift the liablity for adeaqute
accommodation and catering as well as for timely transport to the vicarious agents. It
has been one of the major effects of package tour legislation, both on a national and
European level, to declare these so called ‘Vermittlerklauseln’ (intermediary clauses)
void. Today, these sort of contract terms may gain a certain importance in non-package
1259
See on the duties of the travel agency, O. Tempel, NJW 1999, 3657.
1260
See MünchKomm-K. Tonner, § 651 a Rdnr. 55.
1261
AG Bad Homburg, RRa 1994, 175; AG Bielefeld, RRa 1996, 35.
1262
OLG Frankfurt, NJW 1986, 1941.
344
tours. Furthermore, it is now settled law that the tour operator is liable for any negliance
on behalf of his-er vicarious agent, be it in the scope of application of § 651 f) or for the
violation of collateral duties within the “positive Forderungsverletzung”.1263
The travel agencies are also vicarious agents. If they provide misleading or false
information, or if they neglect to inform the consumer on the very basics of the
envisaged travel, such as the need to apply for visa, the tour operator may be held liable
for the negligence of the travel agencies.1264
The study assumes that consumers have been bodily injured. There is no distinction
between contract and tort law.
Under contract law, three types of contractual duties of care have to be distinguished,
first the duties under § 651 f) BGB, then the so called cardinal duties, which are covered
by § 651 f), although their origin is to be found in the basic concept of positive
Forderungsverletzung, and the violation of collateral duties.1265 The distinction is crucial
due to different prescription and notice requirements.
There is no model or “Leitbild” of a tour operator that might help to shape the set of
duties of care imposed on him. ‘Professionalism’ in the case of a tour operator means
that he has to take any and all measures to protect the travellers against possible risks.
The degree of risks to be considered largely depends on the type of services offered.
The more the tour operators engage in leisure activities as a surplus to the traditional set
of touristic services – transport, accommodation and catering –, the more the rules
developed in the area of leisure activities apply to the law on travel contracts.1266 It
seems, however, as if the standards of care that are applied here are somewhat lower
than in the field of leisure activties. This corresponds with the overall inclination of
lower courts and appeal courts not to overstretch the tour operator’s duty of care.
Of particular importance are adventure holidays. The so-called Jamtal accident gained
sad prominence. Nine skiers were buried by an avalanche.1267 The Court of Appeal of
1263
1264
1265
1266
LG Hamburg, 23.2.2001, NJW-RR 2001, 1348.
1267
OLG München, RRa 2002, 57 = NJW-RR 2002, 694.
345
Hans-W. Micklitz
Munich held the tour organiser liable, both under contract and tort law. He had
promised a ‘safe and gentle tour’ (sanft und sicher). The court found the tour neither
safe nor gentle and identified a violation of the tour organiser’s duty of care as he had
not respected modern developments in the management of avalanche risks.1268
The duty to act professionally in no way depends on its legal qualification as contractual
damage covered either by § 651 f) BGB or by “positive Forderungsverletzung”.
The duty to supervise and control technical equipment plays a major role in the tour
operator’s responsibility for the facilities made available to the travellers. Legally, the
courts have bound the duty to supervise and control technical equipment to tortious
liability. The reason lies in the fact that tortious liability covers damages for pain and
suffering. The courts might change their attitude after the 2002 reform, which puts
contract and tort law claims on an equal footing in that respect. If so, the set of duties
developed in tort law could easily be extended to contract law.
Contractual liability depends on fault. The general standards of negligence apply, § 276
BGB. Liability can be objective, i.e. an objective violation of a duty of care indicates
the existence of negligence.
If the traveller, however, claims compensation in form of a reduction of the price of the
travel, no fault is required. Here the mere existence of a defect in the performance of the
travel suffices. The major cases to be reported here hinge on spoilt food.1269 The lower
courts have denied the tour operator’s obligation to warn the traveller of the risks of
being served or eating spoilt fish in the Caribbean. Only such a duty of care could have
justified compensation claims for personal injuries.1270
1268
See in more detail L. Röckrath, VersR 2002, 1193.
1269
LG Frankfurt a.M. 22.9.2000, NJW-RR 2001, 1063 (reduction due to disease of Ciguatera); thereto K.
P. Rodegra, MDR 2002, 919, 921.
1270
LG Frankfurt a.M. 22.9.2000, NJW-RR 2001, 1063 (reduction due to disease of Ciguatera).
346
§ 651 f) reverses the burden of proof to the detriment of the tour operator. It has been
made clear in the package tour directive 90/310/EEC, although the Supreme Court of
Germany had established the very same rule as early as 1987.1271
The reversal of the burden of proof plays a prominent role in travellers falling ill after
having eaten spoilt food. If a considerable number of travellers on the same trip suffer
from the same symptoms, it remains up to the tour operator to provide evidence that the
travellers’ illness has other reasons than the spoilt food.1272 However, the Courts do not
overstretch the tour operator’s obligation to exonerate him/herself. It might therefore
suffice for him to show that it is unavoidable that some of the fish are poisoned.1273
If the violation results from a mere collateral duty, the legal basis for action is not
§ 651 f) but § 280 BGB. However, the consequences are the same. Fault is presumed
under § 280 par 1 sent. 2 BGB in its version after the Schuldrechtsreform.
Due to the broad variety of duties of care, standards of fault can exist only as far as the
tour operators offer leisure services. Here technical rules, voluntary or binding, define a
tight legal frame to observed. If the tour operator does not comply with these standards,
he may easily be found liable These standards, as far as they are voluntary, define a
minimum level of safety. Again skiing accidents take the lead in defining standards of
fault. The major reason why the tour organiser was found responsible for the death of
nine skiers in the Jamtal accident was his-er non-compliance with modern standards of
avalanche risk management. Here standards have been developed to evaluate the risk of
avalanches. The tour organiser instead relied on the skill and experience of the tour
guides, which depended largely on life experience rather than on technical-scientific
expertise.1274
Particular problems arise as to whether the standards of fault in the home country may
differ from those in the tourist country. Or to put it the other way round: Does
compliance with third world safety standards suffice to release the tour operator from
his duty of care? A number of lower courts seem to be prepared to accept that
compliance with sub-standards in Africa suffices to meet the duty of care. Therefore a
tour operator may not be obliged to execute continental European safety standards in
1271
BGHZ 100, 185 = NJW 1987, 1938.
1272
LG Hannover, VuR 1987, 217.
1273
See the well-known Ciguatera-judgment, LG Frankfurt a.M., RRa 1997, 145 comment K. Tonner,
171.
1274
See in more detail L. Röckrath, VersR 2002, 1193, 1197.
347
Hans-W. Micklitz
Botswana.1275 He may trust in effective statutory control of air planes and he is not held
to regularly control foreign means of transportation.1276
§ 651 f) para 1 BGB requires the traveller to indicate any defect to the tour guide
(Reiseleiter) in order to give the tour operator a chance to look for alternatives or to
simply repair the defect. Although the provision does not explicitly mention laiblity
claims, the Supreme court has applied the indication duty to contractual liability
claims.1277 No settled case-law exists on whether collateral duties under the doctrine of
positive Forderungsverletzung are covered by the new doctrine of the Supreme court.
Tour operators usually solve the issue by imposing such an indication duty on the
traveller in their standard business condition.1278
ee) Causation
The general standards of causation apply. Adequate causation between the

action/omission and the violation of the traveller’s personal integrity is required. It
seems as if causation does not yield problems in contractual liability claims.
ii) Omissions
The tour operator is equally liable if the violation results from his failure to take the
adeaquate safety measures. Omissions play a prominent role in the tour operator’s duty
to supervise and control the facilities of the intermediaries. Here the cause for action
usually lies in ommissions on behalf of the tour operator. They are also important if the
traveller sues the tour organiser because the travel agent has not provided him/her with
adequate information.1279
The burden of proof is on the traveller. The courts largely operate with prima facie
evidence.
1275
LG München, RRa 1993, 25.
1276
AG Königstein, RRa 1993, 46.
1277
BGHZ 92, 132 = NJW 1985, 132.
1278
Held legally admissible by LG Frankfurt a.M., NJW 1982, 1582.
1279
348
i) Damage to health
The purpose of this study is to deal with personal damages. These include the direct
costs for healing as well as indirect economic disadvantages if the injured party cannot
go to work.
Before 2002, the traveller could not claim compensation for pain and suffering under
contract law. That is why the most interesting and most important cases had to be solved
under the tort law regime.
In travel law, there is a notable distinction to be observed in defective travel services

between those which lead to a reduction of the price and contractual claims for
damages. Reduction claims do not require fault on behalf of the tour operator. However,
the character of the claim is inherently limited to instrumentalising the defective
services for reducing the price. If the traveller has eaten spoilt fish, he/she may reduce
the price from the moment onwards from which he/she has fallen ill. If the whole
journey is ruined, he or she may even claim damages under § 651 f) para 2 BGB for
wasted holidays (vertane Urlaubszeit).1280
The general rule of § 254 BGB applies. It has gained a certain importance in case the
traveller has not notified the violation of his personal integrity or a violation of the tour
operator’s duties of care to the tour operator – contrary to § 651 f) para 1 BGB in the
interpretation given to it by the Supreme Court – or if he has notifed him/her too late.
The court’s idea behind the duty of notification is to give the tour operator the
opportunity to reduce the possible damage and to prevent the traveller from silently
accepting an injury in order to claim regress once he has returned home.1281
There is a notable difference in the prescription periods with regard to the different
types of contractual claims. Those raised under § 651 f) expire six months after the
1280
BGH, RRa 2000, 85 = NJW 2000, 1188.
1281
See OLG Düsseldorf, NJW-RR 1989, 735; LG Hannover NJW 1984, 1226.
349
Hans-W. Micklitz
termination of the travel, those based on positive Forderungsverletzung, namely on the

violation of collateral duties expire in three years under § 195. The prescription period
begins once the traveller knew or should have known the violation of the duty of care.
Tortious liability has played a relatively important role in travel law.1282 The reason may
be found in § 651 h) BGB, which allows the tour operator to restrict the liability for
non-personal damages to the triple amount of the price of the journey. However, § 651
h) does not apply in case of tortious liability.1283 Therefore claims under tort law were
the classical means to circumvent the restriction laid down in § 651 h). The provison
was even more important before the package tour directive had been adopted. At the
time German law allowed the tour operator to restrict his-er liability for personal
damages too. Because those claims were cut off under contract law, tortious liability
remained relevant for claims on pain and suffering. With the reform of the German
BGB the need to shift to tort law has become superflous.
aa) The parties
There is more than one party involved in the execution of the contract: the travel
agency, the tour operator, the intermediary, the contracting traveller and possible co-
travellers. The primary addressee for tortious liability will be the tour operator. This is
all the more important as the tour operator will usually have its residence in the home
country of the traveller, whereas the intermediaries, mainly the hotel-keepers, are much
more difficult to reach.
This study assumes that the traveller has been bodily injured. The type of injury and its
intensity does not matter.
In 1999, the Supreme Court laid down the set of duties of care imposed on the tour
operator in the well-known “Balkonsturz-Entscheidung” (balcony fall decision).1284 Here
a traveller had been fallen down from the hotel balcony because the railings were rotten.
The German Supreme Court established a duty of care to regularly control and
supervise the safety-relevant parts of the hotel. Note that the point at stake was not
1282
1283
BGHZ 100, 157, 185 and BGHZ 103, 298.
1284
BGHZ 103, 298 = NJW 1988, 1380.
350
whether or not the hotel as the travel operator’s intermediary has such a duty of care,
but whether the tour operator him/herself has to accept the resonsibility for a hotel
he/she has rented from the intermediary and made available to the traveller. The conflict
must always be seen before the background of the much better access the traveller has
to the tour operator at home. Legally, the intermediary, i.e. the hotel keeper might have
a duty of care too. The tour operator might be held liable for a violation of the
intermediary’s duty of care, if the latter has to be regarded as the tour operators
vicarious agent in the sense of § 831 BGB (Verrichtungsgehilfe). In practice, this
possibility is not very promising, as the intermediary may often not be regarded as
vicarious agent, and the tour operator may excape his liability in exonerating
him/herself.1285
According to the court, supervision and control must be exercised by a skilled and
responsible expert and has to be done once a year before the season starts. The essence
of the “Balkonsturz-Entscheidung” has been confirmed by a judgment of the Court of
Appeal of Munich. As the Supreme Court was not willing to accept the appeal, the
second decision must be understood as cementing the reasoning of the Balkonsturz-
Entscheidung.1286 In the case at issue travellers had been killed and severely injured in a
bus accident in Egypt. The reasons for the accident were to be found in an
unexperienced bus driver and worn down pneus. According to the Supreme Court, the
tour operator, as represented by his-er travel guide (Reiseleiter), had violated his-er duty
to select a safe bus and an appropriate driver. The same way of thinking may be found
in a third judgment of the Supreme Court where the tour operator was obliged to make
sure that apt horses could be booked for the annouced excursion.1287
A number of lower courts have followed the Supreme Court and have given shape to the
tour operator’s duty of control and supervision. The have found the tour operator
responsible for an unsufficiently fixed water boiler,1288 for unsafe paths between the
main and the subsidiary buildings;1289 for the maintenance of the fire safety facilities,1290
for checking the deepth of the water.1291
The Supreme Court’s jurisprudence has met much critique in legal doctrine, a critique
which has not left the lower courts unaffected. In a whole set of decisions, the Land-
and Oberlandesgerichte (courts of first instance and courts of appeals) have made clear
1285
See K. Tonner, § 651 f) Rdnr. 21.
1286
OLG München, 29.1.1988, BGH, court order, 16.3.1989, VII ZR 11/88, as quoted by 00. Recken, BB
1989, 1709.
1287
BGH, RRa 2000, 85 = NJW 2000, 1188.
1288
OLG Frankfurt a.M., VuR 1994, 87.
1289
OLG Bamberg, RRa 1997, 14.
1290
OLG Köln, NJW-RR 1992, 1185.
1291
OLG München, RRa 1995, 204.
351
Hans-W. Micklitz
that it definitely is possible for the tour operator to meet the standards of care for the
supervision and control of the intermediaries. Legally it is hard to classify what the
courts are doing. The lower courts’ attitude may be so interpreted as denying the
existence of a duty of care – the injury must then be seen as expression of the general
risk of life (allgemeines Lebensrisiko)1292. Their attitude, however, could also be read as
relaxing the standards of prudent, i.e. non-negligent, behaviour. Most recently, the court
of appeal of Düsseldorf tried to formulate a more general rule on the tour operators’
duties from the perspective of the lower courts. A tour operator was regarded to be
under an obligation to regularly supervise the local buses in Thailand in order to
guarantee that safety risks that can be discovered through careful examination are
excluded. In contrast to the Supreme Court, the court of appeal did not require particular
technical skills. It can therefore be undertaken by a non-expert, usually the tour
guide.1293
dd) Causation
The general rules on adequate causation apply. No particularities can be reported from
liability claims under tort law in the field of package and similar tours.
ee) Fault
The general standards apply. The injured party has to prove fault in the form of intent or
negligence. The Balkonsturz-Entscheidung and its successors have underlined the
difficulties in determining whether or not there was fault. The difficulties result from the
fact that, unlike other leisure activities, there are no technical standards or other non-
binding rules which might serve as yardstick for defining the tour organiser’s set of
duties. However, if the courts find that the tour operator has violated a duty of care, then
they conclude the existence of fault from the objective violation of the duty of care.
A notable example exists. It concerns the tour operators’ obligation to supervise and
control the safety of the facilities made available to the travellers by the intermediaries,
be it accommodation, transport or any other auxiliary technical equipment needed to
comply with the contract. Here the courts of first instance and the courts of appeal have
reduced the standards of care that the Supreme Court imposed on the tour operator. It is
certainly worthwhile discussing whether the courts are denying the existence of a
specific duty of care, or whether they are lowering the standard of the tour operator’s
behaviour. Anyway, the tour operators have not been held liable for the following
injuries of travellers: bus accident in Georgia, because the tour operator had no
1292
See namely K. P. Rodegra, MDR 2002, 919.
1293
OLG Düsseldorf, 21.1.2000, NJW-RR 2000, 787.
352
opportunity to select the busses;1294 wooden edge of an excursion boat in Thailand;1295

water puddle in the hotel room;1296 wet stairs;1297 slipping on the tiles of a swimming
pool,1298 insufficiently isolated coffee cup,1299 cracking chair,1300 attack of a he-goat on
hotel terrace.1301
The overall reason for the traveller to resort to tortious liability is to claim damages for
pain and suffering. Unfortunately, the court reports do not provide details on the amount
of compensation and on the criteria to be followed. Therefore the courts are rather free
in the way they calculate damage for pain and suffering.
The general rules on contributory negligence apply, § 254 BGB.
In principle, § 651 g) BGB does not apply to tortious liability. However, the lower
courts demonstrate a certain preparedness to extend the scope of the contractual
prescription rule to tortious claims.1302 As long as the Supreme Court has not clarified
the situation, however, § 195 BGB generally applies. It provides for a prescription
period of three years which starts once the injured party knows or should have known
the violation of the duty of care.
Exclusion clauses gain importance in contractual relations, mainly with regard to wrong
or misleading information provided to consumers by the travel agencies. The tour
operators have tried to exempt themselves for the vicarious liablity of the travel
agencies in their standard business conditions. The Supreme Courts understands duties
of information regarding visa requirements as cardinal duties that oblige the tour
operator to make sure that the consumer is adequately informed.1303 The same is true for
1294
LG Frankfurt a.M., NJW 1990, 520.
1295
OLG Düsseldorf, VuR 1990, 153.
1296
OLG Frankfurt a.M., NJW-RR 1990, 188.
1297
LG Bonn, RRa 1996, 82.
1298
LG München, RRa 1996, 89.
1299
LG Frankfurt a.M., RRa 1994, 158.
1300
LG Frankfurt a.M., RRa 2000, 22.
1301
LG Frankfurt a.M. 22.10.1999, NJW-RR 2001, 52.
1302
LG Frankfurt a. M., RRa 1998, 160.
1303
The so-called Visa judgment, BGH NJW 1985, 1165, K. Tonner, § 651 f) Rdnr. 15.
353
Hans-W. Micklitz
misleading or wrong information or the ommission of required information. Therefore

the travel agencies bear a heavy burden in providing the consumer with the necessary
information. The settled case-law has considerably reduced the role and importance of
exclusion clauses in travel contracts.
d) Procedural question
aa) Burden of proof
Outside of particular rules on causation and fault, the burden of proof rests on the
injured party. The common standards apply.
Unlike e.g. the Netherlands, there are no particular complaint boards in Germany.
Therefore the travellers who want to claim compensation have to go to court, which
they do execessively.
e) Case study
The most interesting case, on which it might be worth undertaking a case study, is
certainly the “Balkonsturz-Entscheidung”.1304 It is a relatively old decision – from 1988,
however, its far-reaching impact and the silent resistence of lower and appeal courts
against a comprehensive duty of care makes it all the more interesting for a deeper
analysis.1305 A study might help to shape the standards of care the tour operators must
observe in supervising and controlling the intermediaries facilities more clearly and it
might indirectly help to decide the touchy question whether the same safety standardy
have to be met in and outside the European Community.
1304
BGHZ 103, 298 = NJW 1988, 1380.
1305
See alreay, E. Führich, DB 1990, 1501.
354
Liability for services Italy
4. Italian Law
Literature: A. Antonini, Prestazione di servizi turistici e diritti del cliente danneggiato, in: Riv. dir. civ.
1997, II, 391; G. Benacchio, Diritto privato della Comunità europea, Padova 2001; C. Carassi, Ulteriore
oscillazione giurisprudenziale sul “danno da vacanza rovinata”, in: Danno e resp. 2001, 861; R. Conti,
Corte di Giustizia, danno da vacanza rovinata e viaggi “su misura”. Ancora due vittorie per i consumatori,
in: Corr. Giur. 2002, II, 1002; G. Cian/A. Trabucchi (a cura di), Commentario breve al codice civile,
Padova 2002; M. Gorgoni, I giudici e l’inadempimento del contratto di viaggio, in Resp. civ. e prev.
1997, II, 828; La Torre, Il contratto di viaggio «tutto compreso», in: Giust. civ. 1996, 1, 2, 27; A. Lezza, I
contratti di viaggio, in Trattato di diritto privato europeo, a cura di Lipari, VI, Singoli contratti. La
responsabilità civile. Le forme di tutela, Padova, 2003, 255; A. Luminoso, Il contratto nell’Unione
europea: inadempimento, risarcimento del danno e rimedi sinallagmatici, in: Contratti 2002, 1037; R.
Pasquili, I contratti di viaggio: la disciplina e la qualificazione giuridica delle diverse fattispecie
contrattuali (prima parte), in Studium iuris 2001, 11, 1363; R. Pasquili, I contratti di viaggio: la
responsabilità del tour operator e del travel agent (seconda parte), in Studium iuris 2001, 12, 1516; P. M.
Putti, Nota a Corte di Giust. 12.3.2002, n. C-168/00, in: Contratti 2002, II, 954; V. Roppo (a cura di),
Viaggi, vacanze e circuiti tutto compreso, in: Le nuove leggi civ. comm. 1997, I, 1; T. Serra,
Inadempimento del contratto di viaggio e danno da vacanza rovinata, in: Giust. civ. 2000, 4, 1207; L.
Sesta, Danno da vacanza rovinata e danno morale contrattuale, in: Giur. it. 2002, 10, 1801; G. Tassoni, Il
contratto di viaggio, Milano, 1998; M. Tommasini, Interventi normativi sulla responsabilità degli
operatori turistici nei contratti di viaggio «tutto compreso» (dalla convenzione internazionale del 1970 al
decreto legislativo n. 111 del 1995, attuativo della Direttiva CEE n. 314/90), in: Giust. civ. 2000, 5, 2,
257; C. Vaccà, Viaggi, vacanze e circuiti tutto compreso, in: Giust. civ. 2000, I, 1207; V. Zeno-
Zencovich, Il danno da vacanza rovinata: questioni teoriche e prassi applicative, in: La nuova giur. civ.
comm. 1997, 6, 1, 879; P. Ziviz, Alla scoperta del danno esistenziale, in: Scritti in onore di Sacco, Milano
1994, 1325.
Liability for loss or injury to the person in the field of tourist related services is
regulated in Italy by special laws, and for those aspects of this liability which are not so
regulated, by the general provisions of the Civil Code in terms of civil liability. Among
the main normative provisions there are two which must be particularly noted: the first
law 27 December 1977 n. 1084 with which Italy ratified the International Convention
relating to Travel Contracts (CCV) signed in Brussels on the 23 April 1970 and the
second d. lgs. 17 March 1995, n. 111 implementing Directive 90/314/CEE of the 13
June 1990 concerning package travel, package holidays and package tours.1306 The two
1306
For a brief commentary on the Directive and the two cited laws see G. Bennachio, Diritto privato della
Comunità europea, Padua 2001 p314. For a detailed commentary of the cited norms with various
comments on the CCV also see V. Roppo (a cura di), Viaggi, vacanze e circuiti tutto compreso, in Le
nuove leggi civ.comm. 1997, I, 1.
355
Stefano Troiano
provisions have fields of application which, in part, do not coincide and as there is a
lack of an operative system on behalf of the legislator,1307 it is therefore up to the
interpreter to co-ordinate the two laws for him/herself.1308
With particular regard to the CCV, the Italian Legislator, during ratification, limited1309
the field of application of the Convention to only cover international travel contracts
(those which must be totally or partially executed in a different State to that which the
contract was made or in a different State from which the traveller has come from). In
spite of the fact that doctrine and the Courts have often tried to overcome this limitation
through interpretation,1310 it still prevails that the rule in discussion cannot be applied to
merely internal travel. The second d. lgs. n. 111, on the other hand, not having provided
for any distinction, is applicable to both international and national travel.
There are ultimately some differences of notable importance in relation to the field of
application of the two provisions being discussed here, from the objective perspective as
well as the subjective. In fact, the interpretation of the figure of “seller” (“venditore”) in
article 4 of the d. lgs. n. 111, which refers to the person who only distributes tourist
packages (and not separate single services) is narrower than that of the “travel
intermediary” (“intermediario”) in article 1, co. 6 of the CCV: another example is that
the “tourist package” (“pacchetto turistico”) referred to in article 2 of the d. lgs. n. 111
does not necessarily comprise, among all the combined elements, the transportation,
whereas article 1 co. 2 of the CCV does: yet another difference is that while d. lgs. n.
111 is only applicable to contracts concluded by tour operators or authorised travel
agents according to the legal picture of tourism (law 17 May 1983, n. 217), the CCV
also takes into account travel organisers who exercise their activity on a non
professional basis, on the condition that they perform their activity in a habitual or
regular way (article 1 co. 5 and 6, CCV).1311
In the light of the normative panorama presented above and the guidelines of the Courts,
it can be said that the liability derived from tourist related services is presented in Italy
firstly as a liability of a contractual nature, based on a tour operator’s breach of its
1307
The Italian Legislator, during the emergence of the d. lgs n. 111 of 1995, could have provided such an
operative system of co-ordination (or rather should have, as in provisions of art. 2 Lett.c. of law n. 146
1994). On this point for example R. Pasquali, I contratti di viaggio: la disciplina e la qualificazione
giuridica delle diverse fattispecie contrattuali (prima parte), in Studium iuris 2001, 11, 1363.
1308
For similar considerations see G. Tassoni, Il contratto di viaggio, Milano, 1998, 100.
1309
In this way the Italian Government took advantage of the Reservation provision in Article 40.
1310
Above all, the Courts, although not always in an expressed manner, have often singled out the
principles from the CCV on which to draw and reconstruct the discipline relating to national travel: on
this point, R. Pasquali, op. cit., 11, 1370 and the case law cited.
1311
For more information on all these differences see R. Pasquali cited above 1364.
356
contractually assumed obligations towards the traveller. Secondly, due to the fact that
the Italian Legal System allows for the accumulation of contractual and extracontractual
liability, it is possible to recognise, in any particular case, the subsistence of a
concurrent extracontractual liability (in particular, and in which could be of most
interest, violation of the injured traveller’s right to health).1312 Moreover, where the
breach of a pre-existent obligation between determined subjects cannot be recognised,
like for example in the case of loss or injury to the tourist by third parties who are not
party to the contract, like other tourists or simply passers-by, only extracontractual
liability can be affirmed.
aa) The parties
i) Contract parties
When dealing with possible contractual liabilities towards the tourist, one must
consider, fundamentally, three categories of subject: the tour operator (travel organiser,
CCV), the travel intermediary (or travel agent, CCV) and the tourist service supplier.
The relationship between the tour operator and the tourist is easily traceable to a service
contract.1313 In the case of the travel intermediary, however, the relationship with the
client can be traced back to the figure of Agency (“mandato”), normally with
representation. Finally the relationship of the single supplier of tourist services with the
tourist seems to be distinguished into two categories, according to whether the tourist
service contract has been concluded with the intervention of a mere travel intermediary
(agent) or instead a travel organiser (tour operator). In the former, tourist and supplier
are direct parties to the contract, given the mechanism of representation, whereas in the
latter no contract can be recognised between tourist and supplier as the travel organiser
does not act as the representative of the former. According to the prevailing doctrine, an
obligatory relationship between the tourist and the supplier is nevertheless also
recognisable in the second case, insofar as the concluded contract between the travel
organiser and the supplier can be deemed to be a contract in favour of third parties.1314
This being the case, it seems opportune to remember up to now the essential features of
the regime of the above-mentioned subjects’ liability, returning to the individual points
from a deeper viewpoint.
1312
For similar remarks see T. Serra, Inadempimento del contratto di viaggio e danno da vacanza rovinata,
in Giust. civ.2000, 4, 1207.
1313
See Cass. civ. 23.4.1997, n. 3504 in Foro it. 1997, I, c. 2108.
1314
However, a part of the doctrine claims the contrary and recognises therefore that the injured traveller
only has an extracontractual action against the supplier. See amplius A. Antonini, Prestazione di
servizi turistici e diritti del cliente danneggiato, in Riv. dir. civ. 1997, II, 391.
357
Stefano Troiano
Examining firstly the CCV, it can be seen that this distinguishes the obligations and the
relative liability of the travel organiser on the one hand and the travel intermediary on
the other.
Concerning travel organisers, one must distinguish two cases: 1) in the case of non
performance of the obligations regarding the organisation of the travel, the travel
organiser is responsible for any loss or damage to the client, except when it can give a
due diligence defence (when proved not to have acted as a diligent travel organiser; 2)
in the case of non performance of various tourist services, one must ultimately
distinguish the services which the organiser itself has to carry out directly (in which
case it is responsible according to the dispositions which regulate the contract itself)
from those services which are entrusted to third parties. In the these cases the travel
organiser is responsible as if those acts or omissions were its own and therefore is
personally bound (except for the separate return action towards the person responsible
for the damage) if it concerns loss or injury to the traveller due to the non performance,
in whole or in part, of its obligations. On the other hand, however, if it concerns loss or
injury caused during the course of execution of the contract, the travel organiser must
prove, for the purpose of exempting itself from responsibility, that its choice of supplier
of such services was carried out diligently.1315
In the case of the travel intermediary, this type of subject is liable under article 22 of the
CCV “for wrongful acts or defaults he commits in performing his obligations, wrongful
acts or default being assessed having regard to the duties of a diligent travel
intermediary”: in other words, such a subject “is not liable for non performance, in
whole or in part, of journeys, sojourns or other services governed by the contract”,
except in the case that the travel document omits to state that the travel intermediary
acts as such, in which case the travel intermediary appears to be a travel organiser and is
therefore responsible as if it were the actual travel organiser.1316
Turning now to d. lgs. n. 111, it seems to be affirmed that this has adopted a regime of
sharing out risks between the travel organiser and the seller, substantially traced by
following the CCV (which refers however to the wider notion of the travel
intermediary).1317 In fact it seems that it should be said – even though in the doctrine
1315
G. Tassoni, op. cit., 253.
1316
On the subject of the travel intermediary that presents itself as an apparent travel organiser, see M.
Gorgoni, I giudici e l’inadempimento del contratto di viaggio, in Resp. civ. e prev. 1997, II, 832. See
also G. Tassoni, op. cit., p. 254.
1317
In this respect see G. Tassoni, op. cit., 255. With respect to the substantial continuity between the two
normative sources see also, among others, R. Pasquili, I contratti di viaggio: la responsabilità del tour
operator e del travel agent (seconda parte), in Studium iuris 2001, 12, 1516.
358
there is no lack of differing arguments1318 – that the articles 14-17 of this law should be
interpreted in light of the above mentioned distinctions between liability for the
obligations of a travel organiser and liability connected to the execution of tourist
services: from this perspective, following the sense of article 14, the travel organiser is
free from its obligations if it can prove (in accordance with the general criteria of
contractual liability from article 1218 c.c.) that the loss or injury was caused by the
impossibility of the service due to a cause which cannot be attributed to the travel
organiser; in this way, under article 17, the travel organiser itself, on the contrary, is
exempt from the liability laid down in articles 15 and 16 resulting from the non
performance of tourist services, but only in the cases of fortuitous events, Act of God,
acts carried out by a third party of inevitable and unforeseeable character or acts carried
out by the consumer itself.1319
On the other hand, d. lgs. n. 111 leaves behind some of the peculiarities of the travel
organiser’s liability regime outlined in the CCV: the difference between services carried
out by the travel organiser itself or those carried out by third parties; the difference
between loss or injury caused by the breach and loss or injury caused during the course
of execution; the exemption, relating to the latter, due to the absence of culpa in
eligendo1320 (negligence in choice).
With regard to the liability of the travel intermediary, d. lgs. n. 111 (which refers to the
strict meaning of seller) is not easy to comprehend, in that it often contains rules
concerning the seller and the travel organiser without distinction. In particular, on the
one hand, the obligation to inform the consumer (which is the typical obligation of a
travel intermediary) refers not only to the seller but also to the travel organiser (articles
8, 9); on the other hand, some risks which by their very nature are implied in the
“obbligazioni di risultato” (literally a duty of result, whereby the travel organiser is
obliged to fulfil the specific result referred to in the contract independently of the
manner in which he performs it) of the travel organiser (in particular, the risks
connected to the execution of the tourist services which comprise the package) both
refer to the travel organiser and the seller without distinction (see for instance article
14). It is sure, however, that the Italian Legislator did not mean to make the seller and
the travel organiser jointly and severally liable for the “obbligazioni di risultato” (duty
1318
According to some, in particular, the rules on exemption of liability in articles 14 and 17 of law n.111,
must be coordinated in the sense of following a substantially abrogated reading of the criteria in article
14 (which constitutes, in this perspective, a mere repetition, which is both unhelpful and misleading,
of article 1218 c.c): for this opinion see for example, C. Vacca, sub. artt. 14-19 d. lgs.17 march 1995,
n.111, in Viaggi, vacanze e circuiti tutto compreso (a cura di V. Roppo), in Le nuove leggi civ. comm.
1997, I, 54. On such a discussion see also A. Antonini, Prestazione di servizi turistici e diritti del
cliente danneggiato, cit., 399.
1319
1320
359
Stefano Troiano
of result) of the latter. The legislator’s choice is justified by the fact that in some cases
the seller is the only one to have signed and sealed the contractual document. In such a
case the seller presents itself as an apparent travel organiser and must therefore be
deemed to be liable towards the traveller, exactly the same as if it were a travel
organiser.1321
Neither of the two normative sources in discussion take into consideration the figure of
the supplier of tourist services (carriers, hoteliers, restaurant owners etc). Therefore for
the liability of these one must refer to the rules governing the specific contract
concluded in the given case.1322
ii) Bystanders and others
It appears that there are no cases in which third parties, who are not privy to the
contractual relationship, have applied for loss or injury caused by liability of a
contractual nature of a travel organiser.
The CCV contains two norms on vicarious liability, the first relating to the travel
organiser and the second to the travel intermediary. These are article 12, which makes
the travel organiser responsible for the acts and omissions of its employees and agents,
acting in the course of their employment, as if they were its (the travel organiser’s) own
acts and omissions and article 21, which reproduces the same rule in relation to the
travel intermediary.
These are very favourable provisions for the traveller with respect to the corresponding
general rule in the civil code governing contractual vicarious liability (article 1228
c.c.).1323 One distinction is that the above mentioned provisions in the CCV are
mandatory whereas Article 1228 c.c. begins with the words “in the case that the parties
wish differently”. Moreover the two provisions of the CCV are in fact bound to the rule
in article 31, co. 1 CCV; and there is a lack of reference to negligence or wrongful
conduct in article 1228 c.c.: in short, the CCV uses, in place of the term “ausiliari”
(literally “auxiliaries”) which is used by the Italian civil code, the term “employees and
agents” which seems to be wider.
D. lgs. n. 111 also contains a provision on this point. This is article 14, co. 2, in which it
states that “ the tour organiser or the seller which uses other service lenders is in any
1321
In favour of this argument see G. Tassoni, op. cit., 286.
1322
See R. Pasquili, op. cit., p. 1364. On the same lines, see also A. Antonini, Prestazione di servizi
turistici e diritti del cliente danneggiato, cit., 392.
1323
See G. Tassoni, op. cit., 266.
360
case responsible for the payment of compensation for loss or injury suffered by the
consumer, with no prejudice to a recovery action by the tour organiser or the seller
against the service lenders”. The use of the term “in any case” allows the affirmation of
the binding nature of the disposition and confirms the objective character of vicarious
liability of the subjects referred to by the law, each one responding within the limits of
its own area of risk.1324
The subject of bodily injury to the claimant does not seem to present any particular
problem in this area, except for the issues that will be dealt with in the paragraph
concerning damages and compensation.
cc) Violation of the contractual duty of care
For the travel organiser to be considered diligent (the idea has, as already mentioned,
been considered in article 13 co. 1, of the CCV, in relation to the liability of such
subjects for the non performance of the obligation relating to the organisation of the
travel) one could say, by way of example, that the tour operator must avoid reserving a
medium of transport that is distinct to the one provided in the contract, or a hotel of
inferior quality or of a different quality than promised.1325 Moreover, and more in
general terms, the travel organiser should take steps to synchronize the services
provided for in the contract and in particular, avoid that anything could take anyone by
surprise.1326
Here are a few examples of judicial precedents: the travel organiser was held
responsible consistent with the judicial findings; for having decided a change of
programme unbeknown to the tourist;1327 for not having synchronised the date of the
return transportation with the ending of the holiday;1328 for the unsuccessful use, on
behalf of the traveller, of the promised hotel services, due to the arrangements for the
traveller to take a hotel of an inferior quality than the one agreed upon;1329 for the
1324
See. G. Tassoni, op. cit., 271
1325
See Tribunale Torino, 28 novembre 1996 in Riv. Giur. Circolaz. e Trasp. 1998, 1005.
1326
1327
Pret. Conegliano 4 febbraio 1997, Resp. civ. e prev. 1997, II, 818.
1328
Trib. Lecce 21 settembre 1990, in Foro it. 1991, I, c. 3061.
1329
Trib. Taranto 30 marzo 1988, in Resp. civ. prev. 1989, 699.
361
Stefano Troiano
departure of the traveller on a postponed date with respect to the anticipated date and
the consequent cancellation of the hotel booking at the travel destination.1330
As to the travel organiser’s liability for services which it assumes directly but are
normally carried out by other service providers, it seems reasonable to affirm that its
duties and obligations are the same as those expected from a specific supplier of such
services.1331 At times for example, the travel organiser has been called to respond as a
carrier, under article 1681 c.c.1332
Concerning the services which are entrusted by the travel organiser to a third party, one
must underline how a certain diligence is required on behalf of the former in the choice
of the latter1333 and how this diligence must be measured against the organizational and
structural character of the subject to whom the services have been entrusted and not to
the physical person who materially executes the service.1334 Moreover, it is affirmed that
the travel organiser has the obligation to inform the traveller who will carry out each
single service, and also the scope of agreement of the single service supplier for any
compensatory action on behalf of the damaged traveller and directly for such a
traveller.1335
With regard to the requirement of diligence of the travel intermediary it seems
reasonable to consider – given that the contract concluded between the travel
intermediary and the tourist is deemed to be an agency contract, as stated above – that it
involves professional diligence required from the intermediary. In particular, the
intermediary, to be exempt from liability, must be especially careful in its choice of
travel organizer,1336 and in light of article 1710, 2o co., c.c. must inform the principal
(that is to say the traveller) of sudden circumstances (for example the availability of an
inferior quality hotel room to that reserved1337) which may determine the revocation or
the modification of the contract.1338 It can therefore be understood why there is a wealth
of cases relating to the liability of the travel intermediary for non performance of its
obligations of information:1339 limiting this to just one example, a travel intermediary
1330
Trib. Milano 26 novembre 1992, in Resp. civ. prev. 1993, 856.
1331
Cfr. Cass. 6 gennaio 1982, n. 7, in Riv. giur. circ. e trasp. 1982, 524.
1332
Cass. 6 novembre 1996, n. 9643, in Nuova giur. civ. comm. 1998, 190.
1333
Cfr. Trib. Milano 26 novembre 1992, in Resp. civ. 1993, 856.
1334
Cass. 6 novembre 1996, n. 9643, in Nuova giur. civ. comm. 1998, 190.
1335
Trib. Roma 17 gennaio 1989, in Giur. it. 1991, I, 2, c. 66.
1336
See Tribunale Roma 29 maggio 2002, in Gius 2002, 20, 1993. See also Trib. Bologna 15 ottobre
1992, in Contratti 1993, 327.
1337
Trib. Roma 6 ottobre 1989, in Resp. civ. e prev. 1991, 512
1338
See R. Pasquili, I contratti di viaggio: la responsabilità del tour operator e del travel agent (seconda
parte), cit., 1519.
1339
See R. Pasquili, I contratti di viaggio: la responsabilità del tour operator e del travel agent (seconda
parte), cit., 1522.
362
was ordered to compensate the loss or injury suffered by a tourist for not having
supplied him with all the relative information on possible refusal of entry to the country
of the holiday destination.1340
The travel organiser’s duty to act diligently often also includes the duty to supervise and
control equipment destined to be used by the tourist. For example, the obligation to
place at the client’s disposition a hotel structure of the same quality as contractually
agreed, obviously also implies the assurance that in this structure the equipment at the
client’s disposition is in good working order and above all is not dangerous to the health
of the client.
i) Fault requirement
It has already been said that travel organiser contracts seem to follow the pattern of
“appalto di servizi” (procurement of service contracts, performance contracts) while
those of travel intermediaries seem to have the character of agency contracts. In the
light of such affirmations, there is a tendency to affirm that the travel organiser has an
obligation towards the end result and for this reason an exemption of liability is only
available from the demonstration of a fortuitous event or an Act of God; the travel
intermediary, however, is held to have an “obbligazione di mezzi” (literally obligation
as to the means) and in the case of a breach of this obligation, it would be liable
following the lack of diligence criteria.1341
In order to assess if in this case liability depends on fault or if there is an objective

liability, one must, above all, go back to what has already been said regarding contract
parties.
As has already been seen, the travel organiser can be exempt from liability for non
performance of its obligations regarding the organisation of the travel as long as it
proves that it was carried out by diligent travel operators. In such a case, therefore, the
1340
Cass. 24 febbraio 1987 n. 1929, in Resp. civ. prev. 1987, 454.
1341
In similar terms see among others, M. Tommasini, Interventi normativi sulla responsabilità degli
operatori turistici nei contratti di viaggio «tutto compreso» (dalla convenzione internazionale del 1970
al decreto legislativo n. 111 del 1995, attuativo della Direttiva CEE n. 314/90), in Giust. civ. 2000, 5,
2, 257.
363
Stefano Troiano
criteria for imputing liability appears analogous with that contemplated in article 1218
c.c.1342
With regard to liability connected to the execution of tourist services, the complicated
criteria for liability in the CCV has already been recalled. With particular regard to the
services entrusted to third parties, the liability of the travel organiser for non
performance (that is to say, in the case where the benefit connected to the exact breach
diminishes, like for example the lack of supply of some sort of hotel service) is of an
objective nature; however, with loss or injury caused during the course of execution (in
other words: for example, loss or injury suffered in the way of personal injury caused by
a fire during the journey in comparison to loss or injury suffered from the lack of supply
of the stipulated tourist service) the travel organiser is not liable if he can demonstrate
the absence of culpa in eligendo, that is to say the absence of fault in the choice of the
service supplier.1343
On the other hand, the Courts follow an extremely strict interpretation, tending, in
substance, not to consider the absence of culpa in eligendo: it has been affirmed that the
mere fact of verification of loss or injury could exclude the travel organiser’s diligence
with regard to the choice of service supplier.1344 In every case, such an exemption is not
taken into consideration in d. lgs. n. 111, which (besides not distinguishing, as already
stated, between the travel organiser’s direct services and those services entrusted to a
third party) means that the travel organiser’s obligations are more similar to a duty
towards a result than a duty for the means,1345 and therefore creates an objective type of
liability.1346
1342
In similar terms see, for example, A. Luminoso, Il contratto nell’Unione europea: inadempimento,
risarcimento del danno e rimedi sinallagmatici, in Contratti 2002, 1046. Such conclusions should be
valid as much in relation to law n.1084 as in relation to law n. 111, but only if one follows the above-
mentioned interpretation of the rules on liability laid down by the latter, that is the interpretation
which distinguishes liability for non performance of the obligations regarding the organization of the
travel from those connected to the execution of tourist services.
1343
See Giudice di pace Milano 19 febbraio 2002, in Il Giudice di pace, 2002, 2, 103.
1344
See Trib. Roma 17 gennaio 1989, in Giur. it. 1991, I, 2, c. 66.
1345
G. Tassoni, op. cit., 281. Cfr. anche La Torre, Il contratto di viaggio «tutto compreso», in Giust. civ.
1996, 1, 2, 38, which affirms that all of d. lgs. 111 is based on the principle of presumed liability
(except where proven otherwise) weakened by a limitation of duty.
1346
The prevalent interpretation of art. 17, co. 1°, of d.lgs. 111 takes this meaning (in the sense that the
travel organiser is exempt from liability only if it proves that the breach «can be imputed to the
consumer or it depended on a fact of unforeseeable and inevitable character, that is to say a fortuitous
event or an Act of God»): cfr. A. Luminoso, Il contratto nell’Unione europea: inadempimento,
risarcimento del danno e rimedi sinallagmatici, cit., 1046. The opposite theory appears to be in the
minority, according to which law d. lgs. n. 111 adapts the criteria of imputing liability of the travel
organiser in measurement of the diligence of the good travel organiser. On this debate see R. Pasquili,
I contratti di viaggio: la responsabilità del tour operator e del travel agent (seconda parte), cit., 1519.
364
The travel intermediary on the other hand, as already noted, to free itself from liability,
is allowed to prove that it has acted as a diligent travel intermediary, having shown, in
particular, the professional diligence required by the agent in the choice of travel
organiser (demonstrating for example that the selected travel organiser gave a series of
reliable guarantees1347) and having carried out the obligations of information required
from the intermediary (see above). This interpretation is correct for both the CCV and d.
lgs. n. 111, even though the latter contains unclear provisions in that, as has already
been said, it puts the seller together with the travel organiser without clearly
distinguishing – at least in the black letter of the law – their respective liabilities.1348
With regard to specific rules of liability which govern a given contract of a tourist
service supplier, it is useful to remember the provision in article 1681 c.c. governing the
liability of the carrier, which places the burden of proof on these subjects to show that
they have adopted all necessary measures to avoid loss or injury to qualify for
exemption.1349
iii) Standard of Fault (if applicable)
A particular standard of fault does not seem to exist in this area (except for that which
has already been expressed).
On the subject of exemption from liability (besides what has already been said on this
point) the question of derogation from the rules on liability contained in the texts of the
afore-mentioned laws appears to be of fundamental importance.1350
In particular the CCV in article 31 states that “any stipulation which would directly or
indirectly derogate from the provisions of this Convention shall be null and void, in so
far as it would be detrimental to the traveller”: in analogy, article 15, co. 3, of d. lgs n.
111, which concerns personal injury liability allows the derogation from the provisions
on compensation limits (in co. 1 of the same article) provided that such a derogation
would favour the traveller and states that everything to the contrary would be void (on
this point, in any case, see later the paragraph dealing with quantification of damages,
which will discuss the possibility of the derogation from the provisions of article 16 of
d. lgs. n. 111, concerning liability for loss or injury other than for personal injury).
1347
Tribunale Roma 3 giugno 2002, in I Contratti 2002, 10, 932.
1348
1349
See Cass. 6 novembre 1996, n. 9643, in Nuova giur. civ. comm. 1998, 190.
1350
It is claimed that private autonomy had, in this area, significant less importance than in other sectors
of contract law: See Roppo, Introductory Note in Viaggi, vacanze e circuiti tutto compreso (a cura di
V. Roppo), in Le nuove leggi civ. comm. 1997, I, 1.
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Stefano Troiano
Moreover the clauses that limit the liability of the professional travel organiser fall
within the scope of articles 1469-bis ss., which constitute the implementation of
Directive n. 93/13 on unfair clauses in consumer contracts. Therefore in the light of
articles 1469-quinquies, co. 2, and 1469-ter, co. 3, it must be considered that the
limitation of liability of the professional in the case of “death or personal injury of the
consumer, resulting from an act or an omission of the professional” or in the “case of
non performance in whole or in part or inaccurate performance on behalf of the
professional” (limitations which are declared void in the light of the above cited norms)
can be validly inserted into a travel contract, but only in that they truly reproduce the
normative dispositions (of the CCV and the d. lgs. n. 111) which provide for similar
limitations.1351
ee) Causation
Regarding causation, in view of the fact that no special rules on this can be traced, it
would seem that the general rules dictated in the civil code should be followed.
i) Normal standard of Causation
Nor does there appear to be, in subject matter, a particular standard of causation (see
general rules).
ii) Omissions
Regarding the subject of omissive causation, it is useful to consider that the most
frequent cases in which this appears are cases of breach of obligations on information
(see above). That being the case, there does not appear to be any specific criteria of
assessment of causation in this area different to the general criteria (see the short report
on the Italian tort law).
For the subject of burden of proof it also seems necessary to go back to the general
rules.
ff) Damage and Compensation
In relation to loss or injury suffered during the use of services related to tourism and in
relation to the corresponding compensation, the principal problem appears to be caused
1351
See C. Vaccà, sub. artt. 14-19 d. lgs. 17 marzo 1995, n. 111, in Viaggi, vacanze e circuiti tutto
compreso (a cura di V. Roppo), in Le nuove leggi civ. comm. 1997, I, 51.
366
by the concept of so called “damages for a ruined holiday” (“danni da vacanza

rovinata”). This type of damage, which is highly controversial, will be dealt with in the
paragraph dedicated to the compensation of pain and suffering.
i) Damage to Health
Except for the question of so called damages for a ruined holiday (which is sometimes
deemed to be a form of biological damages, i.e. damage to health), the problem of
compensation for biological damages does not seem to present any peculiarities in this
specific area (see therefore the general survey on the Italian law of Tort).
Italian doctrine and the Italian Courts have still not reached a unanimous position
concerning the so called damages for a ruined holiday, defined as the discomfort
experienced by the client following the non performance in whole or in part on behalf of
the tourist operator of its own obligations. Moreover the debate concerns the problems
of the nature, whether economic or not, of this type of damages and the criteria to be
used to quantify it. However, it does not concern the question of compensation of these
damages, which is now considered to be unproblematic.1352 In fact for a long time the
Italian Courts considered such damages to be moral damages in the sense of article 2059
c.c. and thus excluded their compensation when these themselves had not arisen from an
offence (article 2059 c.c. limits the compensation of non economic losses to the cases
indicated by the law, the most important of which being namely the case, laid down in
article 185 of the Italian penal code, of a fact constituting an offence: see on this regard
the short report on Italian tort law). Now, it definitely seems that the traditional case law
position has definitely been overruled by the decision of 12 march 2003, n. C-168/00 of
the European Court of Justice1353 interpreting article 5 of Directive 90/314/CEE.1354
1352
Cfr. Tribunale Torino, 8 novembre 1996, in Giur. It. 1997, I, 2, 58, according to which such loss or
injury must be considered to capable of being compensated in any case, leaving aside the economic or
non-economic nature.
1353
Corte di Giust. 12.3.2002, n. C-168/00 (in Corr. Giur. 2002, II, 998, with a note from R. Conti, Corte
di Giustizia, danno da vacanza rovinata e viaggi “su misura”. Ancora due vittorie per i consumatori, in
Contratti 2002, II, 952, with a note from P. M. Putti), according to which art. 5 of the Directive
90/314/CEE is interpreted in the sense that «the consumer has the right to compensation for moral
damages derived from the failure or from the improper performance of the supplied services relating
to package holidays».
1354
In these terms see for example, Trib. Firenze, 20.1.54, in Giur. it. 1954, I, 2, 484. Such a statement
seems to also be present in at least one other recent sentence: Trib. Venezia, 22.9.00, in Danno e resp.
2001, 861, with a note from C. Carassi, Ulteriore oscillazione giurisprudenziale sul “danno da
vacanza rovinata”.
367
Stefano Troiano
This being the case, it seems opportune to mention the principle theory in relation to the
nature (and therefore the basis of the compensation) of the damages being discussed
herein. A part of the doctrine (seemingly a minority) has, for the purpose of overcoming
the problems which arose from the interpretation of article 2059 c.c., considered it
possible to classify these damages as economic, pointing out that the breach of an
interest of a non-economic nature does not necessarily imply that the consequent
damages should then be classified as non-economic, and, moreover, that a creditor’s
interest of an abstractly non-economic nature can also become of an economic nature
should it be satisfied by performance of an economic content.1355
According to the prevailing opinion, however, the damages for a ruined holiday are of a
non economic nature.1356 Although non economic damages resulting from a contractual
breach are normally not capable of compensation, it has been argued that this limitation
would not apply to the damages for a ruined holiday since their compensation is
provided for by the law itself.1357 It has also been affirmed that article 2059 c.c. does not
limit the compensation of such damages since it makes reference, not only to those facts
which constitute an offence, but more in general to all “cases determined by the law”
and as such, it is said, this will include such damages as are being discussed here, in
view of the provisions of articles 13 and 15 of the CCV which considers compensation
of “any loss or damage”. It is useful, moreover, to remember, that sometimes, yet again
in an attempt to overcome the interpretative problems of article 2059 c.c.,1358 it has been
considered possible to assimilate this type of damages to biological damages (which are
capable of compensation under article 2043 and for this reason out of the limits of
article 2059 c.c.). Some authors have finally redirected these damages to the concept of
so called “danno esistenziale” (literally damages to the personal sphere: see the general
report on Italian tort law).1359
iii) Quantification of Damages
Both the CCV and d. lgs. n. 111 provide for maximum amounts and therefore limited
liability. Firstly, the CCV, which, in the first subsection of its article 13, co. 2 (which
makes reference to the travel organiser’s liability for non-performance of its
obligations) limits the compensation for each traveller to: 50,000 gold francs for
personal injury; 2,000 for damage to property and 5,000 for any other damage. These
same amounts are recalled in article 15 in relation to the liability of the travel organiser
1355
Along these lines see V. Zeno-Zencovich, Il danno da vacanza rovinata: questioni teoriche e prassi
applicative, in La nuova giur. civ. comm. 1997, 6, 1, 879.
1356
See for example Giudice di pace Milano 20 febbraio 2003, in Giurisprudenza Milanese 2003, 5, 217.
1357
See C. Vaccà, Viaggi, vacanze e circuiti tutto compreso, in Giust. civ. 2000, I, 1207.
1358
See Giudice di Pace Siracusa, 26.3.99, in Giust. civ. 2000, I, 1205.
1359
See P. Ziviz, Alla scoperta del danno esistenziale, in Scritti in onore di Sacco, Milano 1994, 1325.
368
for loss or damage caused by failure to perform the travel services by a third party.
Moreover the CCV provides another maximum amount, fixed at 10,000 gold francs for
each traveller, in relation to the liability of an intermediary.
With regard to d. lgs. n. 111, its article 15, in relation to personal injury recalls the
maximum provided in the specific laws for damages derived from the international air
or rail contracts (contained in the Warsaw Convention on international carriage by air
12 October 1929 and the Berne Convention on travel by rail 25 February 1961) and for
all other loss or damage it refers to the cited amounts in article 13 of the CCV.
In d. lgs n. 111, according to its article 16 when quantifying loss or damage which is not
personal injury, it seems there is an articulated discipline from which it can be deduced
– in synthesis – that the parties to the contract may reach an agreement regarding
damages, but that such a limitation on damages cannot be inferior to those stipulated in
article 13 of the CCV, otherwise resulting in the nullity of the relative contract and
finally that in absence of any specific agreement of the parties, then the maximum
amounts from the afore-mentioned article would be applicable (other than those in
article 1783 c.c.).1360
Keeping with the theme of quantification of damages, it is not possible to overlook the
problem of quantification of ruined holiday damages. In the light of this, it must be
remembered that the judges have tended to determine the amount of the settled sum by
equitable means,1361 often reaching, however, notably different results, which has been
critically underlined by many in the doctrine.1362
With regard to the relevance of the affected traveller’s behaviour, articles 16 and 23 of
the CCV contemplate the liability of the traveller to the travel organiser and
intermediary respectively (and their employees and agents), as a consequence of non-
compliance with the obligations incumbent upon him under this Convention or under
contracts subject thereto, caused by his wrongful acts or default which are assessed
having regard to a traveller’s normal behaviour (see in particular article 4).
D. lgs. n. 111 also anticipates, at subsection 1 of article 17, among other cases of
exemption from liability of the travel organiser and the seller, the case in which the non-
1360
1361
See for example Trib. Milano 16 ottobre 2001, in Gius 2002, 11, 1187.
1362
See cfr. A. Lezza, I contratti di viaggio, in Trattato di diritto privato europeo, a cura di Lipari, VI,
Singoli contratti. La responsabilità civile. Le forme di tutela, Padova 2003, 284. See also L. Sesta,
Danno da vacanza rovinata e danno morale contrattuale, in Giur. it. 2002, 10, 1805, who points out
that judicial damages are sometimes merely symbolic, other times are notably high (for example two
thirds of the cost of the package holiday).
369
Stefano Troiano
performance or default of the contract can be imputed to the consumer. Moreover, the d.
lgs. n. 111 also imposes on the consumer to respond without delay to any non
performance of the contract with the purpose of giving the travel organiser the chance to
remediate quickly (article 19 1 co.). Such a rule is an expression of the general
principle, in article 1227 2 co., c.c. according to which no compensation is owing for
damages which a creditor could have avoided by acting diligently.1363
hh) Limitation period (time limits)
The CCV establishes the period of limitation for an action based on death, wounding or
other bodily or mental injury of the traveller as two years and one year for actions based
on anything other. The period of limitation will run, in both cases, on the date specified
in the contract as the date of the termination of the travel (article 30 CCV). However d.
lgs. n. 111 provides for a period of limitation of three years for actions resulting in
personal injury – except for the short limitation period of 12 or 18 months for breach of
transportation service contracts – and one year for actions resulting in any other
damages and in both cases this runs from the date of the return of the traveller to the
place of departure (articles 15 co. 2 and 16, co 4, of the law n. 111).
As has already been noted, liability for damages for personal injury connected to the use
of tourist services is nearly always, in Italy, understood as a contractual liability. As the
Italian legal system allows for the accumulation of contractual and extracontractual
liability, it is also still possible to recognise an extracontractual liability (together with
liability in article 1218 c.c.) in the light of article 2043 c.c. (based in particular on the
injury to the right to health of the injured/damaged traveller). If one only bears in mind
the different rules which govern contractual and extracontractual liability (see the short
report on Italian tort law), the importance of this possibility is easily understandable.
Nevertheless it must be stated that articles 25-28 of the CCV recognise that the injured
traveller has the right to act against the travel organiser in extracontractual claims, but at
the same time the articles also extend the provisions of the Convention, which govern
contractual liability of the travel organizer, to extracontractual claims against him.1364
However, it is not clear, due to the lack of express provision on this point, if the
1363
1364
On this point see cfr. M. Tommasini, Interventi normativi sulla responsabilità degli operatori turistici
nei contratti di viaggio «tutto compreso» (dalla convenzione internazionale del 1970 al decreto
legislativo n. 111 del 1995, attuativo della Direttiva CEE n. 314/90), in Giust. civ. 2000, 5, 2, 259, e A.
Lezza, I contratti di viaggio, in Trattato di diritto privato europeo, a cura di Lipari, VI, Singoli
contratti. La responsabilità civile. Le forme di tutela, Padova, 2003, 278.
370
regulation of liability in d. lgs. n. 111 should or should not also apply to

extracontractual claims against the subjects here discussed.
aa) The parties
An exclusive extracontractual liability (that is to say not concurrent with a contractual

liability) only seems imaginable in marginal circumstances, especially in cases of loss
or injury caused to the traveller by third parties, like other tourists or mere passers-by.
In fact, as has already been seen, an obligatory relationship between the tourist and the
single tourist service supplier can be recognised (a breach of which can be the origin of
contractual liability) according to prevailing interpretations, even if the traveller
concludes the travel contract (not with an intermediary but) directly with the organiser,
even though the latter is not, at least normally is not, a representative of the former and
this is because the contract between the supplier and the organiser is regarded as a
contract in favour of third parties.1365
The issue of bodily injury to the injured traveller causing extracontractual liability does
not present peculiarities with respect to the general rules existing in this area (except for
what has been said with regard to ruined holiday damages).
In light of what has already been said on articles 25-28 of the CCV, the rules on liability
in the Convention (which have already been dealt with) seem to regard, without
distinction, both contractual and extracontractual claims exercised on behalf of the
injured traveller against the organiser or the intermediary of the travel.
On the other hand, regarding the supplier’s extracontractual liability of a specific tourist
service, it is obvious that such a liability can only be recognised if it can be
demonstrated that all elements listed in article 2043 c.c. exist in the given case,
including the wrongful conduct of the supplier.1366
dd) Causation
The causation link in relation to extracontractual liability seems to be governed by the

general rules. These tend to distinguish factual causation, which binds the conduct to the
1365
In the minority, however, as already noted, is the theory according to which the future liability of the
supplier towards the traveller will necessarily be of an (and only an) extracontractual nature. On this
point see A. Antonini, Prestazione di servizi turistici e diritti del cliente danneggiato, cit., 399.
1366
In this sense see for example, Cass. 7 dicembre 2000, n. 15536.
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Stefano Troiano
damaging event, from legal causation (referred to in article 1223 c.c.) which selects the
relevant unfavourable economic consequences resulting from the illicit act.1367
ee) Fault
As has already been stated many times, articles 25-28 of the CCV extend the rules and
limits in the Convention in relation to the contractual liability of the travel organiser to
extracontractual actions (see above). Apart from this relief, there do not seem to be
available, in terms of fault, any rules that derogate from the general rules.
Regarding compensation of the injury or damage, the subject of ruined holiday damages
has already been approached (which represents, as mentioned, the most debated topic at
present). According to the debates on these damages, when they are caused due to the
non performance of assumed obligations, on behalf of an organiser, an intermediate or a
supplier of a tourist service, they seem to be typical damages of a contractual nature1368
(see above). However, even in the case that they were seen to be of an extracontractual
natura, there would still seem to exist no obstacles with regard to the compensation of
such damages.1369
On the relevance of the possible negligent behaviour of the traveller, the afore-
mentioned on the subject of contractual liability should be read, as well as the general
rules.
hh) Limitation period
It is considered (although the theory is not without argument) that the limitation periods
provided in the two above-mentioned laws concern the performance of the sole action
on which the travel contract is based, so they cannot be extended to extracontractual
actions, which remain therefore subject to general legislation.1370
1367
M. De Giorgi/A. Thiene, sub art. 2043, in: Commentario breve al codice civile, a cura di Cian e
Trabucchi, Padova 2002, 1983.
1368
See for example Trib. Napoli , 26 febbraio 2003, in Giurisprudenza napoletana 2003, 5, 172 e Giudice
di pace Milano , 4 febbraio 2002, in Il Giudice di pace 2002, 2, 105.
1369
On the not necessarily contractual nature of the damages concerning ruined holidays, and in the light
of the possible accumulation of contractual and extracontractual actions see T. Serra, Inadempimento
del contratto di viaggio e danno da vacanza rovinata, cit., 1207.
1370
See C. Vaccà, sub. artt. 14-19 d. lgs. 17 marzo 1995, n. 111, in Viaggi, vacanze e circuiti tutto
compreso (a cura di V. Roppo), in Le nuove leggi civ. comm. 1997, I, 50.
372
There does not appear to be any particular consideration on the agreed derogation from
the rules on liability being examined here (just like the other cases on exclusion or
limitation of liability), except for that which has already been said in relation to
contractual liability.
aa) Burden of Proof
With regard to the burden of proof, it seems necessary to apply (except for what has
already been mentioned above in relation to the proof of fault) the general rules also in
this area.
bb) Specific institutions (Ombudsman, Claims Board etc)
There does not exist, to this date, any specific institution to which the particular role of
resolving conflicts has been assigned.
Moreover, article 29 of the CCV explicitly recognises the admissibility, in the contract,
of a possible “clause conferring jurisdiction on an arbitration tribunal provided that this
clause stipulates that the tribunal shall apply this Convention”. There is no such
analogous provision in d. lgs n. 111, although (and especially after the coming into
force of the law of 5th January 1994 n. 25 concerning the reform of arbitration) the use
of an alternative form of dispute resolution must be therefore considered to be a
practical way in relation to the theory of liability outlined in that law.1371
e) Case Study
Pret. Rome 11 December 19961372

The case concerns the application for the payment of damages, both contractual and
extracontractual, by a married couple against the tour operator that had organised their
honeymoon. In particular, the claimants lamented the following: they were given a hotel
of an inferior category to that agreed in the contract; the time taken for the journey was
notably higher than that anticipated; the phenomenon of low tides (foreseeable, on
notification, by the organiser) prevented them from practising aquatic sports which
1371
On this point see A. Lezza, I contratti di viaggio, in Trattato di diritto privato europeo, a cura di Lipari,
VI, Singoli contratti. La responsabilità civile. Le forme di tutela, Padova, 2003, 293.
1372
In La Nuova giur. civ. comm. 1997, 6, 1, 875.
373
Stefano Troiano
represented the main attraction of their holiday resort. They therefore demanded
compensation for the damages connected to these above-mentioned circumstances.
The Judge, after affirming that the provisions of the CCV applied, recognised the basis
of the claimants’ demand and sentenced the defendant to compensate, not only
economic damages, but also damages for a ruined holiday, intended as damages of a
non economic interest. These damages, in the opinion of the Judge, would be capable of
compensation in light of article 2059 c.c., though in this case there was no offence
committed. However, the Judge interpreted art. 2059 to cover not only non economic
damages resulting from an offence but also those arising from the non performance of
tourist services as this type of compensation is contained in the provisions of the CCV.
374
Liability for services Spain
5. Spanish law
aa) The parties
The parties concerned are the traveling consumer and the travel agency selling the trip
(detallista) as well as the organizer of the journey (organizador).
art. 1783 and 1784 codigo civil deal with the innkeepers (fondista, mesoneros) liability
towards their guests. According to these rules, innkeepers are held liable as if
having contracted a safekeeping contract, which means that only damages to goods are
compensated.
There is room for vicarious liability, according to art. 1784 codigo civil. The
innkeeper is liable for his employees' (criados, dependientes) behavior as well as for
the behavior of those helping him fulfill his contractual obligations, as for example a
private security service. In addition, the innkeeper is liable for third persons (extranos)
behavior even if that person has nothing to do with the hotel.
For such damage, the general rules of the codigo civil apply.
The contract is the primary source in order to know the parties´ duties and obligations.
Only by reading the contract carefully, one can determine whether there is non-
performance or not. Spanish courts can be pretty strict on this requirement. In one case
decided in 1999, the Regional court of the Balearic Islands refused to award any
damages for non-performance of the contract. A hotel and a travel agency had
concluded a contract of reservation of hotel beds by quota by which the hotel committed
itself to hold back – for a certain time during the main season – several hotel beds to the
benefit of the travel agency which the latter should sell. In the contract, the parties had
only agreed on the price and a period of seven days for “release”. The contract did not
oblige the travel agency to confirm neither the beds finally booked by any client nor the
status of sale. The travel agency thus did not need to deposit a rooming list showing that
a certain number of beds had been sold, thereby making the reservation final. The court
found that since there was no obligation to deposit a rooming list, the hotel could not
claim non-performance of the contract for a contractual obligation that had not been
contracted. The travel agency had not been obliged by the contract to sell a certain
375
number of hotel beds. Even though the court recognized the possibility to qualify this
contract as an atypical contract, which could be interpreted as implicitly comprising a
rooming list clause, due to the nature of the contract, good faith or simply customs in
the hotel industry, it refused to do so in the given case. Thus, no damages were
awarded.1373
The standard of care to be observed is the same as in general contract law, the one of the
buen padre de familia, which is equal to the average standard of care of an average
person. According to art. 11 of the Spanish package travel law of 1995, the scope of the
journey determines the scope of responsibility that is, the correct fulfillment of the
contractual obligations, no matter whether the organizadores and detallistas have to
perform the obligations themselves or the performance is done by others chosen by the
formes (otros prestadores de servicios). Correct fulfillment of the contractual
obligations means that the performance not only has to be correct but incomplete or
deficient.
The defendant also has to observe a wide range of information duties. These
include information about the means of transport (mentioning its characteristics and
class to travel in), the journey's duration, course and calendar, indication of the type of
accommodation, its situation, category and main characteristics as well as its
classification among local hotels, the number of meals to be served, the necessary visa
and paper formalities, the fare for the journey itself as well as for additional optional
trips, the amount of money to be paid in advance on the total price, the conditions for
canceling or changing the trip and other, the eventual minimum number of bookings for
the journey to take place, name and place of the organizador as well as, if existent, its
legal representative in Spain, any other adequate information of interest for the
consumer. More, according to art. 3 of the law, the detallista and organizador must
hand out a information sheet to the consumer stating the offer including the possible
extreme events disturbing a perfect performance of the contract such as major strike
of the work forces, heavy social conflicts, possibility of armed robberies and other
social conditions of the destination.
In 1988, a court of first instance1374 had to decide upon a case where a travel agency had
sold a honey moon trip to the Maldives to a couple. The journey described in the
catalogue and sold however did not correspond at all to the one the couple had booked.
The court found that the catalogue amounted to misleading publicity and awarded
damages since the travel agency had committed a fault or at least been negligent.
According to the court, even though due to the distance between Spain and the islands it
was difficult to know the place offered, the one who is selling a trip there, especially
1373
SAP Baleares, July 12, 1999; AC 1999, 7885, STS December 3, 1992; RJ 1992, 9999.
1374
AP Lleida, March 12, 1998, Ar.Civ. 1988, 356.
376
when praising it in his catalogue must assure that the existing characteristics correspond
to what he says.
Since the liability is based on the principles ruling a safekeeping contract, there is room
for fault based liability as well as strict liability. According to art. 11 of the Spanish
package travel law, there is no fault based liability in the strict sense of the word. The
fault is either presumed or there is strict liability because every breach of contract leads
to liability. The defendant cannot exonerate himself, except in case of act of god or fault
committed by a third person totally independent of himself.
ee) Causation
The general rules of causation apply.
A non-performance situation can only arise after the journey has started. If the
defendant (be it the travel agent or the tour operator) realizes that he is not able to fulfill
all his obligations, he must either provide for acceptable alternatives or compensate the
damages arisen. Another possibility is the adjustment of the price for the journey. The
aim of the Spanish legislation is that the journey should be continued so that all
compensation has to respect that goal.
There is room for non-pecuniary damages.
Damages can always be awarded according to the general liability rules. Spanish courts
have proven to be rather generous. For example, a court in Madrid awarded a quarter of
the original fare as damages in a case of a four-day-trip where the accommodation was
reduced in value for one single day,1375 The court thus calculated on the basis of the
whole fare including the air fare even though only the accommodation was not alright.
In one case for example, the amount of damages awarded was particularly great since
the journey concerned was a honey moon. The court argued that in such case the
non performance would be of particular importance.1376 In other cases, the need to accept
a hotel of lower standard could be compensated by a reduction of the fare, but not so in
the case of a honey moon.
1375
Court of First Instance Madrid September 8, 1993; Dinero y Derecho, August 1995, 35.
1376
AP Lerida, March 12, 1998, RAJ 1998, 517.
377
Liability is only denied in case of act of God (fuerza mayor) and in case of an armed
robbery (robo a mano armada) and where the plaintiff himself is responsible for the
damage. Also, there is no liability on the part of the travel agency where it
communicated all changes in the description of the contract to the consumer in writing
before the start of the journey.
However, the amount of damages awarded depends on the plaintiffs behavior. If the
plaintiff does not indicate any defects in the performance, he might have to endure a
reduction of damages on the grounds of contributory negligence. This duty does not
originate in the law but has been developed by jurisprudence.
The general limitation prescription period is two years.
Everything that goes beyond contractual liability can be tortious liability. Art. 1902
codigo civil fully applies.
There is also room for vicarious liability. In 1991, the Tribunal Supremo decided a
case dealing with the liability of a hotel director.1377 A young girl was injured while
running into a glass door not having realized that the door was there. The glass
door had not been sufficiently identified as being there and thus bore a higher risk of
injury. The court did not pronounce itself on the right interpretation of art. 1903
codigo civil since it derived the directors liability from art. 1902 codigo civil directly.
However, it stated that in general there is alternative vicarious liability between the
owner and the director, according to the wording of art. 1903 codigo civil.
bb) Causation
The general rules of causation apply. The chain of causation is never presumed.1378
cc) Fault
The general standards for fault apply. It should be kept in mind that the scope of
contractual liability is wide so that there is barely room for tortious liability.
1377
STS (sala 2) November 4, 1991; RJ 1991, 8141.
1378
STS October 24, 1987; RJ 1987, 7471, STS December 17, 1988; RJ 1988, 9476, STS December 12,
1989; RJ 1989, 8820, STS May 29, 1995; RJ 1995, 4136.
378
Spanish courts insist that liability remains fault-based in principle. Any unwanted
consequences or inequities resulting from that principle can be smoothened by a
reversal of the burden of proof for example or by changing the standard of diligence to
be observed according to the circumstances of the case, so that more prudence is
necessary in order to avoid damage without amounting to risk-based liability though.1379
The subjective element of fault based liability such as a moral or psychological factor as
well as the value judgment concerning the defendants conduct must be preserved.
dd) Damage and compensation
Pecuniary as well as non-pecuniary damage are compensated.
ee) Contributory negligence
The general rules apply. Contributory negligence is considered to belong to equity, the
result of diminution of the damages to be awarded to the plaintiff is a logical
consequence.
In 2001 the Regional court of the Balearic Islands did not award any damages to the
plaintiff due to contributory negligence amounting to an exclusive fault of the victim
and thus exoneration of the defendant.1380 Outside opening hours, a young man had
climbed – together with some friends – the fire ladder of a hotel he was not residing in,
in order to get to the swimming-pool, thus using a way not designated to be used to
access the pool. He was drunk. The plaintiff then suffered serious physical injuries. The
Regional court denied damages on the grounds that there was no fault on behalf of the
hotel even though it had not taken any precautionary measures to avoid such incidences
and the writing on the sign indicating the depth of the pool had faded and become
illegible. But the hotel had not created any anormal risk, only the plaintiff had by his
behaviour. The plaintiff had committed a fault himself, thereby creating the unique
cause of the damage excluding any third persons liability or at least interrupting any
causal chain existing.
ff) limitation (prescription period)
The general limitation prescription period is one year.
1379
STS December 20, 1982; RJ 1982, 7698, STS May 8, 1990; RJ 1990, 3690, STS February 4, 1997; RJ
1997, 677, STS November 21, 1997; RJ 1997, 8093, STS April 23, 1998; RJ 1998, 2600, STS May
30, 1998; RJ 1998, 4112.
1380
SAP Baleares, January 23, 2001; JUR 2001/21926.
379
Liability is only excluded in case of fuerza mayor and caso fortuito.

Since there is freedom of contract, exclusion clauses are generally accepted. However,
they must respect the limits of art. 1102 codigo civil. The jurisprudence controls their
content recognizing the imbalance of power between the parties.1381
aa) Burden of proof
The plaintiff must prove the existence and the scope of the damage be it indirect or
direct damage as well as the causal link to the non-performance claimed. The defendant
bears the burden of proof for the correct performance of the contractual obligations.
A case decided in 1999 by the Regional Court of the Balearic Islands illustrates these
principles very well: A hotel owner claimed damages against a travel agency for not
having performed properly. The parties had concluded a contract for the reservation of
hotel beds by quota obliging the hotel to hold back several beds for the benefit of the
travel agency. The travel agency never used the quota reserved, the hotel thus claiming
missed profit. The court held that – independent from the exact content of the contract –
the hotel had not proven the existence neither of direct nor of indirect damages nor of
any causal link to the alleged non-performance. On the contrary, the travel agency as the
defendant had made it plausible that during the time during which the quota should have
existed the hotel had been fully booked and thus no damage resulted from the fact that
the beds had not been occupied by clients of the travel agency. The court therefore saw
the principle confirmed according to which not every contractual non-performance gives
way to damages only where the plaintiff fully proves their existence, this principle being
particularly true in cases where missed profit is claimed since such damage cannot be
based on mere expectations only.1382
Concerning tort liability, the plaintiff bears the burden of proof; however, jurisprudence
has made it easier by accepting liability on the basis of presumption as well as strict
liability cases.
There are no specific institutions.
1381
AT Bilbao, May 22, 1987, La Ley 1987, 125, AT Oviedo July 5, 1988, La Ley 1989, 669.
1382
SAP Baleares, July 12, 1999; AC 1999, 7885.
380
e) Case study
In 2002, the Regional Court of the Balearic Islands had to decide upon the following
case: Two children were playing by the hotel pool when the hotels staff was cleaning
the terraces and the pool. On the edge of the pool the staff had left a bucket containing
caustic soda. In the heat of the game, one minor took the bucket and – believing that it
contained only water – threw its content in the face of the other thereby inflicting
serious injuries. The victim had to remain hospitalized for 900 days and permanently
lost her right eyeball with total loss of vision. The cleaning work had been done without
any precautionary measure leaving the rooms to be cleaned open to everyone without
notification about the content of the bucket nor about the fact that cleaning work was
done in certain areas of the hotel. The victims father first filed an action to the criminal
court. However, this court denied its jurisdiction for there was no criminal offence. The
court referred the parties to the civil courts. The plaintiff then brought an action for
damages against the father of the minor having caused the damage and his insurance
company. The court of first instance held the defendants liable for 90 % of the damage,
the hotel therefore being obliged to pay only 10 % of the damages, on the grounds of
artt. 1902, 1903 codigo civil. The court held that there was no anterior relationship
between the minors. They were not friends. Thus, the court concluded the minors shot at
the other´s face was intentional, even aggressive. Throwing a buckets content in another
persons face that one does barely or not at all know, is a not socially justifiable action,
not even when the actor is only 14 years old. Thus, there was no possibility to exonerate
the defendant. The defendants appealed. The appelate court stuck to the factual findings
but recognized that the hotel had created an evident risk by using dangerous products in
the apparent presence of the public without adopting any precautionary measures
whatsoever warning of the buckets dangerous content and the disastrous consequences
when getting into contact with the toxic liquid. Without the hotels negligence, the
accident would not have occurred. Only the concurrence of the minors action and the
hotel´s negligence had led to the injuries. Thus, the appellate court split the liability in
half.1383
1383
SAP Baleares, January 18, 2002; JUR 2002/72583.
381
Liability for services Sweden
6. Swedish Law
International Encycopedia of Laws (cited: A. Adlercreutz); B. Bengtsson, Torts and Insurance, in: S.
Strömholm (ed.), An Introduction to Swedish Law, 2nd ed. 1988, 297 ss.; U. Bernitz, Market and
Consumer Law, in: S. Strömholm (ed.), An Introduction to Swedish Law, 2nd ed. 1988, 267 ss.; B. W.
Dufwa, Compensation for Personal Injury in Sweden, in: B. A. Koch/H. Koziol (eds.), Compensation for
Personal Injury in a Comparative Perspective, 2003, 293 ss.; B.W. Dufwa, Contributory Negligence under
Swedish Law, in: U. Magnus/M. Martín-Casals (eds.), Unification of Tort Law: Contributory Negligence,
2004, 197 ss.; J. Hellner, Contract and Sales, in: S. Strömholm (ed.), An Introduction to Swedish Law,
2nd ed. 1988, 233 ss.; J. Hellner/S. Johansson, Skadestandsrätt, 6th ed. 2001; Karnov, Svensk Lagsamling
med kommentarer, 2003-2004; J. Ramberg, Köplagen, 1995; J. Ramberg, Allmän avtalsrätt, 4th ed. 1995;
L. Wendel, The Impact of Social Security Law on Tort Law in Sweden, in: U. Magnus (ed.), The Impact
of Social Security Law on Tort Law, 2003, 176 ss.; H. Witte, Schweden, in: Ch. v. Bar (ed.), Deliktsrecht
in Europa, Schweden, Schweiz, 1993, 1 ss.
Services related to tourism are regularly rendered on a contractual basis. Even before
her access to the EU Sweden has implemented the EU-Directive on packagetours1384 by
enacting the Lag om paketresor (Act on Package Tours).1385 This Act deals to some
extent with compensation of (personal) damage. In addition the general rules on liability
in contract apply. As noted in the survey on Swedish law there is no general regulation
of contracts of services; but provisions and principles taken from the Contracts Act, the
Consumer Services Act and the Damages Act have to be assembled and form together
with the very limited case law the governing law. Moreover, generally used standard
form contracts have some relevance here.1386 These standard form contracts have been
negotiated and agreed upon between representatives of the Swedish consumers and of
the respective industry branch. They appear to govern in fact.1387
From a dogmatic and systematic point of view many uncertainties of the precise
contents of the law remain1388 due to the facts that various partial regulations exist and
that there is almost no case law, which deals with compensation for such personal
1384
Directive of 13 June 1990 on package travel, package holidays and package tours (90/314/EEC), J.O.
L 158, 23 June 1990, 59 ss.
1385
Act 1992:1672.
1386
See the standard form contract AVPR 93 För Paketresor (J. Ramberg, Allmän Avtalsrätt, 315). In
certain cases also the ABS 95 Allmänna bestämmelser för smahusentreprenader (J. Ramberg, Allmän
Avtalsrätt, 348 ss.) may become relevant.
1387
See thereto J. Ramberg, Allmän Avtalsrätt, 64 ss.
1388
See in the same sense generally on contract law: J. Hellner, Contract and Sales, in: S. Strömholm, An
Introduction to Swedish Law 264 (“penumbra of uncertainties”).
383
Ulrich Magnus
injuries, which have been caused through the rendition of tourism services (outside the
transport sector). From a practical viewpoint these uncertainties do not matter very
much since personal injury cases seem to be satisfactorily dealt with by means of
insurance which those persons who are potentially causing damage voluntarily or
compelled by law do take.1389
aa) The parties
i) Contract parties
Since Swedish law starts by the doctrine of privity of contract1390 only the direct contract
parties are in general obliged and entitled under the contract. But also further persons
may be protected by the contract, namely if the contract parties have either expressly or
impliedly agreed that the contract was concluded also to their benefit.1391
Mere by-standers cannot rely on the contract. Their protection normally depends
entirely on tort law. However, the extensive Swedish insurance coverage scheme may
often avail them.
The general rule on vicarious liability applies to a provider of tourism services as well.
The provider is – in a sense strictly, namely without excuse – liable for damage of third
persons which his or her employees have at least negligently caused in the course of
their employment.1392 For tour operators the Package Tours Act (as the underlying
Directive) further imputes negligent acts of independent contractors whose services the
tour operator offers to his or her customers.
1389
For instance the collective agreement ABS 95 Allmänna bestämmelser för smahusentreprenader
prescribes the obligation to take insurance coverage for any kind of damage (chap. 5, § 15). Though
this agreement has been concluded on a collective and voluntary basis it leads to a factual duty to
insure and to a far-reaching protection of the recipients of the services covered in this collective
agreement. See for further examples H. Ullman, Contractual Duty of Insurance, Scandinavian Studies
in Law, vol. 41. 2001, 533 ss.
1390
1391
1392
See to this rule as a general principle J. Ramberg, Köplagen, 358 ss. B. W. Dufwa, Compensation for
Comparative Perspective, 313. See also the general regulation in chap. 3, § 1 Damages Act, though
this Act primarily deals with tortious liability.
384
Bodily injury includes physical as well as immaterial harm.1393 As to the latter aspect
Sweden is also bound by the decision of the European Court of Justice in Simone
Leitner1394 where the Court held that the Package Tours Directive provided that the
liable tour operator had also compensate immaterial loss of his or her customers.
The Package Tours Act1395 and the underlying Directive1396 establish among others the
duty of a tour operator to compensate any damage of the customer, which results from
non-performance or defective performance of the travel contract. The tour operator has
therefore a general though indirectly provided duty of care not to infringe the personal
integrity of the traveler. However, these legislative acts do not specify further primary
duties concerning the performance of a travel tour. For this stage of the travel contract
they only order secondary duties providing for damages when whatever primary duties
have not been fulfilled.
As far as other tourism services are concerned which are not covered by the mentioned
legislative acts a general statutory regulation of contracts of services is lacking.
However, the Consumer Services Act contains some provisions, which can be
generalised applied to services contracts outside the exact scope of application of that
Act. Moreover, it can be questioned whether the provisions on liability of the Package
Tours Act can be regarded as general principles which also apply to other tourism
services.
The central duty of the Consumer Services Act is the service provider’s obligation to
perform the contract in a professional manner with due care to the recipient’s interests
and as far as appropriate in consultation with him or her.1397 It has been suggested that
this duty to act professionally with due respect to the recipient’s interests can be taken
as a general obligation inherent in all contracts of services.1398
1393
See with respect to the Package Tours Act citing the ECJ: L. Grobgeld, in: Karnov, Svensk
Lagsamling med kommentarer, 2003-2004, Lag om Paketresor, no. 67.
1394
ECJ of 12 March 2002, European Legal Forum 2002, 73 (Simone Leitner/Tui Deutschland GmbH &
Co. KG).
1395
§§ 16, 17.
1396
Art. 5 par. 2.
1397
1398
385
Ulrich Magnus
The Consumer Services Act prescribes the service providers obligation to ensure that
safety provisions or similar administrative regulations are complied with in order to
protect the recipient against respective risks.1399 It is very likely that this obligation can
also be generalised and applied to all kinds of services contracts.
To establish liability for damage caused through the rendition of the tourism service the
Package Tours Act has adopted the principle of “control liability” which is similar to the
liability principle in the underlying Directive. The tour operator is liable for damage
resulting from non-performance or defective performance unless circumstances outside
the control of the tour operator have caused the damage.1400 Swedish authors do not
regard the control liability as a strict liability in its formal sense but as a presumed
liability with a very high barrier to rebut the presumption. “It is not as strict as strict
liability but stricter than presumed liability.”1401 Therefore under the Package Tours Act
negligence of the tour operator is presumed and the presumption is very difficult to
rebut. This principle corresponds to the general rule under the Consumer Services
Act1402 though this Act does not cover personal injuries.
Whether the principle of control liability can be extended to other kinds of tourism
services appears to be doubtful. From the respective provisions of the Package Tours
Act, the Consumer Services Act, the Consumer Sales Act1403 and the Sales of Goods
Act1404 the conclusion could be drawn that the provider’s liability is rather strictly
presumed where he or she is able to, and can be expected to, control the inherent risks
of the offered service for the safety of the recipient of the service. Such control is
possible where the service includes appliances, building facilities, products like meals
etc. Where the tourism service relates to other conditions like weather, accompanying
and the like such control cannot, or can less be expected. Court decisions clarifying the
point are not reported. However, a recommendation of the Public Claims Board held
that the performance of a travel tour was defective because the surrounding of the hotel
was unsafe.1405 A rather high level of care is thus expected and the presumption not
1399
See § 5, Consumer Services Act.
1400
See § 16, Package Tours Act; art. 5 par. 2, Package Tours Directive.
1401
A. Adlercreutz, no. 344.
1402
1403
§ 30, Konsumentköplag (Act 1990:932).
1404
§ 40, Köplag (Act 1990:931).
1405
Allmänna Reklamationsnämnden 1999 no. 6357, quoted by L. Grobgeld, in: Karnov, Svensk
Lagsamling med kommentarer, 2003-2004, 624 no. 61.
386
easily rebutted even with respect to further conditions surrounding the direct
performance.
See already the preceeding part.
See also above under i).
iii) Exemption from liability
Again it is to be referred to i).
ee) Causation
The general rules on causation apply. It can be referred to the remarks in the general
survey on Swedish law.
If the recipient of a tourism service has been bodily injured in the course of the rendition
of a tourism service the resulting “personskada” (personal injury damage) has to be
compensated.1406 The damages, which have to be granted include the expenses for
healing as well as lost income. This is expressly provided for by chap. 5 § 1 no. 1 and 2
Damages Act, which can be applied as the general regulation of the law of damages. In
case of death the decedents of the killed person are entitled to compensation of the
burial expenses and, if any, of their lost maintenance.1407
i) Pain and suffering
In case of bodily injury non-pecuniary harm has likewise to be compensated.1408

According to chap. 5 § 1 no. 3 Damages Act compensation of this kind of loss includes
the sustained pains, permanent impairments and further inconveniences. In case of death
1406
See expressly § 17, Package Tours Act and generally chap. 2 § 1, Damages Act.
1407
Chap. 5 § 2, Damages Act.
1408
See also ECJ of 12 March 2002, European Legal Forum 2002, 73 (Simone Leitner/Tui Deutschland
GmbH & Co. KG).
387
Ulrich Magnus
near relatives of the killed person are entitled to compensation of their emotional
distress.1409
ii) Measure of damages
For assessing personal injury damages the provisions of the Damages Act as the general
regulation of the matter can be applied. The Act prescribes in greater detail how the
pecuniary loss with regard to lost income and lost maintenance has to be calculated.1410
The Damages Act allows further for a discretionary reduction of the amount of damages
Contributory negligence does normally play no role in cases on compensation for

personal injuries.1412 As a general rule chap. 6 § 1 Damages Act provides that in case of
bodily injury the contributory negligence of the injured person is to be disregarded
except where the injured person acted with intent or gross negligence. Therefore simple
negligence of a bodily injured person which contributed to his or her damage does not
affect a claim for compensation in any way.
hh) Limitation
provided by special statutory provision.1413
Also here it has to be stressed that cases decided in the courts are extremely rare.
aa) The parties
The parties are generally the provider of the tourism service on the one hand and the
injured person on the other. The provider is equally liable in tort for negligent acts of his
or her employees who while acting within the scope of their employment have caused
1409
See on this recent modification of the Damages Act: H. Sandell, Sweden, in: H. Koziol/B. C.
1410
See chap. 5 §§ 1, 3 – 5, Damages Act.
1411
1412
See thereto B.W. Dufwa, Contributory Negligence under Swedish Law, in: U. Magnus/M. Martín-
Casals (eds.), Unification of Tort Law: Contributory Negligence, 2004, 197 ss.
1413
388
damage to others. Indirectly affected third persons are regularly not entitled to
compensation with the exception that decedants of a fatally injured person can claim
their loss resulting from the death.
Bodily injury includes physical as well as psychical and immaterial harm. Though the
judgment of the European Court of Justice in Simone Leitner1414 has decided a contract
case the essence of the decision can be taken to support equally compensation of
immaterial harm in tort.
The service provider must have neglected a duty in order to be held liable. But this duty
appears to be regarded as part of the fault requirement.
dd) Causation
Also here reference can be made to the respective part in the general survey on Swedish
law.
ee) Fault
In the absence of contractual relations the general principle is fault liability as provided
in chap. 2 § 1 Damages Act. Fault requires neglect of the required duty of care. The
standard of care is that of a “bonus pater familias”1415
In respect of damage and compensation it can be referred to the corresponding contract

part above under 2. a) ee).
As already mentioned with regard to personal injuries contributory negligence of the

injured victim plays almost no role since contributory negligence has to be disregarded
unless the victim acted with intent or gross negligence.1416
1414
ECJ of 12 March 2002, European Legal Forum 2002, 73 (Simone Leitner/Tui Deutschland GmbH &
Co. KG).
1415
J. Hellner, Skadestandsrätt, no. 8.3.4.
1416
389
Ulrich Magnus
hh) Limitation
For tort claims the general period of limitation as prescribed in the Limitation Act
applies. Therefore subject to more specific statutory provision an action in tort
prescribes regularly within ten years and this period starts running with the damaging
event.1417
aa) Burden of proof
In tort the burden of proof for damage, causation and negligence lies generally with the
claimant even where injuries during the rendition of services are concerned and where
the services are of the kind discussed here.1420 As discussed above in contract a strong
presumption of fault applies to package tour contracts and probably also to other
contracts of similar touristic services. The burden of proof then lies with the defendant
tour operator or other service provider to rebut the presumption and to prove
circumstances beyond control. But also in contract the claimant has to prove damage
and causation.
Swedish law does not know of formal rules like res ipsa loquitur or the like, which shift
the burden of proof in certain situations onto the defendant party.1421
Complaints of travelers and other recipients of tourism services are generally directed
to, and dealt with by, the Allmänna Reklamationsnämnden (Public Complaints Board).
1417
H. Witte, 86.
1418
1419
1420
1421
390
The Board hears the case and gives a recommendation, which if not complied with can
be transformed into a court judgment by a simplified court procedure.1422
e) Case study
No representative case law can be cited here.
1422
Swedish Law, 293.
391
Liability for services United Kingdom
7. Law of United Kingdom

There are not many English cases concerning personal injury caused by services
rendered in the course of tourism (excluding transport services).1423 But it appears that
cases of this kind include rather often an international element since the travel is very
often to another country where the injury occurs.1424 Yet, questions of private
international law can be left aside since the tour operator who is made liable and the
customer seem to have their seats normally in the same country and choice of law
clauses for their contracts appear to be unusual. However, if the customer books directly
at a foreign hotel, summer school, holiday club etc. also the issue of the governing law
had to be pursued. In such cases it would be most likely that either by choice of law or
by virtue of Art. 5 (4)(b) and 4(2) Rome Convention 1980 the law of the country applies
where the hotel etc. is situated.
The services concerned are regularly rendered on a contractual basis so that liability is
normally based on contract. But since English law allows cumulation of contract and
tort law liability under the latter may be invoked as well.
aa) The parties
i) Contract parties
Where on the part of the service provider a tour operator offers and organises a package
travel it is this operator who is the contract party of the customer. The operator is not a
mere agent of the involved hotel or institution where the damage occurs.1425 The hotel or
other institution is on the contrary the contract party where the customer directly books
their services.
On the part of the customer the person who books the services is in the first line the
contract party. But also where the booking includes others like family members or
friends they may be entitled to contractual rights. It was just the field of package tours
where in Jackson v. Horizon Holidays Ltd.1426 already in the seventies of the last century
1423
See, e.g., Jarvis v. Swans Tours Ltd. [1972] 3 W.L.R. 954; Jackson v. Horizon Holidays Ltd. [1975] 1
W.L.R. 1468; Davey v. Cosmos Air Holidays [1989] C.L.Y. 327; Wilson v. Best Travel Ltd. [1993] 1
All E.R. 353.
1424
See Jarvis v. Swans Tours Ltd. [1972] 3 W.L.R. 954; Jackson v. Horizon Holidays Ltd. [1975] 1
W.L.R. 1468; Wilson v. Best Travel Ltd. [1993] 1 All E.R. 353.
1425
Wong v. Kwan Kin Travel Services [1996] 1 W.L.R. 39.
1426
[1975] 1 W.L.R. 1468.
393
Ulrich Magnus
and long before the Contracts (Rights of Third Parties) Act 1999 the English courts
recognised that such contracts confer also contractual benefits on those for whom the
contract is equally concluded. Now, under the 1999 Act this position is not different.
Persons intended to benefit from the contract and expressly identified in it1427 can even
themselves enforce their rights under the contract.
It is difficult to imagine cases where mere by-standers are affected by tourism services
of the kind here relevant. It is apparently regularly on a contractual basis that these
services are rendered. In any event there appears to be no case law on personal injury
claims of mere by-standers of tourism services.
The tour operator or, as the case may be, the single hotel or innkeeper is vicariously
liable for negligent acts of their employees which cause damage to the customer.
However, the employee must have acted in the course of employment.
The tour operator or hotel etc is not liable for damaging acts of independent contractors.
If a package tour is offered by an operator the hotels and other institutions etc included
in the package are generally independent contractors for which the operator is not liable.
But the independent contractor him/erself may be liable.1428
With respect to bodily injury the general rules stated above1429 apply. But in the field of
travel contracts the English courts have since the seventies of the last century awarded
compensation for mere discomfort and inconvenience if the holidays did not come up to
the standard promised in the advertising brochure and which the traveller is therefore
entitled to expect.1430
1427
1428
See the dictum in Wilson v. Best Travel Ltd. [1993] 1 All E.R. 358 per Phillips J, that an English
hotelier in that case (which in fact happened in Greece) might have been liable.
1429
See supra B. VI. 2. b.
1430
Jarvis v. Swans Tours Ltd. [1972] 3 W.L.R. 954; Jackson v. Horizon Holidays Ltd. [1975] 1 W.L.R.
1468.
394
The duties of a tour operator depend on the specific contents of the travel1431 and vary
accordingly. In general, sec. 13 Supply of Goods and Services Act 1982 applies also to
travel and tourism services1432 and requires the supplier “to carry out the service with
reasonable care and skill.” But it must be reminded that a tour operator is not liable for
negligent acts of independent contractors like hotels etc. Thus it is the operator’s main
duty to select reasonably safe sub-services and to control that in a reasonable way.
A tour operator has therefore for instance the duty to inspect the properties of the hotels
or other institutions in which the holidays are offered whether they are reasonably
safe.1433 This includes the duty of a tour operator to check whether the chosen hotel etc.
complies with the local safety standards: “The duty of care of a tour operator is likely to
extend to checking that local safety regulations are complied with.”1434 From the case
law it is clear that this duty does however not mean that a tour operator is not obliged to
exclude those hotels which do not comply with the English safety standard if that is
higher than the local one.1435 Therefore a tour operator has not violated a contractual
duty if a customer is severely injured in a Greek hotel because he falls by some mishap
through a glass door which does not consist of safety glass. It did not avail the claimant
that according to British safety standards such glass door would not have been allowed
(whereas in Greece it was). Compliance with the local standard sufficed.1436 However, it
is likely that the tour operator would be held liable if the chosen properties were
evidently dangerous unless the travel contract was for a specifically adventure tour. But
even there the operator must not expose the traveller unreasonably high risks.
Tour operators are further obliged to inform customers of health risks which are due to
local circumstances, for instance of the fact that bathing in the sea might lead to
diarrhoe because sewage is pumped into the sea only 50 yards away from the beach.1437
In turn this means that the operator has the obligation to ensure that s/he is adequately
informed of local risks relevant for travellers and holidaymakers.
The tour operator’s duty extends in general to reasonable supervision and control of the
facilities which are provided by the local hotels etc. whose services are included in the
1431
See also Wilson v. Best Travel Ltd. [1993] 1 All E.R. 353 (356).
1432
Wilson v. Best Travel Ltd. [1993] 1 All E.R. 353 (356).
1433
Wilson v. Best Travel Ltd. [1993] 1 All E.R. 353 (356).
1434
Wilson v. Best Travel Ltd. [1993] 1 All E.R. 353 (358 per Phillips J.).
1435
See again Wilson v. Best Travel Ltd. [1993] 1 All E.R. 353.
1436
See Wilson v. Best Travel Ltd. [1993] 1 All E.R. 353.
1437
Davey v. Cosmos Air Holidays [1989] C.L.Y. 327.
395
Ulrich Magnus
travel contract. But as the above mentioned decision in Wilson v. Best Travel1438 shows
compliance of those facilities with the local safety standard will generally relieve the
tour operator from liability.
The liability of tour operators is not strict but limited to a duty of care which must have
been violated if the operator is to be made liable. Fault is therefore a requirement of
liability. The standard of diligence is an objective and rather high one but by no means
coming close to strict liability as again is clearly demonstrated by Wilson v. Best
Travel.1439
Fault is not presumed but must be proved by the customer who may, however, in an
appropriate case rely on the maxim of res ipsa loquitur.
As indicated the general standard of fault is an objective one depending on the

circumstances of the case. The tour operator must comply with what a reasonable
operator in the specific circumstances could and would be expected to do.
Since fault is required exemption for example by force majeure or acts of third persons
does not play a particular role here. In such cases normally no failure of duty of care on
the part of the tour operator is present and no liability either.
ee) Causation
With respect to causation reference can be made to the general survey on English law
where the normal rules on causation are stated; they apply also here without any
restriction.
1438
[1993] 1 All E.R. 353.
1439
[1993] 1 All E.R. 353.
396
ii) Omissions
The same is true for problems of causation concerning omissions. In respect to

omissions it must be more likely than not that the damage would not have occurred had
the tour operator fulfilled his/er obligations. Therefore a causal link is established where
a customer is infected with diarrhoe due to the fact that sewage is pumped in the sea
very near to the beach and the tour operator omitted to warn the customer of that risk.1440
As with fault also with causation there is no presumption that the tour operator has
caused the damage of the customer even if fault of the operator is already established.
But in certain typical instances the maxim res ipsa loquitur applies and shifts the burden
on the operator to explain why the incidence happened and that this could have had
other reasons than the operator’s fault.
i) Damage to health
Personal injury includes any damage to body or health. Where for instance the customer
is infected with diarrhoe at the beach because the sea is polluted through sewage, which
is pumped into the sea few yards away from the beach this constitutes damage to
health.1441
As mentioned above the field of travel contracts has been the field where the English
courts recognised thirty years ago that also mere mental distress caused by insufficient
performance of the travel contract – and without any prior bodily injury – deserves
compensation.1442 Pain and suffering in connection with bodily injury is compensated in
the ordinary way and includes regularly a sum for mental anguish and discomfort
caused by the injury.
Again, the general rules of assessing damages apply.
1440
Davey v. Cosmos Air Holidays [1989] C.L.Y. 327.
1441
See Davey v. Cosmos Air Holidays [1989] C.L.Y. 327.
1442
Jarvis v. Swans Tours Ltd. [1972] 3 W.L.R. 954; Jackson v. Horizon Holidays Ltd. [1975] 1 W.L.R.
1468.
397
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Though the rules on contributory negligence1443 can be invoked – and are invoked1444 –
the few cases do not contain a case where the defence was successfully raised.
The period of limitation is three years.
Tortious liability has not been particularly relevant in the field of travel services. The
case law is only concerned with contractual liability though a claim for compensation
for personal injury caused by travel services could certainly also based on tort.
aa) The parties
As characteristic in tort no specific prior relationship between the provider of the

damaging service and the injured person must have existed. Nevertheless the circle of
persons is limited who are protected by tort liability. Since a duty of care must have
been violated to incur tort liability only such persons can claim in tort who come within
the range of the respective duty. Also in the field of travel services the scope of the duty
is adjudicated according to the so-called neighbour principle developed by Lord Atkin
in Donoghue v. Stevenson.1445
Tortious liability requires a bodily impairment; also a medically recognisable illness

like shock etc. caused by the tour operator gives rise to liability. However, mere mental
distress confers no right of compensation in tort but only in contract.1446
Tortious liability for injury caused through travel services requires that the tour operator
has violated a duty of care. The duties owed in tort are, however, the same as those
owed in contract. Also in tort a tour operator is obliged to select a reasonably safe hotel,
1443
See thereto supra B. VI. 2. e.
1444
See, e.g., Wilson v. Best Travel Ltd. [1993] 1 All E.R. 353 where the defending tour operator alleged
that the claimant had himself caused his falling through the glass door “as a result of some high-
spirited horseplay.” (355). But the defendant failed to prove such conduct of the claimant though the
claim was finally denied on other grounds.
1445
[1932] A.C. 562.
1446
Compare Jarvis v. Swans Tours Ltd. [1972] 3 W.L.R. 954.
398
to inspect the hotel, to inform and warn of specific risks. This duty extends to “persons
who are so closely and directly affected by my act that I ought reasonably to have them
in contemplation as being so affected when I am directing my mind to the acts and
omissions which are called into question.”1447 In essence it is therefore only the customer
and other persons included in the contract who may rely on the specific duties
concerning travel services. It seems very unlikely that further persons can invoke these
specific duties.
dd) Causation
Here reference can be made to the remarks on causation in the contract part and in the
general survey on English law.
ee) Fault
As for contractual liability also for tortious liability fault is required. The tour operator
must have neglected the duty to take reasonable care and skill. But also as in contract an
objective standard applies.
With respect to damage and compensation nothing else applies than in contract. But in
case of death additional rights are granted to dependants and near relatives under the
Fatal Accidents Act 1976.
The same rules as in contract apply aslo in tort when the defence of contributory
negligence is raised.
As in contract the limitation period for personal injury claims is three years.
Any exclusion or limitation of the tour operator’s liability for personal injury – for own
acts or omissions or for employees’ acts and omissions – is very likely to be regarded as
1447
See Donoghue v. Stevenson [1932] A.C. 562 (580 per Lord Atkin).
399
Ulrich Magnus
invalid. If agreed upon in standard terms contracts such restriction would be presumed
to be unfair and therefore invalid.1448
aa) Burden of proof
The customer must prove the damage, causation and neglected duty of care. As
mentioned the maxim res ipsa loquitur may change this burden of the customer though
the maxim does not fully reverse that burden.
There exists a voluntary arbitration scheme instituted by the ABTA which is offered to
customers of travel operators.
e) Case study
Giambrone a.o. v. JMC Holidays Ltd. (formerly Sunworld Holidays Ltd.) (No. 2).1449
In this case which was one out of a series families had booked their holidays with the
defendant tour operator who in turn had provided accomodation in a hotel. There, the
young children of the families were infected and became ill. The tour operator was held
liable for the ensuing damage even “for the extra parental input which was caused by
the illness.”1450 For this head of damage the families were granted amounts between L
100 and 200 per child.
1448
See Sched. 2 par. 1 lit. a Unfair Terms in Consumer Contracts Regulations 1999 which replaced the
Unfair Terms in Consumer Contracts Regulations 1994 which had in turn transposed the EU Directive
on Unfair Terms in Consumer Contracts of 5 April 1993. The 1999 Regulations follow even more
closely the language of the provisions of the Directive than the 1994 Regulations; see further the
detailed discussion by J. Chitty, no. 15-004 ss.
1449
[2003] 4 All E.R. 1212.
1450
[2003] 4 All E.R. 1217.
400
Liability for services United States

Literature: American Jurisprudence, vol. 40A, 2nd ed. 1999 (Suppl. 2003); J.D. Calamari/J.M. Perillo,
The Law of Contracts, 4th ed. 1998; W.T. Champion, The Fundamentals of Sports Law, 1990; N.G.
Cournoyer, Hotel, Restaurant, and Travel Law, 1978; D. Dobbs, Remedies, 2nd ed. 1986; J.R.
Goodwin/J.M. Rovelstad, Travel and Lodging Law, 1980; G.T. Schwartz, Causation under US Law, in: J.
Spier (ed.), Unification of Tort Law: Causation, 2000, 123; G.T. Schwartz, Damages under US Law, in:
U. Magnus (ed.), Unification of Tort Law: Damages, 2001, 175.
The services rendered in the field of tourism are of a great variety and it is difficult to
bring them under few uniform rules unless those rules remain very abstract. For instance
the risks inherent in an adventure tour which a traveler has booked and inherent in a stay
at a five star hotel are very different and it is for sure that different standards of concrete
care apply to the operators of those different activities. Regularly these services but also
the services of other professions in the tourism field are provided on a contractual basis.
This is true not only for hotel or tour operators who offer their services to their
customers but also for innkeepers, boardinghouses, lodginghouses, restaurants,
operators of campgrounds and like services. It is rather rare that persons who are not
party to such a contract are nevertheless personally injured when such services are
rendered. However, as mentioned in the general survey on the US law the courts tend to
treat cases of bodily injury regularly as tort cases even if the injury was caused in the
course of rendering contractual services. Moreover, some courts have held that the
general duty of innkeepers and similar professions to protect guests from injury does not
flow from contract alone or at all but is imposed by law.1451 “The business of innkeeping
is public in nature.”1452 This entails some specific obligations, which exist irrespective of
a formally valid contract. It has therefore been said: “The duties and obligations of both
innkeepers and their guests are mainly imposed by law, and as to most of them, there is
no need of, and rarely is, a special contract between the parties.”1453 This is meant to
mean that when a guest is received in a hotel, motel, inn etc. the law implies a contract
and its ordinary contents unless specific terms are agreed upon which rarely happens.1454
Whether the same far-reaching obligations attach also to all other services of the
tourism industry remains questionable. But though there are different levels of care
depending on the specific service (for instance adventure tour or hotel stay) the general
1451
See e.g., Rabon v. Inn of Lake City, Inc., 693 S. 2d 1126 (Fla. Dist. Ct. App. 1st Dist. 1997).
1452
J.R. Goldwin/J.M. Rovelstad, Travel and Lodging Law, 247.
1453
AmJur § 54.
1454
See AmJur, ibid.
401
Ulrich Magnus
attitude seems the same namely to disallow free disposition of the central duty that the
service provider has to take reasonable care of his or her guests/customers safety.
The legally imposed duties of innkeepers and similar service providers remind, and to
some extent continue, the particular duties and sharp liability of the so-called common
callings of the middle ages. By then, certain professions among them innkeepers,
carriers, and others who had easy access to the goods of their customers and in those
times not infrequently cooperated with criminals were for these reasons bound in law to
observe rather far-reaching duties of care for their customers and partly faced even strict
liability.1455
aa) The parties
i) Contract parties
Depending always on the specific contract on the one hand the service provider, namely
the tour operator, hotel owner, innkeeper who directly renders the service to the
customer is generally also party to the contract. This may, however, be otherwise where
a package tour has ben booked and the single services though directly rendered by
different providers to the customers are organised by the tour operator who is then the
only contractual partner of the customer. Then a formal contractual relationship is
lacking. Nevertheless rather stringent duties of the single subproviders may arise out of
the provider-customer-relationship.
On the other hand it is the customer who ordered the services who is bound and entitled
by the contract. But the protection of the contract does not only extend to the direct
contract partner. If not regulated in a more specific way by statute of the single US state
the protection extends also to all intended beneficiaries.1456 Intended beneficiaries are in
the first line the family members of the contracting party but also invitees of customers
(guests of the guests).1457 Invitees enjoy the same protection as do formal guests as long
as they remain within the limits of the invitation.1458 Lower duties are owed towards
licensees. Licensees are persons who enter the operators or owners premises with the
latters express or implied consent but only for their on purposes. They must be warned
against latent dangers which are known to the operator or owner and which may
endanger the licensee.1459 But no further duties arise. On the contrary, persons who
merely trespass on the premises without the permission of the occupier or without a
1455
See N.G. Cournoyer, Hotel, Restaurant and Travel Law, 9 ss.
1456
See also Restatement (Second) of Contracts § 302 and the Reporter’s note to it.
1457
1458
See e.g., Kandrach v. Christman, 63 Tenn. App. 393, 473 S.W. 193 (1971).
1459
Compare W.T. Champion, The Fundamentals of Sports Law, § 9.1.
402
legal right so to do are not protected. Towards them the service provider owes no
particular duty to protect them from injury except being obliged not to injure them
willfully or wantonly.1460 Thus the different classes of persons using the hospitality
facilities enjoy differently intense protection.
Even mere outsiders may come within the specific protection of the service provider’s
duty to exercise reasonable care. In certain cases the provider of the tourism service is
under a duty to care even for the safety of mere by-standers. For instance he or she must
take reasonable precautions that customers or guests do not injure other people if there
is reason to suspect that this may happen. Thus it has been held that the proprietor of a
hotel is liable for injuries of a passenger who just passed by outside the hotel when
sailors occupying a room of the hotel threw a Coca Cola bottle out of the window and
thereby severely injured an eye of the passenger. The sailors had behaved in a
disorderly way already for some hours despite some requests of the hotel servant.1461
The same liability arises where the service provider has reason to anticipate that a guest
will attack a third person and does not take reasonable measures to prevent the
assault.1462
The general doctrine of respondeat superior applies also to contracts in the tourism
branch. The provider of the tourism service is liable for negligent acts of employees,
servants or agents who cause damage to guests or even mere by-standers while acting
withinn the scope of their employment.1463 The provider cannot escape liability by
proving the careful selection or control of the employee. But the provider is in any event
liable if he or she selected and employed an unqualified employee who then committed
a tort.1464
The provider is in principle not liable for tortious acts of employees who acted outside
the scope of their employment unless there is some negligence on the part of the
provider.1465 It is said that the hotel proprietor, innkeeper or like person is not the insurer
1460
See e.g., Restaura, Inc. v. Singleton, 216 Ga. App. 887, 456 S.E. 2d 219 (1995).
1461
Holly v. Meyers Hotel & Tavern, 83 A. 2d. 460 (N.J. 1961).
1462
Kaechele v. Kenyon Oil. Co., Inc., 2000 ME 39, 747 A. 2d 167 (Me. 2000).
1463
See AmJur § 106; N.G. Cournoyer, Hotel, Restaurant and Travel Law, 198 ss.
1464
See e.g., Bradley v. Stevens, 46 N.W. 2d 382 (Mich. 1951) (employee raped guest).
1465
See e.g., Clancy v. Barker, 131 F. 161 (C.C.A. 8th Cir. 1904) (night porter who wanted only to
frighten minor son of guest shoots him, hotel proprietor liable).
403
Ulrich Magnus
of the customer’s safety.1466 But there are also cases holding that under certain
circumstances the service provider is liable without own negligence for an employee’s
tort outside the scope of the employment.1467
If bodily harm has been inflicted the ensuing pecuniary and non-pecuniary damage is
recoverable. Even if mere mental distress has been caused this is recoverable in terms of
money since the provider of services of tourism and in particular a hotel owner,
innkeeper or restaurateur is under a duty to treat the guests in a respectful and decent
manner.1468 However, a claim for compensation of mere mental anguish was rejected
where the a motel guest sued the motel for negligent infliction of emotional distress
because she feared (finally without reason to have been infected by AIDS after she had
picked up and removed a used condom she had found in the motel room.1469
The central and decisive element of liability of the service provider also in this field of
law is the existence and breach of a duty. As already indicated the main duties relevant
here are imposed by law independantly of a valid contract. However, the duties vary
according to the various services offered in the field of tourism and depend also on the
question, which kind and quality of services have been contracted and can be therefore
reasonably expected for the agreed price. Moreover towards the different classes of
users different standards of care apply. Most far-reaching are the duties towards guests
and invitees (guests of the guests); licensees must be warned of latent dangers, which
the provider knows; but the provider’s duty toward a mere trespasser “is merely to
refrain from wilful or wanton injury.”1470
Hotel operators and innkeepers are under a rather far-reaching duty to care for the safety
of their guests. They are obliged to take reasonable care not to “abuse or insult the
guest, or indulge in any conduct or speech that may unnecessarily bring physical
1466
See e.g., Mayo Hotel Co. v. Danziger, 143 Okla. 196, 288 P. 309 (1930); Buck v. Del City Apartments,
Inc. 431 P. 2d 360 (Okla. 1967).
1467
See Clancy v. Barker, 131 F. 161 (C.C.A. 8th Cir. 1904). See also AmJur § 108 with further
references.
1468
1469
Reynolds v. Highland Manor, Inc., 24 Kan. App. 2d 859, 954 P. 2d 11 (1998).
1470
AmJur § 82 with further references and extending this rule also to licensees; but compare also W.T.
Champion, The Fundamentals of Sports Law, § 9.1.
404
discomfort or emotional distress or imperil his or her safety, or unnecessarily interfere

with his or her right of privacy.”1471
Hotel operators, innkeepers and providers of similar services are also obliged to
maintain their hotel, inn, motel, boardinghouse, lodginghouse, or restaurant in a
reasonably safe condition, to warn the guests of hidden dangers, and to provide the
guests or customers with furniture and appliances which can be used in the normal way
without the risk of being injured.1472 Therefore these service providers are under the duty
to see that floors, stairs and other building facilities, which are designed for the use of
guests are in a reasonably safe condition.1473 They have to provide adequate railings and
lighting.1474 Doors and windows must be kept in a safe condition. Glass doors must be
sufficiently marked and must safely function etc.1475
Liability of providers of touristic services for personal injuries of customers or guests

requires negligence and therefore fault. Though the standard of diligence may be high
nevertheless the provider is not strictly liable. Like in other services (for instance
medical services) it is said that the provider is not an insurer of the safety of
customers.1476
Fault of the service provider is not presumed. The burden of proof therefore lies with
the claimant.1477 But in certain cases he or she can rely on the maxime of res ipsa
loquitur. This maxime applies when a certain event typically indicates some negligence,
for example when falling ceiling plaster injures a guest of a hotel. Then the hotel’s
1471
AmJur § 79 with numerous references.
1472
AmJur § 84.
1473
J.R. Goodwin/J.M. Rovelstad, Travel and Lodging Law, 335 ss.; AmJur § 87.
1474
Compare AmJur § 87 ss.
1475
Peterson v. Haule, 304 Minn. 160, 230 N.W. 2d 51 (1975) (boy of ten years injured who ran into an
unmarked glass door)
1476
See Waugh v. Duke Corp., 248 F. Supp. 626 (M.D. N.C. 1966); AmJur § 81.
1477
See e.g., Carson v. Squirrel Inn Corp., 298 F. Supp. 1040 (D.S.C. 1969); Wolfe v. Chateau
Renaissance, 141 N.J.Super. 59, 357 A 2d 282, 93 A.L.R. 3d 257 (App. Div. 1976).
405
Ulrich Magnus
negligence is rebuttably presumed, but it is no rebuttal when the hotel proprietor proves
that the hotel was inspected each month.1478
Fault requires the neglect of the necessary care. The standard of care is an objective one.
The service provider must exercise that standard of care that can be expected of a
reasonable service provider in similar circumstances. As already indicated this standard
is rather high. For instance, a restaurant owner has to warn guests of a wet floor. But he
has been held not to be negligent when before and after the wet mopping of the floor of
the restaurant at least four ‘wet floor signs’ were placed in the restaurant to warn
guests.1479
The providers of hospitality services, and even travel agents generally cannot entirely
exclude their duty to reasonably care for the safety of their guests by disclaimers since
this duty is impoed by law. Disclaimers are therefore regularly regarded as invalid
mainly as opposed to public policy or they are at least interpreted very restrictively.1480
ee) Causation
The general rules on causation apply. The conduct of the provider of services of tourism
must be the proximate cause of the guests or customers injury.1481 Under this concept
causation is regularly established when the injury would not have happened but for the
provider’s conduct and when the resulting harm was sufficiently forseeable and
direct.1482
ii) Omissions
Rather frequently it will be an omission, which caused the claimant’s injury, in

particular where the service provider did remove, or warn of, dangers. Then, in order to
1478
McCleod v. Nel-Co Corp , 350 Ill. App. 216, 112 N.E. 2d 501 (2d Dist. 1953).
1479
Stockstill v. Prime Foods System, Inc., 216 Ga. App. 192, 453 S.E. 2d 784 (1995).
1480
Compare thereon with respect to travel operators N.G. Cournoyer, Hotel, Restaurant, and Travel Law
512 s.; J.R. Goodwin/J.M. Rovelstad, Travel and Lodging Law, 365 ss.
1481
AmJur § 74.
1482
See G.T. Schwartz, Causation under US Law, in: J. Spier (ed.), Unification of Tort Law: Causation,
123.
406
establish causation it is necessary that there is sufficient certainty that the required
removal or warning would have prevented the injury.
The claimant must prove causation, which is not presumed. But as is the case with
negligence the maxime of res ipsa loquitur may help the claimant to overcome the
burden of prove which falls on him or her.1483 Where negligence is established and a
typical result in fact occurred then the maxime can be invoked if no other explanation of
the incident can be given.1484
If the customer or other protected person has suffered bodily harm caused by the service
provider or his or her employees then this person can claim compensation of the full
pecuniary and non-pecuniary damage. In certain cases for instance where a guest of a
hotel etc. is wrongfully ejected in a humilitating manner some US jurisdictions allow
also for punitive damages.1485
i) Damage to health
Any damage to body and health negligently caused by the service provider is
recoverable. In case of death specific wrongful death statutes provide for compensation
of the loss of maintenance of dependants.
If guests or customers are bodily injured they can also claim compensation for pain and
suffering. Even if no bodily harm has been inflicted guests can recover in certain cases
where mere emotional distress has been caused. This has been so held where a hotel had
refused accommodation though the traveler held a confirmed reservation1486 or where the
contracted accomodation was not available1487 or where an innkeeper had wrongfully
and wantonly ejected a guest.1488
1483
See AmJur § 125.
1484
See AmJur § 125 s. with examples of the application and the non-application of the maxime.
1485
See e.g., Dold v. Outrigger Hotel, 54 Haw. 18, 501 P 2d 368, 58 A.L.R. 3d 360 (1972).
1486
Dold v. Outrigger Hotel, 54 Haw. 18, 501 P 2d 368, 58 A.L.R. 3d 360 (1972).
1487
Bucholtz v. Sirotkin, 74 Misc. 2d 180, 343 N.Y.S. 2d 438 (1973).
1488
See Restatement (Second) of Contracts § 353, illustration 2.
407
Ulrich Magnus
The general measure of damages applies. The prevailing aim of damages is to put the
claimant as far as money can do in the same position as he or she had been in had the
injury not occurred.1489 The measure of damages for the pecuniary loss in case of bodily
injury is the reasonable costs for healing including necessary medical expenses. Loss of
future earnings and of earning capacity is calculated on the basis of all relevant
circumstances like the prior earnings, the impairments through the injury, an eventual
reduction of life expectancy.1490
Damages for pain and suffering are calculated in a discretionary manner taking into
account the gravity of the injury and the consequences of impairment. A number of US
states has placed gneral ‘caps’ (maximum amounts) on damages for pain and
suffering.1491
Where punitive damages are available these damages are designed to deter this and
other potential tortfeasors from the tortious conduct. As already mentioned in the
general part on US law the Supreme Court has restricted the amount of punitive
damages to ten times the amount necessary for compensation.1492
Damages awards are initially granted by the jury, under instructions from the trial judge
who explicates the legal principles. Jury awards on damages can be challenged only if
they are largely excessive.1493
Contributory negligence of the guest or customer may either reduce his or her claim or
exclude it at all. The guest or customer cannot claim full damages when he or she did
not observe that level of care that can be expected of an ordinarily careful guest or
customer. But it is no contributory negligence when a guest uses the only staircase,
which is merely dimly lighted or walks into a dark bathroom to turn on the light and
then falls and is injured because of some hinderance he or she could not see.1494
In those US states, which follow the concept of comparative negligence the victims
contribution reduces the amount of damages proportionately (even up to a full
1489
See generally J.D. Calamari/J.M Perillo, § 14.4.
1490
D. Dobbs, Remedies.
1491
See thereon G.T. Schwartz, Damages under US Law, in: U. Magnus (ed.), Unification of Tort Law:
Damages, 177.
1492
See above: United States 2. b).
1493
See G.T. Schwartz, Damages under US Law, in: U. Magnus (ed.), Unification of Tort Law: Damages,
177.
1494
See e.g., Hall v. Bakersfield Community Hotel Corp., 52 Cal. App. 2d 158, 125 P. 2d 889 (4th Dist.
1942) (unlighted stair); Rubey v. William Morris, Inc., 66 So. 2d 218 (Fla. 1953) (dark bathroom).
408
exclusion). In states, which follow the old concept of contributory negligence this
defence is a full bar to an action and excludes any compensation.
In some cases the providers liability is entirely excluded because the guest or customer
has voluntarily assumed the risk of an injury. This has been so held in a case where a
guest was told that due to a failure of the city power station the hotel lacked electricity
and that therefore the way to the restrooms, which were downstairs was dangerous. The
guest insisted and was given a candle with further warnings. On the stair she fell and
was injured.1495
ii) Limitation prescription period (time limits)
The general limitation period for the prescription of contract claims apply. This
limitation period is regulated by the single US state. It varies from state to state.
It has to be stressed that the prevailing view regards the liability of innkeepers and
similar service providers as imposed by law.1496 Therefore the strict division between
contract and tort does not realisticly describe the US scene. As in the field of medical
services a physician-patient-relationship so in hospitality services a provider-guest-
relationship is imposed by law. The obligations of this relationship extend as far as in
general only contract obligations would reach; the consequences of violations of such
obligations resemble rather those resulting in tort. In particular the liability cannot be
excluded by contractual agreement.
aa) The parties
The parties are regularly the services provider on the one hand and the customer or
guest on the other. Also in tort further persons like family members or invitees of the
guests enjoy the same protection as the guests themselves. In case of death of a guest or
customer his or her dependants may claim as parties.
As in contract law also in tort law a touristic service provider and in particular hotel
operators, innkeepers, or restaurateurs are liable for any negligent conduct by which
their employees, while acting in the scope of their employment, have caused damage to
1495
Ball v. Hilton Hotels, Inc., 290 N.E. 2d 859 (Ohio 1972).
1496
See supra under a).
409
Ulrich Magnus
customers or guests.1497 The same rules as in contract law, and particularly the maxime
respondeat superior, apply also here.1498
The provider of tourism services is liable to the guest or customer if the latter has
suffered bodily injury caused by the negligence of the provider or the provider’s
employees. In general physical harm is a prerequisite of liability. But as already
mentioned also the infliction of mere mental distress may be recoverable, in particular
in case of an unjustified humilating treatment. In such cases also punitive damages may
be available.1499
In case of death of a guest his or her dependants may have a statutory right of recovery.
In tort a service provider has to observe the same general duties as in contract due to the
legal character of these duties. Where a guest has been in fact accepted by an innkeeper
or hotel operator the general duty of the provider arises to take all reasonable care for
the safety of the guest or customer. The provider then becomes liable if he or she has
violated this duty – and if all other prerequisites of liability are present.
ee) Causation
With respect to causation there is no difference between contract and tort. The same
general principles apply in both fields.
ff) Fault
As in contract law fault is a requirement of tortious liability as well. Also in tort the
liability of the provider of tourism services is not strict but based on negligence. The
same principles as in contract law apply here unless the parties have agreed on further
specific duties. It can therefore be referred to the respective part on contract law above.
Again, the rules on recoverability of damage and the measure of damages in tort do not
differ from the rules hereon in contract.
1497
See e.g., Newton v. Candace, Inc., 94 Ga. App. 385, 94 S.E. 2d 739 (1956).
1498
AmJur § 108.
1499
See above a) ff).
410
Likewise as in contract contributory negligence may also in tort reduce or exclude the
provider’s liability.
ii) Limitation (prescription period)
The general limitation period for tort actions applies. As in contract this period is
regulated by state law and varies from state to state.
The central duty of care, which the provider of tourism services owes the guest or
customer is imposed by law and cannot be varied ba contractual agreement.
aa) Burden of proof
As already indicated the claimant has the duty to prove the service provider’s
negligence, that the negligence caused the damage and the damage.1500 But as equally
indicated above the maxime of res ipsa loquitur sometimes eases the claimant’ burden
of proof.
No specific institutions for settling claims in the field of tourism appear to exist for this
particular profession.
e) Case study
Reynolds v. Highland Manor, Inc.1501

The plaintiff Angelina Reynolds stayed in the hotel of the defendant but wanted to
change the room because of a defective air conditioner. When she collected her luggage
she also felt for items under the bed and her left hand came across with something
which she thought to be a candy wrapper but which was in fact a used condom. Since
she had a wound at her left hand she feared she might have contracted AIDS though
several later tests were negative. But she claimed damages for emotional distress.
1500
Compare AmJur § 124.
1501
954 P. 2d 11 (Kan. App. 1998).
411
Ulrich Magnus
Her claim was dismissed. Mere fear of a contracted illness without physical injury does
not entitle to compensation.
412
Public utilities France
V. Liability for services of general interest (gas, electricity)
1. Description
Services of general interest like supply of gas, water or electricity are regularly rendered
on a contractual basis and they belong to the most frequent contracts since almost
everybody in contemporary society depends on these services. But in contrast to their
frequency these supply services lead only rarely to court decisions concerning personal
injuries. Cases of exploding gas pipe lines, poisoned water or unsafe electricity wires
appear to be infrequent. The safety standards in this field seem to be high and were
continuously raised in accordance with the growing technical know-how and expertise.
The relatively high security is also due to the strong public interest and public control
that services of this kind be safe.
Services of general interest tended to be supplied by public bodies though in recent
years many of them have been privatised. However, questions of liability remain
generally untouched by the form in which the supplier is organised. The public
influence is represented in technical standards and public safety control and supervision.
Despite the contractual basis of services of general interest also tortious liability towards
by-standers (family members, guests) or other persons not protected by the contract has
to be taken into account in case of damage through defective services. The decisive
question is then regularly whether or not duties of care existed and had been neglected.
• fields of damaging activities
• unsafe installations
• supply of impoisoned goods (water)
• insufficient control and supervision
• protected persons
• contract party
• by-standers
• other third parties
• duty of care
• technical standards
413
Hans-W. Micklitz
2. French law
Literature: C. Blumann, Etat et collectivités publiques, No. 370-1, in Juris-Classeur civil 1382-1386; N.
Brown/J. S. Bell, French Administrative Law, 4th ed., 1993; H. Hall/C. Tixador, Application de la
Directive 93/13 aux prestations de service public, 1997 (Institut National de la Consommation; Philippe le
Tourneau/Loïc Cadiet: Droit de la Responsabilité et des Contrats, Dalloz 2002; A. Laubadère/J. C.
Venezia/Y. Gaudemet, Traité de Droit administratif, Vol. I, LGDJ 1994; D. Lenotte/R. Romi, Services
Publics et droit public économique, Litec 2001; J. Morand-Deviller, Cours de Droit Administratif,
Montchrestien 2002; G. Peiser, Droit administratif général, Mémentos Dalloz 2002.
The providers of services of general interest in France still are mainly public enterprises,
in the special form of établissement public industriel et commercial, also known as
service public industriel et commercial.
In general, the providers of services of general interest are subject to the general rules of
contractual liability. The same standards apply and thus the same results as for any other
person occur. There are very few cases that deal with the particularities of those
services. There are a lot of different legal rules dealing with extra-contractual liability.
Due to the particular nature of the services involved,1502 the regulations applicable are a
mixture of civil and administrative law. Both, civil and administrative courts may have
jurisdiction. Concerning contractual claims, the civil courts have general jurisdiction.1503
This is even true when the contract contains exorbitant clauses, going beyond what is
allowed by contract law.1504
The administrative courts have jurisdiction if the service in question is conceded. The
user has the right to ask the administrative court to judge upon an excess of power
(recours pour excès de pouvoir) if the service that conceded the fulfilment of the
contract refuses to force the concessionaire to perform.
They may even have to play together in a single case. It is possible that the civil courts
are asked to decide in a particular case and they even have jurisdiction to do so, but
must then interrupt the proceedings in order to let the administrative courts decide upon
a general administrative question (question préjudicielle). This is particularly true when
deciding on whether goods held by the service are used for the accomplishment of its
mission and are specially prepared for this purpose and thus are part of the public
property (domaine public).1505
For example, in one case, EDF had ceded a power-station with all the corresponding
material and rights to produce electricity as well as the right to suppress the functioning
1502
See infra, 00.
1503
Conseil dÉtat, 21 avril 1961, Dame Agnesi, Rec. CE, 253.
1504
Conseil dÉtat, 13 octobre 1961, Ets. Campanon- Rey, Rec. CE, 567.
1505
Cf. Loi so 46-628 du 8 avril 1946.
414
of a turbine of a paper-mill. The paper-mill was situated on the neighbouring grounds,

the owners of which asked the civil court to annihilate the transfer of rights and property
made by EDF. The civil court found that in general it had jurisdiction but could not
decide upon the nature of the goods ceded so that it had to refer the case to the
administrative courts in order to resolve that particular question. The administrative
court occupied with that question found that the goods were not part of the public
property since they belonged to EDF´s regular assets and thus no special administrative
procedure had to be observed for their transfer. The case thus went back to the civil
courts that decided on the regularity of the transfer under civil standards.1506
Another case opposed a consumer to the public service for water. Here, the consumer
claimed malfunctioning of the water supply and asked the civil court to award damages.
The malfunctioning had led to damage due to overpressure. The civil court asked the
administrative court in charge whether the contracts concluded between a service public
industriel et commercial and a consumer were subject to the law of 19781507 concerning
the protection and the information of consumers according to which abusive clauses in a
contract are nil. The Conseil dÉtat decided that indeed the law was applicable at cahier
des charges dún établissement public industriel et commercial. The case was then sent
back to the civil court in order to decide the case.1508
When the public service`s liability is invoked by a third person, the civil courts mainly
have jurisdiction. This is so independently of whether the third person also had had a
contractual relationship with the service or not. However, the civil court´s jurisdiction is
limited here as well. Indeed, the administrative courts have jurisdiction when the
contract falls within the definition of administrative contract (contrat administratif) or if
the damage results from a public work or public tenders.
The contractual relations between a service of general interest and its user are governed
by general contract law, since the situation can be compared to a normal contractual
situation between a normal, thus not being part of the administration, professional and a
consumer.1509 This leads to the judicial courts’ jurisdiction. However, the clauses
governing a subscription contract are being judged – regarding their admissibility – by
the administrative courts.1510
1506
Conseil dÉtat, 23 octobre 1998, Electricité de France.
1507
Now Art. L.132-1 code de la consommation.
1508
Conseil dÉtat, 11 juillet 2001, Sté des Eaux du Nord, RD publ. 2001, 1495.
1509
Tribunal de Conflits, Dame Bertrand, 17. décembre 1962; Conseil dÉtat, Ets. Companon-Rey, 13
octobre 1961.
1510
G. Peiser, 71; Conseil dÉtat, 11 juillet 2001, Sté des eaux du Nord, AJDA 2001, 857.
415
Hans-W. Micklitz
aa) The parties
The providers of services of general interest in France are organized as service public
industriel et commercial, also known as établissement public industriel et
commercial1511. These are special features of the public administration. A service public
industriel et commercial is a public entity, a separate part of the administration, charged
with a service that any other enterprise could fulfil as well. Thus, a service public
industriel et commercial works under the same circumstances (or almost) as a normal
entrepreneur. The regulations concerning that service therefore mainly derive from civil,
and not administrative law. However, administrative law still governs the contracts with
the energy suppliers. The services still dispose of administrative powers which means
that they are able to enounce administrative acts and decrees. Public law mainly
concerns the creation and the organisation of such service.1512
Electricity
The public service for electricity in France is provided by Electricité de France (EDF).
Prices are fixed under the terms of the Decree 88-850 which determined the tariff
structure. Annual increases are approved by the Minister for the Economy in line with
the costs of EDF. They evolve according to the plan agreed with the State. The 1994
decree has re-defined the terms of reference of the EDF concession. At present, this
company is virtually the only company to which municipal authorities can give a
concession for the supply of electricity. The relationship between the municipal
authority and EDF is governed by a cahier des charges (list of requirements) which
contains a standard contract that is distributed to the consumers. The cahier des charges
is identical throughout France and was drafted by EDF. The cahier des charges was
approved by ministerial decree in 1994. The standard contract can therefore be seen as a
regulatory requirement. The consumer generally receives the contract with the first bill.
It was drawn up by EDF and certain clauses are drawn directly from the 1994 decree.
Gas
The public service for gas in France is provided by Gaz de France (GDF). Technically,
the national distribution is a government concession and local distribution concessions
are granted by the communes. Much of the regulation which applies to EDF also applies
to GDF. Generally, although practice varies between regions, conditions of supply are
1511
This type of administrative entity has been created in 1921 by the Tribunal de Conflits: In its now
famous decision “Société commerciale de lÓuest africain”, the court decided that the colony as part
of the French administration was managing its ferry service under the same circumstances as any
other private transportation company and thus that all claims should be decided by a civil court.
1512
J. Morand-Deviller, 475.
416
printed on the back of the first bill, highlighted as being important. Only rarely is a
specific contract sent to the consumer. Many of the conditions applicable to users have
their origin in the terms of concession agreements made by the communes. These
agreements are not generally available for public scrutiny. The conditions are set out in
the cahier des charges between the local authority and GDF. The cahier des charges is
drafted by GDF. All gas contracts are, therefore, virtually identical. By virtue of a
decision of the Conseil dÉtat they are considered regulatory requirements.
On the other side of the board, there is the consumer as user of the service of general
interest. But the civil courts also have jurisdiction concerning the user that finds himself
in an irregular situation due to non payment of bills for example (usager en situation
irrégulière)1513 and concerning the user that finds himself in a case of impediment due to
the service´s refusal to let the user hook up on the energy mains (candidat usager).1514
Of course, body injuries are among the types of damages that have to be compensated if
the requirements for contractual liability are met.1515
The services of general interest have to respect an obligation de résultat as far as their
contractual obligation to deliver gas or electricity is concerned. The reason for this lies
in the comparability of the service to a normal sale of goods;1516 even though the things
sold here are immaterial. Each obligation to deliver is an obligation de résultat.1517 EDF
is thus held to an obligation de résultat concerning the security of outlets and
connections that EDF is installing1518 as well as concerning the delivery of electricity.1519
The provider of gas is obliged, under form of an obligation de résultat, to provide the
gas at the appropriate pressure1520 and has to make sure that the condition of the
installation corresponds to the legal requirements.1521
1513
Tribunal de Conflits, 5 décembre 1983, Niddam c/ SNCF.
1514
Conseil dÉtat, 21 avril 1961, Vve Agnesi; D. 1962, 535.
1515
Cour de Cassation, Civ. 1ière, 23 octobre 1984, GDF c/ Comp. Le Continent et autres.
1516
Cour dÁppel Nîmes, 2ième Ch. civ, 8 mars 1990, EDF c/ Sté. Payen et Cie; Tribunal Commercial de
Paris, 23 octobre 1989, Cabinet B. Granger c/ EDF.
1517
Cour de Cassation, Civ. 1ière, 10 juillet 1996.
1518
Cour de Cassation, Civ. 1ière, 9 décembre 1986, Compagnie dÁssurances groupe de Paris AGP c/
EDF.
1519
Cour de Cassation, Civ. 1ière, 4 octobre 1989.
1520
1521
Cour de Cassation, Civ. 3ième, 16 décembre 1987, GDF c/ Mme Norroy et autres.
417
Hans-W. Micklitz
In one case, there was a damage of water due to the erosion of the water pipes made of
copper. The water pipes had been correctly installed (state of the arts) and were of good
quality, too. The erosion occurred only because of the bad quality of the water. The
water had been qualified as drinking water but its chemical composition was such to
damage the copper. The court stated that there was no difference between the water
company and a normal vendor so that the general standards had to be applied. The court
found that the water company had failed to deliver a good that was conform to the type
of employment it was going to be used for.1522 Even though it has been a case involving
the public service for water, the decision has been phrased in a way to be generalised.
Since the public service´s contractual liability does not differ in anything from the usual
contractual liability, the liability can be invoked by showing a simple non-execution of
the contractual duties (obligation de résultat). In the rare cases, where courts found for a
simple obligation de moyens, thus the public service only has to apply due diligence, a
fault had to be proven by the user claiming damages.1523
ee) Causation
Regarding the contractual liability of services of general interest, the general rules on
causation apply.
There are no particular rules concerning the type of damages that can be compensated.
Thus have been compensated: bodily injury,1524 economic loss,1525 material harm (house
partially destroyed by short circuit).1526
In some cases, the courts limited the public service´s liability indeed for contributory
negligence.1527 The concept thus applies here as well.
1522
Cour de Cassation, Civ. 1ière, 26 mai 1994: Ville de Concarneau c/ Sté. Fauglas et autres.
1523
Cour dÁppel Douai, 3ième Ch.civ., 17 mars 1989, Pouget c/ EDF.
1524
1525
Cour dÁppel Nîmes, 2ième Ch. civ, 8 mars 1990, EDF c/ Sté. Payen et Cie.
1526
Cour de Cassation, Civ. 1ière, 9 décembre 1986, Compagnie dÁssurances groupe de Paris AGP
c/EDF; Cour de Cassation Civ. 3ième, 16 décembre 1987, GDF c/ Mme Norroy et autres.
1527
Cour dÁppel Nîmes, 2ième Ch. civ, 8 mars 1990, EDF c/ Sté. Payen et Cie, Tribunal Commercial de
418
For example, in one case, a horticulture company suffered damages due to power cuts.
Plants that needed constant heating died when the heating stopped working. The power
cuts were caused by an exceptionally cold weather that made the lines freeze. The court
found that the possibility of eventual power cuts must be taken into account by any user
and that it is his duty to take the appropriate measures to prevent harm.1528 Since the user
in the given case had not taken any measures, the court did not award damages.
The normal limitation prescription periods apply.
The extracontractual liability of the State and its dependencies, covering both “fault”
liability and “no fault” or “risk” liability is governed by an autonomous regime, as it
was recognized by the Tribunal de Conflits in 1873.1529 There are a lot of different laws
applicable to extracontractual liability of the établissements publics industriels et
commercials. Thus, the majority of the decisions deal with the applicability of those
laws.1530 But since that specific liability regime covers the activities of many public
institutions, or even of private law entities performing general tasks of general and
public interest, it often deals with issues which are similar to those arising under general
tort law.1531 Furthermore, this regime is not basically different from the general one
based on Art. 1382 ff. code civil: Existing differences tend to be reduced or even to
disappear.1532 It is interesting to note that the administrative, as compared with civil
liability rules, have evolved from being more restrictive for plaintiffs to being more
generous to them.1533 Basically, all rights and legitimate interests which receive
protection under French tort law against infringements by individuals are thus equally
protected against the acts of public authorities. In the case of public authorities also, no
particular duty of care need to be proved.1534 It is a particular feature of French law, that,
in addition to fault based liability, public authorities may also incur “no fault” or “risk”
liability. That latter form of liability is based on the principle of equality of all citizens
before public burdens.1535
1528
Cour dÁppel Douai 3ième Ch.civ., 17 mars 1989, Pouget c/ EDF.
1529
Tribunal de Conflits, Blanco, 8 février 1873, DP. 1873.III.20. See also N. Brown/J. S. Brown, 175-6.
1530
Cour dÁppel de Lyon, 29 janvier 1998, Electricité de France c/ C; Conseil dÉtat, 14 décembre
1998, La Poste c/ Gaz de France.
1531
N. Brown/J. S. Bell, 32.
1532
C. Blumann, Etat et collectivités publiques, No. 370-1, in Juris-Classeur civil 1382-1386, para. 11.
1533
A. Laubadère et al., Traité de Droit administratif, Vol. I, LGDJ 1994, 834-5.
1534
1535
N. Brown/J. S. Brown, 184.
419
Hans-W. Micklitz
There is room for a responsiblité du fait des choses. In fact, this is the main case for
extracontractual liability. Apart from the cases where special legal provisions apply,
the public services of general interest are mainly held liable for a damage caused by an
item under their control. The providers of services of general interest are bound by the
general principles concerning garde de la chose. Here, as in general law, the ultimate
question is to decide on who has the control (garde) of the item causing the damage.
The criteria to be applied are the same as in general tort law.
In one case, the Cour de Cassation had to deal with the death of a young man caused by
an electric shock while handling a safety fuse. The fuse had been installed by EDF. EDF
had indeed cut the meter but had left the supply untouched so that there still was
voltage. Since the owners of the mill had resigned from the subscription contract with
EDF and the meter had been taken away by EDF, the court found that the owners had
lost all control, direction and use of the electrical installation and thus could not be held
responsible for the death, but EDF had to be.1536
In fact, the cases where the courts denied the public service´s garde de la chose are rare,
e.g. GDF does not have the garde de la structure concerning the meter of the gas
installation and what is beyond in a customer´s house.1537
Vicarious liability only exists in the form of faute de service, therefore not within the
classical meaning of Art. 1384 al. 5 cciv.1538 Vicarious liability thus is not really liability
due to the action of a third person, but the whole service is seen as one single service, all
faults occurring within are being attributed to the provider.1539 Thus, in such cases,
administrative courts have jurisdiction1540. However, this difference is only theoretical,
in practice it comes back to the same result.
bb) Causation
The general rules for causation apply; there might be special rules deriving from special
laws.
cc) Fault
When acting as part of the administration (thus making use of the special powers the
administration has), there is room for a liability without fault (responsabilité sans
1536
Cour de Cassation, Civ. 1ière, 2 juin 1993, EDF c/ Epx. Moreau et autres.
1537
Cour de Cassation, Civ. 2ième, 16 juin 1983, Duplissy c/ GDF et autres.
1538
Ph. le Tourneau/L. Cadiet, 46 at 149.
1539
Conseil dÉtat, 18 novembre 1949.
1540
Ph. le Tourneau/L. Cadiet, 1340 at 7510.
420
faute). For this type of liability to play a special danger however is necessary.1541 This
special danger can result from an activity that proves to be particularly dangerous so
that an extraordinary risk is created. A special danger may also derive from a
particularly dangerous item used in the course of the fulfilment of the administrative
duties, the risks emanating from electricity and gas alone however are not sufficient.
Today, the theory of particularly dangerous items is limited to the use of fire arms, thus
a field outside of the services of general interests. In such cases, the victims need not
prove a fault, the mere establishment of a damage and the causation is sufficient for the
administration to be held liable.
Administrative liability however mainly is founded on fault. The fault needed is a faute
de service, which means a malfunctioning of the administrative service in question.1542
The malfunctioning can originate from a default in the organization of the service or a
simple malfunctioning in the original sense of the word.1543 French law knows three
types of faute de service: simple, grave and extraordinary (simple, lourde, manifeste).
The application of the three categories depends on the nature of the service in question
and helps to determine whether there is liability and of what scope.
When held liable on the basis of Art. 1382 f. cciv, the normal rules apply thus the
requirements of Art. 1382 f. cciv have to be met.
The case law relating to administrative liability, in particular that of the Conseil dÉtat
follows by large the case law of the Cour de Cassation relating to Art. 1382 ff. code
civil concerning the scope of recoverable material and non- material damage.
It goes without saying that when the damage is material in nature, damages are
awarded.1544
The administrative courts have long accepted that certain kinds of non material harm
can be compensated: First when the non material damage was accompanied by a
material element, as where the non-material damage could have economic
consequences. Thus aesthetic damage was accepted, as was injury to reputation when
the publicity was such that damage was sure to follow, and pain and suffering, provided
that if the victim had died, he had himself commenced suit.
1541
C. Blumann, Etat et collectivités publiques, No. 370-1, in: Juris-Classeur civil, 1382 at para. 68.
1542
C. Blumann, Etat et collectivités publiques, No. 370-1, in: Juris-Classeur civil, 1382 at para. 33.
1543
Conseil dÉtat, 13 décembre 1963, Min. des Armées c/ Ocelli; AJDA 1964, 166.
1544
Cour de Cassation Civ. 1ière 2 juin 1993, EDF c/ Epoux Moreau et autres.
421
Hans-W. Micklitz
When the damage is purely non material, without any material aspect, such as the
infringement of a purely spiritual liberty, the administration still is held liable even
though the sum awarded might be very small and merely symbolic.1545
Although the administrative courts have long accepted that non-material harm may be
compensated they refused to award damages for one form of it which was accepted by
the regular courts, namely grief to the loss of a dear one (préjudice dáffection). It was
said that “tears don’t translate into money”. Nonetheless, the administrative courts did
award damages under the heading of compensation for disturbance of the conditions of
life which went beyond any material harm, and finally the Conseil dÉtat ended up by
accepting damages for bereavement as such.
When there had been a fatal accident for which the administration was responsible, it
was a question who could sue. Here the courts long adhered to the restrictive rule that
damages required a “right infringed” and not just an “interest invaded”. On the
principle, the Conseil dÉtat dismissed the claims of cohabitants as well as persons who
had no legal right to support from the primary victim. The law has developed, however;
the Conseil dÉtat has abandoned its rule that the plaintiff must be an alimentary
creditor and allows the cohabitant to claim.
Even in the cases where special laws are applied, the evaluation of the damages is done
according to the general standards.1546
ee) Contributory negligence
The concept of contributory negligence is applicable.1547
ff) Limitation (prescription period)
The normal limitation prescription periods apply.
Providers of services of general interest are particularly affected by strikes of the labour
force. The courts seem to be willing to regard strikes as types of force majeure and thus
exempting the provider from liability.1548 However, the strike must show certain
features. The Cour de Cassation qualified a strike as amounting to force majeure only
where the strike hit the whole public sector, was carried out nationwide and therefore
1545
A. Laubadère/J. C. Venezia/Y. Gaudemet, 135.
1546
Conseil dÉtat, 14 décembre 1998, La Poste c/ Gaz de France.
1547
A. Laubadère/J. C. Venezia/Y. Gaudemet, 136.
1548
Cour dÁppel Nîmes, 2ième Ch. civ, 8 mars 1990, EDF c/ Sté. Payen et Cie, Tribunal Commercial de
422
of wide scope. Only in such a case could a strike being regarded as outside of the
enterprise (= provider of service) and could be neither foreseen nor prevented. The
prevention was not possible either because it was the government that would fix the
salaries of the striking labour force and not the provider itself.1549 The reason for this
more lax handling of force majeure is that a private company can get a substitute more
easily than a state owned company that has the monopoly in the market. Whether or not
a strike of the labour force can qualify as exonerating force majeure must be decided
from case to case.1550
Other cases of force majeure are violent storms and heaving sticky snowing as well as
heavy objects on the supply lines.1551
In their contracts, limitation and exclusion clauses to the detriment of the consumer can
often be found.
For a long time, the contracts concluded between a service public industriel et
commercial were surely subject to contract law, however, excessive clauses, that could
not be accepted in contracts between normal professionals and consumers were
accepted and considered valid. This was even true for limitation/exclusion clauses.1552
The Conseil dÉtat however, in 2001, decided that the law of 1978 concerning the
protection of consumers had to be applied to excessive clauses in contracts concluded
between a consumer and a service of general interest.1553 The legislation concerning
abusive clauses thus must now be respected by the services of general interest, EDF and
GDF. In the case leading to this rule, the used exclusion clause was promptly declared
invalid.
The problem of the different jurisdictions has already been discussed.1554
aa) Burden of proof
Concerning contractual liability, the consumer simply has to show inexecution or

defective performance of the obligation de résultat. If he satisfies that requirement there
1549
Cour de Cassation, Civ. 1ière 24 janvier 1995, Sté Héliogravure Jean Didier c/ EDF; Ch. Mixte 4
février 1983, Sté anonyme Otic Fischer Porter c/ EDF; Sté boulonneries et visseries de Sablé et autres
c/ EDF.
1550
Tribunal Commercial de Paris, 23 octobre 1989, Cabinet B. Granger c/ EDF.
1551
1552
As said above, the validity of the contract is judged by the administrative courts.
1553
Conseil dÉtat, 11 juillet 2001, Sté des Eaux du Nord.
1554
See supra, 00.
423
Hans-W. Micklitz
is a presomption of liability.1555 The public service can only escape that liability by
showing a case of force majeure or consumer´s fault.
As said above, the burden of proof for extra contractual liability follows the general
rules.
The Commissaire du Gouvernement, created in 1831, has a similar function to the

Advocate General at the ECJ.1556 Intended originally to present the viewpoint of the
government, this officer rapidly arrogated himself an independent function and began to
represent the public interest rather than the policy of the administration.1557
e) Case study
A private person installed a gas heater in an apartment. The maintenance work was
assigned to a private company. One day the heater exploded causing serious personal
injury to the owner of the apartment. The cause for the explosion was a leaking spot
within the installation and its insufficient ventilation. The victim claimed compensation
from GDF. GDF denied on the basis that according to the contract concluded with the
victim it was only bound to deliver gas and not to check upon the inner tubes of the gas
heater. According to the regulations applicable, GDF was not allowed to contract an
obligation charging the service with regular checks on the inner tubes. The only
obligations deriving from the legal and administrative rules were that GDF had to make
sure that the owner of a newly installed gas heater showed its certificate of conformity
given to the owner of the heater by the installing firm and that the installation itself
corresponded to the legal requirements. The court therefore found that GDF had
violated these two obligations. Even though the violation of these obligation was not the
cause of the damage, it had contributed to it and thus GDF had to be held liable.1558
1555
1556
1557
1558
Cour de Cassation Civ. 3ième, 16 décembre 1987, GDF c/ Mme Norroy et autres.
424
Public utilities Germany
Literature: H. P. Hermann/H. Recknagel/J. Schmidt-Salzer, Kommentar zu den Allgemeinen

Versorgungsbedingungen für Elektrizität, Gas, Fernwärme und Wasser, vol. I, 1981, vol. II, 1984;
Palandt-Heinrichs 00; Staudinger-Oechsler 00; H. C. Taschner/E. Frietsch, 00 § 2 ProdhaftG 00 no. 19.
3. German law1559
In Germany, the supply of general services (electricity, gas, water) is mainly provided
by private enterprises though many of them are at least partly owned by the state or the
local community. Because of the public interest in efficient and safe supply and fair
costs of these products which are absolutely essential for everyone’s daily life there are
statutory regulations for the supply of electricity, gas, water and distant warmth.1560
These regulations contain also provisions on liability and partly limit the amount which
can be claimed in case of damage. They regulate in a mandatory way the contents of the
private contracts on the supply of the mentioned goods but apply as well when the
supply is provided on a public law basis. Anyhow, does private contract law apply to
supply relations even if they are based on public law.1561
Since electricity qualifies as “product” under the EU Product Liability Directive1562 and
under the German Produkthaftungsgesetz1563 and since gas, water and distant warmth are
to be treated alike with electricity1564 there is already a uniform European regulation for
damage caused through the products themselves, for example for the impoisoning
through poisoned water. The following therefore deals only with corporeal damage
caused through the accompanying services, which are rendered in connection with these
products. Mainly, this is the manner in which these products are delivered, for instance
the safety of the pipes or wires through which the specific products are supplied etc. The
statutory regulations foresee further obligations of the provider. But though billions of
such supplies are provided each year in Germany there is almost no case material
concerning bodily harm through such supplies. On the reasons it can only be speculated.
It is, however, rather likely that the strict public control and supervision of these kinds
of supplies as well as of the accompanying services is mainly responsible for the
1559
H. P. Hermann/H. Recknagel/J. Schmidt-Salzer, Kommentar zu den Allgemeinen Versorgungsbe-
dingungen für Elektrizität, Gas, Fernwärme und Wasser, vol. I , 1981, vol. II, 1984.
1560
See the respective Verordnung über Allgemeine Bedingungen für die Gasversorgung von Tarifkunden
(AVBGasV – BGBl. 1979 I 676 [gas]), Verordnung über Allgemeine Bedingungen für die
Elektrizitätsversorgung von Tarifkunden (AVBEltV – BGBl. 1979 I 684 [electricity], Verordnung
über Allgemeine Bedingungen für die Versorgung mit Fernwärme (AVBFernwärmeV – BGBl. 1980 I
742 [distant warmth] and Verordnung über Allgemeine Bedingungen für die Versorgung mit Wasser
(AVBWasserV – BGBl 1980 I 750 [water]), all Regulations in their newest version of 5 April 2002.
1561
BGHZ 59, 303.
1562
Art. 2 sent. 2 Product Liability Directive of 1985.
1563
§ 2 ProdHaftG.
1564
See Palandt-H. Thomas, § 2 ProdHaftG no. 1; Staudinger-J. Oechsler, § 2 ProdHaftG no. 48 with
further supporting references; H. C. Taschner/E. Frietsch, § 2 ProdhaftG no. 19.
425
Ulrich Magnus
relatively high safety of the supply and the services relating to electricity, gas, water and
distant warmth. Also severe criminal law sanctions may effectively deter from any non-
compliance with the prescribed or generally required standard of care the provider has
to observe.1565 Private liability law may exert but a rather modest preventive effect.
It has, however, to be remembered that the normal contract for services or work is
outside the sope of this study when for instance an electrician or a plumber contracts to
install electrical, gas or water installations in a private household.
Because of the dearth of case law the following can do little more than state how the
general rules operate in this special field. Furthermore, the modifications of the general
rules which the statutory regulations bring about have to be addressed.
Services of general interest in the sense as understood here are almost without exception
rendered on a contractual basis. Even if they are provided on a public law basis
principles of private contract law are applied by reference.1566
aa) The parties
i) Contract parties
The contract parties are on the one side the provider of the general service, on the other
the customer who is regarded as contract party even if s/he accepts the supply without
any precedingly agreed contract.1567
The supply contract does not only protect the customer as the direct contract party but
also further persons who regularly come into contact with the suopply.1568 Therefore,
family members and guests, also employees of the contracting customer, probably also
other lessees in the house of the custoner fall as well under the protective scope of the
contract and can invoke contractual liability of the provider while other by-standers
(passengers on the road etc.) can only advert to tortious liability.
1565
See besides the general provisions on killing or injuring somebody else, e.g., §§ 306 ss (arson), § 314
(poisoning particularly of water), § 316b (wrongful interference with enterprises for public supply), §
318 (damaging of important installations), § 319 (endangering others through incorrect construction
work) Criminal Code; all cited provisions prescribe rather high sentences even if the respective
criminal act is negligently committed.
1566
BGHZ 59, 303; see § 1 of all of the Regulations cited supra fn. 2.
1567
OLG Saarbrücken, NJW-RR 1994, 436; Palandt-H. Heinrichs, Einf. vor § 145 no. 26.
1568
H. P. Hermann/H. Recknagel/J. Schmidt-Salzer, § 6 no. 73.
426
Under the contract regime providing enterprises are liable for their employees according
to § 278 BGB. They have thus to answer for acts which the employees committed
within the scope of – and not outside – their employment, unless the employee acted
neither with intent nor with negligence. This latter requirement which shifts the burden
of proof of lacking intent and negligence on the provider is provided for by the statutory
Regulations for the providers of services of general interest.1569 Exact supervision and
control of the employee is no excuse for the provider.
The provider is liable for any impairment of the customer’s (or other protected person’s)
body or health or for the death of these persons.1570
The provider’s main duties are regulated in the respective statutory Regulation: The
essential duty of the provider consists of the regular delivery of electricity, gas, water or
distant warmth.1571 But the provider is also under a duty not to injure the customer in the
course of delivery.1572 A further duty relating to personal injury is enacted in § 14 of the
statutory Regulations; the provider has to warn the customer of riks for life and body if
the provider detects defects of the customer’s installations when controlling them.1573
As mentioned the provider is under a duty to supply the owed services in such a manner
as not to injure the customer. This includes that the provider has to comply with the
requirements of a professional supply of the owed services and has in particular to
comply with prescribed technical standards.
The provider is certainly under a duty to control the own installations and to care for
their safety. These installations are regularly those on public ground while the
1569
§ 6 par. 1 Nr. 1 of all of the Regulations cited supra fn. 2; see also H. P. Hermann/H. Recknagel/J.
Schmidt-Salzer, § 6 no. 12.
1570
See again § 6 par. 1 Nr. 1 of all of the Regulations cited supra fn. 2.
1571
See § 4 of all of the Regulations cited supra fn. 2.
1572
§ 6 of all of the Regulations cited supra fn. 2.
1573
§ 14 par. 3 sent 2 of all of the Regulations cited supra fn. 2; see thereto H. P.Hermann/H. Recknagel/J.
Schmidt-Salzer, § 14 no. 25 ss.
427
Ulrich Magnus
installations on private ground are regularly owned, and have to be prepared and cared
for, by the customer who in turn is primarily responsible for their safety. However, the
statutory Regulations grant the provider a right to inspect the customer’s installations.
As far as the provider exercises this right and detects defects the provider is not only
obliged to stop delivery if further delivery would endanger life or limb of the customer
(or other persons within the scope of protection).1574 The provider is moreover liable for
any ensuing damage through the continued delivery even to the customer him/erself.1575
The provider is only liable for any bodily damage that is due either to stoppage or
irregularity of the delivery or to failure to warn of risks or to other risks of the supply if
the damage was caused intentionally or negligently either by the enterprise itself or by
one of its employees.1576 Thus, fault is an essential requirement of the contractual – as
well as of the tortious – liability of the provider.1577
If the bodily injury of the customer (or other person protected under the contract) is
caused through stoppage or irregularity of delivery the Regulations expressly order that
the fault of the provider or its employees is presumed.1578 The burden then lies with the
provider who must prove that the enterprise itself or its employees were not at fault and
acted neither with intent nor with negligence.1579 But the same rule applies in all other
cases of bodily harm which the the supplying enterprise causes the customer. This is the
consequence of § 280 par. 1 sent 2 BGB which generally presumes the debtor’s fault
when a violation of a contractual duty has caused the creditor’s damage.1580
The general standard of fault applies. To escape the verdict of negligence the provider
must therefore prove that the enterprise or employee acted with the care necessary in the
1574
§ 14 of all of the Regulations cited supra fn. 2.
1575
§ 14 par. 3 of all of the Regulations cited supra fn. 2.
1576
See § 6 par. 1 Nr. 1 of all of the Regulations cited supra fn. 2.
1577
See also H. P. Hermann/H. Recknagel/J. Schmidt-Salzer, § 6 no. 10.
1578
§ 6 par. 1 Nr. 1 of all of the Regulations cited supra fn. 2.
1579
See also H. P. Hermann/H. Recknagel/J. Schmidt-Salzer, § 6 no. 10 ss.
1580
See thereto Palandt-H. Heinrichs, § 280 no. 40.
428
circumstances. This standard is an objective one. The yardstick is how a reasonable

person in the same situation would have acted in order to avoid the damage.
Liability is incurred even in case of slight negligence. The statutory Regulations do not
require a stricter grade of fault where bodily damage is at stake while property damage
and pure economic loss is only compensable when caused with intent or gross
negligence.1581 It has been argued that also bodily damage can only be recovered in case
of intent or gross negligence.1582 But the recent German Schuldrechtsreform made it
clear that standard form contracts cannot exclude nor restrict liability for bodily injury
even if caused with slight negligence.1583 This policy decision has also to be applied to
the statutory Regulations notwithstanding that they as legislative provisions are not
directly subject to the rules controlling standard contract terms.1584
ee) Causation
Causation between the act or omission of the provider and the damage of the customer
is a further essential requirement of contractual – and again, also of tortious – liability.
The general rules on causation apply without restriction.
Causation is established if adequate causality can be shown and if no normative

considerations militate against causation. Adequate causality is in turn established when
the act or omission was a condicio sine qua non and increased the probability of the
damage.
ii) Omissions
An omission has caused the damage if the required conduct would in all probability
would have prevented the damage. This is for instance of relevance if the provider has
detected a defect of the customer’s installations but has neither warned the customer nor
stopped delivery so that a damage occurred.
Causation is not presumed but must be proved by the customer.1585 However, in

appropriate cases the prima facie proof may avail the customer.
1581
Compare § 6 par. 1 of all of the Regulations cited supra fn. 2.
1582
1583
§ 309 Nr. 7a BGB; Palandt-H. Heinrichs, § 309 no. 40.
1584
Palandt-H. Heinrichs, § 310 no. 6.
1585
429
Ulrich Magnus
i) Damage to health
As in general contract law damage to health includes any bodily impairment as well as
medically recognisable psychiatric illnesses caused by the provider. In case of death
heirs and dependants are, however, not entitled to any contractual rights of their own but
only to those rights which the deceased already possessed as far as they are the
deceased’s heirs. They have own rights for compensation of the loss of the breadwinner
only under tort law.1586
The customer or other protected person who has been bodily injured is also entitled to
compensation for pain and suffering.1587
The general rules on the assessment of damages apply. Though the statutory
Regulations limit the amount of damages in case of property damage and pure economic
loss1588 personal damage has to be compensated in full. For damage of that kind no
maximum amount applies.
With respect to contributory negligence no specific rules are provided in the statutory
Regulations as far as the occurrence of the damage is concerned. If the customer has
contributed to it or increased the damage by neglecting a duty of care in his/er own
interest the amount of damages is reduced or even excluded where the customer’s
contributory negligence is the sole cause of the damage.1589
But the statutory Regulations provide a specific duty of the customer after a damage has
occurred: The customer has to give notice of the damage as soon as possible
(“immediately”).1590 It has been advocated that the customer looses any right to claim
damages if s/he neglects this duty and does not give immediate notice.1591 It must be
1586
See infra b ff.
1587
§ 253 par. 2 BGB.
1588
1589
§ 254 BGB applies here.
1590
1591
430
doubted whether this harsh consequence has to be drawn, even more so since the
provision itself does not foresee any consequence of any failure of giving notice.
The statutory Regulations provide a specific limitation period for damages claims based
on stoppage or irregularity of supply. This period is one year1592 which is considerably
shorter than the generally applicable period of three years.1593 But it has to be stressed
that the short period applies only where the cause of the damage is the stoppage or
irregularity of the supply. For other causes the normal three-years-period applies.1594
The period starts running as soon as the injured customer has acquired knowledge of the
damage, of the cause of action and of the liable provider.1595 However, at any event the
cause of action if based on stoppage or irregularity of supply prescribes after two years
time after the damage occurred irrespective when the customer acquired the relevant
knowledge while for all other claims for compensation of corporeal damage insofar the
general period of thirty years applies.1596
In the specific field of contracts for services of general interest tortious liability for
bodily damage plays an even less important role than contract liability. The probable
reasons are mentioned above.1597 A further reason is that in cases where a supply
contract between the provider and the injured person exists contractual liability is
generally more favourable for the injured than tortious liability. Nevertheless the injured
person will bring his/er claim regular both in contract and tort since German law allows
for the cumulation of these causes of action. But if a contract between the provider and
the injured person exists the above mentioned rules on contractual liability govern as far
as they depart from general law (in particular with respect to limitation) also a claim in
tort.1598 That reduces the practical need for tort liability to cases where no contract is
involved. And here, even more than it is in contract the case just the general rules on
tortious liability have to be applied.
aa) The parties
1592
1593
§ 195 BGB.
1594
H. P. Hermann/H. Recknagel/J. Schmidt-Salzer, § 7 no. 7 (though to the old law of the BGB).
1595
1596
§ 199 par. 2 BGB.
1597
See supra before a.
1598
431
Ulrich Magnus
On the provider’s side it is the providing enterprise itself but also the responsible
employee who can be made liable in tort. On the other hand each person injured through
the supply is entitled to sue in tort.
The main difference between liability in contract and tort still lies in the differing
regulation of vicarious liability. In contract, the provider is liable for any damaging act
its employee has at least negligently committed in the scope of employment. In tort, the
provider is liable, too, for such acts (even for non-negligent acts as long as they are
wrongful) but can escape liablity if the enterprise proves that it selected, supervised and
controlled the employee with reasonable care.1599
Tortious liability requires bodily harm which includes as generally physic and also
psychic injury if the latter amounts to a medically recognisable illness. Death attracts
likewise tort liability.
The provider is only liable if s/he acted wrongfully. However, under German law
wrongfulness is presumed where life and limb of another person are impaired. An injury
of that kind is not regarded as wrongful only if the provider can adduce some
justification like self-defence or like defences which are, however, difficult to imagine
in this context.
ee) Causation
The general rules on causation apply also in tort. Here it can be referred to what has
been stated in that respect supra under a ee.
ff) Fault
The provider (or the single employee) must have acted negligently in order to become
subjected to liability. The provider’s negligence as to lacking supervision of employees
is presumed although the presumption can be rebutted. The fault of the single employee
is not presumed but must be proved.
1599
§ 831 BGB.
432
The minimum standard of fault is negligence which is adjudicated in the same manner
as in contract. The liable person must have neglected a duty of care which applies in the
specific circumstances and which is normally fixed by the courts according to the
standard how a reasonable person in the same situation could, would and should have
behaved.
Unlike in contract, in tort certain indirectly affected persons can sue the provider (or the
single employee or both) for the compensation of their indirect damage. This is true for
the heirs and dependants of a killed customer or other person who can claim in their
own right for compensation of burial costs and for lost maintenance.1600 All other
questions of damage and compensation are treated alike with contract law. In particular,
compensation for pain and suffering is treated on identical terms now.
Also, as far as contributory negligence is concerned no significant differences between

contract and tort exist. Worth mentioning is the fact that those persons who are entitled
to claim their indirect damage – heirs and dependants – must have their claims reduced
by an eventual contributory negligence of the deceased.1601
ii) Limitation (prescription period)
Absent any contractual link between the parties, the regular limitation period of three
years applies. It starts running by the end of the year in which the cause of action arose
and in which the injured person acquired or should have acquired – without gross
negligence – knowledge of the cause of action and the identity of the actor.1602
Irrespective of that knowledge tort liability for personal injury prescribes in thirty
years.1603
Where a contractual bond exists then the rules mentioned above1604 apply.
The statutory Regulations limit liability with respect to property damage and pure
economic loss but not with respect to personal damage if the latter has been caused by
1600
§ 844 BGB.
1601
§ 846 BGB.
1602
§ 199 par. 1 BGB.
1603
§ 199 par. 2 BGB.
1604
See a hh.
433
Ulrich Magnus
stoppage or irregularity of the supply.1605 This is mandatory law and cannot be varied by
specific contract terms. It has been argued though that a further limitation of the
customer’s rights should be allowed since otherwise the balance between the provider’s
and customer’s rights and obligations would be impaired.1606 But since the recent
German Schuldrechtsreform excluded any possibility to limit by standard clauses the
statutory liability in case of personal injury1607 this must also apply to the the
Regulations concerning the supply of electricity, gas, water and distant warmth.1608
aa) Burden of proof
The burden of proof for damage and causation lies regularly with the claimant, here the
customer or other injured person. The burden of proof for fault is, however, shifted on
the provider if it is the provider who is to be made liable. This is true for contract as
well as for tort claims.1609 If the single employee is to be made liable – s/he is liable only
in tort – then fault must be proved.
There appear not to exist specific institutions for the settlement of respective claims
outside the courts. But as indicated claims concerning compensation for personal injury
that the provider has negligently caused are evidently very rare;1610 almost no case
material exists. The need to
e) Case study
As mentioned there are no recent cases concerning personal injury caused through
public utility services.
1605
See § 6 of all of the Regulations cited fn. 2.
1606
H. P. Hermann/H. Recknagel/J. Schmidt-Salzer, § 6 no. 54 ss, 122.
1607
See § 309 Nr. 7a BGB.
1608
In a rather recent decision (NJW 1998, 1640) the BGH has regarded the AVBEltV as a “Leitbild”
(guiding regulation) for the control of standard form terms in that sector under the then AGBG (Act
on Standard Contract Terms). But also vice versa, central provisions of the then AGBG (now §§ 305
ss BGB) should as well guide the interpretation of the AVBEltV and of the other statutory Regulations
cited supra fn. 2.
1609
See §§ 280 par. 1 sent. 2, 831 BGB.
1610
The, as it appears, only relevant decision of the BGH (BGHZ 59, 303) concerned property damage
and resulting economic loss from delivery of polluted water which the customer used for butter
production and which in fact made the butter unmerchantable.
434
Public utilities Italy
4. Italian Law
Literature: G. Alpa, La responsabilità per il danno derivato dai «servizi» nel progetto di direttiva
comunitaria, in Giur. it. 1990, IV, 177; L. Bertonazzi, Commento all’art. 33 del d.lgs. n. 80 del 1998, in
Nuove leggi civ. comm. 1998, 207; G. Bottino, I servizi idrici, Milano 2002; E. Casetta, Manuale di
diritto amministrativo, 4a ed., 2002; C. Castronovo, La responsabilità del prestatore di servizi nella
proposta di direttiva comunitaria, in Foro it. 1994, V, 277; M. Cinelli, Contributi e contraddizioni della
giurisprudenza in materia di responsabilità da attività pericolose, in Riv. dir. civ. 1970, II, 161; M.
Delsignore, L’arbitrato nei servizi di pubblica utilità: considerazioni in attesa di un regolamento, in Dir.
proc. amm. 2002, 479; G. Di Rosa, Linee di tendenza e prospettive in tema di responsabilità del prestatore
di servizi, in Europa e dir. priv. 1999, 687; V. Geri, Prodotti (elettricità inclusa), difetti, danno,
responsabilità del produttore, in Rass. giur. energ. elettr. 1989, 571; L. Mancini, I contratti di utenza
pubblica, in Dir. amm. 2002, 113; S. Marzocchi, La normativa sulla responsabilità del produttore. Profili
generali ed ipotesi di applicazione nell’ambito della fornitura di energia elettrica, in Rass. giur. energ.
elettr. 1989, 21; N. Mazzia, Profili contrattuali della responsabilità per la fornitura di energia elettrica:
l’esperienza francese in relazione a quella italiana, in Rass. giur. energ. elettr. 1986, 333; G. Napolitano,
L’energia elettrica e il gas, in Trattato di diritto amministrativo a cura di Cassese, 2000, 1635; F. Pellizzer
e L. Trucchia, Brevi spunti sulla responsabilità delle pubbliche amministrazioni nei servizi, in Regione e
gov. loc. 1996, 9; S. Ruperto, Profili sistematici della responsabilità civile per attività pericolose e
interpretazione giurisprudenziale dell’art. 2050 c.c., in Rass. giur. energ. elettr. 1990, 51; C. Sardo, Prime
considerazioni sulla legge istitutiva delle autorità di regolazione dei servizi di pubblica utilità, in Resp.
civ. prev. 1996, 408; B. Sassani, La nuova giurisdizione esclusiva del giudice amministrativo (artt. 33, 34
e 35 del d.lgs. n. 80 del 1998), in Riv. dir. proc. 1999, 1013; R. Scognamiglio, Il danno morale, 313; F.
Trimarchi Banfi, La responsabilità del gestore di pubblici servizi nella prospettiva delle privatizzazioni.
Considerazioni sulla giurisprudenza costituzionale, in Dir. amm. 1995, 143; R. Villata, Prime
considerazioni sull’art. 33 del d.lgs. n. 80 del 1998, in Dir. proc. amm. 1999, 292; G. Visintini, Trattato
breve della responsabilità civile, 2a ed. 1999.
Over the course of the last ten years, Italy has witnessed a significant erosion of public
monopolies, which in the sector of essential public services has progressively taken
place from the beginning of last century.1611 In particular with the phenomena of
privatisation and liberalization in the sectors of electricity and gas supply, after a phase
of “regulation”, it is then necessary to combine the growing importance of the freedom
of private economic initiative with the need to protect general and collective interests in
1611
For a complete historical reconstruction of this phenomenon see G. Napolitano, L’energia elettrica e il
gas, in Trattato di diritto amministrativo a cura di Cassese, 2000, 1635 ff.; G. Bottino, I servizi idrici,
2002.
435
Stefano Troiano
play. The culmination of this has been the creation of an ad hoc Authority for electricity
and gas, doted with both normative and jurisdictional powers of control.1612
However, the inclusion of this type of activity in the category of “local” public services
has never been controversial and this is reason why it has always been managed by the
Municipalities and the Provinces. Traditionally there has always been the possibility of
choosing among five different models of organisation: a special state controlled
business (“azienda speciale”); a state institution (“istituzione”); a company incorporated
by the local municipality with or without its participation in the shares; entrustment of
the services to third parties and a management business which follows the criteria of
maximising economy (“gestione in economia”). This provision, however, was
profoundly modified by article 35 of the law n.448 of the 28th December 2001 (Finance
Law 2002) which introduced a summa diviso among services of industrial importance –
the identification of which has been entrusted to an appropriate governmental
regulation, which up to today’s date has not yet been promulgated – and “social”
services (that is to say, with no industrial importance). While for the latter the traditional
models of management as described above still remain, for the services of industrial
importance – of which, according to the prevailing opinion, are the services spoken of
here1613 – the leading principle is that of separation of ownership of the net from that of
the installation (always reserved to the municipal entity) and the management (which
can be entrusted to a determined category of third party) and the supply of the service.
The latter must always be carried out in accordance with the Competition rules by
companies chosen through a public bid following public evidence procedure (“gara con
procedura ad evidenza pubblica”).
Any introductory note, however, must be made from the perspective of distributing
jurisdiction between the ordinary judges and the administrative judges. On this point
article 33 of d.lgs. 31 March 1998 stands out (the part which is of interest here remained
practically intact after the reform which came about with article 7 of the law n.205 from
21 July 2000) which, after having devolved to the administrative judges the exclusive
jurisdiction of all disputes relating to public services, excludes from such a field of
application the “disputes which are merely compensation for damages to the person or
to things”.1614 It must also be remembered that the protection of subjective rights
1612
To go into more depth on this point see G. Napolitano, L’energia elettrica e il gas, cit., 1661 ff.; C.
Sardo, Prime considerazioni sulla legge istitutiva delle autorità di regolazione dei servizi di pubblica
utilità, in Resp. civ. prev. 1996, 408 ff.
1613
On this, among others, see G. Bottino, I servizi idrici, cit., 170; E. Casetta, Manuale di diritto
amministrativo, 4th ed. 2002, 589.
1614
B. Sassani, La nuova giurisdizione esclusiva del giudice amministrativo (artt. 33, 34 e 35 del d.lgs. n.
80 del 1998), in Riv. dir. proc. 1999, 1022 ff.; R. Villata, Prime considerazioni sull’art. 33 del d.lgs. n.
80 del 1998, in Dir. proc. civ. 1999, 292 ff.; L. Bertonazzi, Commento all’art. 33 del d.lgs. n. 80 del
1998, in Nuove leggi civ. comm. 1998, 216.
436
regarding public water is attributed (in article 140 of the Real Decree 11 December
1933, n.1775) to the Regional Courts of Public Water (Tribunali regionali delle acque
pubbliche), which, according to undisputed case law, are not special judges but are
specialised organs of ordinary jurisdiction (so that the question of whether a determined
dispute should be heard by ordinary non specialised judges or the Regional Court of
public water is decided by competence and not by jurisdiction).1615
The public nature – more or less notably – of the public service supply entity does not
impede, nevertheless, the conclusion of a true and proper contract with the consumer of
the service, generally known as a “public utility contract” (“contratto di utenza
pubblica”). Such a transaction is characterised for being subject to the norms of ius
commune except for those derogations which are imposed by the management, in the
exercise of powers pertaining to public law, to meet organisational and programmatical
requirements.1616 It seems reasonable therefore to consider that the responsibility of the
public sector manager for loss or injury to the consumer in the enjoyment of the service,
normally returns to the area of liability for contractual breach (which, however, does not
exclude an accumulation with extracontractual liability, where the material fact which
constitutes the breach of contract causes the injury of a consumer’s absolute right1617).
The quality of this statement, moreover, has been confirmed by the Constitutional
Court, which has affirmed on many occasions that essential public services (also those
reserved to the public sector under article 43 of the Constitution) must be organised and
managed in the form of a company, that is to say with whichever type of management
which follows the criteria of maximising economy (“criteri di economicità”), which
considered as a whole means that the relationship with consumers in this area is of a
1615
On this see Caff. 19 gennaio 1970, n. 104, in Giust. civ. 1970, I, 595. The Higher Court of public
water also has the nature of ordinary judge when judging on appeal those cases decided in first
instance by the Regional Courts.
1616
For a complete examination of this problem see above all L. Mancini, I contratti di utenza pubblica, in
Dir. amm. 2002, 113 ff., for a full review of doctrine and jurisprudence of this material.
1617
For this reason, in light of the comment of the EU Directive proposal on service supplier liability,
Italian Doctrine has said that, in the field which presupposes a contractual relationship between the
supplier and the consumer of the service, the adoption of a sort of extracontractual liability would only
represent “a sort of legal fiction”: see G. Di Rosa, Linee di tendenza e prospettive in tema di
responsabilità del prestatore di servizi, in Europa e dir. priv. 1999, 692; G. Alpa, La responsabilità per
il danno derivato dai «servizi» nel progetto di direttiva comunitaria, in Giur. it. 1990, IV, 177; C.
Castronovo, La responsabilità del prestatore di servizi nella proposta di direttiva comunitaria, in Foro
it. 1994, V, 277.
437
Stefano Troiano
contractual nature and is fundamentally subject to the private law regime and therefore
to the discipline of liability for breach.1618
Nevertheless, it is impossible to deny that, until today, the Italian Courts have always
been very reluctant to fully recognise the contractual character of liability between
suppliers/distributors and consumers.1619 In particular and above all in the area of
liability resulting from gas and electrical energy supply services, the Courts tend to
redirect these activities to the concept of “dangerous activities”, the exercise of which
causes extra-contractual liability under article 2050 c.c., often making recourse to this
provision even in cases where liability results from non-performance of services
provided for in a contract with the consumer (so that the consumer should, strictly
speaking instead, receive protection for breach of contract).1620 In these sectors,
therefore, only the doctrine has shed some light on the possibility of recognising a
contractual liability of the service manager (moreover, nearly exclusively in the sector
of electric energy). However, the expansion of the above-mentioned article 2050 c.c.
does not seem to concern liability resulting from drinking water distribution which in
fact counts with the most court decisions making reference to contractual liability.
aa) parties
i) Contract Parties
The parties to a public sector services contract are, on one side the physical person that
usufructs, commonly referred to as the “consumer” and on the other side, the entity –
public, private or mixed – which provides the supply and distribution and management
of the service itself. With regard to the latter, in particular, currently the most diffused
organisational model seems to be that of a special state company, but it is necessary to
remember that in future, in view of the reform activated in article 35 of law n. 448 of
2001, it will be necessary to follow the model of company of privatised capital, which
will be determined through the public bid according to the public evidence procedure.
ii) By-standers and Others
1618
The reference is above all to the Corte Cost. 17 marzo 1988, n. 303, in Foro it. 1989, I, 56, e a Corte
Cost. 28 febbraio 1992, n. 74, in Giur. cost. 1992, 398. For a more complete examination of the
affirmations contained in this judgment see F. Trimarchi Banfi, La responsabilità del gestore di
pubblici servizi nella prospettiva delle privatizzazioni. Considerazioni sulla giurisprudenza
costituzionale, in Dir. amm. 1995, 143 ff.
1619
F. Pellizzer/L. Trucchia, Brevi spunti sulla responsabilità delle pubbliche amministrazioni nei servizi,
in Regione e gov. loc. 1996, 13.
1620
See footnote 1636.
438
In the sector of essential public services neither doctrine nor the Courts seem to have
theorised yet the possibility of extending the area of contractual protection to other
subjects other than those that are directly party to the stipulated contract with the service
management entity. On the contrary, as has been seen before, the Courts’ tendency to
redirect the activity of electric energy and gas production and distribution into the
dangerous activities group regulated in article 2050 c.c., seems to lead to the opposite
result, that is to always conceive the protection of the consumer in extracontractual
terms, even when the service which the consumer is entitled to is provided for by a
contract.
Even though both doctrine and the Courts are silent on this point, there do not seem to
be any obstacles to the possibility of applying, in this area, art. 1228 c.c., which states
that the debtor is liable for events which can be imputed to his employees and agents
(“ausiliari”).
bb) Bodily injury to the Claimant
On this subject it is better to make a distinction between the specific type of services
which are being supplied and distributed.
In the Water Service Sector it is difficult to reach a definite verification of loss or injury
to man’s health; in the majority of cases, in fact, the competent Authority enacts an
appropriate administrative by-law (usually in the form of a Municipal Lord Mayor’s
Order) which considers the polluted character of the supplied water and forbids the use
by the citizen for a determined period of time. Consumers, then take advantage of this
breach of the supply contract by asking for a reduction in tariffs and/or a reimbursement
of the tariff as water had to be obtained in some other way.1621
In the gas sector, however, damages and injury to man’s health are frequent, due to the
fact that breaches by suppliers often cause explosions and fires or also, in less serious
cases, lethal intoxication.
Finally in the electrical energy sector it is necessary to make distinctions. According to
some, in fact, damages to man’s health can only be caused by loss or injury caused by
electric shocks, electrocutions and/or fires provoked by short-circuits, while sudden
changes of frequency and tension can only result in damages to electrical equipment and
1621
This was the case, recently in the decision of the Giudice di Pace di Reggio Calabria 2 gennaio 1997,
in Foro it. 1997, I, 1658; Cass. 9 aprile 1999, n. 3465, in Giust. civ. Mass. 1999, 792; Cass. 11 aprile
2000, n. 4592, in Giur. it. 2000, 2012.
439
Stefano Troiano
apparatus.1622 However, it must be noted that damages to machinery can also reflect in a
loss or injury to personal health (as demonstrated for example, by the case of an
exploding lamp, after a change in tension, the fragments of which hurt a person in the
eye1623).
cc) Violation of the contractual duty of care
About ten years ago the criteria of consumer self-liability (“principio di

autoresponsibilità”) was frequently applied, especially in the fields of gas and
electricity, in view of which – it was affirmed – that the supplier company would be
responsible for failures and defects upstream of the meter and the consumer would be
responsible downstream; that is to say that the management of the service could not be
called to compensate damages caused in that part of the installation which were under
the control of the consumer, so in this respect the control and the maintenance were
under the obligation of the consumer.1624 In more recent times, nevertheless, there has
been a change of mind in this formulation, in different ways depending on the different
sectors, which we are interested in here.
In the electricity sector, in particular, the inapplicability of the principle of self-liability
for damages which are not produced by an installation defect, but by a sudden change in
tension affecting the supply, interruption etc has long been evident: from this point of
view, therefore, there does not seem to be any doubt about the existence of Enel (Ente
Nazionale per l’Erogazione dell’Energia Elettrica)’s obligation to provide “safe”
electricity.1625
1622
See V. Geri, Prodotti (elettricità inclusa), difetti, danno, responsabilità del produttore, in Rass. giur.
energ. elettr. 1989, 583 ff. For one of the rare occasions in which damages given to a consumer
following a short circuit were considered in terms of contractual liability, see App. Lecce 10 dicembre
1969, in Rass. giur. Enel 1970, 408 ff.
1623
Cass. 28 agosto 1995, n. 9057, in Rass. giur. energ. elettr. 1996, 524, but, it was not the liability of
Enel that was in play here, but that of a landlord of a house who had not informed the tenant of a
change in electrical tension.
1624
See V. Geri, Prodotti (elettricità inclusa), cit., 584; S. Marzocchi, La normativa sulla responsabilità del
produttore. Profili generali ed ipotesi di applicazione nell’ambito della fornitura di energia elettrica, in
Rass. giur. energ. elettr. 1989, 27; N. Mazzia, Profili contrattuali della responsabilità per la fornitura di
energia elettrica: l’esperienza francese in relazione a quella italiana, in Rass. giur. energ. elettr. 1986,
344.
1625
See V. Geri, Prodotti (elettricità inclusa), cit., 584; S. Marzocchi, La normativa sulla responsabilità del
produttore, cit., 27. In case law see Cass. 16 gennaio 1997, in Rass. giur. energ. elettr. 1997, 901 ff., in
which, by condemning Enel to compensate damages in light of article 2050 c.c. it highlights the
possibility of affirming contractual liability for breach of obligations –contractually assumed –for
electric energy supply with a predetermined tension of 220 or 380 volts with a tolerance of more or
440
With regard then to damages caused by an installation defect – the only time when it
appears possible to speak about the principle of self-liability – in some recent
judgments, the checking of the efficiency of the consumer’s installation (which
according to article 7 of the general contract conditions used by Enel appears to be a
mere power of Enel) has been reconstructed as an activity which is absolutely necessary
and dutiful, the onus of which falls on the service supplier entity.1626 Independently of
the party that bears the responsibility, this activity, then is regulated by a series of
technical laws: among these, above all, is the d.p.r. 27 April 1955, n.547, which, though
consisting of the prevention against work related accidents, it is often used to regulate
the activity of Enel even when Enel does not act as employer1627 – and law n.186 of 1
March 1968 which requires that all material, machinery, apparatus, installations and
plants relating to electricity and electronics are made without flaws, in that they respect
the safety rules dictated by the Italian Electrotechnical Committee (CEI).1628 On the
other hand it is important to remember that not all damages caused by installation
defects give rise to liability of the consumer or of the company supplier, as the damages
could also arise from a designer fault or constructor fault and this creates another
problem regarding the liability of electrical apparatus producers (which this report is not
dealing with).1629 However this process of progressively leaving behind the principle of
self-liability is not approved by all: according to some this principle should be valid not
only for damages caused by installation defects in the sphere of the consumer’s control,
but also for those damages derived from methods of supply. In fact it is noted that
energy can be used in various different ways and that each way requires the adoption of
diverse safety provisions: according to one criteria of economic convenience, it should
be the consumer who adopts the necessary precautions to avoid damages derived from
supply anomalies because only in this way would the cost of such precautions be
supported by those who effectively draw an advantage from the supply, and not by the
distributors.1630
In the gas sector reflections on contractual liability are very scarce. On the other hand, it
seems possible to consider valid in this area of liability the more recent decision of a
Court of first instance, based on the generic prohibition “neminem laedere”, according
less 10 %, as these obligations do not aim for “the simple use of energy, but also for the safety of its
supply”.
1626
On this for example see Trib. Roma (ord.) 31 agosto 1998, in I Contratti 1998, 573 ss.
1627
On this see V. Geri, Prodotti (elettricità inclusa), cit., 584; in case law see Cass. 16 gennaio 1997, n.
389, cit.
1628
Therefore, a possible divergence with respect to such rules asks for the verification that all technical
and safety rules have been adopted; on the contrary, the adoption of the same does not ensure the
exemption of liability as it is possible – even though very difficult – to demonstrate that there is a way
that would offer greater safety. See V. Geri, Prodotti (elettricità inclusa), cit., 584.
1629
S. Marzocchi, La normativa sulla responsabilità del produttore, cit., 26.
1630
N. Mazzia, Profili contrattuali della responsabilità per la fornitura di energia elettrica, cit., 347.
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Stefano Troiano
to which “it is a necessary obligation of the gas supply company to verify with periodic
intervals of maintenance, that the internal installations leading to the meter function
perfectly and that the safety rules are observed both before and after the testing of the
installations, so the company must not leave the adoption of the necessary prevention
and maintenance measures of the installations to avoid gas leaks and explosions
exclusively to the individual consumer”.1631
Still along the lines of leaving behind the principle of self-liability, it is worth,
moreover, considering the decision which declared that clauses of a Municipal
Regulation, which made the consumer responsible not only for a gas leak due to the
mal-functioning of the meter but also for all that came from downstream (a valle
downstream?) of the meter independent of the reasons behind the cause, to be illegal.1632
In the Water Sector the principle of self-liability does not seem to have ever had much
success. Water supply which does not respect the requisites of drinking water provided
in the appropriate laws of hygiene will always fall under the liability of the supply
entity. In this way the regime of liability of the latter is particularly onerous, so much
so, that at times it is considered to be a total and not a partial breach: although the water
is still usable for non drinking water reasons (for example hygiene), it is still treated by
judges on a par with a true and total service interruption.1633
On this point the reader is taken back to the previous paragraph, which dealt with the
supply company and the consumer sharing the liability of the control of the installation
in light of the principle of self-liability of the consumer.
i) Elements of Fault
In this area, the choice of a possible objective criteria seems to prevail among the
diverse possible reconstructions of contractual liability criteria, in which, for example, a
breach by Water Service management is only exempt in the case of “sudden
impossibility of service, which is objective and absolute”,1634 and – by way of another
example – an electrical supply company is required, to be exempt from the accusation
1631
Trib. Milano 15 giugno 2000, in Giur. it. 2002, 953.
1632
Tar Sicilia 17 luglio 1993, n. 786, in Giur. amm. sic. 1993, 627.
1633
On this for example see Giudice di Pace di Reggio Calabria 2 gennaio 1997, cit.
1634
Giudice di Pace di Reggio Calabria 2 gennaio 1997, cit.
442
of liability, to prove that the “event was fortuitous or that it was an act of God providing
that it had an exclusive causal efficiency”.1635
Article 1218 c.c. states that a breach can be attributed to the management of the public
service, which then has the onus of proving the specific cause leading to the
impossibility (which, as already said, must be objective and absolute) to perform the
exact service.
iv) Exemption from Liability
In the standard contract terms practised by management entities of essential public

services there are often clauses which exempt liability, which after the entry in force of
articles 1469-bis ss. c.c. have been mainly subject to judgments of unfairness. In
particular the clauses used by ENEL have received great scrutiny, among which, above
all, the content of article 7 of the above-mentioned terms, which exclude the liability of
the company for all those damages resulting from the checking of the installation in the
care of the consumer and, in more general terms, for all the damages checked
downstream from the delivery point of the energy. Nevertheless from 1996 there has
been an addenda to this which states “except for causes which can be attributed to
ENEL”, which according to prevailing opinion prevents the unfairness of the clause as
the new version seems to respect general contractual liability principles. In similar terms
clause 9 of the standard terms used by ENEL must be mentioned, which excludes the
company’s liability for the interruption of service and sudden changes in frequency or
tension owing to strikes, loss of service, orders from authority or any other accidental
causes; all of these, in fact are uncontrollable and unforeseeable events and therefore
cannot be in any way imputed to the company.1636
Finally, it should be noted that even before the entry in force of articles 1469-bis ss.c.c.,
the illegitimacy of the standard contract terms used by the public services management
was pronounced, in so far as they were considered to be excessively onerous towards
the consumer.1637
1635
See V. Geri, Prodotti (elettricità inclusa), cit., 585.
1636
Trib. Roma (ord.) 31 agosto 1998, cit.
1637
For example in a contract which provides for gas, clauses which exempted the service entity of the
liability for the suspension, interruption or limitation of the service due to any cause were considered
invalid, the same way as those clauses which made the consumer liable for all gas leaks upstream
from the meter “for whatever motive”, on the reasoning that the relief from these types of clauses
443
Stefano Troiano
ee) Causation
Both doctrine and case law do not appear to have shed light on the existence, from our
sectors, of any peculiarity which would justify a deviation from the general rules in that
which concerns the causal link of contractual liability. It is, therefore, necessary to refer
the reader back to the previous two paragraphs.
ii) Omissions
Please see paragraph i) above.
For this also please refer to paragraph i) above.
i) Damage to health
According to the by now consolidated position of the Italian Courts, damage to health,
understood to be injury to psychological and/or physical integrity (biological damages)
is always capable of compensation, without distinguishing whether there were or were
not any consequences of an economic nature (for example, medical expenses, reduced
work capacity etc). This rule, affirmed after the sentence of the Constitutional Court
n.184 from 1986,1638 also considers biological damages resulting from a contractual
breach.
ii) Pain and Suffering
According to a widespread position, (however not an agreed one),1639 in the case of a

contractual breach it would be possible to compensate economic damages but not non-
economic damages in the strict sense, that is to say subjective moral damages,
consisting in mental suffering and hardship suffered by the injured party. The latter,
made it excessively uncertain from the position of the private contract party: Tar Sicilia 17 luglio
1993, n. 786, cit.
1638
Corte Cost. 14 luglio 1986, n. 184, in Giur. it. 1987, I, 392, which overturned the previous precedent
in which damages to the person were only considered capable of compensation if they had negative
economical consequences. For an in depth analysis on this problem see the short report on Italian Tort
law.
1639
Cf. R. Scognamiglio, Il danno morale, 313.
444
regulated by article 2059 c.c., are deemed to be only capable of compensation in the
case of torts (see therefore section b) paragraph ff dedicate to tortious liability).
However, it should be remembered that compensation is recognised without limitations
in the moment that the suffering becomes a true and real clinical illness which causes a
reduction in the individual’s psychological and/or physical integrity, and then returns
back to the concept of biological damages. Moreover it has been shown that the
consumer that claims through the contract could then ask for compensation for moral
damages from the service supply company1640 by taking advantage of the accumulation
of contractual and extracontractual liability – an agreed point in Italian case law.
iii) Quantification of Damages
With regard to the quantification of damages the normal rules for contractual liability
apply. In relation to the Water supplier’s liability it has to be highlighted that the lack of
a definite injury to health (see above in section bb)), nearly always means that the
compensation consists in a reimbursement of fees and/or the reimbursement of that
which the consumer had to pay to acquire other water, unable to use the water supplied
by the management of the Water Service as it was polluted.1641
This subject has already been discussed during the study of the principle of the
consumer’s self-liability and to which the reader is now redirected at paragraphs cc) and
dd), iv). The case in which ENEL’s liability for damages caused by a defective cable in
the electrical installation belonging to the consumer was excluded, after having
ascertained that the damaging event was only caused by the injured party’s behaviour
itself, as it had carried out the installation irregularly and dangerously, omitting to carry
out proper and accurate maintenance on the installation, is a significant example of the
application of this principle.1642
hh) Limitation Period (Time limits)
The ordinary ten year limitation period in article 2946 c.c. is applicable.
1640
In this respect on ENEL’s liability see V. Geri, Prodotti (elettricità inclusa), cit., 585; for gas
supplier’s liability see, in Jurisprudence, Cass. 5 agosto 1997, n. 7214, in Danno e resp. 1998, 169.
1641
See above footnote 1612.
1642
Trib. Lecco 25 febbraio 1986, in Rass. giur. energ. elettr. 1986, p. 1080.
445
Stefano Troiano
As has already been stated in paragraph a) on contractual liability, tortious liability in

this area, seems to prevail above contractual liability because of its importance, as the
Courts constantly redirect the activity of electricity1643 and gas1644 production and supply
into the area of dangerous activities under article 2050 c.c., and therefore have ended up
using the extracontractual liability regime not only for protection of the third parties but
also for the protection of the consumer.1645 The consequent liability of the Water
Service, however, seems to lean towards that of liability for non performance, in that,
due to the fact that damages to health are very rare in these cases, there is a lack of a
necessary requirement for extracontractual liability.
aa) The parties
As has been seen in the previous paragraph, the Italian Courts tend to redirect the
protection of the parties to a consumer contract to the area of tortious liability. It can be
added that, according to case law, third party rescuers are among those subjects that can
go back to the protection given by the provision on dangerous activities (art. 2050 c.c.),
provided their intervention – it does not matter if the intervention is uncalled for or a
legal duty or autonomous action – is made with sufficient causal link with respect to the
causal link which joins the dangerous activity to the damaging event. It is necessary,
however, to recognise the interruption of the causal link (article 1227 c.c. in light of
article 2056 c.c.) when the rescuer’s intervention becomes an autonomous cause of
action to the damages received, through negligence, inexperience or carelessness.1646
bb) Bodily Injury to the claimant
The considerations in paragraph bb) above referring to contractual liability can be

repeated here.
cc) Wrongful Conduct
1643
On this see Trib. Messina 22 settembre 1961, in Giur. sic. 1961, 720.
1644
The first pronouncement on this was made by Trib. Parma 24 dicembre 1956, in Giust. civ. 1957, I,
744.
1645
There are numerous examples of this type of reasoning of the Courts: see for example Cass. 9 maggio
1967, n. 937, in Giur. it. 1967, I, 1839; and more recently, cfr. Cass. 2 aprile 2001, n. 4792, in Giust.
civ. Mass. 2001, 667; Cass. 4 maggio 1998, n. 5484, in Resp. civ. 1999, 115.
1646
Cass. 11 dicembre 1995, n. 12640, in Resp. civ. prev. 1996, 687 ff., in relation to sudden damages to
the Fire Inspector (Vigili del Fuoco) who intervened to put out a fire which started after a gas bottle
explosion.
446
Wrongful conduct, in the area that is of interest here, is a typical case of omissive
conduct, due to the fact that the rule in article 2050 c.c. provides that whoever causes
damages to another while carrying out a dangerous activity is liable except when “all
necessary measures to avoid the damages had been taken”. The application of this rule
to the production and distribution of gas could be, according to the original position,
only to recognise the liability of the gas producing entity;1647 more recent trends
nevertheless seem to affirm the liability of the distribution company after delivery– due
to the assumption of a separate power of disposition and an autonomous supervisory
duty - but consider, however, that the producer is still liable for damages produced from
defects in fabrication of the bottles or technical errors in the filling of these so these can
be imputed to the producer.1648
Regarding the activity of ENEL, not only is the supply of electricity in the strict sense
considered to be a dangerous activity under article 2050 c.c. but the same is considered
of activities consisting in the management and maintenance of the installation and of the
electrical cables, whether high1649 or low tension.1650
dd) Causation
The subsistence of a causal link between the damages and the exercise of the dangerous
activity takes on particular importance, considering that, as the entity cannot be given
such an onerous form of liability with respect to an event which it cannot be blamed for,
the causal link – and the assessment of this – must be considered to be the first premise
for the application of the law.1651 To this end it is not sufficient for the exercise of the
activity to be simply the occasion for the damage to occur, instead it must be necessary
for such activity to be considered the specific cause of the damaging event.1652 The
relative burden of proof, therefore, is up to the claimant, who must supply positive proof
of the specific cause which determines the damage, although not the negative proof
which is the non-existence of any other wrongful or negligent conduct which can be
attributed to third parties strangers to the contract.1653
1647
See above all Cass. 28 ottobre 1980, n. 5799, in Mass. Giust. civ. 1980.
1648
Cass. 13 gennaio 1982, n. 182, in Mass. Giust. civ. 1982.
1649
On this see Cass. 1° giugno 1968, n. 1647, in Foro it. 1968, I, 1760.
1650
Cass. 29 maggio 1989, n. 2584, in Giur. it. 1990, I, 1, 234.
1651
C. Maglione, Art. 2050, in Codice civile annotato con la dottrina e la giurisprudenza a cura di
Perlingieri, 2a ed., 1991.
1652
See in this sense the many references cited by S. Ruperto, Profili sistematici della responsabilità civile
per attività pericolose e interpretazione giurisprudenziale dell’art. 2050 c.c., in Rass. giur. energ.
elettr. 1990, 51 ff.
1653
On this see, above all Cass. 9 giugno 1973, n. 1666, in Rep. Foro it. 1973, voce Responsabilità civile,
c. 2233, n. 130.
447
Stefano Troiano
ee) Fault
The Italian Doctrine is always divided on the nature of article 2050 c.c., as it is still
being debated whether it deals with a presumption of fault or an objective type of
liability or an intermediate criteria between these two (see the short introduction to
Italian tort law on this point).1654 The Courts from their stance, though declaring that it is
keeping in line with the traditional view of a presumption of fault, appears to leave out
of consideration, in the majority of cases, the assessment of the “person causing the
damage’s” behaviour so that the liability of the latter is made exclusively dependent on
the exercise of the dangerous activity.1655 This seems to be confirmed in the
requirements of burden of proof by the person causing the damage, who, to free himself
of all blame cannot limit himself to only demonstrating that there is no violation of the
laws or regulations which regulate his activity or violation of his duty of care (that is to
say a lack of fault), but must give positive proof of the adoption of all necessary
measures to avoid the damage, whether this includes the most advanced technology or
whatever was feasible at the time of the damaging event.1656
In tortious liability, the most important types of damage are not of an economical
nature, because they are incapable of compensation in contractual liability, at least
according to the prevailing theory. Additionally it is considered that there is a general
limit, stated in the combination of articles 2059 c.c. and 185 c.p., which represents the
need for the presence of an offence: cases of murder and personal injury from electrical
apparatus1657 and from gas leak explosions1658 are therefore very frequent.
1654
For a complete reconstruction of the position on this point see C. Maglione, Art. 2050, cit., e G.
Visintini, Trattato breve della responsabilità civile, 2a ed. 1999, 735 ff.
1655
On this point, the remarks of M. Cinelli are still relevant today, Contributi e contraddizioni della
giurisprudenza in materia di responsabilità da attività pericolose, in Riv. dir. civ. 1970, II, 161 ff.,
which returns to the analysis of the specific theory of the liability of the electrical energy and gas
suppliers. In the same sense, but more recently, see also G. Visintini, Trattato breve della
responsabilità civile, cit., 736.
1656
See, among others, on the distribution of gas Cass. 4 giugno 1988, n. 5484, in Resp. civ. prev. 1999,
115 ff.; Trib. Milano 15 giugno 2000, in Giur. it. 2002, 953 ff.; on the responsability of Enel see,
Cass. 29 aprile 1991, n. 4710, in Resp. civ. prev. 1992, 259.
1657
In this area, the most recurrent case appears to be that of electrocution from contact with electric
cables to which third party access had not been adequately prevented: see for example Cass. 13 aprile
1977, n. 1391, in Rass. giur. Enel 1978, 90 ff.; Cass. 29 aprile 1991, n. 4710, cit.; Trib. Brescia 6
novembre 1990, in Rass. giur. energ. elettr. 1990, 721 ff.
1658
For example in the recent case of the Tribunal Milano 15 giugno 2000, cit., the explosion caused by a
gas leak caused the partial collapse of a building, which in turn caused death and serious personal
injury to some of the residents and also some passers-by involved in the disaster.
448
The Italian Courts show that they do not favour the exemption of the management
entity’s liability for the electricity grid in cases in which the injured party contributes
with careless conduct and thereby provokes the damaging event. Such behaviour is
always considered to be an additional cause to the dangerous situation already created
by the person causing the damage by not adopting the necessary measures to avoid such
damage; the company’s liability can only be completely exonerated when this
behaviour, due to its relevance and effect, is such that it excludes the causal link
between the damaging event and the dangerous activity with certainty.1659
In the sector of incidents, which are caused by the supply of gas, the sharing of liability
between the service management company and the consumer is, nevertheless, effective
by using article 2051 c.c., which regulates liability for damages resulting from things
held in custody, and this regulates the liability of the consumer after he has taken the
gas bottle into his care. However the service supply company continues to be liable
under article 2050 c.c.1660
hh) Limitation Period
The limitation period of 15 years applies, as stated under the extracontractual liability
rules in article 2947, comma 1, c.c.
c) Exclusion and Limitations
The reader is asked to return to paragraph dd) iv) above to the part which deals with
contractual liability, in light of the exemption of liability clauses contained in the
standard contract terms followed by essential public service suppliers.
d) Procedural Questions
aa) Burden of Proof
Apart from the differences, which have been highlighted above, the normal rules of
burden of proof are applied.
bb) Specific Institutions (Ombudsman, claims board, etc)
Article 2, comma 24 of law n.481 of 14th November 1995, provides the possibility for
conflicts between the consumer and the management of the public service to be resolved
1659
Cass. 13 aprile 1977, n. 1391, in Rass. giur. Enel 1978, 90 ff.; Cass. 29 aprile 1991, n. 4710, cit.
1660
On this and among the most recent see Cass. 19 gennaio 1995, n. 567, in Resp. civ. prev. 1996, 687
ff.; Cass. 4 giugno 1998, n. 5484, ivi 1999, 115 ff.
449
Stefano Troiano
through a conciliatory procedure or arbitration, cross-examined by the Authority and the

regulation of which is meant to come from the Authority itself. The lack of emergence
of such regulations, up until today, is much regretted by the doctrine, considering the
advantages that such a procedure could bring – as much for the consumer as for the
management of the service – in terms of a faster and more economical procedure owing
to the fact that such conflicts would be entrusted to adequately qualified adjudicators.1661
e) Case Study
A particularly interesting case is that of the Cass. 25 May 1989 n.25841662, as it shows
the tendency of the judges to affirm the liability of the management of the electricity
service supply company in very onerous terms.
A certain builder constructed a house for living purposes without the necessary
authorization and concessions with regard to an electricity pylon, which crossed the
building and he did not respect the distances provided for by the appropriate provisions
of the law. Later the same person, wanting to install a television aerial on the terrace,
came into contact with overhanging electricity cables and died electrocuted. The
Supreme Court gave little importance to the victim’s illegitimate and careless
behaviour, on the basis that the compensation “cannot be attributed to the fault of the
injured party because he did not exercise personal caution or autonomous initiative; the
negligence was the company’s because it performed the dangerous activity without
adopting all the necessary measures to avoid the damage/injury”, therefore “ the transfer
of the onus to adopt all preventative measures from the company to the victim would be
against the spirit of the laws being examined here and against the principles of the so-
called risks of a company”.1663
1661
For all these considerations, as well as an in depth analysis of related problems see M. Delsignore,
L’arbitrato nei servizi di pubblica utilità: considerazioni in attesa di un regolamento, in Dir. proc.
amm. 2002, 479 ff.
1662
The decision can be read in Giur. it. 1990, I, 1, 234
1663
For an extreme criticism of this judgment see, v. S. Ruperto, Profili sistematici, cit., 62 ff.
450
Public utilities Spain
5. Spanish Law
As in other countries, services of general interest in Spain had long been under States
rule. The question of liability was a question of administrative liability. However, today,
the privatisation process in Spain is complete. Thus, the general rules of liability apply.
So far, there is no jurisprudence known emphasizing on specific features of services of
general interest requiring and leading to special decisions. The applicable provisions can
be found for example in the codigo civil as well as in the Reglamento General de
Servicio Publico de Gases Combustibles.1664
In the following the general features of the Administrations civil liability are presented
as well as old decisions concerning services of general interest as well as a decision
based on general civil law.
According to Art. 144 of the Ley de Régimen Jurídico de las Administraciones Públicas
y del Procedimiento administrativo común, the Administrations liability is governed by
the normal civil law rules when it had chosen private contract law to act.
aa) The parties
On one hand there is the consumer, on the other the Administration running the service.
The liability for services of general interest is the classic for the question of vicarious
liability. This is because the Administration is acting through its servants: An agent of
the Administration is acting, but it will still be the Administration itself that will be held
liable.
Of course, body injuries are among the type of damages to be compensated if the
requirements for contractual liability are met. In a case decided by the Tribunal
Supremo in 1995, the widow and children of a man dead due to a electric cable in
deficient state got damages for the death of their husband and father.1665 The man had
done some repair work on his terrace and accidentally cut an electric supply cable
belonging to the local electric energy company. The court found that the company
should be held liable for not having taken the necessary precautions to avoid such
coincidences.
1664
RCL 1973/2112; BOE No. 279, November 21, 1973.
1665
STS December 30, 1995.
451
The services of general interest have an obligación de resultado as far as their obligation
to deliver gas, electricity and water to the consumer are concerned. The provider must
take all necessary precautionary measures in order to avoid accidents.
Since the normal rules apply, it is fault based liability. The notions of fault and
negligence apply.
According to Art. 144 Ley de Régimen Jurídico de las Administraciones Públicas y del
Procedimiento administrativo común, the Administration directly responds of all action
taken by its servants as long as those can be considered to possibly have been taken by
the Administration itself.
ee) Causation
The normal rules of causation apply; there must be a causal link between the damage
and the service.
The damage must be real, direct, economically measurable and individual. There are no
particular rules concerning the type of damages that can be compensated.
The normal rules apply, contributory negligence can be grounds for partition of liability
or even for negation of the Administrations liability.
hh) Prescription period
The normal limitation periods apply.
According to Art. 139.1 of the Ley de Régimen Jurídico de las Administraciones

Públicas y del Procedimiento administrativo común (Legal Provisions ruling the Public
Administration and the administrative process), consumers have the right to be
compensated for all damage caused to their goods and rights by the Administration´s
452
functioning, be it normal or anormal (funcionamiento normal or anormal). The notion

“anormal functioning” comprises negligent or illegal actions of the Administrations
agents (thus he is the culprit) as well as illegal administrative acts done by the
Administration itself (without possibility to impute the fault or the illegality to someone,
liability exists just because the Administration is running the service without regarding
the necessary standards). The latter comprises the following standard situations: culpa
in committendo (the service has been functioning badly), culpa in committendo (the
service was not functioning at all), delay (the service was functioning, but too late). The
reason for liability in case of “normal functioning” is that the Administration has
created a certain risk by undertaking a certain action bearing the possibility of harm to
third persons.
bb) Causation
The normal rules for causation apply.
cc) Fault
The Administrations liability is strict liability since the only criteria for compensation is
whether there has been a wrongful act that the consumer need not accept. However, in
some cases, courts tried to justify their decisions by referring to the notion of fault.
All kinds of damages are compensated, direct and indirect, economic damages and
pecuniary loss, physical and emotional harm. The only requirement is that the damage
must be real, a mere possibility of a damage cannot be compensated. However, if such a
possibility is turning into a real damage, this one will be compensated, too, even if the
realization only takes place in the future.
A good example to illustrate the all-embracing compensation is the case decided by the
Tribunal Supremo in 1990:1666 Five men were driving on the national road from Sagunto
to Burgos when an accident occurred hurting all men seriously. The reason for the
accident was a merely closed ditch digged for a drinking water supply line that was
crossing the road. There was no sign indicating the dangerous site. The court made it
clear in its decision and its obiter dictum that all damage to a persons rights or goods
must be compensated. The scope of compensation is evaluated by the court taking into
account all circumstances of the case, and doing so in a rational and prudent way.
1666
STS November 17, 1990, RAJ 1990 No. 9172.
453
ee) Prescription period
The right to claim damages perishes a year after the harmful event or administrative
action have occurred. In case of physical or emotional harm done to a person, the period
starts running the day of the cure or the moment of determination of the scope of the
indirect damages.
c) Exclusion and Limitations
The grounds of fuerza mayor apply. An explicit rule about fuerza mayor can be found in
Art. 139.1 of the Ley de Régimen Jurídico de las Administraciones Públicas y del
Procedimiento administrativo común. Also, the Administration is exonerated when it is
shown that the agent´s behaviour was beyond all normal functioning of the service, thus
totally exterior so that the agent alone is held liable. It is disputed in Spanish doctrine
whether caso fortuito can also exonerate since the wording of Art. 139.1 as well as Art.
141.1 of the said law only talks about fuerza mayor.
Contributory negligence is known. In 1995, the Tribunal Supremo decided that the
plaintiff had to bear a part of the damage himself since he forgot to close a security
valve closing the evacuation system which would have helped to avoid further
inundation.1667 The inundation was mainly caused by an obstruction in the drinking
water supply system, a service run by a local enterprise held by the local
Administration. The closing of the security valve was a necessary precautionary
measure to be taken by the plaintiff, thus he could not claim all damages.
It is disputed whether claims for damages must be brought before an ordinary court or
an administrative court. In 2001, the Sala de Conflictos of the Tribunal Supremo
decided that tort law cases are to be judged by administrative courts, no matter whether
the relations are of private or public nature.1668 In 2002, this decision was confirmed by
the very same court.1669
aa) Burden of proof
The plaintiff bears the burden of proof, thus must show the damage and the causal link
to the (mal)functioning of the service, however, he does not have to show that an agent
1667
STS December 29, 1995, Jurisprudencia Civil 1995, No. 1120; see also STS December 20, 2001, RJ
2001, 9354, STS July 23, 2001, RJ 2001, 8024.
1668
STS December 27, 2001.
1669
STS October, 21, 2002.
454
committed a fault, the damage possibly having occurred due to impersonal or

institutional behaviour.
e) Case Study
To give an example about how liability in the field of services of general interests is
handled today, the following case, decided in 2002 by the Tribunal Supremo, shall be
presented.1670 A lady had suffered injuries from the inhalation of carbon monoxide
caused by the defective installation of a gas heater in an apartment. The heater was not
authorized, there was no certificate. The control system concerning the consumption of
gas was not working properly. The lady sued the gas providing company for damages.
She asked for an annuity for life and a single payment for the incapacity suffered, the
amount of both taking into consideration the life-long disadvantages she would suffer,
the after-effects, the sequelae. The Ministry of Finance participated in the proceedings.
The gas company had in fact omitted an inspection to which it were obliged. It had had
the obligation to control the apparatus and everthing related with the delivery of gas, at
least approximately every four years (25 % of the subscribers each year). In fact, the last
inspection had taken place in 1979, the gas heater in question being installed in 1984. At
the time, the gas company had not known, though, that this non authorized heater had
been installed. It had not installed the heater itself. The court found that the omission of
the inspection was not the effective cause of the damage and thus did not hold the gas
supply company liable. First of all, the left out inspection should have taken place even
before the installation of the heater (in 1983). Then, such an inspection would not have
revealed the serious irregularities concerning the installation of the heater.
There was no room for a strict liability either. Omitting the question whether strict
liability were applicable at all (for creating a risk from which the defendant received a
benefit, too), the court denied damages on that ground since the causal link between any
harmful action of the gas company and the damage occurred: It was clear, according to
the court, that just the fact of being the gas supply company could not held the latter
responsible for the disfunctioning of the gas heater the installation of which it had
neither been involved nor been informed of in time. The court also denied a reversal of
the burden of proof since it considered that knowing how and why the accident
happened were crucial indispensable elements in the progress of identifying the cause of
a harmful event.
The court also denied an application of the LGDCU since it had not been proven that
the defendant, the gas supply company, had been the one putting such heater with great
deficiencies and in inadequate condition into operation. The third persons irregular
1670
STS December 27, 2002; RJ 2003, 1332.
455
intervention (installation of the defective heater), having absolutely nothing to do with

the gas supply company, explains the non-applicability of the law.
Another example illustrating how the general concepts of civil liability are applied to
services of general interest today (thus after the privatisation process) is the following
case decided in 2002:1671 A lady died of electrocution. Her heirs sued the company
providing the electricity for insufficient security measures, on the grounds of art. 1902
codigo civil. Their argument was that the company should have adopted a higher
standard of care than the one prescribed by law, respecting the persons, time and place
of action in question. The court however dismissed that action. The electricity company
had installed the necessary protection elements such as air gap switch, safety fuse, two
thermo-mechanical switches, circuit breaker. The plaintiffs argued that these safety
measures were not sufficient since they were not apt to react properly at every causal
electrical contact of the user. Also, the company should have adopted higher standard
measures taking into consideration that the victims floor had a higher level of isolation
than usual and thus offered a greater resistance to the current flow. If the company had
adopted such measures there would have been the chance that the electric discharge
suffered by the victim would have transmitted to the floor, the victim still being alive.
The court dismissed this argument and pointed out that the main cause for the fatal
incident was the victims manipulation of a connection cable of an ironing machine
keeping its conductors uncovered and which the victim touched both at the same
moment, simultaneously. This direct contact with both poles made the victims body
react as an electrical resistance without any possibility that the existing safety
mechanisms discovered any anomaly. Apart from that, the safety mechanisms were
functioning correctly. The accident thus happened only because of the victims
behaviour, disregarding the most elementary rules of prudence and safety by
manipulating a connection cable the purchase, handling and maintenance of which was
not at the companies charge. No other, additional, safety mechanisms would have
prevented the fatal incident. The victims behaviour thus being the only cause of the
accident, the company could not be held liable.
The court denied application of the LGDCU, there was no room for strict liability. The
courts main argument was the exclusive fault of the victim by manipulation of a cable
contrary to the basic principles of safety and prudence. Therefore, there was no correct
use of the product, plus the manipulation was neither foreseeable nor usual. A liability
according to the provisions of the LGDCU could only be held, however, in the case of
correct use of the product or service provided by the company.
1671
STS September 24, 2002; RJ 2002, 7950.
456
Public utilities Sweden
6. Swedish Law
International Encycopedia of Laws (cited: A. Adlercreutz); U. Bernitz, Market and Consumer Law, in: S.
Strömholm (ed.), An Introduction to Swedish Law, 2nd ed. 1988, 267 ss.; B. W. Dufwa, Compensation for
Comparative Perspective, 2003, 293 ss.; B. W. Dufwa, Contributory Negligence under Swedish Law, in:
U. Magnus/M. Martín-Casals (eds.), Unification of Tort Law: Contributory Negligence, 2004, 197 ss.;
Karnov, Svensk Lagsamling med kommentarer, 2003-2004; J. Ramberg, Köplagen, 1995.
Legislation is rare in the field here under review. For the supply of electricity strict
liability is provided for by the Lagen innefattande vissa bestämmelser om elektriska
anläggningar (Electricity Act).1672 For the supply of other goods of general interest no
such special liability regulation exists except where the Produktansvarslag (Product
Liability Act)1673 can be applied. In any event, the cited statutory regulations are not
concerned with the rendition of services connected with the supply of gas, water or
electricity. Therefore, the general civil law has to step in. Cases and doctrinal discussion
of this field are, however, more than rare.
Services in connection with the supply of gas, water or electricity delivered by those
suppliers will be regularly rendered on a contractual basis.
aa) The parties
i) Contract parties
In addition and as an exception to the general concept of privity of contract1674 according

to which only the direct contract parties are obliged and entitled under a contract also
further persons can come under the protection of the contract. This is the case when the
contract parties expressly or impliedly agreed that the contract should also benefit
certain further persons like family members, guests etc.1675 Where services are rendered
in connection with the supply of goods of general interest it is regularly implied that the
mentioned persons shall also be protected by the contract.
1672
Act 1902:71.
1673
Act 1992:18.
1674
1675
457
Ulrich Magnus
Where persons do not belong to the class of intended beneficiaries but are mere by-
standers only tort law applies.
The provider of a service of general interest is liable without excuse for damage caused
by employees in the course of their employment.1676
As regularly bodily injury includes damage to physical and psychic integrity. Both
spheres of the injured person are protected.1677
The general duty to act in a careful professional way can be taken from the respective
provision of the Consumer Services Act.1678
In particular with respect to the installations for the supply of gas, water and electricity
the provider has to supervise and to control those installations and to see that they
comply with safety regulations. The respective duty under the Consumer Services Act
can be taken to apply in general.
Contractual liability with regard to services is generally based on fault though in a

number of cases the concept of control liability has been statutorily introduced.1679 This
concept holds the service provider liable unless causes beyond his control have caused
1676
See to this rule as a general principle J. Ramberg, Köplagen, 358 ss.; B. W. Dufwa, Compensation for
Comparative Perspective, 313. See also the general regulation in chap. 3 § 1 Damage Act, though this
Act primarily deals with tortious liability.
1677
See chap. 5 § 1 no. 1 and 2 Damages Act. Though the Act primarily addresses tort law it is
nonetheless also to be applied to contract cases unless a more specific provision provides otherwise.
1678
1679
See § 31, Consumer Services Act, § 16 Package Tours Act.
458
the damage. This concept is regarded as introducing though no strict liability but a
liability, which is stricter than presumed liability.1680 The provider then has the burden of
proof that such exempting cause was present.
See above under i).
See above under i).
See above under i).
ee) Causation
It can be referred here to the remarks on causation in the general survey on Swedish
law.
i) Damage to health
If a customer of a service concerning goods of general interest has been bodily injured
in the course of that service the resulting “personskada” (personal injury damage) has to
be compensated.1681 The damages, which have to be granted include the expenses for
healing as well as lost income. This is expressly provided for by chap. 5 § 1 no. 1 and 2
Damages Act, which can be applied as the general regulation of the law of damages. In
case of death the decedents of the killed person are entitled to compensation of the
burial expenses and, if any, of their lost maintenance.1682
In case of bodily injury non-pecuniary harm has likewise to be compensated. According

to chap. 5 § 1 no. 3 Damages Act compensation of this kind of loss includes the
sustained pains, permanent impairments and further inconveniences.
1680
1681
See the general rule in chap. 2, § 1 Damages Act.
1682
Chap. 5, § 2 Damages Act.
459
Ulrich Magnus
In case of death close relatives of the killed person are entitled to compensation for their
emotional distress.1683
For assessing personal injury damages the provisions of the Damages Act as the general
regulation of the matter can be applied. The Act prescribes in greater detail how the
pecuniary loss with regard to lost income and lost maintenance has to be calculated.1684
The Damages Act allows further for a discretionary reduction of the amount of damages
Contributory negligence does normally play no role in cases on compensation for

personal injuries.1686 As a general rule chap. 6 § 1 Damages Act provides that in case of
bodily injury the contributory negligence of the injured person is to be disregarded
except where the injured person acted with intent or gross negligence. Therefore simple
negligence of a bodily injured person which contributed to his or her damage does not
affect a claim for compensation in any way.
hh) Limitation
provided by special statutory provision.1687 The Electricity Act provides for a period of
two years.1688
It has to be stressed that there is a dearth of case law concerning tort cases, which deal
with personal injuries caused through services connected with gas, water and electricity
supply.
aa) The parties
1683
See on this recent modification of the Damages Act: H. Sandell, Sweden, in: H. Koziol/B. C.
1684
See chap. 5, §§ 1, 3 – 5 Damages Act.
1685
1686
See thereto B. W. Dufwa, Contributory Negligence under Swedish Law, in: U. Magnus/M. Martín-
Casals (eds.), Unification of Tort Law: Contributory Negligence, 2004, 197 ss.
1687
1688
§ 11, Electricity Act.
460
The parties are the provider of general interest service on the one hand and the injured
person on the other. Like in contract the provider is also liable in tort for negligent acts
of employees who while acting within the scope of their employment have caused
damage to others. Indirectly affected third persons are, however, not entitled to
compensation with the exception that decedants of a fatally injured person can claim
their loss resulting from the death.1689
Bodily injury includes physical as well as psychical and immaterial harm.
The service provider must have neglected a duty in order to be held liable. But this duty
appears to be regarded as part of the fault requirement.
dd) Causation
The general rules on causation apply for which reference to the respective remarks in
the general survey on Swedish law can be made.
ee) Fault
In certain cases where the supply of electricity or water causes damage a strict liability
applies. This is provided for by the Electric Installations Act of 1902 where someone is
injured by the voltage of an electric installation. And it has been so decided by the
Supreme Court in case of damage caused by heated water, which was supplied by an
operator of a respective plant.1690 However, strict liability in these cases is attached to
the unsafe delivery of dangerous substances but not to the services connected with the
supply. Therefore, the general principle remains the culpa-principle when services are
rendered which are connected with the supply of goods of general interest and result in
personal injury.
Since no specific problems arise here it can be referred to the remarks above under a)
ee).
1689
See chap. 5, § 2 Damages Act.
1690
HD, Nytt Juridiskt Arkiv 1991, 720.
461
Ulrich Magnus
The same rules as in contract apply here as far as the recognition of contributory
negligence in personal injury cases is concerned.
In tort the general limitation period is ten years. But the Electricity Act prescribes a
period of two years for claims coming under that Act.1691
aa) Burden of proof
In tort the burden of proof for damage, causation and negligence lies generally with the
claimant even where injuries have been caused within the course of services.1694 But
where injuries were sustained while the services here discussed were rendered on the
basis of a contract the presumption mentioned above1695 may apply and the service
provider then has the burden to rebut the presumption and to prove circumstances
beyond control. But also in contract the claimant has to prove damage and causation.
Swedish law does not know of formal rules like res ipsa loquitur or the like which shift
the burden of proof in certain situations onto the defendant party.1696
Complaints of consumers of services connected with the goods of general interest can
be lay directed to, and dealt with by, the Allmänna Reklamationsnämnden (Public
Complaints Board). The Board hears the case and gives a recommendation, which if not
1691
§ 11, Electricity Act.
1692
1693
1694
1695
See above under a) cc) i).
1696
462
complied with can be transformed into a court judgment by a simplified court

procedure.1697
e) Case study
No representative cases can be reported.
1697
Swedish Law, 293.
463
Public utilities United Kingdom
7. Law of United Kingdom1698

Literature: J. P. Benjamin, Sale of Goods, 6th ed. 2002; J. Chitty, On Contracts, 28th ed. 1999; J. F.
Clerk/W. H. B. Lindsell on Torts, 18th ed. 2000; J. Cooke/D. Oughton, The Common Law of Obligations,
3rd ed. 2000; C. Cross/S. Bailey, Cross on Local Government Law, 1986; A. M. Dugdale/K. M. Stanton,
Professional Negligence, 3rd ed. 1998; R. M. Jackson/J. L. Powell on Professional Negligence, 4th ed.
1997; J. McEldowney, Electricity Industry Handbook: Law and Practice, 1992.
The supply of what is used to be called public utilities such as electricity, gas and water
is mainly regulated by statute, namely by the Gas Act 1986, the Electricity Act 1989
and the Water Act 1989 as recently amended.1699 These acts placed the supply of these
public utilities in the hands of private companies.1700 Nonetheless under English law the
supply of electricity, gas and water is not provided on a contractual basis although the
customers regularly agree with the utilities supplier on the supply and pay for it.1701 But
the relationship is regulated by statute so that there is no need for the assumption of a
contractual relationship based on private law.1702
Case law has made it clear that the relationship between the utilities supplier and the
customer is non-contractual and that therefore no claims in contract can be brought by
either side.1703 But an injured customer may have a cause of action because the utilities
supplier has breached a statutory duty or is liable in negligence.1704 Recent legislation
has slightly reversed that position. There may be contractual relations implied by
statutory regulation in certain cases.1705 These “deemed contracts” may now provide
consumers with contractual remedies, in particular with the remedy of damages; but
thus far no case law as to these remedies can be adduced leaving it still to be decided
whether, and if so, how far the old position of a non-contractual relationship has been
1698
J. P. Benjamin, Sale of Goods, 6th ed. 2002; J. Chitty, On Contracts, 28th ed. 1999; J. F. Clerk/W. H.
B. Lindsell on Torts, 18th ed. 2000; J. Cooke/D. Oughton, The Common Law of Obligations, 3rd ed.
2000; C. Cross/S. Bailey, Cross on Local Government Law, 1986; A. M. Dugdale/K. M. Stanton,
Professional Negligence, 3rd ed. 1998; R. M. Jackson/J. L. Powell on Professional Negligence, 4th ed.
1997; J. McEldowney, Electricity Industry Handbook: Law and Practice, 1992.
1699
In particular, the Utilities Act 2000 has amended the Gas Act and the Electricity Act.
1700
See J. Chitty no. 1-012.
1701
J. Chitty no. 15-020.
1702
See Read v. Croydon Corpn. [1938] 4 All E.R. 631(supply of typhoid water); Norweb plc v. Dixon
[1995] 1 W.L.R. 636 (payment claim for electricity supply).
1703
Read v. Croydon Corpn. [1938] 4 All E.R. 631; Norweb plc v. Dixon [1995] 1 W.L.R. 636. See also J.
P. Benjamin, no. 1-071; J. Chitty, no. 1-012.
1704
Read v. Croydon Corpn. [1938] 4 All E.R. 631.
1705
See Sched. 4 sec. 3 Utilities Act 2000 (“deemed contracts in certain cases”) for the elctricity sector;
the same is true for the gas sector.
465
Ulrich Magnus
changed. With regard to the final outcome of concrete cases it is however rather likely
that in practice nothing will change since the essential element of liability – the duty of
care which the supplier has to observe – will neither differ in contract nor in tort nor
under the statute.
aa) The parties
i) Contract parties
The contract parties, if a contract would be of any relevance, would be the utilities
supplier on the one hand and the customer on the other. Further persons can come under
the protection of the contract under sec. 1 Contract (Rights of Third Parties) Act 1999 if
they are expressly identified in the contract either by name, class or description.1706 If the
customer is a consumer who has concluded the contract or is deemed to have concluded
the contract it is, however, without more very doubtful (and must be probably denied)
whether under this provision of the Act family members would enjoy contractual
rights.1707
As generally mere by-standers and other persons can not rely on an eventual contract
between the utiltiies supplier and the customer. However, they may be protected by
statutory law and by general tort law.
Utilities suppliers are liable – in contract as well as in tort – for negligent acts by which
their employees cause damage to others as long as the employees have acted within the
scope of their employment.
Also in England cases are rare where services connected with the supply of utilities
caused bodily harm to customers. Partly the utility as such was the cause of injury as in
Read v. Croydon Corpn.1708 where the supplier delivered thyphoidic water by which the
daughter of the customer became ill. This type of case is actually in the nature of a
product liability case and need not be dealt with here in that respect.
1706
Sec. 1(3) Contracts (Rights of Third Parties) Act 1999.
1707
See the discussion of the provision by J. Cooke/D. Oughton, 115 s.
1708
[1938] 4 All E.R. 631.
466
However there are also cases where the service was the cause of damage. The way in
which the utility was supplied caused the damage in Barnes v. Irwell Valley Water
Board1709 where the customer and his wife were injured because the water passed
through old leaden pipes which belonged to the customer and became thereby
contaminated and injurous to health. The supplier was held liable for failure to warn the
customer of that risk. Only indirect damage was claimed in Anglian Water Services Ltd.
V. Crawshaw Robbins & Co Ltd.1710 where the defendant construction firm disrupted the
water, gas and electricity supply for 20.000 people and the claiming utilities companies
sued the firm for recovery of various losses among them voluntary payments they had
made to their customers for the latters’ inconvenience. This claim was dismissed. Cases
of gas explosions appear to be concerned only with by-standers.1711
The heads of damage comprise as generally any bodily impairment and pain and
suffering. Even psychiatric illness as long as medically recognised as illness would
entitle to compensation.
If contractual liability became relevant the supplier would be liable if it had violated a
contractual duty of care. The statutory and the general common law duty to exercise
reasonable care and skill would in all probability also apply here.
As indicated it is highly likely that the general duty to exercise reasonable care and skill
as expressed in sec. 13 Supply of Goods and Services Act 1982 would be applied and
that also the standard of care as developed in tort cases would be adopted.
The utilities suppliers are under a general duty in tort to control the equipment (pipes,
wires) in a manner that injury to users’ health is avoided.1712 Again, it is highly likely
that this duty would be also recognised in contract.
1709
[1939] 1 K.B. 21 (C.A.).
1710
[2001] B.L.R. 173.
1711
See Glennister v. Condon and Eastern Gas Board [1951] 2 Lloyd’s Rep. 115; Dunne v. North
Western Gas Board [1964] 2 Q.B. 806; as to damage connected with excavations for electricity
supply: Haley v. London Electricity Board [1965] A.C. 778 (H. L.).
1712
See Read v. Croydon Corpn. [1938] 4 All E.R. 631; Barnes v. Irwell Valley Water Board [1939] 1
K.B. 21 (C.A.); compare further Cross/Bailey no. 25-10 ss (concerning water supply).
467
Ulrich Magnus
The duty to exercise reasonable care and skill does not create an objective liability. If
the required standard (see thereto infra b cc and ff) is met no liability is incurred.1713
Fault is therefore a necessary ingredient of contractual liability.
As in general fault is not presumed but must be proved whereby the maxim res ipsa
loquitur may ease the claimant’s burden.
Since there is thus far apparently no case law concerning contractual liability of utilities
suppliers it must be referred to the remarks on that topic under tortious liability.1714
ee) Causation
If contractual liability could be invoked the ordinary standard of causation would apply
meaning that the damage of the injured customer would not have occurred but for the
negligence of the utilities supplier and that the resulting damage was not too remote.
ii) Omissions
The decision in Barnes v. Irwell Valley Water Board1715 evidences that omissions are
regarded as the cause of damage if the supplier was obliged to act (in that case to warn
the customer of dangers to health) and if it was more likely than not that the omitted act
would have prevented the damage.
As can only be taken from the general rules since decisions on that point are apparently
not available the injured customer has to prove causation and can though in rather rare
cases invoke the maxim res ipsa loquitur.1716
1713
See Read v. Croydon Corpn. [1938] 4 All E.R. 631 (651).
1714
See infra b cc and ff.
1715
[1939] 1 K.B. 21 (C.A.).
1716
Supra B. VI. 2. a bb.
468
i) Damage to health
With respect to damage to health the general heads of damage (cost of healing, of
rehabilitation measures) can be recovered. Insofar, reference can be made to the general
survey on English law in that regard.1717
The same is true for the rules concerning compensation for pain and suffering.
Neither do any particularities exist in the field here under review with respect to the
assessment of damages.
As in general contributory negligence of the claimant can be invoked as defence where

the claimant has neglected the reasonable care in his/er own interest.
The particular limitation period of three years applies.1718
Non-contractual liability can be based both on breach of a statutory duty and on a

specific tort, in particular on negligence.1719 The statutory duties are provided for in the
Gas Act 1986, Water Act 1989, Electricity Act 1989, the Utilities Act 2000 and the
Regulations thereto. But with respect to bodily injury there appears to be no difference
in liability under the statutes or in tort.1720 The following is therefore confined to the
requirements of the tort of negligence.
aa) The parties
In tort anybody injured by the negligence of the utilities supplier is entitled to claim
compensation irrespective whether or not any contractual relationship existed. In Read
v. Croydon Corpn.1721 therefore the poisoned daughter of the customer of the water
1717
See supra B.VI. 2. b.
1718
See supra B. VI. 2. f.
1719
See the leading case Read v. Croydon Corpn. [1938] 4 All E.R. 631.
1720
This is also the outcome of Read v. Croydon Corpn. [1938] 4 All E.R. 631.
1721
[1938] 4 All E.R. 631.
469
Ulrich Magnus
supplier was herself entitled to claim damages in negligence.1722 Also mere by-standers
can recover if the supplier has violated a duty of care.1723
The utilities supplier is liable if the negligent acts of its employees are to be imputed to
the supplier. The employee who remains also personally liable to the injured person
must have acted in the cours of employment.
Bodily injury includes any corporeal impairment and also psychiartic illness if
medically recognisable. In case of death the provisions of the Fatal Accidents Act apply.
The utilities supplier is not liable when it did not violate its general duty to exercise
reasonable care and skill.
This duty requires for instance that wholesome water is delivered.1724 The duty requires
further that warnings be given if there is reason for that as in the case that the supply as
such is correct but some risk known to the supplier is inherent in certain installations etc
of the customer. The supplier must then warn the customer of the risk, for instance of
the risk that the use of old leaden pipes could injure the customer’s health.1725 If the
supplier reconstructs mains, pipes or wires it is under a duty to secure the construction
site in a way that even an ordinarily careful blind person would not be endangered.1726
On the contrary, a supplier of gas is, e.g., not obliged to inspect gas service pipes
belonging to the customer unless the supplier received a warning or should have been
aware of any defect.1727 Likewise a water supplier is not obliged towards a customer to
maintain such a pressure of the water in the customer’s home that a fire could be
brought under control which absent such pressure burnt down the customer’s
premises.1728
1722
By the time of that decision still the concept of strict privity of contract ruled, but the decision in
Donoghue v. Stevenson [1932] A.C. 562 had considerably extended the protective scope of duties of
care in tort and particularly in negligence.
1723
See Dunne v. North Western Gas Board [1964] 2 Q.B. 806 (though in the circumstances of the case
negligence of the supplier was denied: an underground water main had broken and had washed away
the earth under a gas main thereby causing a leak in that main which in turn led to a gas explosion
which injured several people. Neither the water supplier nor the gas supplier were held liable).
1724
See Read v. Croydon Corpn. [1938] 4 All E.R. 631.
1725
Barnes v. Irwell Valley Water Board [1939] 1 K.B. 21 (C.A.), cited as authority by C. Cross/S. Bailey,
no. 25-14.
1726
Haley v. London Electricity Board [1965] A.C. 778.
1727
Glennister v. Condon and Eastern Gas Board [1951] 2 Lloyd’s Rep. 115.
1728
Atkinson v. Newcastle & Gateshead Waterworks Co. (1877) 2 Ex.D. 441.
470
dd) Causation
No particularities apply here. Causation is to be adjudicated according to the general

rules stated in the general chapter on English law.1729
ee) Fault
Tortious liability in negligence requires fault, namely the neglect of the required care.
For utilities supplies the principle has been fixed in the leading case Read v. Croydon
Corpn. where typhoidic water was supplied so that the daughter of the customer became
ill: “I hold that the obligation on the corporation is not an absolute obligation, but is
limited to the exercise of all reasonable care and skill to ensure that the water provided
accords with the provisions of the Act. I have no doubt that the standard of care and
skill required of an authority engaged on a matter so vital to public health is a high one,
but, if that standard is maintained, I do not think that, on the true construction of the
Act, the corporation can be held liable for the consequences of the presence in the water
supplied by it at the point where it reaches the consumer of some impurity which no
care or skill could have prevented.”1730 Without negligence no liabilty is incurred.1731
It can be referred to the respective remarks in the general survey on English law.1732
As a specific example it should be mentioned that in Read v. Croydon Corpn.1733 the
claimant customer was not entitled to recover hotel costs which he claimed because he
stayed with his second daughter in the hotel as long as his ill daughter who stayed with
nurses at home recovered from typhus. The court decided on medical evidence that
typhus was not that contagious as to necessitate the separation and hotel stay.
Contributory negligence can be invoked as defence but it appears to be rarely if at all

accepted by the courts.
1729
Supra B. VI. 2. a cc.
1730
[1938] 4 All E.R. 651 (per Stable J.). Though the cited passage concerns the statutory duty of the
utility supplier the decision recognises the same duty in tort; see also C. Cross/S. Bailey, no. 25-12.
1731
See Glennister v. Condon and Eastern Gas Board [1951] 2 Lloyd’s Rep. 115; Dunne v. North
Western Gas Board [1964] 2 Q.B. 806.
1732
Supra B. VI. 3. b.
1733
[1938] 4 All E.R. 631.
471
Ulrich Magnus
The limitation period is three years as it would also be in contract.
The case law does not address disclaimers of utilities suppliers thus far preumably
because the relationship between supplier and customer was regarded as non-
contractual. And in mere tort cases disclaimers are in any event without effect.
aa) Burden of proof
The general rules on burden of proof apply also in the utilities sector. The claimant must
prove damage, fault and causation. But the maxim res ipsa loquitur may avail him/er in
an appropriate case.
There exists now a Gas and Electricity Consumer Council for the gas and electricity
sector.1734 The main functions of the Council are the information of consumers and the
investigation where consumers approache the Council with their complaints.1735
e) Case study
Read v. Croyden Corp.1736

This is still the leading case on liability of public utilities. The plaintiffs, Alfred Read
and his 15 year old daughter Patricia Rosemary Read claimed damages because the
daughter contracted typhoid drinking the water the defendant water company had
supplied to the home of the father. Since the water company did not chlorinate the water
an epidemic of typhoid could occur. The court found that the omission of chlorination
was negligent and held the water company thus liable.
1734
Sec. 2 Utilities Act 2000, which merged the formerly separated Consumer Councils for gas and for
electricity.
1735
See sec. 17 ss Utilities Act 2000.
1736
[1938] 4 All E.R. 631.
472
Public utilities United States

Literature: American Jurisprudence, vol. 64, 2nd ed. 2001 (Supp. 2003) Public Utilities (cited AmJur §);
V.R. Johnson/A. Gunn, Studies in American Tort Law, 2nd ed. 1999; G.T. Schwartz, Causation under US
Law, in: J. Spier (ed.), Unification of Tort Law: Causation, 2000, 123; G.T. Schwartz, Damages under US
Law, in: U. Magnus (ed.), Unification of Tort Law: Damages, 2001, 175; G.T. Schwartz, Liability for
Damage Caused by Others under US Law, in: J. Spier (ed.), Unification of Tort Law: Liability for
Damage caused by Others, 2003, 279; G.T. Schwartz, Contributory Negligence under United States Law,
in: U. Magnus/M. Martin-Casals (eds.), Unification of Tort Law: Contributory Negligence, 2004, 223.
Suppliers of electricity, gas and water, often called public utilities, render their supplies
and services generally on the basis of contracts.1737 But as in the field of other services
liability for personal injuries caused to customers is primarily rooted in tort.
aa) The parties
i) Contract parties
The parties to the supply contract are regularly the public utility on the one hand and the
customer on the other. But in accordance with general contract law also intended
beneficiaries like family members come within the protection of the contract.1738
Mere by-standers do not enjoy the protection rendered by the contract. However, the
public utility may become liable under the general principles of tort law if the utility or
its employees have negligently caused the by-stander’s injury. But for instance a utility
was not held liable in the absence of any negligence on its part when a painter while
painting a high voltage tower was electrocuted.1739 On the other hand liability of a utility
for causing negligently damage could not be excluded in the forefront where a painter of
a building while painting in an ordinary manner was killed through a contact with live
electric lines.1740
1737
A.C. Jacobs and Co., Inc. v. Union Elec.Co., 17 S.W. 3d 579 (Mo. Ct. App. W.D. 2000).
1738
See e.g., Southern Public Utilities Co. v. Thomas, 78 F. 2d 107 (C.C.A., N.C. 1935) (son of customer
injured); Hopkins v. Mississippi Valley Gas Co., 2003 WL 22782359 (Miss. App. 2003) (grandson of
customer killed).
1739
Jenkins v. Georgia Power Co., 849 F. 2d 507 (11th Cir. 1988).
1740
See Martinez De Jesus v. Puerto Rico Elec. Power Authority, 268 F. Supp. 2d 112 (D. Puerto Rico,
2003).
473
Ulrich Magnus
The general maxime of respondeat superior applies in contract as well as in tort law. A
utility is therefore – in some sense strictly – liable for acts which its employees commit
within the scope of their employment and through which they negligently or even
intentionally injure third persons.1741 Careful selection and control of employees is no
excuse; but on the contrary, the employment of unqualified employees is negligence in
itself.
Bodily injury to the claimant is certainly a general prerequisite of liability in cases here
under review. But it has to be stressed that that in certain situations also the causing of
mere emotional distress may trigger liability.1742
As in other cases of liability of a provider of services the existence and the breach of a
duty of care is a central, if not the central requirement.
A public utility has the duty to render those services, which it performs in connection
with, or in addition to, the supply of water or energy with ordinary and reasonable care.
In particular, pipes or power lines, as far as provided by a utility must therefore be
skillfully installed and connected or reconnected and the utility must warn its customers
about dangers which are inherent in, or associated with the installed system.1743 A utility
must also warn their customers about further dangers which it discovers and which are
connected with the supply or the installed system, for example not to store flammable
substances near gas appliances. And though the utilities liability generally “terminates at
the meter” the public utility must nonetheless warn about surrounding dangerous
conditions of which it gains knowledge during its work or during inspections.1744 But a
gas company is not negligent when it has warned a customer several times not to store
1741
An example seems to be Southern Public Utilities Co. v. Thomas, 78 F. 2d 107 (C.C.A., N.C. 1935):
there the employees of a utility company left a can of gasoline behind after they had repaired a
washing machine which the victim’s father had bought from the utility company. The later victim, a 5-
year old boy played with the can and poured the gasoline into the fire of his mother’s kitchen. By this
the boy was severely burned. The company was held liable for the negligence of its employees.
1742
Slocum v. Food Fair Stores of Florida, Inc., 100 So. 2d 396 (Fla. 1958); see further V.R. Johnson/A.
Gunn, Studies in American Tort Law, 82 s.
1743
See e.g., Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003), where the distributor of propane gas
failed to warn customers that the valve of a propane gas line had to be capped or plugged.
1744
Compare Hopkins v. Mississippi Valley Gas Co., 2003 WL 22782359 (Miss. App. 2003).
474
gasoline near a gas heater and then nevertheless gasoline is placed there by the grandson
(3 years) of the customer so that a fire broke out and the grandson was burned.1745
It has been further held that public utilities owe their customers a particular duty to treat
them with respect and dignity. “The courts have from an early date granted relief for
offense reasonably suffered by a patron from insult by a servant or employee of a
carrier, hotel, theater, and most recently, a telegraph office. The existence of a special
relationship, arising either from contract or from the inherent nature of a non-
competitive public utility, supports a right and correlative duty of courtesy beyond that
legally required in general mercantile or personal relationships.”
A utility is under a duty to comply with state set safety rules and normally has to inspect
and control its installations up to the point of delivery (regularly the gas, electricity or
water meter on the customers premises). Thus, a utility is obliged to keep its electric
box in a safe condition, which it has installed at a mobile home park.1746
In the absence of specific contract terms to that effect the utility is not strictly liable for
personal injury caused to customers when performing contract duties. Liability is only
incurred if some negligence can be proved.1747 However, utilities owe their customers a
very high standard of care in consequence of the high risks, which are connected in
particular with the supply of gas and electricity.1748 “Jurisprudence imposes a heightened
duty on those involved in the manufacture, preparation, and distribution of propane gas,
recognizing that they must exercise more than an ordinary degree of care.”1749
ii) Standard of fault
The general standard of fault is an objective one. A public utility enterprise is obliged to
exercise such degree of ordinary and reasonable care that a public utility in same or
similar circumstances is expected to observe.1750 With view to the inherent
1745
Hopkins v. Mississippi Valley Gas Co., 2003 WL 22782359 (Miss. App. 2003).
1746
Wallent v. Florida Power Corp., 852 So. 2d 339 (Fla. App. 2nd Dist. 2003).
1747
See e.g., Southern Public Utilities Co. v. Thomas, 78 F. 2d 107 (C.C.A., N.C. 1935).
1748
See e.g., Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003).
1749
Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003).
1750
See e.g. Mississippi Power & Light Co. v. Lumpkin, 725 So. 2d 721 (Miss. 1998).
475
Ulrich Magnus
dangerousness of gas and electricity a high degree of care is owed to customers.1751

Thus, a distributor of propane gas is negligent if he does not conduct the inspections
prescribed by statute and therefore fails to warn a customer that the valve on a propane
gas line had to be capped or plugged.1752
The mere compliance with prescribed safety provisions does, however, not in itself
suffice to exclude negligence on the part of the utility.1753 But neglect of official safety
rules may indicate negligence.1754
iii) Presumption of fault and burden of proof
Fault of a service provider is not presumed. It is therefore for the claimant to prove the
utilities negligence. However, in suitable cases the doctrine of res ipsa loquitur may
apply and relieve the claimant from this burden of proof. As far as applicable this
doctrine establishes a rebuttable presumption that the utility was negligent.
On the contrary the courts declined to accept a presumption of lacking negligence where
a utility complied with statutory safety provisions.1755
The supply contract or the conditions (tariffs) prescribed by utilities may limit the
customers rights of action. However, these conditions must not discriminate in an unfair
way. Thus, the exclusion of liability for installations etc. (or damage through it) on the
customers side – after the point of delivery, namely the meter – has been held to be
perfectly valid.1756
ee) Causation
A public utility can be made liable only if it has negligently caused the customers
injury. The general rules on causation apply; they are more or less the same in contract
and in tort. Without the utilities act or omission the damage must not have occurred and
the utilities conduct must have been the proximate cause of the damage. In the field of
1751
See already Mississippi Power & Light Co. v. McCormick, 175 Miss. 337, 166 So. 534 (Miss. 1936),
cited with approval in Hopkins v. Mississippi Valley Gas Co., 2003 WL 22782359 (Miss. App. 2003)
(“That duty [of the utility] was to use the highest degree of care when supplying natural gas to her [the
customers] home.”). See also Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003) (“more than an
ordinary degree of care”).
1752
Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003).
1753
See Martinez De Jesus v. Puerto Rico Elec. Power Authority, 268 F. Supp. 2d 112 (D. Puerto Rico,
2003).
1754
See Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003).
1755
Martinez De Jesus v. Puerto Rico Elec. Power Authority, 268 F. Supp. 2d 112 (D. Puerto Rico, 2003).
1756
Potts v. Florida Power & Light Co., 841 So. 2d 671 (Fla. App. 4th Dist. 2003).
476
contract it may additionally become relevant – though rarely in personal injury cases –
which possible loss resulting from a breach of contract was within the contemplation of
the parties when they concluded the contract.1757
Furthermore the damage that occurred must be of the kind which the duty which was
violated intended to prevent.
Generally the “but for-test” and the “proximity-test” have to be satisfied. The injury
must have occurred but for the utilities conduct.1758 Where several causes, for example
two different gas distributors, have caused the damage a “substantial factor test” is
applied and the amount of damages apportioned between them.1759 Moreover, the
damage must have been a foreseeable and direct (“proximate”) consequence of the
conduct of the utility. If for instance, a painter of a building is killed because of coming
into contact with live electric lines during ordinary painting death is forseeable when
lines are hanging there.1760
ii) Omissions
Again, the general rules on causation in case of omissions apply. It must be sufficiently
certain that the omitted act would have prevented the damage. In case of omitted
warnings is regularly held that a warning when given would have prevented the
damage.1761
Causation is not presumed but must be proved by the claimant. But in apt cases the
doctrine of res ipsa loquitur may shift the burden onto the defendant utility company.1762
1757
See for instance, Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003). See further the general survey
on US law under 2. a) cc) and the leading case Hadley v. Baxendale, [1854] 9 Ex. 341; also, under the
tort perspective: G.T. Schwartz, Causation under US Law, in: J. Spier (ed.), Unification of Tort Law:
Causation, 123 ss.
1758
See e.g., Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003).
1759
See Bonin v. Ferrellgas, Inc., 26 NDLR P194 (La. 2003).
1760
Martinez De Jesus v. Puerto Rico Elec. Power Authority, 268 F. Supp. 2d 112 (D. Puerto Rico, 2003).
1761
See e.g., Hopkins v. Mississippi Valley Gas Co., 2003 WL 22782359 (Miss. App. 2003); Bonin v.
Ferrellgas, Inc., 26 NDLR P194 (La. 2003).
1762
See on this doctrine also the general survey on the US law under 3. f).
477
Ulrich Magnus
Where the utilities negligence has caused bodily injury to the customer the latter is
entitled to compensation of all of his or her pecuniary and non-pecuniary damage. The
general principles concerning the assessment of damages apply.
i) Damage to health
In case of death the various wrongful death statutes allow for compensation for
decedents.
In case of other bodily injury the costs of medical care and the loss of future income can
be claimed. However, a claim for the costs of a second future hip operation has been
rejected where the life expectancy of the injured customer was statistically only six
years so that presumably no second hip operation would become necessary.1763
In case of bodily harm also compensation for pain and suffering can be claimed even
though this head of damages is typical for tortious liability. Moreover, mere mental
distress may also trigger liability where the utility or its employees violate the duty of
respectful treatment and insult or humilate their customers.1764
The general methods of the assessment of damages apply. The pecuniary loss includes
all necessary medical expenses and lost future income, which is calculated on the basis
of the foreseeable income. But since the jury decides this question “much of American
damage practices is informal and ad hoc.”1765
Contributory negligence is – as always and as in tort as well – either a full or a partial

defence depending on which concept of contributory negligence the respective US state
has adopted. Partly any contributory negligence is a complete bar for a damages claim,
partly the prevailing negligence of the victim (more than 50 %) is a total bar, partly
contributory negligence leads to a proportionate reduction.1766
1763
1764
See Slocum v. Food Fair Stores of Florida, Inc., 100 So. 2d 396 (Fla. 1958), and further V.R.
Johnson/A. Gunn, Studies in American Tort Law, 82 s.
1765
G.T. Schwartz, Damages under US Law, in: U. Magnus (ed.), Unification of Tort Law: Damages 177.
1766
See G.T. Schwartz, Contributory Negligence under United States Law, in: U. Magnus/M. Martin-
Casals (eds.), Unification of Tort Law: Contributory Negligence, 2004, 223.
478
And as always with contributory negligence the question is which standard of care in
the own interest the victim is expected to exercise and how far the victim may trust on
the skill of the service provider. For instance, it has been decided that a utility which
requested the customer to repair a gas line was not obliged to secure that the repair had
been effected before the utility supplied gas again. It was the customers risk and own
fault and excluded any claim for compensation when the still leaking line caused
damage.1767 To the contrary is a case where a mobile home owner and customer was
injured through a shock when he tried to open the door to an outdoor circuit installation
in a mobile home park to reset the circuit breaker in order to restore power. The reason
of the shock was a bad splice in the installation. The utility was held liable for
negligence and the Court of Appeal reduced the jury’s finding of 90 % comparative
negligence to nil.1768
hh) Limitation
Limitation is regulated by statutory law of the single US states and varies therefore
rather widely. On the whole, the limitation period for actions in contract tends to be
longer than the limitation period for tort actions. Since claims for negligent infliction of
bodily injury are essentially tort claims regularly the latter period applies. As in general,
the period starts running with the accrual of the claim. In tort it is generally the
infliction of the harm or the victims knowledge of it whichever last occurs.
As already indicated liability of utilities for personal injuries which they have
negligently caused to their customers regularly sounds in tort. The main duties of
utilities are imposed by law and exist irrespective of a valid contract.
aa) The parties
The regular parties in actions for compensation for personal injury due to the services of
a utility is on the one hand the utility and on the other the customer. But also further
persons like family members may come within the specific protection rendered by the
public supplier-customer-relationship with its extended duties of care. Mere by-standers
are, however, only protected as far as general tort law provides for protection and the
general duties of utilities are less far-reaching than those towards customers.1769
1767
00.
1768
1769
For an example of a by-stander case see Martinez De Jesus v. Puerto Rico Elec. Power Authority, 268
F. Supp. 2d 112 (D. Puerto Rico, 2003) (painter painting building killed because of contact to live
electric line).
479
Ulrich Magnus
Generally bodily injury is the prerequisite of tortious liability of a public utility. As

indicated above in certain exceptional cases also mere emotional distress may trigger
liability.1770
Tortious liability is incurred if the utility has violated one of its duties towards the
customer or other victim. But only customers and intended beneficiaries like family
members can also in tort rely on the specific duties, which originate from the supplier-
recipient-relationship. This relationship is normally concluded when a contract of
supply is concluded but in fact, it is independant of the validity of the contract.
dd) Causation
Here reference can be made to the above remarks on causation in contract (see a) dd))
since the applicable general principles are largely the same.
ee) Fault
Tort liability is based on negligence and requires fault. The utility or its employees must
have negligently violated one of its duties (and this violation must have caused the
damage). As to the standard of care that is to be observed it can again be referred to the
respective remarks in relation to contractual liability.1771
Damages in tort for personal injuries are in the same way calculated as already exposed
above.1772
gg) Vicarious liability
Also in tort a utility is liable for negligent acts, which its employees commit within the
course of their employment. And the utility cannot avoid liability by proving careful
selection and control of its employees.1773
1770
See above under a) cc) i).
1771
1772
1773
See in general on tortious liability for others G.T. Schwartz, Liability for Damage Caused by Others
under US Law, in: J. Spier (ed.), Unification of Tort Law: Liability for Damage caused by Others, 279
ss.
480
Contributory negligence in tort requires the same prerequisites and leads to the same
consequences as in contract.1774
ii) Limitation
As to limitation see already above under a) hh).
As already indicated a utilities tariffs or conditions may restrict liability but only in a
reasonable and non-disriminating way.
aa) Burden of proof
The claiming customer must prove all facts on which his or her claim is based namely
damage, existence and violation of a duty of care and causation between these two
elements of liability.
No specific institutions seem to exist which deal with personal injury cases concerning
public utilities.
e) Case study
Mississipi Power & Light Co. v. Lumpkin.1775

In this case the mother Leslie Lumpkin had claimed damages for herself and for her 15
year old daughter Kristen Black who was severely injured. The injury occurred when
Kristen was driven home with other teens at night by a friend. In a sharp curve of the
road the friend who had drunk alcohol before lost control of the car which went off the
road and struck an electric utility pole. Nothing had happened to the passengers in the
car but Kristen exited because of the accident. In the dark she did not notice the open
electric wire with which she came in contact though another teen warned her that there
were wires hanging. She was so severely burnt that an amputation of her left arm was
necessary.
1774
See thereon above under a) gg).
1775
725 So. 2d 721 (Miss. 1998).
481
Ulrich Magnus
The lower court had given judgment partly in favour of the victim. It regarded the
dangerous placement of the pole as a cause of the injury and held the power company
liable for fifty percent of the damage. The power company appealed against that
judgment. The Supreme Court of Mississipi reversed the judgment and remanded the
case to the trial court because the trial court had not admitted testimony as to the alcohol
consumption of the driver. However, the Supreme Court expressed the clear view that
the power company was negligent in placing its utility pole at an unreasonably
dangerous location namely, very near to a dangerous curve where often accidents
occurred.
482

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Institut für Europäisches Wirtschafts-

und Verbraucherrecht e.V.

COMPARATIVE ANALYSIS OF NATIONAL LIABILITY

CONTRACT NO. B5-1000/02/000382

A STUDY COMMISSIONED BY THE EUROPEAN COMMISSION

ULRICH MAGNUS – HANS-W. MICKLITZ

Project Manager: Prof. Dr. Hans-W. Micklitz

Part A: General Part

I. The Objectives of the Study.............................................................................................. 29

a) General system of tortious liability......................................................................... 48

c) Scope of contractual protection .............................................................................. 73

cc) Causation ......................................................................................................... 100

1. Sources of law............................................................................................................ 115

C. The Specific Part...................................................................................................... 127

i) Normal standard of causation .......................................................................... 132

aa) The parties ....................................................................................................... 151

e) Case Study ............................................................................................................ 177

dd) Causation ......................................................................................................... 193

i) Contract parties ................................................................................................ 209

v) Duty to document............................................................................................ 228

ii) Presumption of fault and burden of proof....................................................... 244

ii) Pain and suffering ........................................................................................... 268

aa) Burden of proof by issue ................................................................................. 284

ii) In case of death ............................................................................................... 298

iii) Duty to supervise and control technical equipment ....................................... 316

bb) Specific institutions (ombudsman, claims board etc.) ..................................... 338

i) Duty to act professionally ................................................................................ 361

aa) Burden of proof ............................................................................................... 380

ii) Presumption of fault and burden of proof....................................................... 396

iii) Measure of damages ...................................................................................... 407

i) Duty to act professionally ................................................................................ 427

iii) Presumptions and burden of proof................................................................. 444

i) Duty to act professionally ................................................................................ 458

gg) Contributory negligence .................................................................................. 469

hh) Contributory negligence .................................................................................. 481

I. The Objectives of the Study

II. The Scope of the Study

3. The fourth Part of the Study – D. Comparative Analysis

1. The Set of legal Issues

2. The Methodology for the Compilation, Description and Comparison of the

• G. Brüggemeier, “Prinzipien des Haftungsrechts – Eine systematische Darstellung

3. The internal Management of the Compilation and Analysis

2. Insufficient quantitative Data

3. Shaky Basis of qualitative Data

4. The fields of Conflict in the selected Areas of Services

employed doctors or other medical personal

weather situation and environmental circumstances (bad weather conditions, strong

V. A comparative in depth Analysis of the Benefits and Weaknesses of the

1. The comparative Analysis of the four Fields of Services

2. Contract liability in general

a) General system of contractual liability

aa) Violation of contractual obligation (obligation de moyen ou de résultat)

bb) Standard of care (fault based/strict liability)

b) General aspects of the remedy of damages (le préjudice)

aa) Pecuniary damage

Pecuniary loss (préjudice matériel) could be defined as the detriment of someone’s

bb) Non-pecuniary damage

c) Scope of contractual protection

3. Tort liability in general

a) General system of tortious liability

aa) Protected interests

bb) Standard of care (fault based/strict liability)

obligation (obligation for general prudence) in that fault is to be established by