Comparative Notes on Injunction and Wrongful Risk-Taking
| Date | 01 March 2010 |
| Published date | 01 March 2010 |
| DOI | 10.1177/1023263X1001700102 |
| Author | Willem H. Van Boom |
| Subject Matter | Article |
10 17 MJ 1 (2010)
COMPARATIVE NOTES ON INJUNCTION
AND WRONGFUL RISKTAKING
W H. B*
AB STRAC T
is article looks into the role of injunctive relief in tort law. More specically, it focuses on
the role of injunction in cases concer ning wrongful risk-taking behaviour (as opposed to
intentional or deliberate wrongdoing). Although there seems to be little practical experience
with injunctive relief in cases of wrongful risk-taking behaviour, b oth the dogmatic and
practical implications of allowing or rejecting such claims are formidable. By granting
petitions for injunctive relief, courts eectively conver t ex pos t claims for compensation
into primary duties to act or omit. By contrast, rejecting injunctive relief renders tort law
rules into mere taxes on wrongf ul behaviour. Which of these two routes is chosen by courts
and legislators and how force ful are the arguments used to support either cho ice?
e aim of this paper is twofold: rstly, to gain a better understanding of the French, German
and English legal systems with respe ct to the role of injunction in tort law and secondly, by
drawing on the comparative analysis, to identify the implications of allowing and rejecting
injunctive relief for the understan ding of tort law. If indeed the role of injunctive relief
in case s of wrongf ul risk-taking behav iour sheds light on tort l aw’s ends , then perhaps a
threefold conception of tort l aw is in order.
Keywords: I njunction; ex post remedy; tort of negligence; duty of ca re; rights-based tort
law
* Willem van Boom is professor of private law at t he Rot terdam Institute of Private Law, Erasmus
University Rotterdam, the Net herlands. is art icle was completed i n Februar y 2010; d evelopments
aer that date have not been included. e author wishes to express his gratitude to Benoit Allemeersch,
Caroline Cau man, Siewert Li ndenbergh and the anony mous reviewer, and the par ticipants of the Ius
Commune November 2009 Workshop for st imulating disc ussion and helpful com ments.
Comparative Note s on Injunction and Wrongfu l Risk-Taking
17 MJ 1 (2010) 11
§1. THE NOTORIOUS LUCIUS VERATIUS
Over the centuries, the case of Lucius Veratius has been the subject of some debate among
lawyers.1 e law of t he Twelve Tables provided that t he private penalty for causing
injury to a person was 25 as. e cruel and abundantly rich Lucius Veratius derived much
pleasure from going out into the streets, followed by his slave who carried a money purse,
and indiscriminately hitting innocent pa ssers-by. Lucius would insta ntly compensate
his v ictims, thus fully complying with his legal duties. Is this the way tort law should
work? e case of Lucius Veratius poses pertinent quest ions and unsurprisingly lawyers
through the centur ies have a sked themselves whether th is outcome wa s fair and just,
whether tort law should be considered merely as a tari or tax on wrongful behaviour
instead of a set of rules with preventive aspirat ions that provides for s ome remedy that
would actual ly help to prevent or stop the likes of Lucius in t heir hitting sprees.
Obviously, from a persp ective of prevention one could ask oneself whet her the ex
post penalty in tort for deliberate wrongdoing of Lucius should not be set at a punit ive
level to completely eradicate such wrongdoing. However, there is also an a lternative line
of enquiry which I set out to investigate in this paper: t he role of injunctive relief in tort
law. Designing mechanisms for injunctive relief i n cases concerning deliberate torts was
as daunting to the Romans as considering a n overarching conception of injuncti ve relief
in tort is to mo dern European legal systems. In order to better understand why such an
overarching conception is still lacking , this art icle sets out to survey the French, German
and English legal systems with respec t to the role of injunction in tort law. With the
comparative analysis t hus retained it may be possible to analyse the role of injunction in
a particu lar set of cases, namely cases concerning wrongful risk-taking behaviour. is
set may be apt to uncover force elds underlyi ng tort and injunction. Take for i nstance
an employer negligently in breach of an uncod ied duty of care vis-à-vis his employees
to refrai n from exposi ng them to certain risk s. Does such a breach warra nt injunctive
relief pet itioned for by t he employees? And if so, under which conditions? And if not ,
what does that tell us about the nat ure of duties of care in tort?
Admittedly, there seem s to be little practic al experience with i njunctive relief in the
set of cases I set out to investigate. Nevertheless, the implications of allowing or rejecting
such claims a re formidable. By granting pe titions for injunctive relief, court s eectively
convert ex post clai ms for compensation into primary duties to ac t or omit. By contrast,
rejecting injunct ive relief renders tort law rules into mere taxes on wrongfu l behaviour.
Which of these two routes is chosen by cour ts and legislators and how forceful a re the
arguments used to suppor t either choice? Drawing on t he comparative a nalysis, I will
attempt to identify t he implications of sustaining and disal lowing injunctive relief for
1 L. Holford-Stre vens, Aulus Gellius – An Antonine S cholar and His Achievement , (OUP, 2005), p. 127;
C. Bloch, La cessati on de l’ill icite – Recherche sur une fon ction mé connue de la responsabilit é civile
extracontrac tuelle (thèse Aix-Marseill e III), (Dalloz 2008), p. 19.
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