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Old 18-10-2007, 13:58   #6
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Varsayılan Haksız Fiil Dava Örnekleri

Typical Tort Cases

Case 1: (Balton v Stone) A cricket ball batted by Batsman B hits a pedestrian (P) passing by the cricketground. P is hurt. The ground was surrounded by a fence whose top, due to the slope of the ground, was 17 feet above the level of the pitch. The fence was 78 yards from the striker, and the pedestrian was 100 yards away when he was hit. During the last 28 years only 6 balls had been hit out of the ground so that the club (C) believed that it was not negligent.

Addtion by the Author: Assumed B is a member of the club C. Further assumed P had suffered an open wound at his head, the doctor took 50 Pounds for stiching, P’s blood dripped on his shirt, washing for 10 Pounds was needed. P also claims for money for pain.

What is P able to claim from C or from B?

Solution:
o. Preface: No contractual, no contract similar and no delivery claims visible. So only tort is applicable

I. Liability of B
P could claim 60 Pounds damages for washing and surgery from B out of §823 I BGB

1. Liability causing facts of §823
- A person who (the person has to be responsible after §827 or §828). B was the one who stroke the ball. He was casual.
- Injures another’s
. Health, P is bleeding (+)
. Property; protected against violation of a thing’s substance: P’s shirt is dirty (+)
- Not written but logically needed: by an attributable behavior (casual (+) and adequate (foreseeable) action: hitting the ball (+) but the question is if he could foresee the result. We assume that he could not, as we assume it was his first game on this ground and the fence was not obviously too low.

2. As a result B is not liable as he could not foresee the result (ATTENTION: This can obviously interpreted in another way. Some courts might say that a player always can foresee, that his action could do harm to outsiders.) But this depends very much on the case, on the experience the player has, on his reliability etc. As we don’t know much about this case, we don’t assume here.

II. Liability of C
1. P could claim 60 Pounds for washing and surgery from C out of §823 I BGB
a. Liability causing facts of §823
• A person who: C is juristic Person but it’s liability is only on behalf of an action of its representatives following §31. So if an organ of the club is responsible, C is responsible for it’s organs. It’s to be assumed, that an organ of the club decided about the height of the fence. So C is a person after §823.
• Injures another
o Health, P is bleeding (+)
o Property; protected against violation of a thing’s substance: P’s shirt is dirty (+)
• Not written but logically needed: by an attributable behavior. (Bourhill v Young) action or omission) The organs of C decided about the heights of the fences. So their decision and their omission to heighten them was an attributable behavior.
The question again is if it was foreseeable.
The organs of C knew already about 5 events in the last 28 years where a ball passed the fences. So they were able to know that it is possible at a cricket game, that a ball can fly over the fence.
The fact, that it has not yet hurt anybody is not an excuse, as this way just by chance. The organ must have seen, that pedestrians are passing by the stadium. The incident was foreseeable. So not heightening the fence after several experiences of a ball flying over the fence was an causal and adequate omission.
• Unlawfully: There has to be a duty care.
The omission was only unlawful if C had the duty to prevent balls flying over the fence. The question is now, if the fact that it only happens very seldom, is enough not to insist on a higher duty of care.
We learned already that anybody who opens or maintains a certain source of danger has to care for injury not to come true by necessary and reasonable means. As in this case it was foreseeable that a ball could fly over and as it was after common experience of life not unlikely that a person could be hit, I would prefer to demand higher duties of care as C’s organs regarded as sufficient. Batting a ball by players on the playground is a source of danger maintained by the club. Cricket balls are heavy and hard. People hit unforeseen by a cricket ball are likely to be injured. So there should be good care for this not to happen. It would quite easily be possible to higher the fence.
• Fault: willfully or negligently (exceptions see §827, 828 mentioned above)
o Willfully: Knowledge and will to cause a success and knowledge about unlawfulness (e.g. existing duty of care) is needed: Surely it was not intended by the club organs keeping the fence low to injure people.
o Negligently: Taking no required care; However they didn’t take the required care demanded above. So this was negligent
b. Liability determining facts:
Damages caused by the unlawful omission were the doctor’s costs as well as the costs for cleaning the shirt. This was 60 Pounds altogether.

As a result P can claim 60 Pounds out of §823 I from C.

2. Furthermore P could claim money for pain from C after §847

§847 demands that a immaterial damage has been caused by a tortuous action. This is the case here. Pain is immaterial and it was caused by the negligence of C.
The amount of money to pay him as money for pain is decided by the court.

Case 2:
Famous actress Birgit Bidet (BB) is having a sunbath in her well protected garden. Next day the SUN publishes a photograph of her made from a helicopter topless on a deckchair in her garden. Headline “Bidet has hanging tits!”

What can she do if she’s not having hanging breasts? What if she’s having? What if the Wonderbra factory publishes the picture for an advert?

B could compel the sun to refrain from publishing her photo again, she could claim a counter-declaration and she could claim immaterial damages after §823 I

1. Liablity causing facts
- A person; the SUN publishers
- Injures another’s rights
The privacy right is an objective right. Art 2 and Art 1 of the Grundgesetz provide a comprehensive protection of one’s personality. Personality is protected in the whole range of one’s existence. The right of one’s picture is one part of this right.

However the courts have decided to reduce this right of one’s picture when a famous person is being photographed. But those photos have to be in a context to certain events and to current interests. That is the case if B would be going to a film festival and would be photographed at this event. So those photos which are not in a current context injure the right of personality. If somebody’s sitting in his private garden and this garden is protected against views from outside, this person has the right to have his private personal sphere respected.
So the personality right of BB is hurt by the picture. It is also hurt by the headline. The personality right also contains personal honour. By attesting her hanging tits her honour is being badly hurt. No matter if this is right or wrong. Even the wording is bad enough.

- Taking a photograph from a helicopter and writing the headline is an adequate behaviour.
- This behaviour is unlawful, as there is no justification by common interest to interfere in the private or better intimate sphere of another person.
- The photograph was taken, the headline was written by intention, so there also was fault.
2. Liability determining facts
- As a consequence BB can claim at least the omission of publishing the photo again.
- Furthermore she could claim a counter declaration of the headline. Therefore it is not needed that the headline is true or false. The law follows the principle “audiatur et altera pars”, so somebody can demand a counter statement if his personality right is injured no matter if the fact injuring him true or false. So it doesn’t matter if her breasts are hanging or not.
- At last she can claim a compensation of the immaterial damages which came up by the intensive violation of her personal honour by the unfriendly wording.
- If finally the Wonderbra factory would publish the photo for advertising she could also claim damages for not being payed by them, as they are unlawfully making money with her name.