Non Physical Damage: a Comparative Perspective.

Abstract

The interest of jurists in legal systems other than their own has been a matter of long tradition. All legal systems have the same purpose of regulating and harmonizing the human activity within their respective societies, and in each society the legal system forms part of the culture and civilization as well as of the history and the life of its people. Many legal problems are conceptually the same wherever they arise. Jurists from different systems confront the same problems. Sometimes codes and case law give the same answer, sometimes those answers are different; if this was the case, I wanted to explore whether some answers were better than others. It would certainly not be accurate to say that there has been no approximation between the civil law and the common law traditions. Arguments that these two systems are drawing progressively closer can be heard more and more often. In spite of having started from opposite extremes, it is said that as a result of the movements the civil law and the common law have made in the direction of the other, there is no longer much difference between them. The same social needs, and similar economic and technical conditions, have led to the adoption of similar solutions for their legal problems. However, even admitting as a fact that the results might be close to each other, the methods used to reach them are nevertheless extremely divergent. After all, the ‘idioms of legal thought’ and the guiding habits of mind are different. A civilian naturally reasons from principles to instances, the common lawyer from instances to principles. The civilian puts his faith in syllogisms, the common lawyer in precedents; the first silently asking himself as each new problem arises, ‘What should we do this time?’ and the second asking aloud in the same situation, ‘What did we do last time?’ The civilian thinks in terms of rights and duties, the common lawyer in terms of remedies. The civilian is chiefly concerned with the policy and rationale of a rule of law, the common lawyer with its pedigree. The instinct of a civilian is to systematize, the working rule of the common lawyer is solvitur ambulando.1 By the end of the nineteenth century, Oliver Wendell Holmes was telling Americans not to study civil law because ‘it tends to encourage a dangerous reliance…on glittering generalities’ instead of ‘the exhaustive analysis of a particular case which the common law begins and ends.’2 It has not always been so. At the beginning of the same century, new 1 Thomas Mackay Cooper, ‘The common law and the civil law-A Scot’s view.’ (1950) 63 Harvard Law Review 468, 470 2 Oliver W Holmes, ‘Misunderstandings of the Civil Law.’ (1871) 6 American Law Review, 37, 49. translations appeared of Grotius, Puffendorf, Pothier and Domat.3 Courts and treatise writers used them. An English judge praised Pothier as the highest authority one could cite next to an English case.4 A New York court consulted Grotius, Puffendorf and Barbeyrac to decide who owned a fox caught on Long Island, a decision that still appears in many American casebooks.5 At no point does this thesis have the purpose of pretending to demonstrate the cultural superiority of one system over the other. Each system possesses strong characteristic of a distinct and comprehensive nature that establishes its own individuality. In its own ethnic and historical framework, each system serves well the society in which it functions; each has demonstrated its ability to satisfy the social and economic needs of a world in constant change. Each has also maintained a balance between the elements of flexibility and adaptation, on the one hand, while assuring the essential attributes of stability and security, on the other. I assumed from the beginning that comparative law is much more than a set of different legal rules. It has a historical, political, social and cultural dimension. The law is rooted in the culture, it reflects the Volksgeist (the spirit of the People) and it responds to the specific demands of a given society in a given time and place. Substitution of one legal tradition for another would neither be possible nor desirable. At the start of this research, a shocking contrast between styles revealed that the difficulties were going to be huge. To a civilian lawyer who was having his first contact with the common law, it looked as if I had in front of my eyes a gigantic, disorganized, amorphous mass of cases. It was not until later, that I learned that the same feeling existed among common law lawyers. It was not a civilian, but Bernard Rudden who wryly observed that ‘the alphabet is virtually the only instrument of intellectual order of which the common law makes use.’6 In particular, in relation to torts, it has been submitted that the fundamental reason for this is that, unlike the law of property or the law of contract, both of which (at least in part) have to formulate guidelines within which individuals can arrange their affairs, the law of torts always has to respond retrospectively to alleged wrongdoings.7 In any event, the fact is that it was clear from the beginning that the lack of normative coherence and consistency that a code provides (and to which I was used to) was going to represent for me a permanent source of disorientation. 3 Simpson, ‘Innovation in nineteenth century contract law.’ (1975) 91Law Quarterly Review, 247. 4 Cox v Troy, 5 B & Ald 474, 480 (1822) by Best, J. 5 Pierson v Post, 3 Cai. R. 175, 2 Am Dec. 264 (1805). 6 Bernard Rudden, ‘Torticles’, (1991-1992) 6-7 Tulane Civil Law Forum 105, 110. 7 D.J. Ibbetson, A historical introduction to the Law of Obligations (1999) 57. Early doubts started to emerge: would it really be possible to compare an abstract system of thought divorced from particular sets of facts, as the civil law is, to a bunch of inductive ideas capable of functioning only within limited factual spheres? Was it really going to be possible to compare a system capable of transcending disputes by moving away from factual immediacies to a technique of dispute resolutions? Warning about the difficulties of comparative law, one of the greatest English comparatists, Professor Frederick Lawson, remarked how hard it is to comprehend the main subjects of just a single system of private law. He certainly was well aware of the enormous background that lies behind a comparative work and, most of all, the Herculean effort that it takes to anyone who has the courage or naivety to venture into the dense and trackless forest of a second system. Just as an experienced traveller contemplating a long and dangerous road that is as likely as not to take him to the right destination might reasonably refuse to leave home, the prospective obstacles of the comparison of the laws of different families are in such a big number and of such scaring dimension, that wisdom would advise to give up before even starting. At the same time, and perhaps for the same reasons, the challenge represented an irresistible temptation. It has been said that to learn another system of law is like learning another language and just as a person who is bilingual is much better able to appreciate the merits of the languages he speaks, the contrast between two systems, so different in their genius and their genesis like the common and the civil law, can certainly provide a much richer range of model solutions than they could possibly do on their own. Although initially my intention was not to describe any specific national jurisdiction, but simply to contrast a set of prevailing attitudes, tendencies or currents of thoughts towards liability for non physical damage in the two main legal systems, soon this approach started to show its impracticability. Despite the strong forces tending to produce uniformity within each system, diversity exists and, on many occasions, the precise legal rules in force of particular jurisdictions differed so widely that it would be inaccurate to keep the assumption of monolithic, unified or homogeneous viewpoints and some necessary references to specific jurisdictions (in both systems) were finally made. Because of the major contribution that France and Germany have made to the civil law tradition and the intellectual leadership that both occupy in the civil law world, most of the time I have chosen those models as a representative, although partial expression, of the civil law perspective to each of the issues that were under scrutiny. In the common law, England, Australia, Canada and New Zealand are often subject of my attention. The notion of ‘non physical damage’ as a unifying concept would probably not mean too much to a common law lawyer. By the same token, psychiatric harm and economic loss as particular types of damage with different applying rules would make many civilians to raise eyebrows in disbelief (or disdain). In the common law, the rules relating to the negligent infliction of non physical harm did not develop alongside the principles governing the negligent infliction of physical damage. The significant consequence of this peculiarity is that the nature of the injury suffered becomes a very important factor in determining the protective scope of the duty of care. To single out psychiatric harm and economic loss as selfcontained categories represent an immediate need for creating special control factors, and this appears to be intrinsically associated with arbitrary and anomalous results. These two perplexing and difficult areas of the law seem in amazing contrast with the intriguing simplicity of the French system which approaches cases of non physical damage applying the same criteria as to any other tort claim. In the first chapter, I analyze the law relating to the recovery of damages for psychiatric harm. I start the research in the common law where it unquestionably represents a very complex area of the law without apparent coherent background principles. In the second part, the research compares and contrasts the different (in some cases considerably different) approaches of several civil law jurisdictions with particular emphasis on French and German law. In the second chapter, I examine the recoverability of economic loss. Out of its infinite variety of factual situations, I have chosen as a starting point for the analysis and discussion three of the main categories: misstatements, relational economic loss, and defective products or building structures. Following the same pattern as in the previous chapter, I discuss in the first place the approach taken in the common law, where the levels of complexity seem to be much higher. Finally, the third chapter is reserved for the conclusions, stressing in particular the undeniable artificiality of the category, the excessive role attributed to policy and the relevant place that should be reserved for morality in the law of torts. In retrospect, to choose non physical damage as the theme of my thesis was probably unwise for someone with no experience in the common law. Neither psychiatric damage nor economic loss has arrived at any fixed form; everything is highly ambivalent. The puzzles and anomalies that constantly surround them are certainly greater than in any other area of the law and they represented a permanent reminder of my lack of wisdom. Both psychiatric damage and economic loss are complex, vast and multifaceted issues. Both are of universal scope. They count among those topics which universally create difficulties transcending the idiosyncratic formal-conceptual foundations of the various local systems. Both are placed at the very heart of tort liability and raise the most fundamental questions about the boundaries and frontiers of liability and private litigation. Be that as it may, I accepted the challenge. Whether I have succeeded or not is not for me to decide. However, what I would like to reinforce is that this is the look of a civilian, not a common law lawyer, and this naturally reflects, not only on the conclusions but also in the method, systematization, and even the style of analysing cases and over viewing of principles. For that, I ask the sympathy of the reader.