related to strict liability) are terms that are both overly concise and ambiguous. As
long as they are not defined precisely, the terms “risk” and “fault” can only serve as
catch words. For a better understanding of the specific legal rules on liability in the
different European countries and the types of liability developed in case law, we
will distinguish between different forms of liability.
6.3 Liability for One’s Own Fault; the Common Law Approach
Suppose that Stevenson, the manufacturer of the bottle of ginger beer that Mrs. Donoghue
drank, had poor sanitary conditions in his factory, and that this was the reason why a snail
got into the ginger beer. Arguably, Stevenson’s behavior violated a duty of care towards the
consumers of Stevenson’s ginger beer in general and towards Mrs. Donohue in particular
and was therefore unlawful. Stevenson could be blamed for this unlawful behavior and
would be held liable under the tort of negligence.
In this section, we will focus on the question when behavior is unlawful. We
have already seen that common law recognizes different kinds of torts. A complete
treatment of the question of which behavior counts as unlawful would therefore
have to deal with these different kinds. But we have also seen that one type of tort,
negligence, has come to dominate an important part of the field of tort law. We will
therefore only pay attention to this tort. In general, there are four conditions that
must be satisfied for liability under the tort of negligence:
- there must have been a duty of care,
- this duty must have been breached,
- there must be damage, and
- it must be a damage for which the tortfeasor is responsible.
In this section, we will only focus on the question when a duty of care exists.
6.3.1 Duties of Care
A lawyer stood up and tested Jesus, saying, “Teacher, what shall I do to inherit eternal life?”
He said to him, “What is written in the law? How do you read it?” He answered, “You shall
love the Lord your God with all your heart, with all your soul, with all your strength, and
with all your mind; and your neighbour as yourself.” He said to him, “You have answered
correctly. Do this and you will live”. But he, desiring to justify himself, asked Jesus, “Who
is my neighbour?”
Jesus answered, “A certain man was going down from Jerusalem to Jericho, and he fell
among robbers, who both stripped him and beat him, and departed, leaving him half dead.
By chance a certain priest was going down that way. When he saw him, he passed by on the
other side. In the same way a Levite also, when he came to the place, and saw him, passed
by on the other side. But a certain Samaritan, as he travelled, came where he was. When he
saw him, he was moved with compassion, came to him, and bound up his wounds, pouring
on oil and wine. He set him on his own animal, and brought him to an inn, and took care of
him. On the next day, when he departed, he took out two denarii, and gave them to the host,
and said to him, ‘Take care of him. Whatever you spend beyond that, I will repay you when106 G.E. van Maanen and J. Hage