INTRODUCTION TO TORT LAW

Damages: we will need to distinguish between the damages breach of contract and those cause by an
accident.

Breach of contract: it is the damage or harm caused between parts in a contract or someone linked
previously to another person because a contract when this contract is broken by any part of it. The main
difference with the damages caused by an accident is that in a contract the parties are related according
to a contractual and consensual relationship.

Tort comes from the Latin word “Tortious” that means that something is wrong so it is different to a
breach of contract, which means that this term is a little more extensive than damages.

When referring to damages caused by a breach of contract we can classify in two categories, they are in
art. 1107 CC:

- Expectation damages  when the contract is broken in good faith the damages to be repaired
are those foreseen or could have been foreseen at the time of being constituted and that are a
necessary consequence of their lack of compliance.
- Reliance damages  when there is intent, the debtor will respond to all those damages which
are known to derive from the non-compliance with the obligation. (Expected and not expected
but that have derived from the breach of the contract)  in Spanish tort law terms “daños
emergentes y lucro cesante”. So, the breaker part in this case not only would have to pay for
the non-compliance damages but also for those damages that the other party couldn’t enjoy
or gain because the tortfeasor didn’t fulfil his/her obligations.

Positive interest (1106 – 1107 CC)  the goal pursued by the governor is to put the part who has
suffered the breach of contract with the benefits that the contract gave him before the contract was
broken. Look for the future that the contract would have given if it hadn’t been broken. So the main
idea is that repairs the foreseeable damages and also those that were effectively produce.

The amount of damage that the part who has suffered the breach of the contract will depend on the fact
if the breach of the contract was intentional or merely negligent (1107 CC)

When the damage is caused by an accident, so there’s no contract broke can be claimed a harm, an
injury or a property damage.

When talking about an accident damage we can find two parts:

- Tortfeasor  The person that by his/her action caused a damage to another person.
- Victim  person who suffers that damage and entitle to claim for a compensation because of
that damage.
1. The scope of the damage: The party that suffers the damage is entitle to claim not only for the
goods not received but also the benefits they have lost.

The tort law rules look for negative interests, as they look to compensate the negative facts of the
accident as they try to return the person who has suffered the accident to the situation previous to
that. NEGATIVE INTERESTS in contrast with the damage law rules regarding to a contract it is
completely the opposite. In those situations, not caused by the breach of a contract, the law only
compensates for the negative consequences, not the possible things that has lost or not benefit
from because of the accident. So, if I am crossing the street and someone hits me with the car, in
 Spanish tort law I will only be entitled to claim for the physical damages not for the possible lost
that I wouldn’t have had if I hadn’t had the accident, so if I can’t go to work for 3 days because I’m
at the hospital I cannot claim for those damages.

2. In tort law it is not important the difference between the damage caused intentional or negligent
because we are only concerned on the victim situation and the consequences suffered by the
accident and the amount of money that the victim is entitle to claim because of it. In contract law is
important because of the idea of justice, based on the fact that those that break the contract
intentionally after binding theirselves to it and willing to fulfil some situation, have to be more
punished. In tort law the person that cause the damage intentionally or negligently is irrelevant in
order that is damage in the same way, obviously, not excluding the possibility that those intentional
damages can be punished by the Penal Code.

In English tort law the term accident is not the same than what it means in Spanish tort Law, in
English the term accident only includes the situation of negligent damage, while the Spanish term of
accident include both situations.

General clause (1902 CC) in Spanish legal system all type of damage cause to a victim must be
repaired not being important if the damage has been caused intentional or negligent damage.
“Who by action or omission cause a harm to another, taking part fault or negligence, is obliged to
repair the caused damage”.

Claim for unjust enrichment  in the Spanish legal system there is not specific remedies for unjust
enrichment, since it could be included on the scope of claim of tort law, so in this way they could
simplify the legal system.

3. CONSTRAIN. The problem of this kind of system is that is too much general. Only those accident
cause by fault (culpa) can be claim as tort law. When we talk about fault, we refer to required
behaviours that haven’t been followed, therefore, must be accounted for by the tortfeasor. Other
requirements are necessary to claim damage but the most relevant one is the fault or negligence.
FAULT IS THE MAIN CONSTRAIN IN ORDER TO MAKE THE SYSTEM A LITTLE BIT MORE SPECIFIC.

There is a general risk society must assume, the existence of fault means that risk assumption has been
surpassed. In conclusion, the legal claim (pretension) of tort law is different than that of contractual
remedies in its object, requirements, prescriptions terms…

REQUIREMENTS OF LIABILITY

Tort law refers to compensation of reliance interest (interés negatiu), the aim is to put the victim in the
same situation as if the accident hadn’t occurred, so in conclusion only repair the harm caused to the
victim.

It also refers to risky activities (those one that some kind of risk of harming someone is involved), so in
the moment we have this kind of activities suggests the next question, what tort has to be assumed by
the victim as part of social life? We can have an answer looking at the requirements of liability:

1. Damage / harm. Only harm will spark the application of tort law. If there is no harm, independently
of the negligent or diligent behaviour, tort law won’t apply. I. e. Driver who doesn’t respect the
rules, might be sanction by penal or administrative law, but if there is no harm tort law won’t
activate. The mere infringement is excluded.
2. Human conduct. Many detrimental situations for an individual can happen for natural causes or
causes out of human control. Harm must be caused by a human conduct. Force majeure and caso
fortuito are excluded.
3. Causation. Between the harm and the human conduct must exist a causal connection in order to
exist liability. An specific harm must be the result of an specific human conduct. Causation requires
and means:
a. Victims are only able to claim against the tortfeasor, only those causally involved in the
accident.
b. Potential tortfeasors will only compensate those damages causally linked to them and their
behaviour.
4. Foreseeability. The probability of the accident to happen, before developing the activity or
behaviour.

So, in fact, causation limits the scope of the compensatory right and also limits the possible number of
tortfeasors or defendants.

SOURCES OF LIABILITY

1. Intentional tort  Someone intentionally cause a damage to someone else. It is at the edge with
the Criminal Law
2. Strict liability  anyone will be held liable rather negligence or if their behaviour was correct. The
departing point for public liability tort it is the art. 32 40/2015, nonetheless there’s nuances to this
fact. Another example of strict liability is the 1905 CC that states that if the dog or cat hold by
someone cause harm to another person, the owner will be held liable.
3. Negligence  Most of the Spanish tort law departs from negligence. The departing point of Spanish
tort law is the art. 1902 CC which says that “the one who by action or omission causes a harm to
another, taking part fault or negligence, must repair the damage caused”.

NEGLIGENCE AND NEGLIGENCE

The set of rules changes if the tortfeasor is a private part or a Public Administration. Does make any
sense that set of rules changes because of the agent damaging?

Proximate causation  from all the natural causes arousing the tort we choose the most proximate one
which is the most relevant. If we didn’t do things this way there would be a lot of causations and it
would be impossible to determine who is the responsible of the damage.

Case Law: United States v. Carroll Towing Co. (read this case)

FACTS: In 1949 a boat called Anna C which was transporting flour was tight to the pier 52 of Manhattan,
when Carroll a tugboat which was working on the pier untight a rope between the boats of pier 51 and
52, when they had done that the Anna C had moved down the river flow and crashing with a tank tight
in the following pier down the river whose propeller open a hole which made Anna C sinked and with it
the cargo of government flour. Another fact to take into account is that in the moment of the accident
the bargeman that was supposed to be on board was not there.

In a first trial, the courts rules in favour of Anna C, but the Carroll Towing Company appealed this
decision and take the trail to the Court of Appeals where the judge was L. Hand. So, the most important
questions to be solved on this trial were the following:

- Has Carroll committed a breach of its duty of care?

 - The fact that the bargeman was not on the boat, is it the proximate cause of the accident?
- Is it reasonable for Carroll to act the way they did?

In the Court of Appeals judge Hand ruled against the decision of the previous trial. And his reasoning
was the following:

Anna C’s employee breached his duty of care. The case switched as first the court had been focusing on
Carroll’s negligence. In order to justify its case, judge Hand use the following formula that after that
would be known as the Hand Test.

1. Burden of adequate precautions. How much it costs to the company to accomplish with the
adequate precautions.
2. Probability of the accident happening.
3. Expected value of loss of the accident if it happens.

If the burden of having employees on board is higher or equal than the probability of having an accident
then Anna C is not liable. On the other side, if the burden of having employees is lower than the
probability of having the accident and the expected loss, then Anna C is held liable. This reasoning is
based on a cost-efficiency idea.

- B>PL  Not liable. Since, the probability and expected losses are not so important, and the
burden of adequate precautions cost it more to the company than not having him. Because
economically
- B<PL  Liable, because we understand that there is a high probability that the boat breaks
free and cause a damage to another.

In the case, the burden was lower of having the accident so Anna C was held negligent so it was Carroll.
The reasoning that judge made was that in the situation that the accident happens where the port traffic
and the possible damages were higher than the burden of having the bargee on his work hours on board
determined that Anna C was also negligent in his behaviour and as a result of that was held liable.

Tort Law is about avoiding cost-inefficient for accidents to happen. Economically it could be more
efficient for accidents to happen. We will only invest in safety when it costs less than the expected loss,
according to Hand’s rule.

Critics: Hand’s rule can be used arbitrarily  The arbitrariness of the Hand’s Rule, we found it in the fact
that I highly arbitrary to assign the several components of the formula. Also, this theory is very focused
in an economic view of the tort law, since it is based on the idea of how much will cost the accident to
the tortfeasor? We can’t approach to the tort law only from an economic perspective, because if we did,
we would create a very important inefficiency, that would mean that if the probability is very low, I
don’t have to take measures against a possible accident, tort law isn’t exactly, not only because could be
that the consequences of that accident are very high. But also incentivising to the creation of more risks
if the cost to pay is low. For that reason is so important the risk of the human behaviours.

Contribution to negligence comparative negligence. Initially, common law prohibited plaintiffs to be

recovered if they had also been negligent. Contributory negligence. The system changes, and the two
faults will be compared by balancing and deciding the contribution of the behaviour to the accident/
harm. Plaintiffs will be able to recover up to a percentage of the loss that didn’t occur due to its own
fault (how do we determine the percentage of negligence?).

If the plaintiff has more than 50% of negligence contribution, the amount of damage that the person will
be entitled to claim will depend on the system, some systems allow to claim a percentage of damage but
in others they don’t allow it because it is understood that this person had more responsibility in causing
the accident than the other itself.

Spanish Tort Law is very limited from a law point of view, so it’s a very case-law oriented system.

The negligence requirements try to answer the following question: whether or not, the alternative
behaviour of the tortfeasor could avoid the accident. When the tortfeasor there can be doubts about
the consequences regarding the damages, but there is no doubt of liability, so a person who has an
intention and succeed on causing the damage is liable for that damage. Intention is not difficult to
determine.

The negligence must answer two question:

- Was there any alternative diligent behaviour?  this a fact question

- If the answer in the previous questions is yes, then we have to respond to another one which
is: was this potential tortfeasor forced to act in this alternative way?  while this one is a legal
question

Then we have the concept of duty of care that include both questions the factual and legal

The differentiation between intentional and negligent damage is only relevant to determine if it can be
an alternative. The debate is more relevant in a deeper way when it is discussed if the (…)

The infringement of the duty of cure allows to distinguish between two situations:

- Accidents  that could be avoid if this person had acted in the correct way and have to be
compensated.
- Accidents or negative result where need to be assumed without any right to claim. There are
no previous break of duty of care.

The lack of duty of care is a central requirement in the tort law system. And need to be analyse in two
ways:

- Factual analysis
- Legal analysis

The two following questions are always in tort law cases:

- How do we determine the duty of care?

- Who has a duty of care to another?

Tort law is very related to risk, as it is related to activities that may cause any damage or where
someone can be damage.

If the risk of any activity is higher than the benefits that provide to society then what we do is to prohibit
that activity. For example, if we consider that people driving generate more accidents than benefits we
as a society get from it then we would prohibit driving.

If the situation is reversed the legal response is, firstly, legal regulation about the activity and secondly,
to attach liability to the damages caused when developing this kind of activity, so in this way we get the
benefits that the activity itself offers to society and we prevent ourselves of the possible damages
caused

Analysis of the social cost compared with the social benefits.

Duty of care tries to establish a point where the society accept the risks and distinguish between legal
and non-legal activities. The duty of care is not referred to the absence of risk, but to a socially accepted
risk because the benefits of that risk or activities gives to the society and obviously.

The society enters in the past century which was very relevant to the tort law area. Last century very
risky activities but very necessarily because all the benefits that those activities provided to society
(motor vehicles, airplanes, pharmaceutical development…). In a very short period of time, we have been
involved in very risky activities that caused very important physical damages, but we have considered
the benefits of those activities are higher than the individual risks. This fact is very relevant to tort law,
and tort law which was a minor part of legal system and as the time has advanced this part has become
more and more relevant.

If liability is related to an activity that has a risk and also related to the fact of how much risk can we as a
society tolerate. It highlights two problems:

- The duty of care needs to be analysed by a court, and that court must decide if the tortfeasor
was diligent enough or not. Necessity of a judicial procedure no one can be forced to pay a
compensation to another without a judicial procedure. So, the judicial cases increased a lot.
Courts were forced to solved a lot of cases.
- When regarding to duty of care the victims faced a huge problem of asymmetry of
information. Example: I crossed the street in green light and a car hit me. The victim needs to
prove the cause of the damages in order to claim for a compensation. Example would we to
prove that the light was green. Many victims weren’t able to claim a compensation because
they weren’t able to prove that the potential tortfeasor didn’t act according to the duty of
care, which can be very difficult to prove to many victims. Duty of care

Because of these two questions the concept of duty of care begins to be a very controversial problem
and many courts began to develop judicial doctrines whose only goal was to make easier for the victims
to prove that there was a lack of duty of care in the behaviour of the tortfeasor. One of the most
relevant one was the res ipsa loquitur.

“Res ipsa loquitur” = the thing is explained by itself  abnormal dangerous activities we are dealing
with risky activities that have become much more dangerous than they should be, because the fault or
negligence of the potential tortfeasor. This doctrine it has been used a lot for medical negligence cases.
This judicial doctrine (precedent to strict liability) then they realised that was more effective to
compensate every victim in those fields that needed regulation. This is a judicial doctrine that intended
to make easier the claim for the victim. It is like an intermediate step between the tort law with the duty
of care as a central point and the strict liability.

STRICT LIABILITY

Strict liability  Some activities decided to exclude the negligence requirement in order to compensate
the damages. Every damage caused by this activity have to be compensated, without entering in all the
negligence analysis. all damage has to be compensated, even if the tortfeasor acted correctly. The
lawmakers started to regulate some activities where that all damage made while this activity was taking
course must be repaired. Obviously, the strict liability has an effect on the level of the activity, but it is
not its intention to reduce this level of activity, but to make easier for the victims to claim any damage
cause to their person because of this risky activity and not having to prove what a lot of time is very
difficult because of the asymmetry of information that the victim has on the duty of care and the
situation itself. The way to compensate the impact on the level of activity is obligating to the people
that want to do this risky activity to contract a mandatory insurance. In this way we give to the people a
best judicial protection. (REPASAR Y PULIR ESTA PARTE EXPLICAR MEJOR)

Duty of care as central point  problems of applying it  strict liability

The problem is that we realised that strict liability was not new. Example: I live in a country that permits
to drive a car, which involve a lot of risk. If it is proved that you don’t drive in the legal and standard
impose then you will have to pay. So, in order to reduce the probability, I just to follow the rules. The
law changes and now you will be obligated to pay for any damage caused, the arguments of I was
driving in a correct way and I did everything to avoid that damage. So now the way to reduce the
probability of paying is stop driving. In tort law we are concerned with risky activities but that have a
social benefit. The strict liability is related to the level of activity, the impact of strict liability in the level
of activity needs some corrections, and we have developed some ways to correct this negative impact,
the most known one is the mandatory insurance, who covers all the damages caused by an activity in
exchange for an insurance cost based on the risks involved in our driving.

CAUSATION IN FACT AND PROXIMATE CAUSATION

Tort law refers to compensation of reliance interest (interés negatiu), the aim is to put the victim in the
same situation as if the accident hadn’t occurred, so in conclusion only repair the harm caused to the
victim.

It also refers to risky activities (those one that some kind of risk of harming someone is involved), so in
the moment we have this kind of activities suggests the next question, what tort has to be assumed by
the victim as part of social life? We can have an answer looking at the requirements of liability:

1. Damage / harm. Only harm will spark the application of tort law. If there is no harm, independently
of the negligent or diligent behaviour, tort law won’t apply. I. e. Driver who doesn’t respect the
rules, might be sanction by penal or administrative law, but if there is no harm tort law won’t
activate. The mere infringement is excluded.
2. Human conduct. Many detrimental situations for an individual can happen for natural causes or
causes out of human control. Harm must be caused by a human conduct. Force majeure and caso
fortuito are excluded.
3. Causation. Between the harm and the human conduct must exist a causal connection in order to
exist liability. An specific harm must be the result of an specific human conduct. Causation requires
and means:
a. Victims are only able to claim against the tortfeasor, only those causally involved in the
accident.
b. Potential tortfeasors will only compensate those damages causally linked to them and their
behaviour.
So in fact, Causation limits the scope of the compensatory right and also limits the possible number
of tortfeasors or defendants.

Causation is a pure factual issue, tortfeasor’s conduct being a cause of the harm  legal consequence:
compensate damage restricting the scope of liability to the damages caused by the tortfeasor.

BUT FOR TEST (Conditio sine qua non). One of the ways to determine the cause of a harm is the but for
test, this test says that something can be considered a cause if the exclusions of the fact changes the
result. I. e. If the driver hadn’t drunk alcohol that night the accident wouldn’t has happened.

Even though this test has a problem, which is that is too much general and practically everything can be
considered as a cause of, in this case, the harm caused to the victim. Considering the previous example,
can be caused of the accident that the person who drive has a license, so if (s)he hadn’t had license the
accident wouldn’t has happened. In this kind of test even the victim is a cause of the accident, because if
we exclude the victim there is no accident.

It results that causation has been understood traditionally as a way to limiting the liability and the scope
and consequences that need to be compensated. But at the end tort law has chosen the but for test to
examine the causation, which has a lot of problems, since it considers circumstances not necessarily
related to the accident and so the harm.

We need to difference between the damages caused because of the accident or tort and those which
are a natural consequence of daily basis, and the “but for test” doesn’t help in this way, so in fact this
“but for test” doesn’t solve the problems that it should solve.

When we are talking of causation in tort law, then we have to distinguish between in causation in fact
and in iure.

- Causation in fact  physical connection, natural science ways to explain the consequences.
Explained with physics, biology. Only according scientific explanation of the facts. There is a
connection between the harm and the fact using scientific methods.
- Proximate causation (Imputación objetiva)  Deals with the duty of care of the potential
tortfeasor in relation with the behaviour and the specific circumstances. Scope of liability is
something that needs to be solved with legal explanations, without interference of factual
explanations. The proximate causation must analyse whether the risk is kept in a socially
accepted level. The key is if the behaviour was carried out under the level of risk that we
consider acceptable as a society
o If the answer is yes  then it won’t be liability, even if there is a natural causation.
o If the answer is no then the potential tortfeasor will need to pay for the tort.

Spanish tort law doesn’t distinguish between the damages to be compensated by tort law rules and
other rules. Many legal systems especially those attached to German tradition add a specific
requirement which is the infringement of the law, so the human behaviour must be one of those that is
illegal. This is not the case on Spanish tort law, which means whether the behaviour is forbidden or not
is insignificant. This requirement does not exist this infringement of the law, so we don’t need to prove
whether or not is against the law in order to demonstrate liability, we only need to analyse if the
behaviour was kept in a socially accepted level or in other words if the risk created by the human
behaviour was kept in a socially accepted level. In our legal system the proximate causation debate is
much more relevant than in other legal systems that have additional requirements for the existence of
liability.

The relevance of proximate causation is higher if not exist another requirement such as the against the
law behaviour for liability.

There is no reason to exclude omission just as a result of a narrow sight of causation: if one was forced
to act according its duty of care, it is forced to act.

Vicarious liability (responsabilidad por hecho ajeno), under some circumstances others than the
tortfeasor will be the ones hold liable, victims will be allowed to claim from them. This fact is also
separate from the causation in fact, as a third party will be the one held liable.

The pure scientifical causation debate is less important in tort law. There will be liability even if there is
no causation in fact. In other legal systems, causation in fact + against the law behaviour/action.
In tort law a tortfeasor may be liable for two different reasons:

- Fault/negligence  breach of duty of care.

- Strict liability  in this case the negligence doesn’t have relevance. Which is the relevance of
duty of care in strict liability? Tortfeasor has increased the risk while doing this kind of activity.

All of this analysed from proximate causation

Whether or not the tortfeasor should act in a different way? Whether or not if the level has maintained
in a socially acceptable risk? These are the two more important

The difference between negligence and strict liability are not so huge, since we have to analysed from an
objective perspective. Legal reasoning the distinction between fault and strict liability is not so different.

While in fault liability the potential tortfeasor can escape from liability if the victim cannot prove that
he/she acted negligent.

UNILATERAL AND BILATERAL ACCIDENTS

General view of tort law is Tortfeasor causes a harm to a victim and the victim is entitled Spanish tort
law  who causes a damage have to pay for it (art. 1902CC). Even though it is not effective or exact.
There are cases where the victim also did something wrong. What happens when instead of one there
are several tortfeasors? These two cases are not regulated in Spanish tort law or tradition, so the way to
solve these problems is by looking the solutions in other legal systems that have mechanisms to solve
this problem.

The case where only the tortfeasor contributes to the accident or harm by increasing the risk, this
situation is called unilateral accident. Only tortfeasor did something wrong and only the victim has
suffered damages.

Usually in the most of accidents the victim contributed somehow on the accident, this situation is called
bilateral accident. The definition would be that both the tortfeasor and the victim did something that
finishes in the accident and as a consequence generating damages. There are situations where the
victim according to their personal circumstances that make them more vulnerable to damage or the
damage caused is more serious. So in bilateral accidents we have to analysed two things:

- Decisions made by the parts in the accident

- Conditions personal circumstances that worsen the consequences.

Traditionally bilateral accidents has been considered as a problem of causation. While in a unilateral the
tortfeasor act is the 100% cause of the harming result, in bilateral accidents we used the same way of
analysing but we have to assign to the behaviour of both actors the percentage of causation of the
accident to both actors. It is not a wrong way but have the same problems than unilateral accidents.
Now we are not analysing one behaviour is been kept in a socially acceptable level of risk but two, the
victim and the tortfeasor and attribute the proportional causation in the accident as liability.

In unilateral accident if the tortfeasor  will have to pay for the damage. Despite in bilateral accidents
the tortfeasor even having causing the damage it will be unfair that paid for the full damage as he/she
has not been the only actor in causing the accident.

If the victim could avoid somehow the accident, then he/she is not entitled to claim any damage. This
was a very harsh application in Common Law tradition but had an impact also in other legal systems.
This kind of standard is called contributory negligence. Tort law should not be concerned in bilateral
accidents. Now contributory negligence is something clearly abandon for general tort law, even though
in every legal system there is still some specific cases where contributory negligence is applied. When
the accidents were more and more frequent and somehow a lot of victims played a role in the accident
judges realised that contributory negligence was wrong. Nowadays the standard used in these cases is
the comparative negligence, where the judge has to analysed according to the proofs and facts and
compare both behaviours and distribute the liability taking into account how they contributed to the
accident.

In Spanish tort law there is no base for comparative negligence since the general clause is stated as a
unilateral accident. Spanish is a Civil Law country so judges cannot make law so they needed some legal
basis for apply the comparative negligence and they found it in art. 1103CC “Liability arising from
negligence can be distributed”. In Spanish tort law the comparative negligence is referred as
“concurrencia de negligencias o de culpas”.

In cases where both suffer damages, this will be analysed as two different damages where in one the
victim is victim and another where the tortfeasor is the victim.

When analysing the relevance of the victim in the accident we not only have to analyse the personal
decisions but also the personal conditions.

In our legal system we have assumption of risk:

- Voluntary risk activities

- Not risk activities, but are risky for he/she, because of his/her conditions
- Victim has not taken the necessary cares.

In assumption of risk while the potential tortfeasor keeps the level of risk in a socially accepted way then
the victim is assuming the consequences and then the potential tortfeasor cannot be held liable for the
damage caused. If there is assumption of risk then the potential tortfeasor will not have to pay for the
damage. Also, in comparative negligence can be determined an exclusive fault of the victim so then the
tortfeasor wouldn’t have to pay for the damage.

So, in the bilateral accidents analysis we can find ourselves in three different situations:

- Both have contributed in the accident, so comparative negligence

- The victim has assumed the risk of the consequences, assumption of risk, tortfeasor does not
pay, there is not bilateral accident. In this case the tortfeasor must have kept the level of risk in
a socially accepted way. The assumption of the risk is an exception for the strict liability
(general clause regime).
- The only fault is from the victim, then we don’t have a bilateral accident, and the tortfeasor
will not have to pay, since he/she doesn’t have any fault in causing the accident.

VICARIOUS LIABILITY. SEVERAL TORTFEASORS. JOINT AND SEVERAL

VICARIOUS LIABILITY

Let’s analyse the tortfeasor cause the damage caused to the victim, but the fact is that the tortfeasor
either was someone because of his/her personal conditions must be under the control of the tortfeasor
or if the tortfeasor caused the damage following instructions of a third person.
This regarding the existence of potential control or following instructions we could held liable the
tortfeasor and not taking into account that could be a controlling person or instructions (not relevant).
Even being the simple solution to this situation, have 3 problems:

1. INCENTIVES. Incentive to not controlling those ones that I have a obligation to control. Perverse
incentive not to contemplate the risks when giving instructions too. Spanish tort law wants to
incentive to take into account the risks of the actions of those that be should control or when giving
instructions and do this by making liable the third person that has the obligation
2. SOLVENCY. Those controlling or giving instructions are usually more solvable than the ones under
the control
3. IDENTIFICATION. In some cases, it can be easier for the victim to identify those holding the control
or giving instruction than the direct or factual tortfeasor himself/herself.

These are the 3 justifications as to why we should include guardians or the ones giving instructions.
Other people than the tortfeasor can be liable. All legal systems work to some extent with the ideas of
control and instructions, but it its specific categories between legal systems.

MASTER-SERVANT RULE. When someone benefits from the activity of someone else, if the second
person causes tort, the first should assume the produced damage. Once I having a benefit of the activity

The victim is entitled to claim for compensation direct to the vicarious liable tortfeasor without needing
going after the factual tortfeasor.

Has been traditional subject to a debate:

- The first because of the right given to the victim for claiming to the vicarious liability has
nothing to with causation, at least in fact. FACTUAL LIABILITY
- Sometimes the fault liability requirement is dubious to what extent the vicarious tortfeasor is
at fault. First, the vicarious tortfeasor depends in some extent of the factual tortfeasor. And
second has the vicarious tortfeasor the same fault as the direct or factual tortfeasor.

However, it seems fair enough that if law oblige me to be the guardian of someone or I’m benefiting
from someone’s activity I must assume the consequences of that activity.

Vicarious regulation Spanish tort law. This rule is regulated on the article 1903CC. While the previous
article establishes the general clause for the tort law claims, the same liability can be claimed against to:

- Parents for the damages that minors caused while they are
- Tutors  incompetents (independently of the age, in this case has no relevance)
- Employers  employees. In the scope of employer-employee and obviously by the
instructions given to the employee by the employer.
- Directors of school  students during the school time.

In case of parents, tutors and directors of school the idea of responding for the direct tortfeasor is
related to the control idea, in somehow this person should have a control or supervision for those
people, while they are obliged to.

While in case of employers, the vicarious liability is also related to supervision but it is more related to
the idea of instructions, so the employer is liable for the damages caused for the employee that was
following his/her instructions while doing the activity.

Spanish case law has extended this vicarious liability:

 - In cases of parents and tutors, when another person even though not being parent or tutor
legally speaking, is taking care of minors or incompetents and while this taking care time, the
minor or incompetent causes a damage.
- In cases of employers: it does not require a labour relationship. The rule also applies in every
situation where someone is benefiting from another’s activity, not needing the labour
relationship to be liable for the damages caused during the activity.

The vicarious liability is based on the idea of fault so the vicarious tortfeasor, so they won’t be liable for
it if they demonstrate they acted following the duty of care rules and diligence demanded by the law.

Change in the burden of proof, the victim doesn’t have to prove that the tortfeasor acted wrongfully,
but are the vicarious liability agents have to prove that they acted following all the diligence rules in
order to avoid liability. Viewed from practical point of view it is hard to prove once the accident has
already occurred that they acted correctly.

What happens if the damage is caused in an area where strict liability is operating, so the vicarious
tortfeasor should be held liable even acting correctly. When this happens, the victim is entitled to claim
because suffering the damage, so the vicarious liability agent will have to pay if they don’t succeed in
proving they were diligent.

Art. 1904. Once the vicarious tortfeasor has paid the compensation to the victim, has the right to claim
to the direct tortfeasor for a reimbursement. This article is only applied for the employer and director of
school (to claim to the employee or to the teacher in charge) and not appliable to parents. This article is
a little bit controversial since the employer or director couldn’t prove that they acted correctly, but then
the same legal system gives

The director-student vicarious liability relationship is only appliable to private schools (those who runs
completely or partially private).

The reform of the Spanish Civil Code regarding to the change of incompetent status. But the article
299CC states that the assets of the incompetent people are subject to pay for the compensation, when
the incompetent is liable.

SEVERAL TORTFEASORS

Let’s analyse the situation where there are several potential tortfeasors to be held liable for damages.
What happen when the final damage is the consequence of the behaviour of several tortfeasors?

Vicarious liability can be seen as a situation where are several tortfeasors, the rules governing several
tortfeasors situation have been developed after the adoption of vicarious liability.

It’s important to distinguish between the vicarious liability and the several tortfeasors’ cases. In vicarious
liability it is not the case where both agents the factual tortfeasor and the vicarious agent, cause the
damages, but even though the victim has the right to claim to both. In vicarious liability we have a liable
agent that responds for the damages caused by a factual tortfeasor, because a relation.

In the several tortfeasors, there is no relationship of control or dependence, and where the victim
should be entitled to claim for all of them, in the same judicial procedure.

Victim damage  caused by behaviour  more than 1 tortfeasor. The first problem we found is the
CAUSATION PROBLEM. As we know can be seen as a cause if we apply the but for test.
 - All of them (facts) can be considered to some extent as potential tortfeasor. The problem is
causation in fact. But this kind of solution doesn’t help much to solve these problems.

Several tortfeasors has been traditionally understood as a very serious causation problem. The problem
of this perspective:

- Analyse the several tortfeasors case as an accumulation of independent tortfeasor, so we will

have to see what every potential tortfeasor has made and establish the proportional
compensation. For example, T1 50% T2 25% T3 25%, so in this case the victim has the right to
claim for the T1 the 50% of the damages and the same to the other tortfeasors. Individual
claim to specific tortfeasors for the specific part of the damage has caused. Effort dealing with
a situation not as a same but a situation where the several tortfeasors has caused a specific
part. This solution has been incorporated in some regulations of European tort law. In Spanish
tort law doesn’t exist a rule for cases involving several tortfeasors since the article 1902 CC is
written in singular. SOLUTION: Causation problem  let’s distribute causation  claim for the
proportional part.

But in fact, when the Spanish Civil Code set the rules governing the area of several creditors or
debtors (1137-1148 CC)
o Joint and several (responsabilidad solidaria)
 Legal provision  very specific and regulated where are several tortfeasors, but
not as a general clause or provision.
 Agreement  excluded in tort law cases since in tort law is about damages
without a contractual relation.
o Several (resp. mancomunada)  when the thing to pay or deal with cannot be divided

Let’s assume then that the Spanish codifier decided not to include an specific legal rule for this
situations because can be understood as individual claims for the specific part.

PROBLEMS: In the last century, where the risky activities became more familiar, courts started
to realise that in several tortfeasors cases was very difficult for the victim to identify the scope
of causation that could be attributed to every tortfeasor (asymmetry problem). In many cases
the victim wasn’t able even to identify the tortfeasors. For example, I own a river and I have
fishes in, and they are dying because the water has been intoxicated because around the river
there are several factories, but I don’t know which one or ones have caused the death of my
fishes.

- Information. Victim has all the burden of the proof. Huge costs of evidence, so many victims
were not willing to pay for these costs. And sometimes even the victim problems with
apportioning liability for the damage.

Many courts in the world and Spain was not an exception, started to think that these situations where
exist several tortfeasor have to be solved by the joint and several liability. Victim entitle to claim for the
100% of the compensation to a single tortfeasor. This solution is very beneficial for the victim since the
victim is not forced to prove the distribution of damage between several tortfeasors, only need to
demonstrate their implication in the damage.

- Reduce the evidence costs

- Reduce the risks of insolvency
As we explained before the joint and several liability in Spanish legal system it is only foreseen for cases
where there is an agreement or there is some legal assumption, but the Spanish Supreme Court has
developed a doctrine to attribute this joint and several liability for tort law cases where we can’t
determine the level of contribution that each tortfeasor made, even though there is no agreement or
legal presumption. It is an exception and it is only apply in case we cannot distribute the liability.

Critique to this judicial doctrine:

It’s true that solve all the problems that the victim faced with the asymmetry information situation and
burden of the proof, so yes it protects the victim but is disastrous in terms of incentives:

- Insolvency problems in tortfeasor. If one of them is insolvent the rest have to distribute the
part to pay.
- How much pays every tortfeasor:
o In theory it should be distributed according to the participation in the damage, but if
this can be calculated, then if can be demonstrated their participation on the damage, it
has no sense to apply the joint and several liability.
o In cases where the participation cannot be demonstrated, we can distribute in equal
parts  problem: that the part that have contributed the most in the harm pay less
even knowing that he done most of the harm. I. e. 3 tortfeasors contribute in a harm to
Pepito. We can’t determine the contribution so we distribute the harm in equal parts
33%. But tortfeasor A knows that he made the 50% of the harm, so in this case
tortfeasors B and C are those more affected.

It can help the most responsible tortfeasor to pay less in cases where is complicate to identify.
Apply the joint and several liability only when the judges conclude that it’s impossible to
distribute the liability according to the judge opinion.

DAMAGE AND DAMAGES

DAMAGE

- Reliance interest (interés negativo)  what this says is that the victim is entitle to be
compensated only for the damages suffered as a result of the accident, to the situation before.
The base to calculate the compensation is the situation where the victim was before suffering
the accident. It is the completely opposite to the positive interest that allows to compensate
for the expectations interest those things couldn’t enjoy because the accident.
- All damages fit in this perspective even those that are not because of a breach of contract
must be compensated and erase the negative consequences to the same situation before the
accident, in contrast with contract law that also can compensate the expectation interest that
also pays for the situation that could have arisen if the contract had been successful.
- Full compensation (Reparación integra) is the main principal in this part. The damages must be
compensated in full, it much more intuitive to apply this principle in the Spanish tort law
system where there is a general clause than other legal systems. In contractual law the
intentional breacher of contract can be much more punitive than the one breach because of
negligence, even the damage is the same. Distinction intentional breach of contract and
negligent breach of contract should be applied in tort law. This idea is anymore an opinion,
there is no discussion that in tort law the focus must be put in the victim, the tort law is not
the sanction of the tortfeasor is just the compensation of the damages suffered by the victim.
Even if this idea is very intuitive that the intentional tortfeasor should pay more. But Spanish
 tort law put the focus on the victim and the damages suffered by her/his, assume that in
intentional damages those ones will be higher so the victim will be entitled to claim for a
bigger compensation. So, the relevance in tort law it’s not the intention of the causation of
damage but the damages suffered by the victim.
- There is a huge debate if tort law rules should incorporate the idea of deterrence (prevención)
and the relation of this idea and full compensation. If we want tort law to have the deterrence
effect, much more serious consequences should apply for tortfeasors that cause damage
which are highly undesirable  The goal of tort law then would be not only compensation but
also deterrence of results highly undesirable. Most of the Common Law jurisdictions of USA
apply to specific tortfeasors the jury is allowed to increase the amount of money that
compensate the damages of the victim, taking into account the specific conditions of the case,
where the tortfeasor was completely reckless and does not deserve compassion of the legal
system, this is call PUNITIVE DAMAGES. Definition would be that the damages can be
increased if the jury or court consider it because of the specific behaviour which is considered
especially negative. Punitive damages aren’t linked to the idea of compensation; therefore, the
scope of compensation is not only determined by the seriousness of damage but also to the
unlawfulness and disqualification of the behaviour. As a general matter there is no punitive
damages in civil law. But in the European tradition in some rules can be mentioned, so in
European tradition we don’t consider that those especially negative consequences should
apply punitive damages, this matter is something that the Penal law should consider but not
the tort law. It is especially strange in those systems with general clause such as the Spanish
one. Under Spanish tort law there is a very commonly applied example that fits in the specific
regime related to work accidents the court is allowed to increase from 30 until 50% of the
damages suffered by the victim and to be paid by the employer when this last one doesn’t
provide the employee with all the EPIS, but it is the only example of punitive damages.
- There is a doctrinal debate whether we should adopt punitive damages criteria. For reasons
that regard to our European legal level there is something like an agreement that punitive
damages are something that do not apply intuitively to the tort law rules.
- Spanish tort law only serves a compensation motive, the only function is to compensate and in
no case tort law rules should apply deterrence. It is considered that tort rules should be an ex-
post rules, according to this view the only goal of the tort law is compensatory and the
application is always ex post is a very intuitive and logical, since how we would compensate
before the accident happens (no tort liability will arise if damage doesn’t happen. No damage
 no compensation  no tort law application). Ex ante application is in contradiction with the
perspective we have of tort law. It is true the tort law is applied ex post, that serve the
compensatory function, but it is also true an efficient tort law system should apply the
prevention rules, not only because of disincentivise the causation of accidents but also
because the care of people when doing risky activities.

Sum up: Tort law = compensation. But the well-functioning of this system this compensatory should
apply prevention rules. The economic analysis of tort law says that if there are this prevention rules the
system would be disincentivising the causation of damage rather than causing the damage and paying
for the compensation.

The best way for reduce the number of accidents in society from specific perspective of the tort law is to
make sure that potential tortfeasor will pay for all the accidents that they cause, so the best way to
compensate a victim is to a victim never become one. The best tort law system is the one thar will never
be applied, because it works so well that disincentivise or all people try so hard not to cause a damage.
It is a question that blur the distinction between compensation and deterrence.
But the full compensation it is not always the best solution, because if paying for the full compensation
is more beneficial for the tortfeasor than not causing the damage, the tortfeasor will cause the damage,
that’s exactly what punitive damages try to avoid.

Using the tort law not only to compensate but also to reduce the number accidents, we save the society
money. The debate then is in what is more important to avoid accidents or to full compensate the
victim? If we consider more important the fact of avoiding accident for happen then in order to achieve
it the focus should not only be in the victim but also in the benefits of the tortfeasor.

Under Spanish tort law even the debate exists assumes and follows the idea of full compensation, let’s
assume that full compensation causes somehow deterrent effects (secondary). Full compensation is the
best way that we have to respond to compensation and deterrence.

DAMAGES

PROPERTY DAMAGES. Victim can suffer property damages. Property damages are usually easy to
compensate by determining the value of the thing destroyed or damaged. This is not so easy as it seems
at first sight but property damages let’s assume usually can be well compensated by giving the victim in
money the market value of the thing destroyed. There can be specific assets with specifics
characteristics that can make those assets different to those valued on the market.

PHYSICAL INJURIES. Such a disability or loses an important organ or movement because of the accident,
this person will be unfit to develop some personal activities or even professional activities. These kinds
of damages are very difficult to calculate the value. (How is calculated?)

MORAL DAMAGES. Damages for pain and suffering. In these cases, is very difficult to determine the
amount of money that compensate this kind of damage, like depression or in which I’ve lost a relative,
obviously they must be compensated but the problem is how much. Let’s the victim to prove the real
extent of the suffering.

Spanish lawmaker in 1995 one of the few in the world that decided to enact a legal rule where
established a system which quantify the amount to be compensate suffered by victims in road traffic
accidents. This system in Spanish legal terms is called baremo. Baremo is mandatory in order to
compensate the road traffic accidents. This system established an amount of money for physical
damages and also the moral damages. The problem is that the baremo has discriminatory issues to the
extent that it doesn’t take into account the specifics of the case (It is not the same that Messi lose a leg
than a university professor lose the same leg). In tort law, lawyers when they have to claim for a
compensation in other field different to road accidents tend to determine the minimum amount
according to the baremo.

Baremo = road traffic, makes the decisions about the amount much easier and it is very well specified,
that doesn’t mean that it hasn’t been the target of criticism by some parts of the doctrine, and those
points more controversial are the ones related to moral damages as a consequence of this road

General baremo = easier the life of judges and lawyers, but also makes easier the life of potential
tortfeasors because they can anticipate the amount to be paid and compare it to the benefits they gain
with the causation of the damage.

TORT AND CRIMINAL LAW

Facts may trigger at the same time a criminal response but also the application of tort law. Killing
someone will cause moral and economic losses of their relatives. The compensation of the victims is not
the scope of criminal law, even though it is true that criminal law systems have evolved, their main goal
is to prevent and prosecute criminal offences and not to focus on the compensation of victim’s
damages, which is the function of tort law.

- Public law protects public interests  criminal law is a public law, since it tries to keep the
society with no criminal offences or reduces them, so is searching for a public interest which is
the security and peace within society.
- Tort law belongs to a private law and it’s applied only if the victim claims (no public reaction,
no public prosecution) and the only consequence tortfeasor faces is paying for the
compensation, no jail, since only criminal laws are allowed to restrict the freedom of an
individual.

Several features of the claim in tort law can be distinguished of criminal claims.

Tort

1. the damage may be insured, which is unthinkable when talking about crimes, except intentional
damage.
2. Liability in tort may be vicarious, this is unthinkable in criminal law.
3. Specific jurisdiction that applies tort law – Jurisdic Civil Criminal law is applied by specific criminal
jurisdiction too (jurisdicción penal).

All these features are a result of the evolution and they how become common in western legal systems.
However, crime and tort law had a common origin, and there are structural issues that criminal and tort
liability share such as the causation analysis. The causation problems are the same  proximate
causation. Same happens when talking about negligence or intention.

Origin: reaction of the legal system when someone does something wrong. Historically, this reaction was
similar or the same in case of crime or tort. However, nowadays they are clearly two different parts of
the legal systems.

Coordination

Still, same wrongful behaviours meet the definition of criminal offence but at the same time it might
cause a damage.

In addition to a criminal reaction, a compensatory claim from a victim can be added by the victim of the
crime itself or by other people affected (relative). Legal systems must find a way to coordinate the
systems in these cases.

Even in cases where a same fact is crime and tort, this might be a procedural issue. Should the victim
start both claims at the same time or choose just one? Nowadays the problem is presented as a
procedural problem to solve how the victim has to claim when the same fact sparks both types of
liabilities.

Solutions in comparative law

1. Victim may choose. They may start either a criminal or tort procedure. Considered a bad solution:
public interest problem. If it’s assumed a public response is needed in case of a crime, victim’s
choice might not fulfil the protection of public interests (sin perjuicio de delitos privados) if the
victim chooses tort compensation only. So criminal law should have some preference.
2. Preference to criminal proceedings. Most of the countries have adopted this solution, but not Spain.
Once they finish, the victim will be entitled to claim for compensation. Respects public interest
 issues and allows the victim to claim after criminal liability issues are solved (first we solve criminal
law questions and then the tort law ones) Problems:
a. Waiting of the victim for the criminal process to finish that can last a long time  during
the process victims may die and they won’t be entitled to compensation until the criminal
process finishes.
b. Victim of criminal of criminal offences usually suffer from really serious damage, so making
them waiting might be dysfunctional  victims who suffer the most aren’t treated in the
most protective way in terms of claim for tort entitlement.
c. If the tortfeasor isn’t considered a criminal offender, you still will be able to make your
compensatory claim.
3. Spanish legal system. It’s seen to be a good solution to the problem. In the XIX century, in Europe
the codification movement started, which gave legal systems sets of coordinated rules according to
same principles  codes. Civil, Commercial and Criminal codes, in times of 1812 Cadiz, wanted to
be implemented in all the kingdom. There was tension between liberals and reactionaries during
the 19th century, the civil code was the last one to be enacted (1889). The criminal code was
enacted in 1822. When the first criminal code was enacted, there wasn’t yet a civil code, which
would come after 70 years, so the problem of coordination of criminal response and tort law claim
was present but there was no civil code regulating the issue so Criminal codifiers decided to solve
the problem in the criminal code, that’s why the criminal code in the articles 109 – 122 concerns la
responsabilidad civil derivada del delito. Since then, all Spanish criminal codes have maintained this
structure. Spanish Supreme Court has always highlighted the rules of 109 – 122 are civil law rules
within the criminal code  the legal nature of these rules has civil nature, private law nature. A
criminal code can only be enforced or modified by a Ley Orgánica but this is not applied to these
private law rules contained in the CP.

There is non bis in idem since they have different consequences (public and private). The interests
protected are not the same one is public and the other protect private ones. In administrative law
would be bis in idem = same public interests. They are not subjected to prohibition of analogy that
applies to criminal rules, referring to the tort law rules regulated in the Criminal code. Criminal law
is subjected to a strict policy of retroactivity, Court has to decide according to more favourable rules
enforced after the crime. In civil law order, we cannot apply a law posterior to the fact.

Art. 109 Criminal offences entail the duty to compensate. The legal reaction is not only exhausted
with criminal reaction, the victim is entitled to choose between criminal courts or civil courts for
claiming for compensation. Victims usually prefer the default solution since the burden of proof is
prove by the prosecutor and they can save the costs.

As a general principle, criminal courts deciding criminal liability will decide the tort compensation
too and all in the same procedure. However, the victim can opt to claim before civil courts once the
criminal proceeding has ended (art. 44 LOPJ; when a criminal offence is present, criminal courts
have preference. If the criminal procedure starts, the rest of the legal system stops  no private
law may start having cases for claims of tort; no court or judge can present a competence conflict
against the criminal jurisdiction body). The system allows a protective (…). The victim has to decide
if they want to make this reservation to the civil court at the beginning of the criminal procedure,
the default rule is the criminal procedure knowing it all.

Problems:

- If the victim wants the compensatory issues to be decided in a civil court, they have to wait the
criminal procedure comes to an end. Private law can only examine the case once the criminal
procedure has ended.
 - To what extent civil law court deciding compensation issues is subjected to statements made
by the criminal resolution? Can it be (?) disregarding them? If the criminal court has decided
the tortfeasor is the author of the criminal offence does the civil court to analyse the
authorship again? Principle: in these cases, these statements made by the criminal court
regarding requirements of tort law (causation, negligence…) are res iudicata for the civil court.
They cannot change the conclusions made by the Criminal court. Otherwise, we could face the
absurdity of contradictions.
- Statute of limitation. (Clarification: In Spanish CC the phase of prescription is a year; art.
1968.2 CC). Which is the statute of limitations of the claim if the victim has adopted for the
criminal code solution?
o Jurisp 1ª Sala TS (civil): decided in cases of tort liability, but the one for personal actions
(5 years) of article 1954 CC. Justification due to the historical origin of this institutions,
it’s not a pure tort liability claim. Therefore, the victim opting for 109.2 CP, it has 5
years to claim after the criminal resolution. So, in the case of crime + damages there are
2 options:
 Criminal procedure  the criminal court decide about everything (Crime and tort).
If there is crime, then the tort law issues will be solved. No crime  no liability.
 Decide going with the 109.2 CP option  take the liability part to a private law
court, but having to wait for the criminal procedure ends.
o If there is no crime, tort issues can’t be decided in the criminal court  when this
happens, independently of the fact the victim has not opted by the 109.2, the victim is
in the same position of a victim who has suffered damages with no crime  during the
time criminal procedures have taken place, the statute of limitations is interrupted and
the 1 year (…). The criminal court doesn’t have to decide on tort if there is no criminal
offence, but the legal system give me the option on going to the civil court in 1 year
time since the expiration term would have been interrupted during the criminal
procedure. If the victim has opted for art 109.2 can go to the civil court since the
criminal court resolves.

STATUTE OF LIMITATION

There are no European common rules on the statute of limitation that we understand as the periods and
interruptions and everything related to deadlines are set up by each country.

In tort law in order to get paid victims have claims towards tortfeasors. But the question is when a victim
can enact this claim?

The general rule under Spanish tort law is established on article 1968.2 CC. This article establishes a 1-
year period to exercise this claim, so as a general rule a victim can fill a claim during 1 year. This period
may be interrupted:

- Victim starts out of courts proceeding  negotiation with the tortfeasor to arrive a deal.
- Judicial proceedings  the victim begins a judicial proceeding against the tortfeasor.
- Recognition by the tortfeasor

Overall, this general rule sets a short period of time while in most European legal systems have longer
periods for this kind of actions. The same article sets the moment where the victim is entitled to claim
and the article 1968.2º CC establishes “…since the victim knew it”.

Spanish case law

Regarding the question when the 1-year period starts, art. 1968.2º invites judges to develop this
doctrine, as this article doesn’t establish an OBJECTIVE MOMENT (for example, in contractual claims
start in the day of the contract), but since THE VICTIM KNEW its condition as a victim, not the objective
moment when the accident occurred but when the victim knows is a victim and know that can exercise
the right of 1902 CC.

The final statement has been a base for Spanish case law for establishing a dies a quo  the day the
victim knows (s)he is a victim + the victim knows against who has to direct this claim.

WHEN DO THE STATUTE OF LIMITATION BEGINS?

1. Aftermaths. Physical injuries. The 1-year period starts to run after the consequences of the accident
have been established  the victim knows the exact consequences of the accident, also called
aftermaths. For example, from a medical point of view the victim knows all the consequences when
the aftereffects have consolidated.
2. Latent damages. In cases in which damage appears after a long period. For example, the wase of
toxic substances can affect people living around the river or the area, but the consequences can
manifest after a long period of time (+1 year). These are called LATENT DAMAGES, it can happen
also related to the consumption of some medication, construction field. The article 1968.2º CC
allows Spanish courts to state the dies a quo starts when the damage manifests itself.

In the end this case law tries to objectivise the subjectivity of the article 1968.2º CC:

- Solution keep balance between protection of the victims:

o While period is short, the dies a quo balances it.
o Legal certainty for the tortfeasors
- Probably some scientific evidence will be required to determine the dies a quo.
- Systems that take the dies a quo, as the day of the accident have problems dealing with the
aforementioned situations.
3. Daños continuados = Permanent damages. The victim is constantly subject to damages, usually
physical injuries, and it is not easy to reach or conclude which the consequences will be. For
example, in the birth moment the baby suffers damages  it’s difficult which consequences will
have in his life  when does the dies a quo start? It is not only a statute of limitation problem but
also a legal causation problem.

It doesn’t fit well with the aftermath. In this case the dies a quo starts when the victim:
- Knows they are a victim
- Knows what future problems will arise
- Knows who is the tortfeasor or are the tortfeasors.

There are many specific statutes that regulates specific tort law claims, some examples are the road
traffic roads or the ones related to competition (TRLGDCU), even being specific provisions, they tend to
respect this 1-year period established as general rule, but in the case that a law establishes a different
statute of limitation then this special period will prevail.

The Catalan Civil Code established a different statute of limitation for tort law claims in which case is 3-
year period to make our complaint. There are no Catalan tort law rules, though the Catalan lawmaker
has not regulated yet specific tort law rules, the lawmaker decided to establish a specific rule for tort
law claims.
To what extent makes sense to regulate the statute of limitation in a different way as the established to
the nature, requirement by the Spanish tort law? So, in Catalunya we have a different Statute of
limitation different to the Spanish tort law rules, but we don’t have specific tort law rules in the Catalan
legal system.

The Statute of limitation is something that clearly contradicts the Spanish Civil Code rules, but this is
completely constitutional, and this problem will be common and accepted at least until the Catalan
lawmakers enact Catalan tort law rules.

The case law has solved this problem in the following way which is that accident occurring in Catalunya
is applied the 3 years period. So, the solution of application of statute of limitation will depend on the
geographical location. So, the same accident occurring in Madrid will have a 1-year period while in
Catalunya would have 3-year period.

There is an exception to this solution and the reasoning is in two decisions written in the same day (STS
September 6 2013). Two cases arrive to TS, both occurred in Catalunya but where cases regulated in
specific tort law legislation (Traffic Road accident) which established a statute of limitation is 1 year
period. So, the question was which statute of limitation the 1-year period or 3-year period should be
applied? The TS decided in general rules of legal reasoning which was: “the problem is not about which
statute of limitation is applicable, but the fact that specific statute of limitation displaces the general
statute of limitation. So, in this case where there is a specific statute of limitation, the 3-year period
doesn’t apply based on a speciality criterion” (Criterio de especialidad).

Outside the tort law cases with specific statute of limitation the general rule applies, so in Spain (1year)
and in Catalunya (3years). The cases where there is a specific statute of limitation this one displaces the
application of the general rule independently where the accident occurred (inside Spain) and the
applicable statute of limitation.

Dies a quo (Catalan law) when the plaintiff knows or is able to know all the circumstances that make it
possible to fill in the claim.

PUBLIC BODIES LIABILITY

Spanish tort law is an exception in the international scenario regarding the liability of public bodies,
since we have a specific legal regime applied to public bodies. So, the tort law rules application is
different depending on if the tortfeasor is a public body or if it is a private person. This regime is
regulated in Ley 40/2015, 15 octubre, in articles 32 to 37.

There are 3 specialities:

1. Strict liability. Regarding public bodies the general rule is a strict liability regime at least in theory.
So, victims have the right to claim for compensation by public bodies when they suffer damages
caused by the normal or abnormal functioning of public services. It is a very problematic question; it
could imply if I am going to a public hospital and the public doctors cannot cure my illness, I could
say that I suffered a damage caused by the public hospital and ask for a compensation. Courts have
always interpretated this strict liability standard has to be applied based on the idea of proximate
and legal causation, where the public body has some participation.
2. Liability is direct. Victim who suffers a damage because public services have to claim for
compensation to the public body in charge of the public service, in no case against civil servants,
with the only exception of criminal liability. Ones the public body has paid to the victim, it has the
possibility to claim the reimbursement against the civil servant but only in cases where the civil
servant has acted with especial reckless fault or intention, in no other case will have this claim.
 (opposite to the right that has the private employer to claim for reimbursement to their employees
which is always). In case of private schools, the director should pay for the damages that pupils do
and only claim the reimbursement to the teacher in case he/she acted with serious negligence or
intention, it applies the same regime as public schools but only in this case, in other cases privates
can ask always for reimbursement.
3. Courts. All claims for damages caused by public bodies under Spanish law must be filled and
presented before the administrative jurisdiction (Jurisdicción contencioso-administrativa), and
never before private courts. CIVIL COURTS DON’T HAVE COMPETENCE TO SOLVE CASES OF TORT
LAW AGAINST PUBLIC BODIES. The law applied to private entities that make public functions is the
one that we apply to private people since essentially, they are private entities even being finance
with public funds in its majority.