From: Ken Oliphant <ken.oliphant@oeaw.ac.at>
To: Ralph De Wit <ralphdewit@skynet.be>
obligations@uwo.ca
Date: 26/05/2011 06:29:24 UTC
Subject: RE: ODG: Intent, wilful misconduct and gross negligence
Dear Ralph
 
These issues are discussed from a comparative perspective in the following:
 
P. Widmer (ed.), Unification of Tort Law: Fault (2005), ISBN 90-411-2098-X 
[http://www.ectil.org/ectil/getdoc/be1e54ab-7079-438a-95df-affed3fcb219/PETL10.aspx]
 
The editor by the way is Swiss.
 
I know the book discusses gradations of fault and their legal impact / practical consequences, but I don't have it to hand so I don't know if it identifies cases you might be interested in.
 
For the common law, I would start with Restatement 3rd of Torts: Liability for Physical and Emotional Harm, §§ 1 - 3 and chase up interesting-looking case references in the Reporters' Notes.
 
I'm not aware of much interesting discussion of the concepts in the English cases, but there's some rather rudimentary analysis of intention in OBG v Allan [2007] UKHL 21.
 
Best wishes
Ken
 
 

From: Ralph De Wit
Sent: Thu 26/05/2011 7:26 AM
To: obligations@uwo.ca
Subject: Intent, wilful misconduct and gross negligence

Dear Members

 

I am endeavouring to make a comparison between the basic rules governing intent, wilful misconduct and gross negligence in French/Belgian and Swiss law. These concepts are always a bit vague and heavily influenced by the facts of a case, but there are marked differences: in Swiss law, e.g., it is not possible to exclude or limit liability for gross negligence (Article 100 Swiss Code of Obligations).

 

I have two questions to put to the Group:

-      does anyone have any suggestions on key readings in Swiss law (I am well acquainted with French and Belgian law), especially cases where the concepts are explained as a matter of principle;

-      would you see any useful comparison to common law cases?

 

Of course I am well aware that such a subject is nearly endless, but a comparison with some leading precedents may be useful because the concept of wilful misconduct as such does not separately exist in French, Belgian and Swiss law, so a detailed account of the concepts in common law jurisdictions may help to clarify the standards to be applied.

 

Best regards

 

Ralph De Wit

 

Ralph De Wit
Law Faculty VUB (University of Brussels)
Faculty of Applied Economics UA (University of Antwerp)
Van Doosselaere Attorneys (Antwerp)
Office: +32 3 203 40 03 (direct line)
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RalphDeWit@skynet.be, RalphDeWit@vandoosselaere.be